WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190066
OBJECTING PARTY: Employer
REPRESENTED by: Employer Representative
RESPONDENT: Worker
HEARING: Hearing in Writing
HEARD by: Kelly Gordon, Appeals Resolution Officer
DATED: October 29, 2018
ISSUE
The employer, through their representative is objecting to the Case Manager’s (CM) decision dated February 15, 2018 that allowed loss of earning (LOE) benefits from January 25, 2018 to February 15, 2018.
BACKGROUND
On December 9, 2017, this worker was operating a rear fork picker (BT) machine when the machine was struck by a reach truck. The force of the collision caused the worker’s neck to be pushed forward, and the worker jerked her neck. The worker reported the injury the same day. On December 10, 2017, the worker advised her supervisor that she was experiencing neck pain, and on December 11, 2017, the worker was offered modified duties. The worker declined the modified duties and continued to perform her regular job duties until December 17, 2017.
Although the worker sought medical attention on December 13, 2017 and was prescribed physiotherapy, the worker did not report a work-place accident to the doctor until December 20, 2017. On December 20, 2017 the worker was diagnosed with a neck sprain/strain type injury.
On December 17, 2017, the worker started to lose time from work. The worker was again offered modified duties, but declined stating she would be unable to perform the duties until her next shift on December 22, 2017. The worker returned to the modified duties offered on December 22, 2017. On December 23, 2017, the worker sought medical attention again and was provided with restrictions for work.
On January 17, 2018, the Eligibility Adjudicator (EA) allowed entitlement to the worker’s neck strain and the claim was allowed for health care benefits. The EA denied LOE benefits from December 17, 2017 to December 22, 2017, as the employer offered the worker modified duties, but the worker declined.
The worker contacted the WSIB on January 25, 2018 and advised that she was not able to continue with the modified work as it was unsuitable. The worker went off of work on January 25, 2018. The CM referred the file to a Return to Work Specialist (RTWS) who attended a worksite meeting on February 13, 2018.
The RTWS report on file confirms that prior to the RTW meeting, the worker was offered work in the packing area of single items. The accommodated work required the worker to ask for help when there were items over five (5) kilograms. As the co-workers also have production quotas, co-worker’s could not always assist the worker. The worker was required to take items out of a bin. The items in the bin weigh anywhere from one (1) pound up to 50 pounds and the items could not be controlled by the employer. If a co-worker was not able to assist the worker, the worker would lift items that were outside of her restrictions.
In the decision dated February 15, 2018, the CM accepted the modified duties offered to the worker prior to the RTW meeting were not suitable. As such, the CM allowed entitlement to LOE benefits from January 25, 2018 to February 16, 2018. During the February 15, 2018 RTW meeting, alternate duties were identified and the worker returned to the identified modified duties on February 16, 2018.
The employer representative submitted the Appeal Readiness Form (ARF) dated September 10, 2018 confirming their objection to the February 15, 2018 decision. Specifically, the employer objects to the allowance of LOE benefits from January 25, 2018 to February 16, 2018.
The employer’s objection to the allowance of LOE benefits from January 25, 2018 to February 16, 2018 forms the basis of this appeal.
AUTHORITY
Operational Policies:
Policy 18-03-02 Payment and Reviewing LOE benefits (Prior to Final Review)
Policy 19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
Having considered all of the evidence, I find the worker is entitled to LOE benefits from January 25, 2018 to February 16, 2018. In reaching this decision, I have considered the information in the claim file, the employer representative’s submission, as well as the appropriate Operational Policies.
In the employer representative’s submission dated September 10, 2018, the representative states the employer did provide the worker with safe and suitable modified duties. The representative states the modified duties were offered to the worker in writing, and were within the worker’s physical restrictions. The representative states the modified job offered did not have production quotas, and the worker had the ability to work at her own pace. The representative argues there is no objective basis to determine the modified duties were unsuitable. As such, the representative argues entitlement to LOE benefits from January 25, 2018 to February 16, 2018 should not have been allowed.
The worker is not participating in this appeal, and no submissions have been provided for my consideration.
As per Policy 18-03-02, If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process. In this case, although the employer offered the worker modified work, the issue to be determined is whether the modified work was suitable.
Policy 19-02-01 Work Reintegration Principles, Concepts and Definitions defines suitable work as post-injury work (including the worker’s pre-injury job) that is safe, productive, and consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
As noted above, the employer argues the modified duties offered to the worker were safe, productive and within the worker’s functional abilities. As such, the employer argues the worker should not be entitled to LOE benefits from January 25, 2018 to February 16, 2018.
In my review of the medical evidence on file, I note a Functional Ability Form (FAF) dated December 23, 2017. This form confirms the workers restrictions as: walking up to 100 meters, standing up to 15 minutes, full abilities for sitting, lifting from floor to waist less than three (3) kilograms, lifting from waist to shoulder less than 3 kilograms, stair climbing limited to 5 steps, ladder climbing limited to 3 steps, no repetitive bending or twisting, and no work at or above shoulder level. The worker was fit to take public transit and to drive a car.
Another FAF was completed on January 3, 2018. This form confirms the worker’s restrictions as: full abilities for walking, standing and sitting, lifting from floor to waist and waist to shoulder was limited to a maximum of five (5) kilograms, no stair or ladder climbing and, limited pushing and pulling with either arm. The worker was also not to perform any activities with repetitive bending.
The FAF dated January 18, 2018 confirms the following restrictions: no lifting from floor to waist or waist to shoulder, no repetitive bending. The worker had full abilities for stair and ladder climbing.
Although there is a FAF on file dated January 29, 2018 stating the worker was not able to return to work, there are no objective findings provided on this report to support the worker was unfit for any type of work.
In terms of the modified work performed between January 25, 2018 and February 16, 2018, I note memorandum 11 dated January 25, 2018. In this memorandum, the worker advises the CM the modified duties being performed are unsuitable. The worker states the duties require lifting, and use of her arms.
I also note a RTW meeting was held at the worksite on February 15, 2018. In memorandum 14 dated February 14, 2018, the RTWS states the following:
“The worker previously was offered work in the packing area of single items. The worker was required to retrieve an item from a bin, scan the item, place a label on the item and place it onto the conveyor line. The worker did perform this work for a few weeks but stopped working due to pain; and lifting of heavier items over 5kgs. The accommodated work required the worker to ask for help when there were items over 5kgs; however, this was not always possible. There were other co-workers in the area and a “runner” to ask for help but this did not always happen. The worker cited production quotas were expected from each staff which is why others could not always assist her. The item in a bin weighted anywhere from 1 pound up to 50lbs (dog food). The items in the bin cannot be controlled by the employer. The worker stated a production quota was expected from her while performing modified work; however, the employer stated this was not generally the case.”
As indicated in the above memorandum, the RTWS advised the work-place parties that if no one was available to assist the worker in lifting the items over 5kgs, then the modified work is not suitable.
As the RTWS determined the above noted modified job was unsuitable, an alternate job as an OPS co-ordinator was identified as a suitable modified job. The OPS co-ordinator position involved the worker using the computer to review and print the run wave sheets. The worker was to walk around the floor and verify the items picked inside the totes. The worker would also give the run wave sheets to the pickers.
Further to the information provided by the worker in the RTW meeting, the employer representative submitted a correspondence dated February 13, 2018. In this correspondence, the employer confirms the worker did not have a production quota while performing modified duties. To support this, the employer provided the worker’s production rates while performing modified duties. The rates confirm the worker did not meet 50 percent of her production rates.
In the correspondence noted above, the employer also provided a witness statement from a co-worker. I note the statement confirms the worker did not complain of pain or discomfort, and was advised to always ask for help. The worker did not show pain in her body language and went out to her car for breaks.
Based on my review of the evidence on file, I am persuaded to accept the modified duties the worker was performing prior to February 16, 2018 were not suitable. In making this determination, I have placed significant weight on the RTWS memorandum dated February 14, 2018. In this memorandum, the RTWS found the modified job the worker was performing prior to the meeting was unsuitable. The worker, the employer and the RTWS were all in attendance at the worksite meeting. The RTWS states that during the meeting, it was determined the worker’s co-workers were not always able to assist the worker with lifting items in the totes. As the weights of the items in the boxes could not be controlled by the employer, and that some items weighed up to 50 pounds, the RTWS found that when a co-worker was unable to assist the worker, the job was not suitable, as the worker would be required to lift weights that were outside of her restrictions.
While I accept the evidence provided by the employer after the RTW meeting supports the worker did not have a production quota when performing modified duties, this does not alter the information provided during the meeting that a co-worker was not always available to assist the worker with duties outside of her restrictions. I have also considered the witness statement provided by the employer. Although the witness statement states the worker did not complain to that specific co-worker of pain or discomfort, there is no indication from the statement provided that the worker was always accommodated with assistance to perform the lifting duties that were outside of the worker’s restrictions. I have also placed weight on the fact that an alternate modified job was identified during the RTW meeting, and that the RTWS determined the duties prior to the meeting were not always suitable. I find the identification of a new modified job during the RTW meeting also supports the modified job provided to the worker prior to RTW meeting was outside of the worker’s functional abilities.
For the reasons stated above, I find the modified job the worker was performing prior to the RTW meeting required the worker to sometimes work outside of the worker’s functional abilities. As per policy 19-02-01, suitable work is defined as post-injury work that is safe, productive, and consistent with the worker’s functional abilities. I find the worker was not performing suitable work prior to the RTW meeting, and as such, I find the worker is entitled to full LOE benefits from January 25, 2018 to February 16, 2018.
CONCLUSION
I find the worker is entitled to LOE benefits from January 25, 2018 to February 16, 2018.
The employer’s objection is denied.
DATED: October 29, 2018
Kelly Gordon
Appeals Resolution Officer
Appeals Services Division