WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION number: 20100135 OBJECTION BY: Worker EMPLOYER: Not Participating HEARING DATE: N/A
ISSUE
The worker is objecting to the Case Manager’s decision dated November 26, 2009 which concluded the worker was not entitled to loss of earnings benefits effective August 12, 2009 as the worker was capable of returning to work without restrictions.
HOW THE ISSUE ARISES
The worker, then 45 years old, with the employer since October 14, 2006 was working as a drywall sander at the time of his injury. On March 30, 2009 the worker missed a step and fell down some stairs injuring his left leg.
The worker sought medical attention at a local hospital and was diagnosed with a fracture of the left tibia. The worker underwent surgical repair of the fracture on March 30, 2009. The worker’s condition improved and he began physiotherapy on May 4, 2009.
The worker continued to attend physiotherapy treatment and on June 22, 2009 the physiotherapist requested an extension of treatment from July 6, 2009 until August 7, 2009. The worker completed treatment on August 7, 2009. The physiotherapist completed a functional ability form (FAF) on August 11, 2009 advising the worker was capable of return to work without restrictions.
The Case Manager reviewed the claim file and authorized entitlement to loss of earnings benefits until August 12, 2009 based on the medical reporting on file. The worker contacted the Case Manager and advised he had attempted to return to work but was unable to continue due to swelling in his knee. The worker consulted the specialist on November 16, 2009 and the specialist provided an updated medical report confirming the worker was capable of returning to work.
The Case Manager, in her letter dated November 26, 2009, concluded the worker was capable of returning to work effective August 12, 2009. The worker objected to this decision.
AUTHORITY
Operational Policy Manual Documents:
Policy 11-01-01 Adjudicative Process
Policy 11-02-02 Lost Time Claims
Policy 18-03-02 Payment of LOE Benefits
RESOLUTION METHOD AND PROCESS
The worker returned the 60 Day Option Letter requesting a decision based on the claim file record. I spoke with the worker on June 30, 2010 and confirmed he did not seek further medical attention from August 11, 2009 until he saw the specialist on November 16, 2009.
ASSESSMENT OF THE EVIDENCE
In reaching my conclusion I considered the claim file record, and the relevant policy and legislation.
Policy 18-03-02 states in part:
Law A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of
- the day on which the worker’s loss of earnings ceases
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
- two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
- the day on which the worker is no longer impaired as a result of the injury.
Payment of full LOE Treatment with no return to work If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker’s LOE benefits.
Analysis
The worker injured his left leg on March 30, 2009 when he missed a step and fell down some stairs at work. The worker underwent surgical repair of the fracture on March 30, 2009.
The worker’s condition improved and he began physiotherapy on May 4, 2009. The worker’s condition further improved and the physiotherapist, in his report dated July 6, 2009 advised the worker was capable of activities with precautions. The worker remained off work as the employer was unable to accommodate the worker’s precautions.
The worker continued physiotherapy treatment until August 7, 2009 and was discharged from treatment. The physiotherapist, in his report dated August 11, 2009, based on an assessment on August 11, 2009 advised the worker was capable of returning to work without restrictions.
The worker contacted the case worker to advise he attempted to return to work but was unable to continue due to continued problems with his left leg. The nurse consultant, as per memo # 26 dated September 10, 2009, advised the physiotherapist contacted her to advise the worker had been discharged from treatment effective August 7, 2009. The physiotherapist further advised the worker had returned for further treatment complaining of swelling in his leg. The physiotherapist reported he did not notice any swelling and referred the worker to the specialist for further assessment.
The worker saw the specialist on November 16, 2009. The specialist completed a progress report the same day confirming the worker was capable of returning to work without precautions.
The worker claimed he was unable to return to regular duties effective August 12, 2009 and that he was only capable of returning to regular work effective November 16, 2009. I appreciate the worker claimed to have been only able to return to light duties effective August 12, 2009 and to regular work effective November 16, 2009, however, I place greater weight and am more persuaded by the following:
- The physiotherapist’s progress report dated August 11, 2009, based on an assessment the same day, and signed by the worker confirmed the worker was capable of activities without restrictions and was capable of returning to work.
- The physiotherapist confirmed the worker returned for further treatment complaining of further problems, however, the physiotherapist was unable to confirm the worker’s complaint and referred the worker to the specialist.
- The worker did not seek any other medical attention from August 11, 2009 until November 16, 2009.
I find the worker was capable of returning to work effective August 12, 2009 without restrictions noting the physiotherapist’s report dated August 11, 2009. I find insufficient evidence to support the worker was unable to perform his regular work from August 12, 2009 until assessed by the specialist on November 16, 2009
CONCLUSION
I conclude the worker was capable of returning to work without restrictions as of August 12, 2009. I further conclude the worker is not entitled to loss of earnings benefits effective August 12, 2009.
The worker’s objection is denied.
DATED June 30, 2010
D. Duguay
Appeals Resolution Officer
Appeals Branch