Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20150014
Decision Date: February 9, 2015
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer (not participating)
Hearing: Hearing in Writing
Heard by: P. Luck, Appeals Resolution Officer
Issue
The worker is requesting entitlement to loss of earnings (LOE) benefits from November 28, 2013 to June 9, 2014, exclusive.
Background
On November 7, 2008, this then 35 year old sheet metal journeyman sustained a tip amputation to the right third finger. The claim was accepted for health care benefits as there was no lost time from work.
Following assessment and treatment at the WSIB Hand Speciality Program a permanent impairment was accepted and the worker is in receipt of a 3% non-economic loss (NEL) award. At a follow-up assessment at the WSIB Hand & Wrist Speciality Program surgery was recommended. This was approved and November 28, 2013 the worker underwent revision of the fingertip amputation.
Case Manager’s Decision
On February 24, 2014 the Case Manager (CM) informed that LOE benefits would be paid to March 1, 2014, exclusive, based on the usual healing time for surgery.
This decision was reconsidered and upheld on July 18, 2014.
The worker representative requested a managerial reconsideration. Following a case file review, the WSIB manager rescinded all LOE benefits as the worker was not employed at the time of his surgery and therefore, did not sustain a wage loss. This decision is dated October 16, 2014.
The Worker’s Position
The worker is seeking full LOE benefits to June 9, 2014 at which time he secured employment. The worker representative argues his client is entitled to LOE benefits as his loss of earnings was due to the work-related injury and recovery from the accepted surgery.
Authority
Operational Policy 15-03-01 Recurrences
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
Section 43(1) of the Workplace Safety and Insurance Act, 1997
Analysis
I find the worker is entitled to full LOE benefits from November 28, 2013 to June 9, 2014. Policy 18-03-02 allows for the payment of full LOE benefits if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.
I note surgery was initially booked for April 4, 2013 but was cancelled by the worker as he had secured employment following a period of unemployment. The surgery was carried out November 28, 2013 and consisted of revision of the right long fingertip amputation. The worker was seen in follow-up on December 4, 2013 and December 11, 2013 at the WSIB Surgical Speciality Program. On January 22, 2014, plastic surgeon noted increased sensitivity at the tip of the right third digit and the flexor digitorum profundus (FDO) muscle was weak. The plastic surgeon recommended a desensitization program, however, due to delays in the referral, this program did not commence until April 4, 2014.
The surgeon examined the worker on April 30, 2014 and noted full range of motion (ROM) of the digits, decreased grip strength and sensitivity. He recommended the worker continue with his desensitization program and also recommended a Worker Rehabilitation Program for functional strengthening and work conditioning. The surgeon opined the worker was capable of light to light-medium self-paced activities.
The recommended work hardening treatment was not approved by the Nurse Consultant as the worker did not report any pain or issues with the functional capacity of his right hand. Following further consultation with the worker and the Occupational Therapist, the Nurse Consultant accepted a four week program to provide education on strengthening exercises.
On June 9, 2014 the worker secured employment.
In the submission of December 16, 2014, the worker representative makes some salient points as follows:
- a worker is entitled to benefits for a recurrence of a work-related injury
- the worker scheduled his surgery once his contract through the union hall ended
- he did not collect employment insurance (EI) as he was not available for work
- but for his surgery and recovery period he could have applied for EI, added his name to the union hall hiring list and accepted employment
- the worker was not cleared for the pre-injury job as of April 30, 2014
It was the position of the worker representative that his client be entitled to full LOE benefits from the date of surgery to his return to work date of June 9, 2014. I fully agree. The sole reason for the loss of earnings was the surgery and recovery period. But for the surgery, the worker would have been available to accept work following the termination of his previous contract.
The worker had a loss of earnings unequivocally as a result of the subsequent surgery related to the work injury. Following the surgery of November 28, 2013 he was under the care of the surgeon and complied with all treatment recommendations. Once he was cleared for work, the worker made himself available for work, made contact with his union hall, and accepted the first available work assignment. There is no justifiable reason to deny LOE benefits.
Conclusion
I conclude the worker is entitled to full LOE benefits from November 28, 2013 to June 9, 2014, exclusive less any benefits previously paid.
The worker’s objection is allowed.
DATED February 9, 2015
(Mrs) P. Luck Appeals Resolution Officer Appeals Services Division