Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20172021 Objecting Party: Worker Represented by: Worker Representative Respondent: Construction Co. Represented by: Representative for the Employer Hearing: Oral Date: May 9, 2017
Issue
The worker is objecting to the September 11, 2015 decision to deny loss of earnings (LOE) benefits beyond August 17, 2015.
Background
On April 5, 2015 this worker sustained a corneal abrasion in his right eye. He ultimately was determined to have a permanent impairment as a result of the compensable injury. He was assessed with an eighteen percent Non-economic Loss (NEL), after a reduction for a pre-existing condition.
Following a period of lost time, the employer offered the worker modified work duties. As explained in correspondence dated September 11, 2015, the Case Manager (CM) determined that the work was suitable for the worker and available to him effective August 17, 2015. The worker declined the work, claiming that he was unable to work due to his injury and that the work was not suitable. LOE benefits beyond August 17, 2015 were denied.
Worker’s Position
The worker representative argues in part that the job offered by the employer in August 2015 was not suitable for the worker. The treating practitioners recommended that he not work in that type of environment. It is not clear that the modified work offered would have restored the worker’s earnings. The CM did not take steps or make interventions to ensure that the work was suitable and the worker’s concerns were addressed. The worker is seeking full LOE benefits from August 17, 2015 to date and assistance with his work reintegration (WR).
The worker representative submitted some medical documents that were accepted at the hearing and marked as “Exhibit 1”.
Employer’s Position
The employer representative argues in part that the job duties offered by the employer were suitable. The worker would have been permitted to work at his own pace and take breaks as needed. The worker expressed plans to retire in May 2015 and has essentially done this. The worker performed activities outside of work that support that he was capable of doing the work with the employer.
Authority
Operational Policies
11-02-02 Lost Time Claims
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
19-02-04 Functional Abilities Form for Work Reintegration
Analysis
I find that the worker is entitled to further loss of earnings (LOE) benefits for a period under this claim. The penalty provisions of the work reintegration (WR) cooperation policy were not properly applied. The available medical and non-medical evidence does not support that he was totally disabled as a result of his compensable right eye injury beyond August 17, 2015. The worker was not an active participant in his work reintegration (WR).
There are two issues in this claim. The first is the worker’s level of impairment from the work-related eye injury in August 2015. Secondly, the suitability of the alternate work duties offered to the worker and the worker’s participation in the WR process.
WSIB Operational Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states the following regarding the payment of full LOE benefits:
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.
The medical and non-medical evidence supports that the worker was partially disabled as a result of his compensable right eye injury in August 2015. The optometrist reported on May 26, 2015 that the worker had restrictions due to decreased depth perception. He should not work with heavy equipment and his “accuracy” will be reduced. It is assumed that the optometrist meant a degree of acuity in his vision by accuracy. The family doctor indicated in a May 25, 2015 chart note that the worker could perform “light duties” but that the worker questioned whether there were enough hours available to him to make it worth his while to travel for work. This issue will be discussed in more detail below.
The optometrist completed a functional abilities form (FAF) on June 8, 2015. The worker was restricted in terms of climbing stairs and ladders, operating motorized equipment, and working above ground level. He had poor depth perception. The worker was not restricted in his ability to lift, walk, sit, stand, drive a car or take public transportation. He was fit to work full-time hours. The family doctor’s chart note from this date also suggests that the worker should only work at ground level and that he would struggle with his depth perception.
On July 6, 2015 the family doctor reported that the worker was unfit for construction work but could work in another capacity. The worker informed the Case Manager (CM) on July 9, 2015 that he intended to visit a temporary employment agency to look for alternative work. According to his testimony, he did not do this.
The optometrist completed an FAF on August 20, 2015. Even though the restrictions and capabilities on this form were essentially the same as those on the June 8, 2015 FAF, the doctor stated that the worker should not return to work. He remained unrestricted in his ability to stand, sit, and lift, and he was capable of taking public transit and driving a vehicle. It is unclear what had changed. The optometrist continued to recommend that the worker not operate heavy equipment, work in dimly lit areas or use ladders. It is likely that the optometrist was not made aware of the alternative work duties offered to the worker at this time, based on the other medical reports and claim file documentation.
The worker saw his doctor again on August 25, 2015. Based on the chart notes from this visit, the worker did not discuss the recent modified work offer from the employer with his doctor. The worker reported having issues with his vision in his immediate surroundings but did not have issue seeing at a distance.
I note that the worker’s eye condition is not mentioned in the family doctor’s chart notes for visits by the worker on August 27, September 9 and September 15, 2015.
The eye surgeon assessed the worker on September 23, 2015. The worker complained of blurred vision and his decreased depth perception. He reported having difficulty performing work tasks, but he had not been at work for