Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
CLAIM: 20172030
OBJECTING PARTY: Employer
REPRESENTED BY: Self
RESPONDENT: Worker
REPRESENTED BY: Union
HEARING: Hearing in Writing
HEARD BY: K. Gordon, Appeals Resolution Officer
ISSUE
The employer is objecting to the Case Manager’s (CM) decision of December 16, 2016 that allowed loss of earning (LOE) benefits from December 5, 2016 to December 18, 2016.
BACKGROUND
On December 2, 2016, this now 23 year old cook was taking food out of a hotbox, and placing the food into a green cart. The cart moved which caused stewed tomato to spill and burn the worker’s right arm. The worker reported the injury, and sought medical attention at the hospital the same day. The worker was diagnosed with second degree burns on her right forearm.
The employer submitted an Employer’s Report of Injury, Form 7 dated December 5, 2016. The Form 7 states that modified duties were offered to the worker to begin on December 3, 2016. The worker did not return to work to perform the modified duties offered, and was off of work from December 3, 2016 to December 18, 2016. The worker returned to her regular job duties on December 18, 2016.
In the decision of December 16, 2016, the CM accepted the worker was not able to perform the modified duties offered, and entitlement was allowed for both health care, and loss of earning benefits from December 3, 2016 to December 18, 2016.
The employer submitted an Appeal Readiness Form (ARF) dated May 10, 2017. The employer is objecting to the allowance of LOE benefits on the basis that suitable modified duties were offered to the worker.
The employer’s objection to the allowance of LOE benefits is the issue before me.
AUTHORITY
Operational Policies:
11-02-02 Lost Time Claims
18-03-02 Payment and reviewing LOE Benefits (prior to the Final Review)
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
ANALYSIS
Having considered all of the evidence, I find the worker is not entitled to loss of earning (LOE) benefits from December 3, 2016 to December 18, 2016. In arriving at my decision, I have considered the information in the claim file, the submissions made by the employer and the worker representative, as well as the appropriate Operation Policies.
The employer provided a submission attached to the Appeal Readiness Form (ARF) dated May 10, 2017. The representative argues that suitable modified duties were offered to the worker, and as such LOE benefits should not have been allowed. The employer listed the modified duties that were offered, and stated that the duties could all be done with one arm. The employer notes that although the worker stated she could not return to work until December 18, 2016, the worker was still able to participate in school examinations on December 11, 12, and 13, 2016.
The worker representative provided a submission dated July 21, 2017. The worker representative argues that the modified job offered to the worker was unsuitable as the duties required the use of her injured dominant right arm. The representative also states the worker did participate in her examination, as the examination was multiple-choice, and the worker could circle the answers with her non injured left arm. The examination also involved a group assignment that only required the worker to read recipes. For these reasons, the worker representative states the worker was fit to participate in the examination, however unable to perform the modified job duties offered.
Policy 18-03-02 states that if the nature and seriousness of the injury completely prevent 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 of suspend the worker’s LOE benefits.
In order to determine whether the worker is entitled to LOE benefits from December 3, 2016 to December 18, 2016, the worker’s level of impairment must first be established.
I have reviewed the December 2, 2016 emergency report (ER) from St. Joseph hospital which states the worker was diagnosed with a superficial first degree burn on the right forearm. The ER report notes the worker was prescribed an anti-inflammatory, and a pain medication. The hospital also completed a Health Professional’s Report of Injury, Form 8 dated December 2, 2016, which indicates the worker, was able to perform activities with her right arm as tolerated. The next medical report received to file is a Functional Abilities Form (FAF) completed by Dr. Matusa on December 6, 2016. The doctor did not provide any functional abilities or restrictions on this form. The doctor indicates the worker was physically unable to return to work at the time of the assessment. A Health Professional’s Progress Report, Form 26 is also on file from Dr. Matusa dated December 12, 2016. The Form 26 states the worker was diagnosed with second degree burns on her right forearm. The doctor noted that there was significant improvement with only some erythema (redness of the skin) remaining.
The doctor also stated the worker had partially recovered, and that she would be able to return to work on December 18, 2016.
In response to a request for more medical information, Dr. Matusa submitted a report dated December 14, 2016. The doctor noted that the worker was reassessed on December 13, 2016 and at that time the burn looked much better, and the worker’s pain had improved significantly. The doctor also noted mild to moderate erythema on the forearm, and that the burn covered an area of 10 by 10 centimetres on the forearm. The worker was prescribed epiceram cream to apply to the burn, and was advised to use Tylenol or Advil as needed for the pain. It was also noted that the worker had full range of motion during the reassessment on December 13, 2016.
My review of the information on file notes that the CM spoke to the worker on December 16, 2016. The worker stated that her arm was bandaged, and daily dressing changes were required. The doctor told the worker not to put pressure on her arm, and to remain off of work.
As per policy 11-02-02, the decision maker has the responsibility to determine if there is clinical evidence that supports a worker’s inability to work, and whether that inability is due to the work-related injury/disease. In this case, I find that the medical reports on file, support the worker had restrictions for her right arm, and was considered able to perform suitable modified duties within her restrictions. To support this finding, I rely on the December 2, 2016 ER reports that confirm a superficial first degree burn, and the recommendation to use the right arm as tolerated. I also find the December 12, 2016 Form 26 as noted above, supports the worker was able to perform suitable modified duties as significant improvement was noted, and there was only some erythema remaining.
I have reviewed the modified work offer on file dated December 4, 2016. The modified job offer identifies the worker’s restrictions as:
Work as tolerated with right arm
Micro breaks as needed
The modified job duties included:
Meal planning – collect food samples, label, receive and store food supply
Complete surge learning
Prepare non-heated food with arms as tolerated
Dining room audits
Dessert serving
Assist with portioning
Policy 19-02-02 states in part that the worker and employer have a shared responsibility in the work reintegration process. The parties must maintain communication with each other throughout the worker’s recovery, and work together to identify suitable job duties for the worker. In this case, the employer offered the worker the above noted modified duties which were available as of December 4, 2016. The worker did not return to the modified duties, but instead remained off of work and returned to her regular job duties on December 18, 2016.
I find that the modified duties offered demonstrate the employer’s willingness to participate in the work reintegration process. The job tasks appear to be predominately one handed and appropriate for a right forearm burn injury.
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 resolve any concerns. In this case the worker did not take advantage of this opportunity and waited until December 18, 2016 when she was able to return to her regular job duties.
In summary, I have accepted that the medical reports on file support the worker was fit for modified duties, and that the modified duties offered by the employer were within the worker’s physical restrictions. As such, I find the worker is not entitled to LOE benefits from December 3, 2016 to December 18, 2016.
CONCLUSION
The worker is not entitled to LOE benefits from December 3, 2016 to December 18, 2016.
I ask the Operating area to adjust benefits based on this decision.
The employer’s objection is allowed.
August 14, 2017
K. Gordon, Appeals Resolution Officer
Appeals Services Division