WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100155
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Employer Representative
ISSUE
The worker defined the issue as an objection to the suitability of the modified employment and denial of full Loss of Earnings (LOE) benefits April 16-26, 2010.
HOW THE ISSUES AROSE
This then 22 year old baker/cake decorator on February 26, 2010 developed an onset of right shoulder discomfort related to the nature of her work activities, specifically repetitive activities of cake decorating. The worker consulted a physiotherapist who advanced a diagnosis of repetitive strain.
Entitlement was accepted for healthcare benefits as no lost time was incurred and the employer provided modified duties.
The worker subsequently submitted a claim for Loss of Earnings (LOE) as of April 16, 2010 maintaining her physician authorized lost time. The Case Manager, following review, as delineated in the correspondence dated April 23, 2010 concluded LOE benefits were not warranted as the employer provided modified employment which did not compromise the worker’s restrictions. This is the issue for determination.
AUTHORITY
Operational Policy Document:
18-03-02 Payment of Loss of Earnings (LOE) Benefits
19-02-03 Early and Safe Return to Work
19-03-03 Determining Suitable Employment or Business
RESOLUTION METHOD & PROCESS
The worker submitted a 60 Day Decision Option Form dated September 24, 2010.
ASSESSMENT OF EVIDENCE
The Appeals Resolution Officer has considered the information on record.
It is the worker’s position; the modified position exceeded her physical capabilities as the duties were repetitive.
Operational Policy Document 18-03-02 speaks to the subject of “Payment of Loss of Earnings (LOE) Benefits.” The policy indicates a worker who experiences a LOE as a result of a work-related injury is entitled to LOE.
The guidelines attached to the policy indicate" 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 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."
The Policy also addresses the subject of suitable employment or business. Specifically, the policy guidelines indicate, if early and safe return to work activities are unsuccessful the Board will then provide the worker with a labour market re-entry assessment and possible labour market re-entry plan.
As outlined in Operational Policy Document 19-02-03 “Workplace Party Co-Operation”, if suitable and available employment is identified and the worker does not demonstrate a willingness to co-operate with the available employment, the worker’s benefits can either be adjusted or terminated.
The goal of early and safe return to work activities is to return the worker to suitable employment with the employer.
Operational Policy document 19-03-03 “Determining Suitable Employment or Business” defines suitable employment as work which the worker possesses the necessary transferable skills, is safe and within the worker’s functional abilities and reduces or eliminates the loss of earnings resulting from the injury.
Decision-makers in ruling on an individual's level of impairment must rely on the medical documentation submitted by the attending physician. Objective clinical findings must be provided and be clear as to an individual’s ability in either returning to work or alternatively support the worker's inability to undertake any type of work.
In this case, the worker on February 26, 2010 sustained a right shoulder injury diagnosed as a strain with minimal objective findings. The worker was provided suitable modified employment (memorandum 12) and worked in this capacity until April 7, 2010. The first indication that she was authorized off work is April 16, 2010.
A note from the physiotherapist dated March 17, 2010 simply documents that the worker is tender on palpation (subjective) with reduced strength.
A Functional Abilities Evaluation (FAE) dated March 30, 2010 indicates the worker is capable of modified duties. Restrictions included no overhead work or repetitive work, varied tasks with mini breaks and no lifting waist to shoulder which exceeds 5 lbs. Interestingly, despite the shoulder restrictions, the worker had no limitations on ladder climbing.
The worker’s physician in a note dated April 16, 2010 simply advises that the worker is to remain off work for a period of 10 days, however, no findings were provided and more importantly, there is no indication that he was informed of the availability of modified duties.
In the physician’s progress report dated April 16, 2010, the physician documents the worker’s complaints as increased arm pain with lifting and holding objects. Though documenting the worker presented with tenderness, range of motion and power was normal. He instructed the worker to avoid repetitive activities with the shoulder and lifting.
An ultrasound of the right shoulder April 19, 2010 revealed no abnormalities, with the rotator cuff being intact.
It is also noted, the worker was referred to the Sudbury Regional Hospital Regional Evaluation Centre for an assessment May 26, 2010. The assessment also failed to identify any “primary shoulder pathology.” The examination was reported as follows:
“On examination today, I find muscle bulk to be normal and symmetrical in the upper limbs and shoulders. There is full active painless range of motion if the shoulders today. There is no tenderness on palpation of the right rotator cuff. There is minimal and insignificant tenderness over the right AC joint but there is most tenderness along the right upper and middle trapezius.”
The assessing physician was of the opinion that there was no shoulder pathology, but rather, an upper trapezius strain, with a prognosis for a full recovery.
Though acknowledging the physician on April 16, 2010 authorized the worker off work, when considering the available medical documentation, it does not support total disability or an inability on the worker’s part to undertake suitable modified employment. Minimal objective findings have been identified from the onset and confirmed during the REC assessment in
May 2010
The employer demonstrated a willingness to provide suitable modified employment, employment which would not compromise the worker’s restrictions.
Reviewing the available medical documentation, clearly the worker was not totally disabled or limited in her abilities to undertake appropriate modified duties as a result of the right shoulder condition. Nor did the shoulder injury limit her ability to safely engage in suitable employment adhering to the restriction outlined in the above noted FAE and physician’s reporting
Based on the evidence, the modified employment which was made available fell within the definition of suitable employment as defined by the aforementioned policy.
The employer's offer of employment was bona fide; however, the worker did not demonstrate a willingness to co-operate as defined under Operational Policy Document 19-02-03.
CONCLUSION
In the judgement of the Appeals Resolution Officer, the worker is not entitled to LOE benefits for the period April 16-26, 2010 as the nature or seriousness of the injury did not completely prevent her from returning to any type of work. Medically the worker was partially impaired as related to the right shoulder, with suitable modified employment which the employer provided.
The worker’s objection is denied.
DATED October 22, 2010
M. De Marco
Appeals Resolution Officer
Appeals Branch