Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20150025 Decision Date: March 11, 2015
Objecting Party: Worker Represented by: Self-Represented
Respondent: Employer Represented by: Self-Represented
Hearing: February 23, 2015 - Toronto Heard by: H. Mohamed, Appeals Resolution Officer
ISSUE(S)
The worker is seeking the following:
- Ongoing entitlement to benefits beyond October 6, 2014
The worker also requested that his loss of earnings (LOE) benefits be recalculated according to his actual weekly working hours. Since no formal decision regarding the LOE rate has been made by the operating level, this issue is not properly before me. I discussed this with the worker prior to the hearing and asked how he wished to proceed. The worker advised that he was comfortable continuing with the hearing without addressing the LOE rate.
The worker also wanted to discuss a medical report on file dated June 2, 2014 that he alleged was altered by his employer. The worker was unclear as to what remedy he was seeking with respect to this issue. I explained that if he wanted a specific decision regarding this he should contact his Case Manager. The worker was in agreement with this.
BACKGROUND
On June 2, 2014, this then 52 year old cabinet maker who had been employed with the employer for less than two months sustained an injury to his low back and neck while moving a 200 pound cabinet in a bent position.
Entitlement was accepted for a low back and neck strain and LOE benefits were processed from June 3, 2014. The worker started physiotherapy and chiropractic treatment immediately after the accident. An MRI of the low back noted some mild degenerative disc disease.
The employer terminated the worker’s employment on June 26, 2014 as they felt the worker was not being truthful about his injury. In a decision dated August 20, 2014, the Reemployment Case Manager determined that the employer was in breach of their re-employment obligations and would face a penalty if they did not come into compliance. The employer agreed to re-hire the worker and the services of a Return to Work Specialist (RTWS) were utilised to assist in this process.
A return to work (RTW) meeting took place at the employer’s premises on September 5, 2014, however based on the worker’s symptoms and complaints, suitable modified work could not be identified.
The worker underwent a multidisciplinary healthcare (REC) assessment on September 12, 2014 and was diagnosed with a myofascial strain of the neck and low back. The evaluators concluded that the worker was capable of returning to work in a modified capacity for 6 weeks until he completed additional physiotherapy. Restrictions were provided and full recovery was anticipated following the 6 weeks of treatment.
Following this assessment another RTW meeting took place on October 3, 2014 and the employer agreed to provide the worker with an assistant to facilitate his return to work. The worker however declined to return to work on the basis that he had not fully recovered and that he no longer trusted his employer. The worker advised that he would be seeking alternative employment and resigned from his job.
In a decision letter dated October 14, 2014, the Case Manager (CM) concluded that the worker was not entitled to benefits beyond October 6, 2014 due to his unwillingness to return to work and that full recovery was anticipated by October 27, 2014. This decision was again confirmed in writing on October 31, 2014.
The worker appeals the October 14 and October 31, 2014 decisions.
AUTHORITY
Operational policy:
11-01-05 - Determining Maximum Medical Recovery (MMR)
18-03-02 - Payment and Reviewing LOE Benefits
19-02-01 - Work Reintegration Principles, Concepts and Definitions
15-05-03 - Non-Work-Related – Second Accidents
EXHIBITS
- Exhibit 1 – Service Canada Health Certificates and Employment Insurance Benefit Statement
ANALYSIS
Based on the evidence before me, the worker is entitled to full LOE benefits until November 19, 2014. There is no entitlement to benefits beyond this date.
In arriving at this decision I considered the information in the claim file, the worker’s testimony at the hearing as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
The case record confirms that the chiropractor completed an Acute Low Back Injuries Program of Care Assessment Report on June 9, 2014 noting low back pain and intermittent leg pain. Lumbar range of motion was decreased by 75 per cent in flexion and extension and there was also tenderness at C7 to T1. The chiropractor recommended treatment 3 times a week for 8 weeks. The worker was cleared to return to modified duties.
The worker’s family doctor, completed a Health Professional’s Progress Report (Form 26) on July 14, 2014 noting that the worker’s condition was progressing but he continued to complain of radiating pain into his left leg.
The chiropractor submitted a treatment extension request on July 28, 2014 noting that there had been a 40 per cent improvement in the worker’s range of motion and his current restrictions were listed as limited bending, sitting, lifting and standing. He recommended 8 more weeks of treatment which were approved.
The MRI report of August 9, 2014 noted a disc bulge at the L4-5 level which was minimally abutting the exiting left L4 root and a minor bulge at the L5-S1 level. The technician concluded that the worker was suffering from minor degenerative disease of the lower lumbar spine.
The REC assessment report of September 12, 2014, noted that lumbar flexion was 70 per cent of normal, extension was 50 per cent with pain. Cervical range of motion was 8- per cent of full with pain inhibition. There was also pain to palpation of the left lower buttock area as well as left tensor fascia lata which was aggravated by resisted left leg abduction. It was noted that the worker displayed some pain behaviours and needed encouragement to provide a good effort.
The evaluators concluded that the worker was capable of returning to modified duties for six weeks with restrictions of no lifting greater than 50-75 pounds, no pushing or pulling greater than 75 pounds, no bending or twisting with a load greater than 50-75 pounds. Six weeks of additional physiotherapy was recommended.
The file record confirms that the employer was deemed to be in breach of their re-employment obligations after terminating the worker on June 26, 2014. The employer subsequently came into compliance by hiring the worker back and agreeing to provide suitable modified work.
At the initial RTW meeting on September 5, 2014, the employer advised that they were unable to offer any modified work based on the worker’s reported symptoms. Following the REC assessment, where the worker’s physical precautions were better delineated, another RTW meeting was arranged on October 3, 2014. Based on the restrictions provided, the employer advised that although they did not have any seated tasks, they agreed to provide seated breaks consisting of 15 minutes every hour. They also offered a co-worker to assist the worker with potential heavy lifting. The RTW plan was to gradually introduce his pre-accident job duties over the course of a number of weeks with the worker to resume full pre-accident job duties by November 24, 2014.
The worker testified that his benefits were stopped effective October 6, 2014 on the basis that he refused to co-operate in his return to work. He testified that after everything that the employer did to him, he was afraid to return to work with the employer and felt he had no choice but to resign. He noted that the employer fired him right after he filed a WSIB claim. They only rehired him because they didn’t want to pay the re-employment penalty and even doctored a medical note he provided them so that the WSIB would deny his claim. He stated that the employer was not being honest with the WSIB and were not providing them with the information to adjudicate his claim. Given these circumstances he felt that he couldn’t possibly go back to the same employer. He stated that he won his case against the employer with the Ministry of Labour with regards to unpaid overtime.
The worker stated that even if he did go back to work with his employer, he was not physically able to do his pre-accident job as he was still in quite a bit of pain. He noted that the chiropractor’s report of November 19, 2014 clearly states that he could not lift more than 25 pounds. He said that the CM relied on the restrictions provided by the REC but he is not sure where the REC arrived at these weights since they did not do any functional testing.
Following his termination of benefits, the worker stated that he applied for employment insurance (EI) benefits. EI benefits were converted to sickness benefits effective November 20, 2014 after he fell and re-injured his back. Medical certificates were completed by his doctor since November 20, 2014 so that he could continue receiving EI Sickness Benefits (filed as Exhibit 1)
The worker testified that in the evening of November 19, 2014, he was coming back from Walmart, when he slipped on ice and hurt his back. He stated that ever since the workplace injury he has been having pain down his left leg and on this day his foot went numb resulting in him slipping on ice and re-injuring his back. He confirmed that he did go to his family doctor the next day and was referred to see a specialist. The worker advised that he has not seen the specialist yet. In terms of medications he is taking over the counter Tylenol as needed, Lyrica pills at night and applying topical gels to his back.
He has tried looking for work but all the jobs he has interviewed for require heavy lifting and he in unable to do this. He is able to take public transportation and goes for walks. He feels that his pain is 50 per cent better now but he still has not fully recovered and would not be able to work as a cabinet maker.
In reviewing the RTWS report of October 3, 2014, it is clear that the employer was offering the worker his pre-accident job with some minor accommodations. The RTWS notes that that the essential duties of the cabinet maker job involved retrieving sheets of wood from a vertical storage rack, operating a table saw to cut wood sheets to required dimensions, perform assembly of wood components, complete sub-assemblies (drilling, sanding), assist with receiving deliveries of wood sheets and assist with the loading of complete cabinets onto trucks. The RTWS notes that the jobs does involve prolonged weight bearing, heavy lifting which ranges from 60 to 92 pounds and the potential for low level work with would involve repeated bending/twisting of the back.
In my view, the job duties offered were unsuitable even with the inclusion of an assistant. There are virtually no activities that would be considered as light and the RTWS also acknowledged that there was frequent bending and twisting involved.
Considering the above, I believe the worker should be paid full LOE benefits from when they were terminated until November 19, 2014 when he fell and re-injured his back. The worker has no entitlement beyond this date as there is no evidence that the worker’s ongoing disability after this date is related to his compensable injury.
According to the REC report the worker was on his way to full recovery and according to the RTW plan, he was expected to work full time regular duties effective November 24, 2014. The worker then fell outside a Walmart and re-injured his low back. Although the worker attributed the fall to his left foot going numb from the compensable injury, no evidence was presented to me to support this notion. In reviewing the medical reports on file, although there is mention of radiating pain into the left thigh, there was never any mention of the worker’s foot going numb. The REC report noted that the worker complained of swelling in his left foot but denied any weakness in his lower extremities. I also note that the worker never mentioned his foot numbness to the CM when he advised him of this secondary incident on November 24, 2014. As such I do not accept that the second injury was caused by the workplace injury.
Policy 15-05-03 states that The WSIB does not accept entitlement for an injury as a result of a second accident that is due to a non-work-related cause. The policy further states:
If the second accident is not caused by the work-related impairment/disability, but does aggravate it, one of the following may apply
if the work-related impairment/disability is at, or near, full recovery, benefit payments may cease, or
if the work-related impairment/disability is not at, or near, complete recovery, (e.g., a recently reduced fracture in which the second accident has caused a re-fracture at the same site), the aggravation of the work-related impairment/disability may be accepted.
In my view the worker was near full recovery when he slipped and re-injured his low back on November 19, 2014. As such, the worker is not entitled to any benefits after this date.
CONCLUSION
Based on the forgoing reasons, I conclude the following:
- The worker is entitled to full LOE benefits until November 19, 2014. There is no entitlement to benefits, including health care, after this date.
The worker’s objection is allowed in part.
DATED: March 11, 2015
Mr. H. Mohamed Appeals Resolution Officer Appeals Services Division