WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20180047
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer (participating)
HEARING: Hearing in Writing
HEARD by: Helen Shaw, Appeals Resolution Officer
DATE: August 22, 2018
ISSUE
The worker is seeking:
Entitlement for an intercostal strain, in addition to the allowed strains/sprains of the mid/low back.
Partial loss of earnings (LOE) benefits for April 20 & 21, 2017 and full LOE benefits from April 24, 2017 to May 5, 2017, denied in the Eligibility Adjudicator (EA) decision of May 29, 2017.
BACKGROUND
The worker was employed full-time as a delivery agent for a postal service. On April 18, 2017, at age 54, she sustained a muscle strain while lifting a parcel.
She had a partial loss of earnings on April 20 & 21, 2017 and was off work completely from April 24, 2017 to May 5, 2017. The decision of May 29, 2017 denied LOE benefits because modified work was available at no wage loss. The decision of June 1, 2017 clarified the accepted diagnoses as a strain/sprain of her mid-back and low back.
AUTHORITY
Operational Policy
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review), July 15, 2011
ANALYSIS
I have considered all of the available information, legislation and relevant operational policies in reaching this decision and find entitlement should be extended to include an intercostal strain, but there is no entitlement for LOE benefits. My reasons are explained below.
The worker representative provided an Appeal Readiness Form and submission dated February 19, 2018. It is their position that the worker initially performed modified duties at reduced hours, but the work aggravated her pain and discomfort. She stopped work after seeing her doctor on April 21, 2017. The submission argued that the modified work in sortation only lasted from three to four hours, the offer of modified work was not for full hours and noted the worker is hard of hearing, which may have made communication difficult. It is also their position that the accepted diagnoses should include an intercostal muscle strain.
The employer provided a Respondent Form and attached submission. It is their position the modified sortation duties consisted of multiple cubby holes in a case where mail is sorted a piece at a time into the appropriate cubby, based on postal code. The employer argued that sortation involved only occasional above shoulder reaching and assistance could have been provided if the worker had problems with some tasks.
In the rebuttal submission dated July 5, 2018, the worker representative argued that the cases shown in the employer’s submission were not the cases used by the worker. The submission asserted that the case used by the worker was not adjustable for height or width and that the worker was bending and twisting more.
After reviewing the medical evidence, I accept that an intercostal strain should be part of the accepted diagnoses. Chart notes from April 19 & 21, 2017 indicated the worker was having pain over the chest wall, which is consistent with the intercostal strain diagnosed on the Program of Care assessment.
According to Operational Policy 18-03-02, if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, she is entitled to full LOE benefits, providing she co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.
Workers are also entitled to full LOE benefits if they co-operate in work reintegration activities and continue to have a full loss of earnings.
I am not satisfied that the medical evidence establishes the worker was totally unable to work from April 24, 2017 to May 5, 2017. The Health Professional’s Report (Form 8) completed on April 19, 2017 recommended a return to modified duties on April 20, 2017, limiting bending/twisting, lifting heavy weight and pushing/pulling. Restrictions were recommended for up to 14 days. Functional Abilities Forms (FAF) dated April 21, 2017 and April 29, 2017 indicated the worker was unable to work, but no specific findings were provided to explain a decrease in her ability to work. A chart note from April 21, 2017 indicated she still had pain and could not sit or stand for more than 15 minutes, but I find that does not objectively suggest a total inability to work. An x-ray of the thoracic spine on April 29, 2017 showed only a mild scoliosis and mild degenerative disc disease, which supports that the worker sustained a strain/sprain and not a more serious injury that would render her unable to work.
I also find the evidence does not suggest the modified work was unsuitable. The worker representative suggested the modified duties required the worker to bend and twist, but in reviewing the medical chart notes, there is no indication the worker reported that the duties exceeded her restrictions. I also do not find evidence that she asked the employer for additional accommodations or identified tasks that exceeded her restrictions.
The submissions from the worker representative suggest that the employer was not able to accommodate the worker with full hours on modified duties, but I do not find there is evidence to support that contention. The offers of modified work do not suggest the duties were available only for restricted
hours. The balance of the evidence indicates the worker withdrew from the modified duties after April 21, 2017; therefore, I find the loss of earnings was the result of the worker claiming she was unable to work and not lack of available work.
In summary, I find entitlement should be extended to include the intercostal strain, but noting modified work was available and the nature of the injury did not completely prevent the worker from working, I find there is no entitlement to LOE benefits.
CONCLUSION
I conclude:
The worker has entitlement for an intercostal strain, in addition to strains/sprains of the mid/low back.
There is no entitlement to partial loss of earnings (LOE) benefits for April 20 & 21, 2017 or for full LOE benefits from April 24, 2017 to May 5, 2017.
The worker’s objection is allowed in part.
DATED: August 22, 2018
Helen Shaw
Appeals Resolution Officer
Appeals Services