WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110002
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVEs: Worker Representative, Employer Representative
ISSUE
The employer's representative defined the issue as an objection to the payment of Loss of Earnings (LOE) benefits June 5, 2009 to July 4, 2009.
HOW THE ISSUE ARISES
This then mining raise leader (DOB May 12, 1974) on January 26, 2009 was struck in the left hand by a piece of rock. Medical reporting provided a diagnosis of crush injury/fracture through the distal phalanx left thumb including laceration extending from the dorsal aspect at the IP crease from the ulnar side extending across to the radial base of the nail bed. Treatment consisted of open reduction and internal fixation. Entitlement was accepted for health care benefits as the employer provided a suitable occupation.
In June 2009 the worker was laid off and following inquiries, as delineated in the Case Manager's correspondence dated June 8, 2009 and June 24, 2009 Loss of Earnings (LOE) benefits were awarded as at the time of the layoff, the worker was on modified duties. The employer is not in agreement and this is the issue for determination.
RESOLUTION METHOD & PROCESS
The employer's representative submitted a 60 day Decision Option form dated January 26, 2011.
ASSESSMENT OF EVIDENCE
The Appeals Resolution Officer has considered the information on record.
Operational Policy Document 18-03-02(As it read December 1, 2010) - 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 benefits.
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."
Operational Policy Document 15-06-03 addresses Entitlement Following Work Disruptions: Permanent Layoffs.
The Policy indicates when a worker is laid off with no chance of recall, the work disruption is considered permanent.
A worker who is unable to continue working due to a permanent layoff and whose employability is clearly affected by the work-related impairment and associated restrictions may qualify for
- Additional loss of earnings
- Labour market re-entry services
In this case the worker on January 26, 2009 sustained a fractured right thumb, requiring open reduction and internal fixation, which resulting in a functional/physical impairment assessed (February 2010) to be 5%.
Subsequent to the work accident, the worker was provided with suitable modified employment while undergoing occupational therapy.
The worker was subsequently permanently laid off June 3, 2009. As documented in the accident employer representative's correspondence dated December 14, 2010, the worker "had regular modified duties until he could be assessed and permanent limitations identified."
The worker underwent a pre-scheduled assessment at the Toronto Western Hospital Hand Speciality Program on June 12, 2009. The assessing physician, following the examination concluded the worker was capable of modified employment, specifically moderate to heavy self paced activities with no use of vibratory equipment. A return to the pre-accident duties as a full Miner/Raise Leader was not recommended as the duties posed a risk for exacerbation of pain symptoms.
The Appeals Resolution officer notes no evidence has been advanced to dispute the findings of the Hand Speciality Program, which clearly supported the need for continued modified duties.
The worker at the time of the layoff, though not in receipt of benefits, was performing modified duties (accommodated) and undergoing a medical rehabilitation program at the direction of his treating surgeon, with regular follow-ups.
Medical reporting dated April 8th, 23rd 2009 and May 21st, 2009 document, though the fracture/laceration was improving, the worker continued to require modified duties.
The appeals resolution officer notes, based on the medical documentation, the injury posed an obstacle for the worker in returning to work and should be commended for locating alternative employment.
CONCLUSION
In the judgement of the Appeals Resolution Officer, the worker's employability was clearly affected by the work-related impairment and associated restrictions related to the significant right thumb injury. Under the circumstances, the Case Manger correctly restored LOE benefits June 4th, 2009 to July 6th, 2009 when the worker located alternative employment.
The employer's objection is therefore denied.
DATED February 22, 2011
M. De Marco
Appeals Resolution Officer
Appeals Branch