Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20190065
Objecting Party: Worker
Represented by: Self
Respondent: Employer (Not Participating)
Hearing Location: Teleconference
Hearing Date: October 22, 2018
Heard By: L. Cirillo, Appeals Resolution Officer
Dated: October 29, 2018
Issue
The worker objects to the Case Manager’s (CM’s) decision dated May 30, 2018, which denied Loss of Earnings (LOE) benefits from December 27, 2017 to March 9, 2018.
Background
On December 20, 2017, the worker was bringing paper work out to an aircraft when he slipped on ice and fell into equipment on the ramp injuring his lower back. The worker was 40 years of age at the time and had been working for the employer as a Cargo Attendant for approximately 2 years.
The worker was taken to the emergency room via ambulance for treatment and the Form 8, Health Professional’s Report dated December 20, 2017 outlined that he had suffered a lower back strain and would be off work until December 26, 2017. The worker commenced conservative treatment; however, did not return to work until March 10, 2018.
The employer advised that they had not received updated medical information/limitations and as a result, they did not offer modified work.
Initial entitlement for a lower back injury was allowed; however, it was concluded that there was no objective medial evidence to support that the worker was totally disabled and unable to return to work. As a result, LOE benefits from December 21, 2017 onward were denied. The decision was communicated to the worker in correspondence dated March 13, 2018.
The worker objected to the denial of LOE benefits and provided additional medical information in support of his position. It was ultimately concluded that the worker was in fact totally disabled and LOE benefits were in order from December 22, 2017 up to and including December 26, 2017, only. However, it was also determined that no limitations were provided to the employer despite numerous attempts to contact the worker and as a result, LOE benefits beyond December 26, 2017 were not in order. The reconsideration decision was communicated to the worker in correspondence dated May 30, 2018.
The worker objected to the above; however, the decision remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Worker’s Position:
At the hearing, the worker provided detailed testimony with respect to his accident history. He explained that on December 20, 2017 he slipped and fell injuring his lower back. He recalled that he was taken to the hospital and they were concerned he had suffered a fracture; however, after undergoing a CT scan it was noted that there was no break but something had shifted in his back. The worker explained that he was in a tremendous amount of pain and had great difficulty ambulating or staying in one position.
The worker recalled that he needed assistance with activities of daily living and that he relied on his wife for help. The worker explained that he was referred to and participated in physiotherapy treatment.
The worker stated that he was in constant contact with his manager and every time he went to the doctor, he called him and gave him an update. The worker stated that at no time were modified duties ever offered to him. In fact, he testified that his manager told him not to rush back to work and only to return when he had a note clearing him for full duties.
The worker stated that initially he was being paid advances, but when his claim was denied, the HR manager contacted him to tell him that they would no longer pay his wages. The worker explained that this was the only time that the HR manager called him. The worker also stated that when he was able to return to work he had to self-accommodate his regular duties and no one gave him any alternate work. The worker explained that until this day he has ongoing discomfort. In addition, the worker outlined that his paycheque was garnished to pay back the advances that he had initially received.
The worker recalled that he did in fact provide medical to his employer. He explained that his wife put some reports in the mail and his manager confirmed it was received but this was not the normal way to submit medical information.
The worker was adamant that the employer never called him to offer modified work and actually, he called them all the time to update them. For these reasons, he requests that he be reimbursed for his loss of earnings until his return to work on March 10, 2018.
Authority
Operational Policy:
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
Analysis
I have reviewed the record and considered the information and relevant operational policy in reaching this decision. In considering the information contained in the record, in addition to the testimony provided at the hearing I find the worker was unable to return to his pre-injury duties and the employer did not offer modified work. As a result, full LOE benefits from December 27, 2017 up to and not including March 10, 2018 are in order. The rationale for my decision is as follows.
Operational Policy 18-03-02 states in part:
A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of
- the day on which the worker’s loss of earnings ceases
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
- two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
- the day on which the worker is no longer impaired as a result of the injury.
As is outlined above entitlement has been accepted for a lower back injury which resulted from a slip and fall accident. Initially, the ER physician was concerned that the worker had suffered a fracture; however, the CT scan completed on December 20, 2017 confirmed no fracture was present. Despite this, the worker developed significant pain and discomfort, which radiated into his bilateral knees. In addition, he had difficulty with straight leg raise (SLR) bilaterally, decreased range of motion and difficulty with prolonged sitting and standing. The worker also had disturbed sleep and difficulty changing positions. Both his family doctor, Dr. Lawler and his physiotherapist supported this.
It was not until March 2, 2018 that the worker was cleared to resume accommodated duties effective March 14, 2018. The worker returned to work on March 10, 2018.
In addition, in reviewing the record, while I note that the employer maintained that they were not provided with updated restrictions, it is confirmed in various memos on file that the employer did not offer the worker any modified duties. This is evidenced in memos A0002, A0003, A0004 and A0006. In addition, the employer also confirmed in memo A0004 that every time the worker went to the doctor he spoke to his manager. In my view, the employer was fully aware that the worker was suffering from a lower back injury; however, no attempt was made to offer work, which satisfied even the standard lower back restrictions.
In considering the above, I am persuaded that the worker remained disabled and unable to perform his regular job duties between December 27, 2017 and March 10, 2018. I am also persuaded that the employer failed to offer suitable modified work which adhered to his lower back injury and as a result full LOE benefits are in order for the above period.
Conclusion
I conclude full LOE benefits for the period of December 27, 2017 up to and not including March 10, 2018 are in order.
The worker’s objection is therefore allowed.
DATED: October 29, 2018
L. Cirillo
Appeals Resolution Officer
Appeals Services Division