WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150056
DECISION DATE: March 30, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: D. Duguay, Appeals Resolution Officer
ISSUE
The worker is objecting to the Case Manager’s decision dated November 5, 2013 which:
- Denied entitlement to further treatment at the Burn Specialty Program.
- Concluded the worker was capable of working full time performing the available modified duties.
BACKGROUND
The worker, then 24 years old and with the employer since May 16, 2012, was working as a labourer at the time of his injury. On September 5, 2012 the worker suffered burns to his hands and right forearm when he slipped while carrying hot tar and hot tar splashed on him.
The worker sought medical attention on the day of accident for diagnosed burns to the palms of both hands and to the right volar forearm. The worker was treated conservatively.
The worker returned to modified duties effective September 13, 2012. The worker continued to suffer bilateral hand pain and was referred to the Burn Program for assessment. The worker was subsequently referred for four to six weeks of treatment in the Burn Specialty Program.
The Burn Specialty Program, in their report dated October 25, 2013, requested a three month extension of treatment due to the worker’s ongoing hand pain. The Case Manager, after contacting the Burn Specialty Program and confirming the worker’s condition had not improved, declined the request for extension of treatment. The Case Manager, in his decision dated November 5, 2013, denied entitlement to further treatment and entitlement to loss of earnings benefits concluding the worker was capable of returning to the available modified duties at no wage loss. The worker objected to this decision.
AUTHORITY
Operational Policy Manual Documents:
Policy 11-01-01 Adjudication Process
Policy 11-01-02 Decision Making
Policy 17-01-02 Entitlement to Health Care
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
In reaching my conclusions I considered the claim file record, the worker representative’s submissions, the employer representative’s submissions and the relevant policy and legislation.
The issues before me are the worker’s entitlement to further treatment at the Burn Specialty Program in Toronto and the worker’s ability to return to work working full time performing the modified duties available.
Worker representative submission
The worker representative submitted the following:
- The worker was not capable of returning to modified duties on a full time basis noting the October 25, 2013 medical report
- The Burn Specialty Program recommended a further three months of treatment to determine if additional improvement or pain relief would be experienced by the worker
- The worker was to continue with the treatment as part of the Back on Track Program until the end of December 2013
- The worker was prescribed medication to address his ongoing hand pain
- The worker suffered reprisals at work when attempting to ice his injuries
- The worker was asked to perform duties which did not respect his precautions
Employer representative submission
The employer representative submitted the following:
- The extension of treatment should remain denied as the worker’s burns had healed
- The worker was not totally disabled
- The worker was able to restore his pre-injury salary returning to work performing the available modified duties which were considered suitable
- The worker removed himself from employment by requesting a Record of Employment when he was aware the employer had modified duties available
Entitlement to further treatment at the Burn Specialty Program
Noting the issues in dispute I will first address the issue of the worker’s entitlement to further treatment at the Burn Specialty Program before I turn my attention to the other issues in dispute.
On the issue of further treatment at the Burn Specialty clinic I do not find in favour of the worker and have outlined my reasons below.
Policy 17-01-02 states:
A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.
Analysis
I find the worker is not entitled to further treatment at the Burn Specialty Program as there was no significant improvement in the worker’s condition while he participated in treatment from August 13, 2013 until October 25, 2013.
The worker suffered burns to his hands and right forearm due to an accident at work on September 23, 2012. The worker returned to work performing modified duties which he performed until the seasonal lay off.
The worker was assessed by the plastic surgeon on October 10, 2012 at which time the specialist advised the burns had completely healed. The specialist stated the worker may likely have some sensitivity to heat and fragility of the skin in his forearm for the next few weeks; however, no further treatment was prescribed.
The worker was reassessed by the specialist on November 19, 2012 due to a complaint of numbness on the volar right forearm and some pain in the area of the scar. No further treatment was recommended, however, the specialist advised consideration should be given to an evaluation by the WSIB directly.
The worker underwent an EMG study on January 21, 2013 the results of which were within normal limits.
The worker returned to work performing modified duties during the spring and continued to suffer bilateral hand pain. The worker was subsequently referred to the WSIB Specialty Clinic, Burn Program for further evaluation. The assessing doctor recommended the worker participate in the Burn Specialty Program for a period of four to six weeks. The worker attended the program attending treatment three days per week at the clinic in Toronto and working modified duties for two days per week.
The worker began treatment in the Burn Specialty Program on August 13, 2013. The Burn Program provided a progress report dated October 25, 2013. The assessor recommended the worker continue to attend treatment three days per week and continue with his current work schedule; however, on October 9, 2013 and November 1, 2013 the physiotherapist advised the worker had not made any progress with respect to grip or pinch strengths and there was no evidence of any decrease in the worker’s pain levels.
I appreciate the worker representative’s view of the medical reporting; however, I do not come to the same conclusion. In this case the worker’s condition did not improve while participating in treatment. I find there is insufficient evidence to demonstrate further treatment beyond October 25, 2013 would have resulted in significant improvement in the worker’s condition. I find the worker is not entitled to further treatment at the Burn Specialty Clinic.
Ability to return to work performing modified duties on a full time basis.
I will now address the issue of the worker’s ability to return to work working full time performing the modified duties available. I do not find in favour of the worker and have outlined my reasons below.
Policy 18-03-02 states:
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.
Work reintegration (WR) activities
Workers are entitled to full LOE benefits if they,
- co-operate in WR activities, and
- continue to have a full loss of earnings.
Analysis
I find the worker was capable of returning to work performing modified duties working full time.
I appreciate the worker representative’s view of the October 25, 2013 medical reporting from the Burn Specialty Program; however, I do not come to the same conclusion. I note the clinic report recommended the worker should participate in further treatment and continue with the current modified duties at reduced hours. I agree, had treatment been extended, it would have been appropriate for the worker to continue working reduced hours; however, as stated earlier, further treatment was not appropriate noting the lack of improvement in the worker’s condition.
I find, as the worker was no longer in treatment, it was not appropriate that the worker continue to work reduced hours. The medical evidence, in my opinion, demonstrated the worker continued to be capable of activities with precautions and was capable of working full time within these precautions.
The workplace parties met with the WSIB Return to Work Specialist and discussed the available modified duties. The worker representative, in her submission, indicated the worker had concerns with his working environment. However, the worker did not indicate any concerns when speaking with the Return to Work Specialist. This raises questions in my mind as to the significance of concerns outlined by the worker representative.
I find the modified duties available on a full time basis respected the worker’s precautions. The Return to Work Specialist confirmed the available modified duties were suitable and I accept this opinion. I further note the employer confirmed that once the worker had completed treatment in Toronto, modified duties were available to the worker on a full time basis. The employer, as per memo # 50 dated November 4, 2013, again confirmed the availability of modified duties on a full time basis.
The worker was subsequently granted a 7% non-economic loss award to recognize the residual bilateral hand impairment. This, in my opinion, would support the worker remained capable of modified duties working full time.
I find the worker was capable of returning to work performing the available modified duties working full time.
CONCLUSION
I conclude the worker is not entitled to further treatment at the Burn Specialty Clinic.
I further conclude the worker was capable of returning to work performing the available modified duties working full time and is not entitled to loss of earnings benefits.
The worker’s objection is denied.
DATED March 30, 2015
Mr. D. Duguay Appeals Resolution Officer Appeals Services Division