WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100134
OBJECTION BY: Worker
EMPLOYER: The Employer
HEARING DATE: September 28, 2010
ATTENDEES: Worker, Worker Representative, Employer,
Employer Representative, Observer
ISSUE
The worker is objecting to the adjudicator’s decision dated July 26, 2007 which denied entitlement to loss of earnings benefits’ concluding the worker was capable maintaining his regular salary performing the available modified duties.
HOW THE ISSUE ARISES
The worker, then 46 years old, employed with the Ottawa Hospital since January 26, 2001 was working as an Attendant-Processing at the time of his injury. On June 11, 2007 the worker was pushing a cart with his left arm and pulling another cart with his right arm when he felt a pain in his right shoulder.
The worker sought medical attention on June 13, 2007 at the Ottawa Hospital emergency department and was diagnosed as having suffered a right rotator cuff injury. The doctor advised the worker was to avoid using the right arm for one week and referred the worker for physiotherapy treatment. The worker saw his family doctor on June 13, 2007 who advised the worker was not fit for work and referred the worker to a specialist for further assessment. The family doctor also advised the worker could not drive to work and provided a medical note indicating the worker was to be off work from June 18, 2007 until June 23, 2007.
The worker contacted the adjudicator, prior to the claim being established by the WSIB, as per the memo # 1 dated June 21, 2007 to discuss his injury and his entitlement to loss of earnings (LOE) benefits. The worker confirmed the employer had offered modified duties, however, he felt he could not drive due to the medication and thus had not returned to work.
The worker was assessed by the physiotherapist on June 25, 2007 as per the report dated June 26, 2007. The physiotherapist noted worker was wearing a sling on his right shoulder and indicated the worker’s condition was too acute for diagnosis, possible diagnosis was rotator cuff pathology, possible biceps or internal derangement. The physiotherapist advised they would continue to assess the worker’s condition as the irritability subsided. The short-term goal was a return to work to modified duties and the long term goal was return to regular duties.
The adjudicator spoke with the employer on June 26, 2007 and confirmed the worker had returned to work June 25, 2007 delivering specimens to various areas. The worker contacted the adjudicator on June 27, 2007 confirming he had returned to work on June 25, 2007 and that the employer did not have much work for him to perform. The worker claimed he did not work on June 26, 2007 and saw his doctor on June 27, 2007. The worker confirmed his employer was offering modified duties to him.
The family doctor completed a FAF on June 27, 2007 advising the worker was to remain off work. The worker was assessed by a specialist on July 11, 2007 and diagnosed the worker as suffering from a right rotator cuff strain. The examination of the shoulder revealed restriction of abduction due to pain and the worker had a positive impingement sign.
The worker contacted the adjudicator on July 23, 2007 indicating he could not return to work as he could not drive to work. The worker also advised he could not work day shift due to issues with day care.
The adjudicator, in his letter dated July 26, 2007, concluded the worker was capable of returning to modified duties and denied entitlement to LOE benefits. 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
Policy 19-02-02 The Goal of ESRTW and the Roles of the Parties
Policy 19-02-03 Workplace party co-operation
ASSESSMENT OF THE EVIDENCE
In reaching my conclusion I considered the claim file record, the worker’s testimony, the worker representative submissions, the employer representative submissions and the relevant policy and legislation.
During the preliminary discussions the worker representative confirmed the worker was withdrawing the objection to adjudicator’s decision dated May 5, 2008 which denied neck entitlement and reimbursement for travel related to the worker’s travel to supply medical information to his employer.
Worker testimony
The worker testified on June 11, 2007 he was pushing a cart with his left hand and pulling a cart with his right hand when the wheels of the second cart jammed causing a pull to his right shoulder. The worker advised he reported the injury to his supervisor and sought medical attention at the emergency department that night.
The worker testified the emergency doctor gave him a prescription for pain medication and anti-inflammatory medication. The worker explained he was told to rest his shoulder, apply ice to reduce swelling and follow-up with his doctor in one week. The worker confirmed he saw his family doctor approximately one week later. The worker stated he was referred for physiotherapy treatment and to a specialist for further assessment.
The worker testified he saw the specialist, however, could not recall the details of this visit. The worker advised he continued to see his family doctor every two weeks following the injury and attended physiotherapy four times per week. The worker confirmed he recalled the physiotherapist requested extensions of treatment from the WSIB on two occasions.
The worker testified the pain at the time of the injury was severe and subsided with time. The worker confirmed he was prescribed Oxycontin medication, however, could not recall when he first started taking the medication. The worker explained he was initially prescribed Oxycontin 20 mg twice daily for pain, however, the amount of medication was increased until he achieved a plateau at 80 mg three times per day. The worker explained he currently takes Oxycontin 80 mg three times per day. The worker advised his doctor was aware the pain in his shoulder was the barrier to his return to work initially.
The worker testified he did not recall receiving the employer’s offer of modified work, however, confirmed someone at his home signed for the registered letter from the employer. The worker advised he was unable to return to work initially due to taking the Oxycontin medication explaining he felt disoriented, confused and tired due to the medication. The worker advised his doctor recommended he not drive noting the distance to get to work required he drive for approximately one hour. The worker confirmed he did drive his vehicle locally to go to the pharmacist to pick up his medication. The worker explained this was a five minute drive. The worker confirmed he did not have his driver’s license suspended due to the medication he was taking.
The worker testified he returned to work performing modified duties, however, he could not recall the date he returned to work. The worker also could not recall consulting a physiotherapist at the hospital where he works.
The worker testified he continued to see his family doctor on a monthly basis due to ongoing problems with his right shoulder. The worker advised his doctor recently prescribed a TENS unit. The worker confirmed he returned to his regular duties following his return to modified duties, however, he could not recall when this occurred.
The worker testified he sustained an injury approximately one week prior to the hearing and advised the employer did not offer modified duties, however, he confirmed he is aware the employer has a modified work program. The worker confirmed he had suffered an injury previous to the June 11,