WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20170023
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer
REPRESENTED by: Self
HEARING: Hearing in Writing
DATE: April 12, 2017
ISSUE
The denial of loss of earning (LOE) benefit payments from August 21, 2015.
The denial of LOE benefit payments from October 7, 2015.
The worker’s level of impairment and fitness to return to pre-injury work.
BACKGROUND
On August 14, 2015, this then 51 year old worker slipped and fell and sustained multiple soft tissue injuries, a nasal fracture and a fracture of he left radial head. Initial entitlement was accepted and according to the evidence the employer offered the worker modified work however the worker chose to adhere to the advice of the treating health professional and she declined the offer of modified work.
The letter to the worker from the Case Manager dated September 16, 2015 explained that full LOE benefit payments were allowed from August 15, 2015 to August 17, 2015 because there was no offer of modified work by the injury employer. Full LOE was allowed from
August 19, 2015 to August 22, 2015 because the worker was in her acute phase of recovery and the LOE benefit payment from August 24, 2015 to September 11, 2015 was denied because the worker was offered suitable modified work by the injury employer and transportation. Partial LOE benefit payments from August 16, 2015 were denied because there was no indication in the evidence that the worker was unable to return to regular hours.
The letter to the worker from the Case Manager dated September 24, 2015 allowed entitlement for the nasal surgery the worker underwent on September 22, 2015. The worker was allowed full LOE from September 22, 2015 to October 7, 2015 the date the worker was found fit to return to the modified work offered and available with the injury employer.
The Case Manager issued the decision letter to the worker dated October 7, 2015 that communicated the decision that the injury employer had suitable alternate work available for the worker and that although the worker was authorized off worker the medical note did not contain any objective restrictions to support that the worker was unable to perform the modified work available with the injury employer or that she was unable to work a full shift and therefore LOE benefit payments from October 7, 2015 were denied.
The letter to the worker representative dated April 14, 2016 explained that the decisions dated September 16, 2015 and September 24, 2015 and October 7, 2015 were reconsidered and were upheld because the employer offered suitable work and there were no clinical findings to support that the worker was unable to work a full shift. These matters are now before me.
AUTHORITY
Operational Policy
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 – Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
I have considered all of the available information, legislation, and relevant operational policy in reaching this decision and I have decided in favour of the worker and I will explain below.
For clarification purposes, the periods of LOE benefit payments are not inclusive periods. The “pay to date” is the date that the benefit is paid to and does not include payment for that date.
The initial treating physician described the worker’s injury as a blunt trauma to her face. The worker was authorized off work by the initial treating physician because of the nasal fracture and the left radial head fracture. It was noted in the initial medical evidence that the worker may require nasal surgery. The CT scan results dated August 14, 2015 revealed the nasal bone fracture and the medical evidence available August 17, 2015 reported that there was considerable swelling evident. It was noted that the x-ray report revealed a questionable occult fracture of the left radial head and the worker was placed in a cast until her consultation with the orthopaedic surgeon later that week.
The employer fulfilled their obligation under the Workplace Safety and Insurance (WSI) Act and the worker was offered modified work using one hand. It was noted that the offer of modified work included transportation for the worker. The medical evidence available on the record authorized the worker off work and there was no indication in the evidence that the worker was fit to return to her regular work or to modified work with physical limitations.
Operational Policy document 18-03-02 states in summary;
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.
Although the employer offered the worker modified work I find the nature of the worker’s injuries prevented the worker from accepting that offer of one handed modified work during the early phase of her recovery. The medical evidence provided by the Health Professional’s involved with the worker’s care clearly indicated that in their expert opinions the worker was unable to return to any type of work. It is reasonable to conclude that based on the clinical evidence available the worker was unable to return to work. The worker reported that she was experiencing side effects from the prescribed medication and noting the nature of the injuries the ongoing symptoms and pain reported by the worker would be expected particularly since the injury of the face was described as a blunt trauma and significant enough that she sustained a nasal fracture. The worker was also managing the left fractured radial head and the worker is left hand dominant.
The medical evidence provided by the family physician showed that the worker attended regular medical appointments and when there was an improvement in her condition the family physician indicated with the Functional Abilities Form (FAF) based on the examination date of
September 14, 2015, that the worker was able to return to work 2 – 4 hours per shift and physical limitations were identified for the worker. The worker returned to work with the injury employer on September 16, 2015 to modified worker and to modified hours. I find the medical evidence supported that the worker was unable to work from the date of injury to
September 16, 2015 and therefore the worker is entitled to full LOE benefit payments. The worker was authorized off work because of the nasal fracture, the left radial head fracture and the soft tissue injuries that affected multiple areas and there is no medical evidence available on the record that showed the worker was able to return to any type of work prior to the assessment date of September 14, 2015. The worker is entitled to partial LOE benefit payments from September 16, 2015 based on the hours she worked.
The worker continued to perform the modified work at reduced hours to September 22, 2015 the date she underwent surgical intervention for the nasal fracture she sustained on the date of injury. The medical evidence from the surgeon dated September 24, 2015 indicated that the worker was authorized off work for 2 weeks however after the worker attended a follow appointment with the surgeon on October 2, 2015, the surgeon provided a letter dated October 2, 2015 that indicated that the worker was to remain off work until October 13, 2015. I am mindful of the fact that the surgeon did not provide any physical findings with the letters dated September 24, 2015 and October 2, 2015 however there was no reported change in diagnosis and the worker was recovering from the surgery of September 22, 2015 and therefore the worker’s authorization to remain off work was because of the fact that she was recovering from surgery. The worker is entitled to full LOE benefit payments from October 7, 2015 to
October 13, 2015. In the opinion of the surgeon the worker was unable to return to work because she was continuing to recover from the nasal surgery and although the surgeon did not provided clinical findings with the medical evidence he provided dated October 2, 2015 it is reasonable to conclude that the authorization off work from October 7, 2015 to
October 13, 2015 was because in his expert opinion the worker was unable to return to work.
The Case Manager requested return to work services to assist with the worker’s return to work according to the referral memorandum dated October 7, 2015. The FAF form based on the assessment date of October 13, 2015 indicated that the worker was able to increase her hours of work to 4 – 6 hours per shift. The record revealed that the worker was on vacation from October 19, 2015 to November 4, 2015 the date that she returned to a full 8 hour shift performing modified work. The worker is entitled to partial LOE benefit payments from
October 13, 2015. I accept that in the opinion of the treating physician the worker was unable to resume a full shift and a review of the medical evidence revealed that the worker was gradually increasing her hours of work so in essence the family physician was effectively managing the worker’s gradual return to work based on his regular assessment of the worker.
The diagnosis from the date of injury remained unchanged according to the medical evidence available on the record subsequent to the date of injury and the worker co-operated in the rehabilitation of her work-related injuries. The worker underwent medical investigations and consultations with specialists and she required nasal surgery on September 22, 2016 because of the work-related nasal fracture. The worker’s progress was closely monitored by the Health Professional’s involved with her care and when it became evident that the worker was able to return to modified work at reduced hours the worker did so. The medical evidence revealed that the worker was to increase her hours of work and eventually the worker was able to return to a full shift. The worker’s gradual return to work adhering to the physical limitations identified for her condition evidently led to a successful return to work. I afford weight to the evidence from the treating Health Professionals involved with the worker’s care from the date of injury who affectively managed the worker’s rehabilitation. The worker’s authorization to gradually return to work is based on the guidance of her family physician and there is no reason to doubt that the reason for the gradual return to work was because of the nasal fracture that was repaired and the left fractured radial head.
CONCLUSION
- I find the worker is allowed full LOE benefit payments from the date of injury to
September 16, 2015 the date she returned to modified work and modified hours with the injury employer. The worker was previously allowed LOE benefit payments during this period however the Operating area is directed to ensure that the benefit periods allowed are accurately reflected because benefit periods are not inclusive.
I find the worker is allowed partial LOE benefit payments from September 16, 2015 to September 22, 2015 the date of the nasal surgery.
The Operating area is directed to adjust the LOE benefit period to accurately reflect the worker is entitled to full LOE benefit payments from the date of surgery
September 22, 2015 to October 7, 2015 because LOE benefit periods are not inclusive and currently the benefit summary shows that the “pay to date” is October 6, 2017 when it should be October 7, 2015.
I find the worker is allowed full LOE from October 7, 2015 to October 13, 2015 the date the worker was authorized to return to modified work subsequent to the nasal surgery.
I find the worker is allowed partial LOE benefit payments based on the hours she worked from October 13, 2015 to the date that she returned to full time hours.
The worker’s objection is allowed.
DATED April 12, 2017
C. Anzil
Appeals Resolution Officer
Appeals Services Division