Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100177
Objection By: Worker
Employer: Participating
Representatives: Employer
Issues
The worker requests:
Recognition that her accident-related impairments precluded a return to work in any capacity from April 7, 2010 to April 12, 2010.
The payment of full loss of earnings (LOE) benefits from April 7, 2010 to April 12, 2010.
How the Issues Arise
This claim recognizes a workplace accident on March 26, 2010, in which the worker received lacerations to the tips of her right index and middle fingers. She received emergency care at a local hospital on the same day and came under the care of her family doctor as of March 29, 2010. This doctor directed the worker away from the workplace until he removed the stitches on April 6, 2010.
The employer wanted to offer the worker accommodated work duties (using the left upper extremity only) as soon as the family doctor cleared her for such work. On April 6, 2010, the doctor removed the stitches from her fingers; he noted good healing and intensified sensitivity at the ends of the fingers. The family doctor recommended the worker desist from any work duties until April 12, 2010 because of the sensitivity and pain she continued to experience. He also approved a return to work duties using only her left upper extremity as of that date.
The operating area considered the worker's circumstances and concluded she could have attempted the accommodated work duties suggested as of April 7, 2010. The case manager advised the workplace parties of this decision through her letter of April 12, 2010. The worker objected to the decision on April 16, 2010; she submitted an objection form on May 18, 2010 and the operating area referred the issues to the Appeals Branch on June 14, 2010.
Authority
Operational Policy Manual documents:
- 18-03-02 Payment of LOE Benefits
- 19-02-01 Early and Safe Return to Work (ESRTW) –Overview
- 19-02-02 The Goal of ESRTW and the Roles of the Parties
- 19-02-03 Workplace Party Co-operation
- 19-02-04 Functional Abilities Form for Planning Early and Safe Return to Work
- 22-01-03 Workers' Co-operation Obligations
Resolution Method and Process
On July 6, 2010, the worker requested an expedited 60-day decision-making process for her appeal. She understood that this process involves a review of the file documentary evidence only. The employer's representative also endorsed the 60-day decision-making process for the appeal.
Assessment of the Evidence
The operating area case manager believes that the objective medical evidence supports the worker's ability to commence the accommodated work duties offered by the employer as of April 7, 2010. She notes that the employer had work duties the worker could perform using her left upper extremity only; the right finger lacerations were healing and the intensified sensitivity should not preclude a return to work.
The worker reported that she continued to have significant pain levels; her family doctor had prescribed Percocet for the pain and she could still not tie up her shoes or do any writing with her right hand. The worker also feels that the employer and the operating area rushed her return to work and she should not be penalized for following the directions of her family doctor.
The operating area case manager refers to evidence based medical guidelines for minor and major lacerations in expecting the worker to return to work as soon as April 7, 2010. She considered appropriate timeframes - no absence for minor lacerations with clerical or accommodated work duties and up to 21 day for major lacerations with heavy manual work duties and accommodated manual work duties.
The worker has been a production associate for the employer since August 25, 2004. These work duties are at least moderately heavy in nature and I understand that the employer did not expect her to attempt these work duties immediately after the workplace accident or as of April 7, 2010. The employer told the case manager it was offering the worker work duties requiring her to walk around the plant picking up gloves and sorting small parts. It believed she could perform the work duties using solely her left upper extremity.
Such work duties certainly appear reasonable once the family doctor has cleared the worker to undertake them. However, he did not direct the worker to attempt the accommodated work duties until April 12, 2010. He believed the pain and sensitivity associated with the worker's right finger injuries precluded a return to work until then. The operating area has chosen to override his opinion and the question is whether there is good reason to do so.
Regardless of anticipated recovery times set out in any guidelines, they remain just that – guidelines. Each individual has their own unique response to injury and their residual pain and rate of recovery will not necessarily follow a pre-set pattern. To disregard the family doctor direction and invalidate this worker's pain experience in these circumstances is not reasonable. She was less than two weeks removed from the lacerating injuries to her right index and middle fingers. Pain and sensitivity is a reality in lacerating injuries to the hands because they contain an enhanced number of nerve endings compared to other areas of the body.
In my view, the evidence as a whole does not support the conclusions of the operating area. The worker will receive full LOE benefits from April 7, 2010 to April 12, 2010. I have no documentary evidence that confirms the worker's medical or return to work status beyond that date. Any potential issues after April 12, 2010 are remitted to the operating area to determine.
Conclusion
I conclude that:
To disregard the family doctor direction and invalidate this worker's pain experience in these circumstances is not reasonable.
The worker will receive full LOE benefits from April 7, 2010 to April 12, 2010.
I have no documentary evidence that confirms the worker's medical or return to work status beyond that date.
Any potential issues after April 12, 2010 are remitted to the operating area to determine.
The worker's objection is allowed.
DATED August 31, 2010
L. J. Vaccarello Appeals Resolution Officer Appeals Branch