WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20110005
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative, Employer, Employer’s representative
HEARING DATE: N/A
ISSUE
The worker is objecting to the case manager’s (CM) decision of December 9, 2009 denying full loss of earnings (LOE) benefits beyond November 16, 2009.
HOW THE ISSUE ARISES
This right hand dominant machine operator began working for the employer in 2009. On October 1, 2009, the worker was moving a bin, when a chain broke and struck him on the right thumb. He was immediately taken to Humber River Hospital Emergency, where an x-ray showed an avulsion fracture at the base of the distal phalanx of the right thumb. The fracture was reduced and the wound was cleaned and sutured. The worker immediately lost time from work following the accident and began receiving full LOE benefits.
The worker attended physiotherapy treatment from October 15, 2009 until February 22, 2010, twice a week for two hours per day.
The employer offered the worker modified work and sent a letter dated October 19, 2009 requesting the worker return to modified work that would require the use of his uninjured left hand only. The worker declined the modified work offered by his employer, due to the pain he was experiencing.
On November 6, 2009 the worker was seen by a physician at Humber River Hospital who recommended six weeks of immobilization and three months of physiotherapy treatment with no return to work until December 2009.
On November 12, 2009 the worker attended a meeting with the return to work (RTW) specialist at the work site, to review the modified work offered by the employer. The RTW specialist determined the modified work offered was suitable, as it would not require the worker to use his injured right hand. The employer also offered to provide transportation to and from work, and offered the worker a choice of his work hours. The worker declined the modified work indicating he was totally impaired.
The CM sent the worker a letter dated December 9, 2009 advising the worker that his LOE benefits were discontinued as of November 16, 2009, as modified work was available with the employer and he chose not to return to the suitable work. The worker objected to the CM’s decision denying LOE benefits from November 16, 2009. The worker representative sent in a further objection to the denial of full LOE benefits, as per his letter of December 17, 2010 requesting full LOE benefits be paid until August 2, 2010, when the worker returned to full regular work with the employer.
This is the matter currently before the Appeals Branch.
AUTHORITY
Operational Policies:
11-01-01 Adjudicative Process
18-03-02 Payment and Reviewing Loss of Earnings Benefits
19-02-03 Early and Safe Return to Work
19-04-06 Suitable Employment
RESOLUTION METHOD AND PROCESS
The worker’s representative requested a decision based on the information contained on the record, along with a written submission dated December 17, 2010. The employer’s representative also provided a written submission dated January 5, 2011.
ASSESSMENT OF THE EVIDENCE
I have considered the record, the worker’s representative’s submission, the worker’s representative and employer’s position and the relevant policies. I conclude the balance of evidence supports that the worker was medically fit to participate in the modified duties offered by the employer, commencing November 16, 2009. However, as the CM did not provide the worker with a written decision letter until December 9, 2009, I also conclude that the worker is entitled to full LOE benefits from November 16, 2009 until December 9, 2009, which is the date the worker was notified in writing of the CM’s decision to limit entitlement to his LOE benefits. The following is a summary of my observations and assessment of the evidence in reaching my conclusion.
On October 1, 2009 the worker indicated he was moving a bin when a chain came out from the bin and struck him on the right thumb of his dominant hand. Immediately following the accident, he was taken to Humber River Regional Hospital where investigations of his right hand were completed.
A right thumb x-ray report confirmed the worker sustained an avulsion fracture at the base of the distal phalanx of the right thumb; however, the fracture did not extend into the joint space.
The family physician provided the worker with a medical note indicating the worker would be off work for one week, starting October 19, 2009. The CM paid the worker full LOE benefits from the date of accident, as the worker continued to lose time from work.
On October 19, 2009 the employer provided the worker with a written offer of modified work available with the company that involved the use of the worker’s uninjured left hand only.
An October 23, 2009 a medical report from the physician at Humber River Regional Hospital indicated the worker required aggressive physiotherapy treatment and advised the worker not use his right hand, for one month. The doctor stated following the one month period, he should be able to return to work.
In a letter dated November 6, 2009 the worker refused the modified work offered by the employer and indicated that he was in serious pain and was unable to do his own daily self-care tasks and as such, he was not fit to return to any work.
On November 6, 2009 the worker was seen by the hospital physician, who indicated the worker had stiffness and pain in the right thumb and required 3 months of physiotherapy treatment, before allowing any use of the right hand. He stated the worker could start modified duties in December 2009. The worker commenced physiotherapy treatment on November 12, 2009.
On November 12, 2009 the worker attended a meeting with the return to work (RTW) specialist at the work site, to review the modified work offered by the employer. The RTW specialist determined the modified work offered to the worker was suitable, as it did not involve work using the injured right hand. The employer also offered to provide transportation to and from work and offered the worker a choice of his work hours. The worker declined the employer’s offer of modified work indicating he was totally impaired.
On December 9, 2009 the CM determined the modified duties offered by the employer were suitable and sent the worker a decision letter dated December 9, 2009, advising the worker his LOE benefits were discontinued, as of November 16, 2009.
The worker attended a follow-up appointment with the physician at the hospital on December 4, 2009. In the physician’s report, he indicated the worker’s range of motion (ROM) was improving, but he continued to have ongoing pain and requested the worker be referred to the WSIB Hand Clinic for treatment and pain management.
On January 25, 2010 the worker was seen in the WSIB Hand Specialty Clinic by Dr. Binhammer, Plastic Surgeon, who diagnosed a right D1 intraarticular IP joint proximal phalanx fracture, along with post-traumatic arthritis, stiffness, pain, paresthesias in the scar and right D2 post-traumatic stiffness. He recommended the worker have a glove assessment and participate in a Comprehensive Occupational Rehabilitation Program (CORP). Dr. Binhammer stated that he did not expect an increase in ROM of the right D1 IP joint. He also stated if the worker’s pain persisted, the worker could benefit from a joint fusion.
On February 22, 2010 the worker attended the CORP assessment, where it was recommended he attend a work hardening program 5 times per week for 8-12 weeks.
As part of the multidisciplinary assessment at the Hand Specialty Clinic, the worker participated in a Psychological Screening Assessment on February 24, 2010 with the assistance of an interpreter. Following the assessment, the psychologist suggested the worker would benefit from eight to twelve sessions of psychological treatment that would address his psychological symptoms, pain management and injury adjustment, along with a physical rehabilitation program to address and improve functional issues.
The March 29, 2010 the Occupational Rehabilitation Progress Report indicated the worker had made progress after attending the CORP therapy, including improvement in material handling, right hand grip strength and ROM. It was recommended that an additional four weeks of daily conditioning be provided, so further gains could be achieved.
On May 7, 2010 the RTW consultant from the Hand Specialty Clinic noted that the April 27, 2010 progress assessment from CORP indicated that the worker was fit to return to work within sedentary-light level strength level work. The worker was to begin a graduated return to work plan. The employer agreed to a workplace meeting on May 13, 2010 with the RTW consultant and worker, as modified work remained available. However, the worker stated he was leaving the country, on a trip to Pakistan, from June 6, 2010 until July 25, 2010. Therefore, the return to work meeting was deferred until the worker returned home from his trip.
Dr. Binhammer saw the worker for a follow-up assessment on May 19, 2010 and indicated a permanent impairment was evident for the worker’s right thumb injury. Further treatment at the Hand Clinic was no longer recommended. However, the worker was again given the option of the IP joint fusion surgery that could assist in minimizing his pain. The worker stated he would consider the surgery after his trip.
The May 25, 2010 discharge report from the Hand Specialty Clinic, recommended the RTW coordinator arrange a return to work plan, as the worker was medically able to begin suitable modified work at graduated hours. However, as was previously indicated the worker was going out of the country and as such, these arrangements were to be made upon his return.
The CM paid the worker partial LOE benefits for 3 hrs per day, while he participated in the Hand Specialty Clinic treatment from February 22, 2010 until May 29, 2010, at which time the physical therapy treatment was completed and the worker declined the modified work offered due to personal reasons.
A psychological discharge report dated May 31, 2010 indicated that although the worker had made good improvement; the worker’s pain disorder diagnosis remained, however, the related mood issues appeared resolved. The psychologist confirmed there were no psychological restrictions.
The worker returned from his trip and on July 29, 2010 attended the work site visit at the employer’s premises, along with the RTW consultant. It was determined that the worker was able to return to work as a machine operator on Line #4, on a graduated RTW plan starting on August 2, 2010. He would be working six hours per shift for five days a week, within the specified duties. These duties included assisting with cleaning, monitoring, adjusting Line #4, assisting with light material handling, packing/packaging, and machine operations within the outlined restrictions.
The worker agreed and received partial LOE benefits from August 2, 2010 until August 13, 2010 based on the RTW plan. A follow-up meeting occurred on August 19, 2010 with the RTW consultant regarding the modified duties being performed. At this meeting, the RTW consultant concluded the worker could maintain full time hours with the current duties he was performing, as a machine operator with the employer.
On October 20, 2010 the CM determined an accident related permanent impairment of the worker’s right thumb resulted from the October 1, 2009 accident, and referred the worker for a non-economic loss (NEL) assessment.
The worker’s representative submitted a letter dated December 17, 2010 to the Appeals Branch indicating that although the worker was out of the country for one month, he requested LOE benefits be considered, noting the trip helped the worker heal and get his pain under control, in order to avoid surgery. The representative stated upon the worker’s return home, he contacted his employer and on August 2, 2010 returned to modified duties at modified hours, before returning to regular duties in the middle of August 2010. The representative confirmed the worker continued to work regular duties and was managing the work.
The employer’s representative submitted a letter dated January 5, 2011 to the Appeals Branch confirming the availability of modified work with the employer from October 2009 and requested no further LOE benefits be considered.
On January 6, 2011, the worker was granted a 6% NEL award for his right thumb.
WSIB Operational Policy Document 19-02-02 outlines the goals and roles of the workplace parties in the return to work process following a workplace injury. It states in part:
The goal of the early and safe return to work (ESRTW) process is to return the worker to employment that is suitable and available, and if possible, restores the worker’s earnings.
The policy also defines suitable work, as work that:
- is within the worker's functional abilities
- the worker has, or is able to acquire, the necessary skills to perform
- does not pose a health or safety risk to the worker or coworkers, and
- if possible, restores the worker's earnings.
I find that although the worker was fully cooperating in his medical rehabilitation, the medical information on the record does not support that he was totally impaired and not medically fit to return to any work in November 2009. The functional abilities form dated November 12, 2009 from the occupational therapist provided medical restrictions for the right hand, for return to work purposes, confirming the worker was not totally disabled as the worker suggested.
I also find the modified duties offered by the employer are suitable, noting the modified work offered did not require the use of the worker’s injured right hand to perform. The work was also reviewed by the RTW specialist, at the employer’s work-site visit of November 12, 2009, and the work was confirmed to be within the worker’s functional abilities. The employer attempted to make many accommodations, in order to assist with the return to work process, including offering transportation to the worker to and from work, and providing the worker with a change of work hours to accommodate his medical rehabilitation.
The worker’s representative requested LOE benefits be considered during the period the worker was out of country, as it assisted him in his recovery. I find there is no medical evidence on the record to support this. However, I find the medical information on record does confirm the worker was medically able to return to the modified duties following his discharge from treatment on May 29, 2010, but he delayed his return to work as he left the country for personal reasons. He therefore, did not participate in the return to modified work plan, until August 2, 2010 following his return to the country.
CONCLUSION
I conclude
The worker is entitled to full LOE benefits from November 16, 2009 until December 9, 2009 the date of the CM’s decision letter advising the worker of the reduction of his LOE benefits.
The worker is not entitled to LOE benefits after December 9, 2009 beyond the partial LOE benefits he has already received from February 22, 2010 until May 29, 2010 and from August 2, 2010 until August 13, 2010.
The worker’s objection is allowed in part.
DATED January 25, 2011
N. Glyn-Williams
Appeals Resolution Officer
Appeals Branch