WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20180002
OBJECTING PARTY: Worker
REPRESENTED BY: Law Firm
RESPONDENT: Employer (Not Participating)
HEARING: Hearing in Writing
HEARD BY: L. Mansueti, Appeals Resolution Officer
DATE: February 22, 2018
ISSUE
The worker objects to the Case Manager (CM) decision dated March 10, 2017 communicating the worker is entitled to retroactive partial loss of earnings (LOE) benefits from December 6, 2012 to January 15, 2014 based on the determined suitable occupation (SO) entry-level wages of $16.00 per hour, 40 hours per week.
The worker seeks the payment of full LOE benefits from December 6, 2012 to April 9, 2014, the day he returned to work with a different employer.
BACKGROUND
The worker sought entitlement to benefits for his low back and bilateral plantar fasciitis which he attributed to his work duties. The accident date was determined to be December 5, 2012, the day he stopped working. The worker was 45 years of age at the time of injury, working as a mechanic. He had worked with the employer for approximately 3 years.
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision No. xxxxxx dated November, 2016 determined the worker was entitled to benefits for his bilateral foot condition; however, he was not entitled to benefits for his low back condition. The operating area was directed to determine the nature and duration of benefits flowing from the decision.
The operating area confirmed the worker remained off work post-accident, and eventually secured employment with another employer on April 9, 2014. A Work Transition (WT) assessment was completed, and it was determined an appropriate direct-entry SO was Heavy Equipment Operator with entry-level wages of $16.00 per hour, 40 hours per week. The decision letter dated March 10, 2017 communicated the worker was partially impaired and he had an ability to earn the determined SO wages from December 6, 2012 until January 15, 2014, the day after his last documented medical appointment for bilateral plantar fasciitis.
The worker objected to the decision dated March 10, 2017, and this is now before the Appeals Services Division.
AUTHORITY
Section 43 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy:
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
Adjudicative Advice Document: Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA
ANALYSIS
I have reviewed and considered the information contained in the record in accordance with the above noted legislation, operational policy, and support document. I find the worker is entitled to full LOE benefits from December 6, 2012 to January 14, 2014 inclusive. The reasons for this decision are outlined below.
The first question to be determined is the worker’s level of impairment.
Dr. J. R. Schwarz, Chiropractor, submitted a report dated December 12, 2012 indicating the worker was seen by a podiatrist, Dr. C. Hunt, on December 8, 2012. It was noted the worker was advised to remain off work for 2 weeks, and then see his family doctor. It must be noted Dr. Hunt’s consultation report was not submitted to the record.
Dr. R. Hevenor, the worker’s family doctor, submitted a Health Professional’s Report (Form 8) dated December 14, 2012 indicating the worker was diagnosed with bilateral plantar fasciitis. The worker was determined to be unable to work because of his inability to walk. The limitations were noted to be in place for 14 or more days. Dr. Hevenor’s chart note for this visit indicated the worker was experiencing severe bilateral heel pain. It was documented the worker stopped working on December 5, 2012.
Dr. Hevenor submitted a report dated January 11, 2013 indicating the worker was unable to stand for more than 15 minutes. He was experiencing severe burning heel pain. The worker was determined to be unable to return to work.
Dr. Hevenor submitted a report dated February 7, 2013 indicating the worker worked long hours standing on a concrete floor which contributed to the development of plantar fasciitis in both feet. It was noted his job duties involved lifting tires from the floor to attach to a wheel. To complete this task, he would place the tire on his toes and forefoot and lift the tire with his feet off the ground by forceful dorsiflexion, then put the tire on the wheel with his hands. Dr. Hevenor indicated the repetitive forced dorsiflexion of both feet and working long hours on concrete floors caused his plantar fasciitis.
On April 15, 2013 Dr. A. Rabinovich, Orthopaedic Surgeon, assessed the worker. The report indicated the worker had plantar fasciitis with heel pain, swelling, and tenderness. The condition was noted to have commenced in December 2012 when he stopped working. The worker received physiotherapy and orthotics without much benefit. Dr. Rabinovich recommended a plantar fasciitis protocol. Dr. Rabinovich indicated he would assess the worker in the future on an as needed basis. He advised he may administer an injection into the plantar fascia if the plantar fasciitis protocol fails after 3 months.
A chart note dated July 12, 2013 indicated the worker “just applied for truck driving job.” The worker was noted to be “fit to drive.”
A chart note dated September 3, 2013 indicated the worker required a letter for unemployment citing he was not able to stand for more than 1 hour due to pain in his heels.
Dr. R. D. Hevenor, the worker’s family doctor submitted a handwritten letter dated September 5, 2013 indicating the worker had ongoing pain in his feet related to plantar fasciitis. The worker was provided with an exercise protocol, which he had been following but did not achieve any sustained relief. Dr. Hevenor indicated the worker was not able to return to his previous job because within one hour of standing on a cement floor, he develops bilateral foot and heel pain. The worker received custom bilateral orthotics on September 10, 2013.
A clinical chart note dated January 14, 2014 indicated the worker presented with pain along the left heel and base of 5th metatarsal. The worker was noted to be using heel pads. He had seen a specialist but did not return for cortisone injection.
WSIAT Decision No. xxxxxx indicated the worker testified he had stopped working in December 2012 due to his feet. The pain had subsided after about a year, at which time he returned to work in May 2014 working for a different company. The worker continued working as a mechanic and driver for the new employer. The worker testified he worked fewer hours, his duties required less standing, and he would take a break from the mechanic position and drive a dump truck for a week or two until his feet improved. The worker advised he no longer worked on pickup trucks and he did not engage in any heavy lifting in his new position.
The worker representative indicated in a letter dated December 15, 2016 that the worker started applying for jobs in early 2014. The record contains 2 fax cover sheets for jobs the worker applied for with two firms: X Trucking and X Cartage.
Correspondence from the worker representative dated January 6, 2017 indicated the worker commenced employment with X Excavating on April 9, 2014. The duties involved loading material onto trucks. His rate of pay was $18.00 per hour, 40 hours per week. His rate of pay increased to $20.00 per hour effective May 1, 2016.
Operational policy 18-03-02 states, in part:
Full LOE
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.
I find the nature and seriousness of the worker’s bilateral foot condition initially prevented him from returning to his pre-injury employment, evidenced by Dr. Hevenor’s reports indicating the worker was unable to walk and he could not stand for more than 15 minutes at a time. The worker was then assessed by Dr. Rabinovich in April 2013; however, there was no comment on the worker’s level of impairment in the consultation report. It would appear the worker was capable of working in some capacity on or about July 12, 2013 as the clinical chart note indicated the worker applied for a truck driving job. As per the above noted policy, full LOE benefits are in order if the worker is able to return to some form of work and the WSIB determines no suitable work is available. The record indicated the employer did not have modified work available. This was evidenced by indication of such on the Employer’s Report of Injury (Form 7) and it was also documented in memorandum 3 dated December 12, 2012.
With respect to the payment of retroactive LOE benefit entitlement, the Adjudicative Advice Document states full LOE benefits are payable where an impairment exists that prevents a worker from returning to pre-injury employment and no suitable employment has been offered, but the worker is making reasonable efforts to secure suitable employment or is engaging in other activities such as health care treatment reasonably aimed at improving employability and minimizing LOE benefits.
In reviewing the facts and circumstances of this case, I have determined the worker was initially totally disabled and unable to work for a period of time and then became partially disabled and capable of working in some capacity. It is also noted the employer did not offer the worker any suitable modified work at any time. Therefore, the remaining question to be determined is whether the worker made reasonable efforts to secure suitable employment or was engaged in health care treatment reasonably aimed at improving his employability.
The worker representative submitted the worker ought to be entitled to full LOE benefits from December 5, 2012 to April 9, 2014 on the basis the worker made all reasonable efforts to mitigate his wage loss. The evidence supports the worker sought employment in July 2013 and in early 2014, and he was eventually successful in securing employment in April 2014. In terms of health care treatment, there is evidence the worker received physiotherapy, obtained orthotics, and engaged in an exercise protocol recommended by Dr. Rabinovich. I agree with the worker representative in that the worker made reasonable efforts to mitigate his wage loss evidenced by his job search efforts in 2013 and 2014; however, I find full LOE benefits are not in order beyond January 14, 2014 as there is no medical evidence in the record to support an ongoing impairment beyond that date. In summation, the worker is entitled to full LOE benefits from December 6, 2012 to January 14, 2014 inclusive.
CONCLUSION
I conclude the worker is entitled to full loss of earnings (LOE) benefits from December 6, 2012 to January 14, 2014 inclusive. The worker’s objection is allowed in part.
DATED February 22, 2018
L. Mansueti Appeals Resolution Officer Appeals Services Division