WORKPLACE SAFETY AND INSURANCE BOARD (WSIB)
APPEALS RESOLUTION OFFICER DECISION
decision number: 20170001
date: March 7, 2017
OBJECTING PARTY: Employer
RESPONDENT: Worker (Not Participating)
HEARING: Hearing in Writing
HEARD BY: V. Advent, Appeals Resolution Officer
ISSUE
The employer is objecting to the allowance of loss of earnings (LOE) benefits beyond February 19, 2016.
BACKGROUND
On August 21, 2015, this then 33 year old worker injured his right knee when he twisted while lifting a box of cucumbers weighing approximately five pounds. Initially, this injury did not result in any lost time from work, but the worker was provided with modified duties.
On September 16, 2015, the eligibility adjudicator allowed initial entitlement to health care benefits for a right knee sprain.
On December 7, 2015, the case manager (CM) extended entitlement to include joint effusion; a posterior horn tear of the lateral meniscus with medial displacement of a torn fragment into the intercondylar notch region; a Grade 2 acromioclavicular (ACL) sprain and a complete ACL tear. The CM denied entitlement for bone marrow edema and chondromalacia.
On February 12, 2016, the worker underwent arthroscopic surgery to the right knee. The CM allowed the surgery and LOE benefits commencing February 12, 2016.
On March 3, 2016, the CM concluded the worker was fit for suitable work as early as February 19, 2016 and that the employer had offered suitable work. As a result, the CM determined the worker was not entitled to LOE benefits beyond February 19, 2016.
On March 21, 2016, the CM overturned the previous decision and allowed LOE benefits from February 19, 2016 to March 18, 2016. The CM concluded worker was unable to drive and the employer had not formally or specifically offered transportation to and from work.
AUTHORITY
The following operational policies apply:
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-02 – Responsibilities of the Workplace Parties in Work Reintegration
19-02-01 – Work Reintegration Principles, Concepts and Definitions
ANALYSIS
Having reviewed and considered all of the available information and the applicable policies, I find the worker is not entitled to LOE benefits beyond February 19, 2016. The following will provide a summary of my assessment of the relevant evidence.
A worker is entitled to full LOE benefits if the nature and seriousness of the injury completely prevents the worker from returning to any type of employment. When a worker is partially disabled and cooperating in work reintegration activities, full LOE benefits may continue providing the worker does not decline an offer of suitable employment.
Recovery times for arthroscopic surgery vary, but a return to sedentary activity would be expected within a few days. In this case, the worker was scheduled to resume physiotherapy treatment on February 19, 2016, one week after the surgery date. In my view, the objective medical evidence does not support a finding that the injury continued to prevent him from performing suitable work beyond this date. The following reports support this conclusion.
On February 19, 2016, the physiotherapist reported the worker was unable to work as he was one week post-surgical. However, with respect to his status and functional abilities, he was considered able to drive, sit, stand, use public transportation and use his upper extremities. Similar functional abilities were reported on a progress report completed on February 29, 2016.
On February 19, 2016, the physiotherapist documented internal joint derangement, but no indication of joint effusion or a reduction in range of motion. This would suggest he worker had a good recovery from his surgery.
On March 16, 2016, the worker was reassessed at the Speciality Surgical Program. At that time, he reported occasional ache with prolonged standing, attempt at squatting and with climbing stairs. Knee flexion was reported as 131 degrees on the left and 137 on the right (normal is 130). Knee extension was reported as -5 degrees on the left and -7 degrees on the right (0 is normal). There was no joint effusion. In my view, this report further supports the finding that the worker had a good recovery from surgery and was not totally disabled.
On March 17, 2016, the CM and the physiotherapist’s discussed the worker’s limitations when the initial report was completed February 19, 2016. The physiotherapist confirmed the worker was fit to perform office work, but was not considered able to drive. In my view, the objective evidence substantiates the worker was partially disabled by February 19, 2016.
The remaining issue is whether the employer had suitable work available. Suitable work is defined as post injury work this is safe, productive, consistent with the worker’s functional abilities, and to the extent possible, restores the worker’s pre injury earnings. While the employer is expected to provide suitable work, the worker has a shared responsibility to identify and secure work reintegration opportunities.
Both workplace parties are required to cooperate and fulfill all of the work reintegration obligations. While the employer is expected to provide suitable work, the worker has a shared responsibility to assist the employer with identifying suitable work and resolving any return to work issues.
In this case, there is clear evidence that the worker was aware the employer had modified work available. The worker was provided with accommodated employment following his injury until the surgery date. Subsequent to the surgery, on February 17, 2016, the employer emailed the worker referencing a voice message of February 16, 2016 which confirmed the continued availability of modified work, including sedentary duties.
On February 18, 2016, a second email was sent referencing a conversation of the same day. The employer again confirmed modified and sedentary work was available. The worker was advised to contact the sender or his supervisor if he required transportation to and from work. Again, on February 26, 2016, the employer confirmed the availability of modified work.
On March 2, 2016, the worker signed a job offer confirming he was accepting the modified duties. Based on the job offer, he was expected to perform office work and he was instructed to contact his supervisor or Human Resources if he was experiencing any problems. The worker contacted the employer on March 4, 2016, March 7, 2016 and March 8, 2016 to report he would not be in to work, but this was due to an illness (not related to his knee).
On March 9, 2016, the worker advised the employer that he would be off work based on advice from the WSIB. The CM documented conversations of March 8, 2010 and March 10, 2010 which indicated the decision would be reviewed if further medical information was provided. The documentation does not suggest the worker was instructed to remain off work.
There is no evidence the worker identified any concerns pertaining to the suitability of the modified work offered. The CM’s documentation indicates the worker felt he should be off work for six to eight weeks or at least until he saw the surgeon on March 15, 2016. There is no indication of any job suitability issues.
In this case, I find the employer demonstrated their willingness to participate in the work reintegration process by offering modified duties. The job tasks appear to be predominantly sedentary in nature and appropriate for a knee injury. The employer informed the CM that the worker would be able to elevate his leg, sit or stand, and stretch when needed.
The worker had an opportunity to attempt the modified work and, if necessary, to identify any concerns. This would have allowed the workplace parties to work together and resolved any concerns. In this case, the worker did not take advantage of this opportunity until March 21, 2016 when it appears he successfully returned to modified employment.
I have considered the CM’s position that the employer did not formally offer transportation as they did not specifically offer a taxi. I am unable to agree with this position. The employer’s email clearly directs the worker to contact the employer if transportation was required. If the worker had any concerns, he had a responsibility to notify the employer and work with them to resolve this issue.
As noted in the employer’s submission, the worker had previously used a “taxi chips” and he never reported transportation concerns as a reason for his inability to attend work. I find there is an absence of evidence to support that a lack of suitable transportation prevented the worker from returning to work effective February 19, 2016.
In summary, I find the worker was not totally disabled and he was not participating in the work reintegration process. As I am satisfied the employer had suitable work available and was willing to provide transportation, if necessary, I find the worker was not entitled to LOE benefits beyond February 19, 2016.
CONCLUSION
I conclude the worker was not entitled to LOE benefits beyond February 19, 2016.
The employer’s objection is allowed.
DATED March 7, 2017
V. Advent
Appeals Resolution Officer
Appeals Services Division