WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100144
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
HEARING DATE: August 4, 2010
ATTENDEES: Worker, Worker Representative
ISSUE
The worker representative, on behalf of the worker, is requesting entitlement to full loss of earnings benefits from August 11, 2008 to September 8, 2008.
HOW THE ISSUE ARISES
On July 16, 2008 this worker while employed as a Registered Practical Nurse, she was helping a patient and was grabbed by both wrists and sustained a right hand and elbow strain. The worker sought medical attention and was diagnosed with bilateral wrist strain. The worker continued to work from July 16, 2008 to August 11, 2008 at which time she stopped working and returned to work on September 8, 2008. The case manager reviewed the information on file and concluded that there was sufficient evidence to support that the worker injured her bilateral wrists while in the course of employment on July 16, 2008.
In relation to entitlement to loss of earnings benefits during her absence from work from August 11, 2008, the case manager concluded that the medical evidence did not support time off work and the worker was able to work for four weeks performing her regular duties prior to her layoff from work. The case manager denied entitlement to loss of earnings benefits from August 11, 2008 to September 8, 2008. The case manager outlined the full particulars of the decision, in the correspondence dated July 31, 2009.
The worker objected to this decision, as result, the worker’s file was referred to the Appeals Branch. The worker representative requested an oral hearing. The employer chose not to participate in the appeal process.
AUTHORITY
WSIB Operational Policy Documents:
18-03-02- Payment of loss of earnings benefits
19-02-03- Workplace Party Co-operation
EXHIBITS
The worker gave oral testimony. The worker representative gave an oral presentation.
Worker’s testimony:
The worker testified that at the time of the injury she had been employed with the employer for 17 years as a Registered Practical Nurse. She sustained bilateral wrist injuries while performing modified duties related to a non-compensable motor vehicle accident. She was scheduled to return to regular duties on July 28, 2008.
Following the July 16, 2008 workplace accident, she did not continue with modified work as the work aggravated her wrists. She returned to her regular duties on July 21, 2008 and the work aggravated her wrists as her patients’ required total care.
On August 20, 2008 the worker contacted the employer in relation to returning to work. The employer told the worker that she needed to speak to the worker’s physician prior to allowing her to return to work. On August 22, 2002 the employer had still not spoken with the worker’s physician and would not allow the worker to return to work.
The worker met with the accident employer on August 28, 2008 regarding returning to work but modified work was not offered. She provided them with the August 18, 2008 FAF completed by her physician but the employer needed clarification regarding the walking restrictions. Since the employer needed clarification regarding the restrictions, the employer would not allow her to return to work.
She saw a physiatrist on September 5, 2008 and he advised her to avoid straining her wrists and her regular job would have aggravated her injuries. However due to financial reasons, she returned to work on September 8, 2008 and the doctor agreed to allow her to return. She returned to work on September 8, 2008 and continued to experience ongoing problems with the wrists and continued to use splints. Her wrist problem has yet to resolve but continues to perform her regular job. Her work schedule allows her to rest for 3-4 days in between shifts.
She received sick benefits during this period from August 11, 2008 to September 8, 2008.
ASSESSMENT OF THE EVIDENCE
It is the worker representative’s position that the worker is entitled to full loss of earnings benefits on the basis that although the medical evidence supports that she could have returned to modified work, there is no evidence the employer had modified work available based on the restrictions provided.
I have reviewed all of the evidence on record, oral testimony and oral presentation given at the hearing. I also considered the applicable WSIB Operational Policy document and relevant legislation. In assessing all of the evidence, I am satisfied that the worker is entitled to payment of loss of earnings benefits from August 11, 2008 to September 8, 2008. In reaching this decision, I noted and accepted the following:
This case was not adjudicated for entitlement to benefits until July 2009 (one year after the work related injury of July 2008). Initially the employer reported this injury as a recurrence under a prior Claim XXXXX467 for prior bilateral wrist injury as a result of an incident with a resident on June 9, 2002. This claim was initially allowed for health care benefits only for a repetitive strain injury but entitlement to loss of earnings benefits was denied on the basis that the employer had modified work available. The Appeals Branch decision dated October 23, 2003 granted entitlement to benefits from June 20, 2002 to July 15, 2003 when she returned to suitable employment.
The case manager in the decision dated July 31, 2009 accepted that the worker had a new incident on July 2008 and established a new claim in Claim XXXXX520.
The case manager concluded that there was no medical evidence to support that the worker required lost time from work. However, prior to the hearing the worker representative submitted a copy of the functional abilities evaluation dated August 18, 2008 and September 2, 2008 completed by the worker’s physician as well as a letter from the worker’s physician dated July 27, 2010 in response to a letter the worker representative sent him.
According to the functional abilities form dated August 18, 2008, the worker’s physician reported that the worker was considered capable of performing modified work with restrictions of limited arms and hands as a result of a sore wrist however; it also mentions restrictions of walking limitation of up to 100 meters. The worker provided the employer with the FAF dated August 18, 2008, however the employer was unclear of the need for the walking restriction. According to the facsimile dated August 20, 2008 from a registered nurse, from the employer asked the worker’s physician to clarify the walking restrictions. The worker met with the employer on August 28, 2008; however, the employer would not allow her to return to work until the restrictions were clarified.
In a letter from the employer, the Return to work Co-ordinator confirmed that modified work was not available for the worker on August 28, 2008. In her letter she stated the following:
“Occupational Health met with the worker, her manager and union today. The worker has been of work since August 11, 2008 and wants to return to work. The FAF ….. documents medical restrictions for work-related injury. ……Occupational health could not return the worker to work today as it is clear that restrictions should apply ….. The manager can and will accommodate the worker when she is ready to return from her injury. The RPN role in Long Term care is heavy….Please fill in the FAF with the worker present so that she can be returned to work safely for her sore wrist injury.”
The worker’s physician completed another FAF dated September 2, 2008 indicating that the worker would start full time duties effective September 8, 2008 with no restrictions.
The worker’s physician in reply to the representative’s letter dated July 22, 2010 reported that he authorized the time off work from August 11, 2008 visit at which time her right wrist was sore and he recommended that she stop working. He advised her to return to work on September 8, 2008.
The physician clarified that the pushing and pulling restrictions were for the sore arm and wrist however walking restrictions applied to a separate problem (non-compensable).
In assessing all of the evidence on file, I am satisfied that the worker was willing to return to suitable employment recommended by the doctor, however there is no evidence of any modified work offer until the restrictions were clarified in September 2008. The worker returned to work once the restrictions were clarified by her treating physician. As such, the worker is entitled to the payment of full loss of earnings benefits from August 11, 2008 to September 8, 2008.
CONCLUSION
The worker’s objection is granted.
The worker is entitled to the payment of full loss of earnings benefits from August 8, 2008 to September 11, 2008 less sickness and accident benefits received.
DATED September 8, 2010
T. Cerone
Appeals Resolution Officer
Appeals Branch