WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110018
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative, Employer, Employer’s representative
HEARING LOCATION: N/A
ISSUE
The worker objects to the case manager decision of August 5, 2010 and is appealing for full loss of earnings (LOE) benefits from May 24, 2010 until May 31, 2010.
HOW THE ISSUE ARISES
A Workplace Safety and Insurance Board (WSIB) claim was established for this 38 year old (born 1972) cook who sustained a sudden onset of sharp right shoulder pain, on May 18, 2010, as she lifted a 50 lbs pot of oatmeal off the stove top. The worker sought immediate medical attention at an emergency clinic where she was diagnosed with right shoulder/neck strain. She was treated conservatively and advised to remain off work for a few days and then resumed modified work.
The worker remained off work on May 19, 2010. She was not scheduled to work on Thursday May 20, 2010 and then returned to modified work on Friday May 21, 2010. As such full LOE benefits were allowed for the lost day from May 19, 2010 until May 21, 2010.
The worker indicates that she attempted to continue doing light duties on May 24, 2010 but found it too difficult and went off work from May 24, 2010 until May 31, 2010 (she was not scheduled to work on May 29, 2010 and May 30, 2010). The worker is claiming entitlement to full LOE benefits for lost time from May 24, 2010 until May 31, 2010. The case manager denied the request for this interval of LOE benefits as the worker was considered fit for modified work, which was available at full wages.
The worker’s objection is the issue presently under appeal.
AUTHORITY
Operational Policies:
11-01-03 Merits and Justice
15-03-01 Recurrences
18-03-02 Payment and Reviewing LOE Benefits
RESOLUTION METHOD AND PROCESS
The worker submitted a 60-Day Decision Option form received February 9, 2011. By completing this form, the worker is aware the appeals resolution officer will provide a final decision of the WSIB based on the information on record and any additional information submitted with the Objection Form.
A Participant Form was received from the employer and therefore they were contacted and advised of the resolution method for this appeal.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have had regard for the record, the applicable law and policy, as well as the interested parties’ view on the issue.
In considering a worker’s entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
WSIB Policy 15-03-01 regarding recurrences states in part:
A worker is entitled to benefits for a recurrence of a work-related injury or disease.
A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity.
To establish clinical compatibility, a decision-maker compares the worker’s current clinical condition to that following the initial accident. The decision-maker considers
- whether the parts of the body affected now are the same as, or related to, those affected initially
- whether the body functions affected now are the same as those affected initially, and
- the degree to which body functions are affected now (as compared to the effect of the initial condition).
Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence.
To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has
- complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury
- demonstrated ongoing symptoms since the original injury
- required work restrictions or job modifications
- had ongoing treatment for the original condition.
WSIB Policy 18-03-02 concerning Payment and Reviewing LOE Benefits states in part:
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 attending 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.
When I assess all of the pertinent information in the claim file, I find that the worker is entitled to full LOE benefits for the interval from May 24, 2010 until May 31, 2010. In reaching this conclusion, I had regard for all of the available information, however found the following details particularly relevant:
- Dr. Whelan, the worker’s family physician, noted in report dated May 20, 2010 that the worker was expected to begin modified work on May 20, 2010. The worker’s restrictions were to be reassessed at the next appointment that was scheduled for June 3, 2010.
- Dr. Whelan provided a signed statement dated May 25, 2010 confirming that the worker was seen again on May 25, 2010 and was found to be totally disabled until May 28, 2010. It is noted that the worker was not scheduled to work on May 29, 2010 and May 30, 2010. The worker therefore returned to work on the next scheduled shift of May 31, 2010.
- Dr. Whelan provided a signed and dated statement on May 25, 2010 verifying that the above noted “information was confirmed on the basis of my direct examination” of this worker.
- Dr. Whelan’s subsequent signed statement, dated September 21, 2010 opines that the worker could have participated in modified return to work program from July 8, 2010 until July 26, 2010. However “I do not believe she could have participated in this in May due to her pain. My diagnosis was cervical and trapezius strain secondary to lifting heavy cooking pot. The prognosis is good and I see no evidence of a permanent disability. My opinion is based on my examination of this patient on May 20, 2010, May 25, 2010 and June 3, 2010”.
Given all of the information available to me, the evidence suggests and I conclude that entitlement is in order for full LOE for the lost time from May 24, 2010 until May 31, 2010.
CONCLUSION
I conclude full LOE benefits are in order for the scheduled lost days from May 24, 2010 until May 31, 2010.
The worker’s objection is therefore allowed.
DATED March 25, 2011
S. Bennett
Appeals Resolution Officer
Appeals Branch