WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150024
DECISION DATE: April 2, 2015
OBJECTING PARTY: Employer
REPRESENTED by: Employer Representative
RESPONDENT: Worker
REPRESENTED by: Worker Representative (not participating)
HEARING: Hearing in Writing
HEARD by: C. Anzil, Appeals Resolution Officer
ISSUE
The employer representative is objecting to the allowance of full Loss of Earnings (LOE) benefit payments from September 25, 2013 to September 27, 2013.
BACKGROUND
On September 24, 2013 this worker experienced a sudden onset of low back pain as he bent over and lifted a case of soft drink bottles. The worker reported the injury to the employer when it occurred and he sought initial medical attention on the date of injury. The employer offered the worker modified work before he left for medical attention on the date of injury.
The worker did not return to work until September 27, 2013. The decision letter dated October 10, 2013 from the Case Manager communicated that the worker was entitled to full LOE benefit payments from September 25, 2013 to September 27, 2013, the date the worker returned to modified work, because the modified work offered by the employer was not within the worker’s physical limitations. The employer representative objected to this decision and this matter is now before me.
AUTHORITY
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
The employer representative argues that the modified work the worker returned to on September 27, 2013 was the modified work that had been offered to the worker on September 25, 2013 and that the medical evidence did not support the worker was unable to work. I have carefully considered all of the available information, legislation and relevant operational policy in reaching this decision and I have not decided in favour of the employer and I will explain.
The initial offer of modified work included sweeping floors, dumping damages and shell sorting. The medical evidence provided by the initial treating physician included physical limitations for the worker and the physician indicated the worker was unable to drive and return to work had been discussed with the worker. The worker explained to the Case Manager that the initial treating physician authorized him off work and the only reason why the worker returned to work when he did was because he was told that the Board may not allow the lost time.
The employer fulfilled their obligation under the Workplace Safety and Insurance Act and they offered the worker modified work; however, the offer was prior to the medical assessment by the initial treating physician so there was no certainty on the extent of the worker’s injury. The CCB WSIB Functional Abilities Form (Ontario) form completed by the doctor indicated the worker was unable to return to work without restrictions and the doctor checked off the restrictions for the worker’s back that included no driving of a vehicle or equipment. A complete recovery was expected.
In my assessment of the evidence I find the initial offer of modified work was outside the scope of the worker’s physical limitations and therefore the modified work was not suitable. The offer of modified work the worker signed on the date of injury did not indicate sedentary work was offered to the worker. There is no reason to doubt the worker was not following the advice of the initial treating physician when he did not return to work and when he did return to work it was to sedentary work.
I find the medical evidence supports the worker was unable to return to modified work because of the low back injury and the modified work initially offered to the worker was not suitable and therefore the allowance of full LOE benefit payments is confirmed.
CONCLUSION
I find the allowance of the full LOE benefit payments from September 25, 2013 to September 27, 2013, the date the worker returned to modified work, is confirmed.
The employer’s objection is denied.
DATED April 2, 2015
C.Anzil
Appeals Resolution Officer
Appeals Services Division