WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150059
Decision Date: June 9, 2015
Objecting Party: Worker
Represented by: Self-Represented
Respondent: Employer
Represented by: Employer Representative
Hearing: Hearing in Writing
Heard by: M. Elliott, Appeals Resolution Officer
ISSUE
The worker is requesting entitlement for:
- A Loss of Earnings Benefit July 9, 2014 (the day after the accident) through to July 16, 2014 (the day the worker returned to his regular employment duties). A Loss of Earnings Benefit has been denied as outlined in decisions from the Eligibility Adjudicator dated July 18, 2014 and October 16, 2014.
BACKGROUND
This worker is an office employee. On July 8, 2014, he was asked to transfer product from a trailer to the dock area when he sustained a low back injury. Memorandum #2 dated July 18, 2014 indicates that the worker was offered clerical/administrative work duties effective July 9, 2014. The worker declined returning to employment activities as his physician authorized him off work until July 16, 2014.
Adjudicator's Decisions
In the decisions dated July 18, 2014 and October 16, 2014, the Adjudicator indicated that Loss of Earnings Benefits could not be authorized as suitable modified duties were made available to the worker. While the worker declined based on his doctor's recommendations, the Adjudicator's decision of October 16, 2014 indicated there was no objective medical evidence to support lost time from work.
Worker's Position
The worker acknowledges he was offered modified duties; however, he stated on his "Intent to Object" form that he was in extreme pain and was heavily medicated. He was not able to drive due to the medication, and the pain combined with the medication precluded him from reporting to modified duties. The worker indicated he stayed off work as this was recommended by his physician and he returned to his normal duties on July 16, 2014 as recommended by his treating physician.
AUTHORITY
The following Operational Policy applies:
18-03-02; Payment and Review of Loss of Earnings Benefits
ANALYSIS
- Entitlement to a Loss of Earnings Benefit July 9, 2014 to July 16, 2014
I find that this worker meets the WSIB criteria for a Loss of Earnings (LOE) Benefit during the timeframe claimed. Policy document 18-03-02 states that 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 cooperates in healthcare measures as recommended by the attending healthcare practitioner and approved by the WSIB.
This worker is an office employee. On July 8, 2014, he was asked to assist one of the dock workers in transferring freight from one truck to another. This is outside the scope of his regular employment duties. He had to assist in lifting approximately 20-200 pound boxes with a coworker which took approximately one hour to complete.
In discussing the case with the Adjudicator on July 18, 2014, the worker indicated there was not one particular box that injured his back; however, when he finished carrying the boxes he felt pain. He left the office at the end of his shift and was still feeling pain. Later that evening, his back started going into spasm. The worker was honest in indicating he had hurt his back before. He does have degenerative disc changes in his low back; however, stated these had not bothered him for approximately one year.
On July 9, 2014, he contacted his manager by way of e-mail and advised that he would not be in as he had hurt himself. He let the manager know later that day by way of e-mail that he would not back to work for the rest of the week. Modified duties were offered to the worker July 9, 2014. Memorandum #2 states the modified duties were clerical tasks in which he would be able to sit or stand as required. The worker did, however, indicate that when he saw his family physician July 10, 2014, the family physician gave him restrictions for the future of "no lifting" and authorized him to be off work up to and including July 15, 2014.
After the doctor's appointment, the worker contacted Human Resources July 10, 2014 and advised he would take the time off that the doctor suggested and therefore, declined returning to modified duties. He then returned to his regular duties July 16, 2014 with the limitation of never lifting anything again as it is not part of his regular employment duties.
As this worker is an office employee, his regular employment duties are sedentary. I have to consider the acuteness of his symptoms after performing laboring activities that included heavy lifting in order to determine if the nature or seriousness of the injury would have precluded him from performing any employment duties at all after the injury.
The worker's physician examined him after the accident and referenced the fact that he had lumbar spasm with right sciatica. It was recognized that he had a preexisting disc herniation and the medical evidence supported this was irritated when the worker performed the lifting activities. This is substantiated by the fact the diagnosis included right sciatica after the lifting. The physician did not authorize the worker back to modified duties immediately and I am accepting that this was based on the results of the physical examination. The treating physician, as the examining practitioner, made a judgment based on the assessment with respect to the worker's ability to perform any job functions at all.
In this case, the worker had an acute onset of neurological and soft tissue symptoms after heavy lifting that he was unaccustomed to performing. In order to allow the injury sustained adequate time to resolve, the worker was authorized off work for a one week timeframe. This is reasonable given the fact the worker had evidence of lumbar spasm and sciatica. Both spasms and sciatica are objective clinical findings and in this case, were sufficient, in the physician's opinion, to warrant lost time from work.
I am, therefore, accepting the opinion of the treating practitioner that this worker was not able to perform any work activities until July 16, 2014. He, therefore, does meet the WSIB criteria for the Loss of Earnings Benefit he has claimed.
CONCLUSION
I conclude the following:
- This worker is entitled to a Loss of Earnings Benefit July 9, 2014 to July 16, 2014.
The worker's objection is, therefore, granted.
DATED: June 9, 2015
M Elliott Appeals Resolution Officer Appeals Services Division