WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100197
OBJECTION BY: Worker, Employer
WORKER: Participating
EMPLOYER: Participating
HEARING DATE: August 19, 2010
ATTENDEES: Worker, Employer, Worker representative, Employer Representative, Employer Resource, Interpreter
ISSUES
The employer requests:
Recognition that the worker was able to undertake accommodated work duties during the period April 13, 2006 to May 12, 2006.
The rescinding of the loss of earnings (LOE) benefits provided to the worker for this period of time and an appropriate adjustment to its accident cost record.
The worker requests:
Recognition that his accident-related impairments precluded a return to work in any capacity for the period April 13, 2006 to May 12, 2006.
That the overpayment of LOE benefits created for the period April 28, 2006 to May 12, 2006 be made unrecoverable.
HOW THE ISSUES AROSE
This claim recognizes a workplace accident on April 12, 2006, in which the worker received injuries to the left side of his face. The attending health care practitioners diagnosed soft tissue injuries with haematoma and possible concussion. They chose to treat the conditions with pain medication, ice packs, removal from the workplace and eventually approved a return to accommodated work duties as of May 12, 2006.
The employer objected to the payment of any LOE benefits noting that it had accommodated work duties available at no loss in earnings as of April 13, 2006. It had offered these to the worker verbally through a Mandarin interpreter and in writing. As the worker had not responded to its enquiries, he had no co-operated in his early and safe return to work (ESRTW).
The operating area initially accepted the employer's viewpoint and it allowed the claim for health care benefits only. The claims adjudicator advised the workplace parties of this decision through his letter of May 31, 2006. The worker and his representative objected to this decision and provided additional information for consideration.
The operating area reviewed the matter; it noted the family doctor had authorized the worker away from the workplace due to headaches and dizziness and approved LOE benefits from April 13, 2006 to May 11, 2006. The claims adjudicator advised the workplace parties of this decision through his letter of November 16, 2006.
The employer expressed it concerns over the further decision and requested Second Injury and Enhancement Fund (SIEF) cost relief. In a decision dated January 11, 2007, the claims adjudicator confirmed the decision to provide LOE benefits as correct and denied the request for SIEF cost relief. The employer objected to this decision; it provided an objection form on October 20, 2008 and the operating area referred the issues to the Appeals Branch on
July 21, 2009.
The operating area conducted a further review of the employer's objection on September 1, 2009 after a discussion with its representative. It concluded that the medical evidence supported the worker's ability to undertake accommodated work duties after the assessment by the neurologist on April 27, 2006. The operating area rescinded the LOE benefits provided from April 28, 2006 to May 12, 2006 and made the resulting benefit overpayment recoverable from any future benefit payments.
The worker's representative objected to the decision made about LOE benefit payment on September 10, 2009. The employer's representative provided an objection form to the operating area on October 6, 2009 regarding the LOE benefit payment it had re affirmed for the period April 13, 2006 to April 27, 2006.
AUTHORITY
Operational Policy Manual documents:
18-01-04 Recovery of Benefit-Related Debts
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
19-02-05 Resources and Evaluations
22-01-03 Workers' Co-operation Obligations
ASSESSMENT OF THE EVIDENCE
The worker provided testimony at the hearing about:
Falling in the workplace on April 12, 2006 and injuring the left side of his head.
The employer arranging for him to attend a local hospital after the plant nurse provided first aid; the hospital not having any staff who spoke Mandarin but the plant nurse had sent an explanatory note with him.
Leaving the hospital to see his family doctor after the review at the hospital.
His family doctor directing him away from the workplace; seeing him on a weekly basis thereafter and the doctor not approving a return to work until May 12, 2006, because of the headaches and dizziness he was experiencing during this time.
The family doctor prescribing pain medication and rest at home as a means to recover from the head injury.
Still not feeling well enough to consider accommodated work duties at the point he saw the neurologist on April 27, 2006.
Understanding that the employer had accommodated work duties for him as of April 13, 2006; that the workplace parties are to co-operate in ESRTW but not feeling well enough to attempt any work duties.
Dropping off medical notes from his family doctor to the employer during his time off work.
Using either public transit or receiving a ride from a friend at these times and even when attending the medical reviews.
Having a personal motor vehicle but not using it at all during the period in question at the advice of his family doctor.
The employer's workplace having many meat cutting machines in operation and the environment being quite noisy.
How the workers in the plant have the option of using ear plugs or a head set for noise reduction purposes.
Personally using both types of ear protection on a regular basis in the employer's workplace.
Being a patient of his family doctor since 2000; having a good relationship with him and trusting his judgement.
Having prior workplace injuries involving LOE and offers of accommodated work duties and accepting the offers of work, as he felt able to do so at these times.
The employer's representative submits that the objective medical evidence does not support the worker's need to leave the workplace after his head injury on April 13, 2006. The functional abilities forms for planning early and safe return to work (FAF) completed by the family doctor only provide precautions on heavy lifting and the accommodated work duties offered by the employer did not require this activity.
The employer's representative also notes that plant nurse found no evidence of serious head injury on April 12, 2006. The family doctor directed the worker away from the workplace because of the headaches and dizziness he experienced after the date of accident. He also advised him not to drive his motor vehicle but there is no evidence he reported this situation to the appropriate provincial ministry. It is difficult to believe that these problems precluded a return to work before May 12, 2006.
The worker has acknowledged receiving the offer of accommodated work duties and understanding their requirements. Yet, he insists that he could not work in any capacity during the period in question and this essentially constitutes non-co-operation on his part. For these reasons, the employer's representative requests the allowance of the employer's appeal.
The worker's representative submits that the worker followed the correct reporting, medical and ESRTW protocols after injuring his head in a workplace accident on April 12, 2006. The staff at the hospital could not communicate with him properly; however, they had the note from the plant nurse, explaining the injury. The hospital staff applied ice to the area; they provided Tylenol for pain and referred him to his family doctor for follow-up care.
The family doctor assessed the worker on the same day and directed him away from the workplace for three days subject to further assessment. On April 15, 2006, the family doctor provided a diagnosis of mild post-concussive syndrome; he affirms the need to stay at home and maintains follow-up on April 20, 2006. On this latter date, the family doctor also notes vertigo and continued to support the worker's removal from the workplace.
The employer did make a specific offer of accommodated work duties by letter on April 17, 2006 but the worker was not able to attempt these because of the headaches and dizziness he was experiencing. When the worker saw the neurologist on April 27, 2006, he still had some light headiness and it important to note the specialist made no recommendation for a return to work and left this decision to the family doctor. For these reasons, the worker's representative asks that the employer's appeal fail and that of the worker succeed.
I have considered the file evidence, the worker's testimony and the arguments put forth by the representatives. I accept that the employer has a proper ESRTW program in place and that it made its offer of accommodated work duties in good faith. I understand that it has concerns with the period of time the worker needed to recover from a minor head injury and questions why he could not have at least the attempted the accommodated work duties before his return to regular work on May 12, 2006.
However, I do not accept the assertion that minor head trauma cannot result in debilitating headaches and dizziness. The medical community as a whole has come to accept that head injuries can have serious repercussions no matter how inconsequential the external damage appears. It is the impact to the brain inside the skull that causes the post-concussive symptoms.
The medical protocol for head injuries requires the health care practitioners to take a "wait and see" approach and to rely on the patient's symptom reporting to guide the treatment and precautions required. In the worker's case, the family doctor chose to take the worker out of the workplace entirely until his headaches and dizziness subsided. The fact that the workplace is a noisy environment is also good reason to take such an approach.
The worker has had prior experience with workplace injuries and is aware of his ESRTW obligations. Apparently, he has co-operated in ESRTW in the past, when he felt able to do so. I do not consider his decision to follow the advice of his family doctor in this instance to constitute non-co-operation, as the employer's representative has suggested. I also have no reason to doubt the judgement of the family doctor who seems to have taken the conservative approach currently recommended for head injuries.
As such, I conclude that the worker's accident-related impairments precluded a return to work in any capacity for the period April 13, 2006 to May 12, 2006. The operating area will re-instate the LOE benefits it has rescinded for the period April 28, 2006 to May 12, 2006.
CONCLUSION
I conclude that:
The worker's accident-related impairments precluded a return to work in any capacity for the period April 13, 2006 to May 12, 2006.
The operating area will re-instate the LOE benefits it has rescinded for the period April 28, 2006 to May 12, 2006.
The employer's objection is denied and the worker's objection is allowed.
DATED August 31, 2010
L. J. Vaccarello
Appeals Resolution Officer
Appeals Branch