WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190063
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative (Not Participating)
HEARING: October 26, 2018 Hearing in Writing
HEARD by: S. Johnson, Appeals Resolution Officer
DATED: October 26, 2018
ISSUE
The worker objects to the Eligibility Adjudicator’s (EA) decision letter dated January 19, 2016 and reconsideration decision letter dated May 10, 2016 that denied entitlement to the payment of full loss of earnings (LOE) benefits from January 7, 2016 to January 8, 2016.
BACKGROUND
On January 6, 2016 this programs officer stood up from a bent position and banged her head on the kitchen cupboard at work. She sustained a small bump on her head and she experienced some head pain after the event.
The worker received first medical treatment on January 6, 2016 at the xxxx Hospital. In the Health Professional’s Report (Form 8) dated January 6, 2016 the emergency physician documented the worker was fit to return to full regular work duties immediately.
In the Employer’s Report of Injury/Disease (Form 7) dated January 6, 2016 the employer documented the worker missed a total of 15 hours from work on the shifts of January 7, 2016 and January 8, 2016. She returned to work to her regular preinjury work duties without restrictions on January 11, 2016.
In a decision letter dated January 19, 2016 and in a reconsideration decision letter dated May 10, 2016 the EA denied entitlement to the payment of full LOE benefits from January 7, 2016 to January 8, 2016 as it was concluded there was no medical authorization to support the need for lost time from work.
This is the issue for determination.
AUTHORITY
WSIB Operational Policy Manual Document No.:
11-02-02 – Lost Time Claims
18-03-02 – Payment and Reviewing LOE (Prior to Final Review) (published July 15, 2011)
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Entitlement to Full LOE Benefits from January 7, 2016 to January 8, 2016
I find entitlement to the payment of full LOE benefits from January 7, 2016 to January 8, 2016 is denied.
The Operational Policy Manual (OPM) Document Number 11-02-02 –Lost Time Claims – sets out decision-makers will review the information on file to determine a worker's entitlement to benefits. Clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.
The OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) (published July 15, 2011) sets out the threshold criteria for the payment of full LOE benefits that include if the nature or seriousness of the injury completely prevents the worker from returning to any type of work, providing that the worker co-operates in health care measures and if the worker is co-operating in early and safe return to work (ESRTW).
In the Appeal Readiness Form (ARF) dated August 17, 2018 the worker representative submits the worker ought to be entitled to full LOE benefits for the two shifts missed from work on January 7, 2016 and January 8, 2016 as she was unwell. Since her return to work on January 11, 2016 the worker’s symptoms progressively worsened to include difficulties concentrating, severe headaches, dizziness and nausea to the extent she received further medical treatment on February 8, 2016. The worker representative contends the worker’s lost time from work was due to the symptoms arising from her work-related concussion. In support of this position the worker representative relied upon the Health Professional’s Report (Form 8) dated February 8, 2016 that documented the worker required modified duties and work hours immediately within the functional restrictions that included no climbing, no lifting, no operating heavy equipment and no use of public transportation. The diagnosis provided was a concussion.
Fundamentally, the issue before me is whether or not the medical reports completed by the health professionals support a period of total disability for the lost time from work during the period from January 7, 2016 to January 8, 2016.
I acknowledge the worker representative’s expressed concerns the worker was unable to work on the shifts of January 7, 2016 and January 8, 2016 due to her symptoms arising from her work-related concussion injury. I am unable to agree with this position. In support of this finding I accord the greatest amount of weight to the attending emergency physician’s report dated January 6, 2016. In this report the physician documented return to work was discussed with the worker and she was medically cleared to return to full regular unrestricted work duties. The medical report prepared by the attending emergency physician does not express a medical opinion to suggest the nature and seriousness of this worker’s concussion prevented a return to any type of work. This is not the case.
The medical evidence is consistent with the employer’s evidence. In a telephone conversation with the EA on March 10, 2016 the employer reported the worker returned to full regular work duties on January 11, 2016 for the next few weeks. In this conversation the employer confirmed the worker continued to report with symptoms arising from her concussion to the extent she received further medical treatment on February 8, 2016 (Memo 2).
I accept this worker’s symptoms arising from her work-related concussion began to worsen over the course of the next month to the extent she received further medical treatment on February 8, 2016. In my view, it is reasonable to expect this worker would have, at best, received additional medical treatment if her symptoms progressively deteriorated to the extent she was unable to return to any type of work. This did not happen. I am unable to rely upon the medical report dated February 8, 2016 to retroactively adjudicate the worker’s lost time from work for a period of time approximately five weeks sooner dating back to January 7, 2016.
I prefer the medical report prepared by the attending emergency physician on January 6, 2016 who did not express a medical opinion to suggest the worker was totally disabled and unfit to return to work. The attending physician was the first health professional to assess the worker’s functional abilities within a short period of time following the work incident of January 6, 2016. In my view the attending physician would be in the best position to comment on the worker’s need for time off from work beyond the initial medical visit on January 6, 2016. This did not happen. The attending physician had the opportunity to document the worker’s overall clinical presentation and did not refer the worker for additional tests or diagnostic studies. The worker representative did not submit evidence to suggest there were errors or omissions in the physician’s medical report dated January 6, 2016.
I find there is little evidence to suggest the policy requirements in the OPM Document No. 11-02-02 –Lost Time Claims – and in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) (published July 15, 2011) – are met to objectively support the worker was totally disabled and unfit to return to any type of work, regular or alternative, on the shifts of January 7, 2016 and January 8, 2016.
CONCLUSION
I conclude entitlement to the payment of full LOE benefits from January 7, 2016 to January 8, 2016 is denied.
The worker’s objection is denied.
DATED: October 26, 2018
S. Johnson
Appeals Resolution Officer
Appeals Services Division