WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20170006
DATE: January 25, 2017
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer, Participating
REPRESENTED by: SELF
HEARING: In Writing
HEARD by: P. Jones, Appeals Resolution Officer
ISSUE
Suitability of modified work and loss of earnings (LOE) benefits from April 8, 2015 to May 1, 2015.
BACKGROUND
On April 17, 2015 this Personal Support Worker (PSW) was rolling a heavy patient to prepare them for breakfast when her ankle went over. The worker had a previous left ankle fracture and Achilles tendon injury for which she was wearing an ankle brace.
The operating area sent a letter to the worker dated May 6, 2015 which denied entitlement to loss of earnings benefits. The decision maker advised that the clerical modified duties that were offered to the worker were within her physical limitations. The clerical duties involved sitting at a desk as well as reading to and feeding patients.
AUTHORITY
Operational Policy Manual (OPM) Documents:
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
18-03-02 Payment and Reviewing LOE benefits (Prior to Final Review)
ANALYSIS
In my determination of entitlement to LOE benefits from April 8, 2015 to May 1, 2015, I reviewed the record, evidence, policy and submissions. It is important to note payment of LOE benefits is supported by medical information that explains the necessity for time off work. In this case the worker was under the care of her family doctor who did not recommend a return to work. I find in favour of the worker and I have set out my reasons in more detail below.
In determining the responsibilities of the work place parties in return to work decision makers are guided by OPM document 19-02-02 Responsibilities of the Workplace Parties in Work-Reintegration which states the following:
The workplace parties (workers and employers) are required to co-operate in the work reintegration (WR) process.
When certain conditions are met, employers may have, in addition to their obligations to co-operate in the WR process, an obligation to re-employ an injured worker who has been unable to work as a result of the work-related injury/disease.
The focus of the workplace parties' WR activities is to work together to return the worker to the pre-injury job (with accommodation where required). Ideally, the worker will return to the pre-injury work.
Disputes over job suitability are not acts of non-co-operation, nor is non-co-operation meant to apply to workers who raise a health and safety concern under the Occupational Health and Safety Act or the Canada Labour Code
As per the policy above this is a dispute regarding the return to work, but it does not mean the worker was not cooperative and not entitled to LOE benefits. A “dispute” is an important distinction. The record does not show the worker was not cooperative.
The worker spoke to the decision maker on April 21, 2015 as per memo #1. The worker advised that she was offered modified work on April 7, 2015, went to the hospital for treatment and returned to work. In memo #3 dated April 23, 2015 she again spoke to the decision maker and she advise that on April 7, 2015 she sat in a wheelchair her ankle was swollen and painful and she could not stand or walk. She was concerned about her ankle and wanted to speak with her family doctor before accepting modified work. The worker advised on May 1, 2015 as per memo #6 that she returned to work.
The worker saw the family doctor on April 13, 2015 and a Functional Abilities Form (FAF) was completed which noted modified work was discussed but the worker was to remain off work. The family doctor also wrote a letter dated April 20, 2015 in which indicated the letter outlining the duties would involve the restrictions indicated. The family doctor indicated the suggested duties would delay the return to work and put her at risk of injury and to her patients. In addition the family doctor indicated a more reasonable work hardening activities at home would build up her abilities to provide patient care rather than performing duties which would be done on the supervisor’s schedule.
In a letter dated April 13, 2015 the employer offered the following modified work on April 10, 2015; scheduling to resolve staffing replacements related to sick calls, clerical ward clerk duties such as culling the file for archiving, assist with feeding of residents and working one on one with residents in the lounge. The duties were sedentary and the worker could sit with her leg elevated.
I afford significant wait to the family doctor’s opinion. In my view the family doctor appropriately considered the nature of the worker’s employment combined with the injury she authorized the worker off work. Early and safe return to work is generally the accepted practice following an injury but there is no information in this case to question the direction of the family doctor who indicated the worker needed to remain off work.
It is noted in Board OPM Document 18-03-02 Payment and Reviewing LOE benefits (Prior to Final Review) a worker is entitled to full LOE benefits “if the nature or seriousness of an injury completely prevents a worker from returning to any type of work.” In this case the worker was not mobile and she appropriately followed the instructions of her treating health care provider.
OPM document 18-03-02 Payment and Reviewing LOE benefits (Prior to Final Review) also indicates workers are entitled to full LOE benefits if they co-operate in WR activities. The balance of evidence supports the worker was cooperative in the work reintegration process returning to work on May 1, 2015. Entitlement to LOE benefits for the period of April 8, 2015 to May 1, 2015 is granted.
CONCLUSION
Entitlement to LOE benefits from April 8, 2015 to May 1, 2015 is granted.
The worker’s objection is allowed.
DATED January 25, 2017
P. Jones
Appeals Resolution Officer
Appeals Services Division