WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20180009
OBJECTING PARTY: Worker
REPRESENTED by: Self
RESPONDENT: Employer (Not participating)
HEARING: Hearing in Writing
HEARD by: M. Kimevski, Appeals Resolution Officer
DATE: February 27, 2018
ISSUE
The worker objects to the decision of May 1, 2017 denying entitlement to loss of earnings (LOE) benefits on the basis that worker was capable of performing suitable modified work offered by the employer.
BACKGROUND
The claim was established for an accident on April 21, 2017 when the worker, then a 43 year old shift mechanic had to bend over to enter a room where an air conditioning unit was located and when he began to get up from a bent over position he felt low back pain. Entitlement was granted for a low back strain for health care benefits.
In the May 1, 2017 decision letter the Case Manager noted the worker attempted a return to work on April 26, 2017 and went home due to pain. However, the medical information dated April 21, 2017 indicated the worker was able to return to modified duties and on the same day the employer offered safe and suitable duties that were within the worker’s physical limitations. Therefore, LOE benefits from April 22, 2017 were not in order and the claim remained allowed for health care benefits only.
The decision was reconsidered and confirmed in a letter of December 12, 2017 and the case was referred to the Appeals Services Division for consideration of the outlined issue. The worker requested an oral hearing to resolve the appeal; however, it was determine that the case did not meet the criteria for an oral hearing and the appeal would be resolved by a hearing in writing. Therefore, the decision was completed based on the information contained in the claim file.
AUTHORITY
Operational Policies
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
In reaching my conclusion I considered all of the available information in the context of the relevant operational policy and legislation. Based on my assessment I do not find in favour of the worker and I will outline my reasons for reaching this conclusion.
I note the worker outlined in his Intent to Object Form that his doctor recommended modified duties with restrictions and the employer offered modified work; however, when he returned to work on April 26, 2017 he was unable to continue due to severe back pain and he visited his doctor who recommended two weeks rest and suggested physiotherapy. The worker indicates he returned to work again on May 3, 2017 to modified duties, but on May 4, 2017 he got severe pain again and had difficulty moving, at which point his doctor requested an x-ray and a further two weeks rest with medication and physiotherapy. It was on a further visit dated May 15, 2017 that his doctor suggested four hours of modified duties for one week.
While the worker outlined the general chronology of the case, the issue in this case relies on an assessment of the worker’s ability to return to work and the suitability of the work offered. It is important to note that policy 18-03-02 entitled Payment and Reviewing LOE Benefits (Prior to Final Review) states the following in part,
A worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. Benefits continue 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.
In this case, the evidence does not support that the worker had a loss of earnings as a result of the work-related injury as I find the worker was capable of immediately returning to full-time suitable modified work at no wage loss.
First, with respect to the worker’s level of impairment, the evidence supports the worker was capable of returning to modified work immediately following the injury. The Health Professional’s Report (Form 8) dated April 21, 2017 indicates the worker suffered from acute low back pain or strain. No other specific findings were provided. The treatment plan included rest, heat, medications and physiotherapy. The report indicates return to work was discussed and the worker could resume modified duties with limitations for bending/twisting and lifting.
I consider the Low Back Injuries Program of Care (POC) Initial Assessment Report to be particularly important as it is more compressive and considers subjective and objective findings. The POC report indicates the worker was first treated on April 24, 2017 and the diagnosis was discogenic low back pain without neurological signs. With respect to return to work, the report specifically indicates that based on the assessment findings, the worker can return to modified duties with limitations for lifting, bending/twisting and climbing stairs/ladders. Additionally, a Functional Abilities Form (FAF) for the same day reiterated the worker was capable of returning to work with restrictions, which were more specific and included: walking for 10 to 15 minutes before needing to sit; standing 15 to 30 minutes; avoid lifting from floor especially if greater than 5 to 10 pounds; stair climbing 5 to 10 steps; ladder climbing 1 to 3 steps; no bending/twisting; and no pulling/pushing greater than 10 to 15 pounds.
I note the worker’s physician submitted a FAF for assessment on April 26, 2017 indicating the worker was unable to work; citing a lumbar strain with spasm and restriction of movement. However, pain and restricted movement were acknowledged in the POC report, which was based on an assessment just two days earlier and the worker was capable of returning to work. There is simply no evidence to substantiate the worker was completely impaired.
I also note that the worker’s physician submitted an undated Health Professional’s Progress Report (Form 26) indicating the worker’s condition was improving and he can begin modified duties on May 3, 2017 and graduated hours were not required. However, a FAF for assessment the next day, on May 4, 2017, indicated the worker was physically unable to return to work. Again, there is no clinical evidence to suddenly support a complete inability to work again. Therefore, having regard for the information available, the worker is considered partially impaired and capable of returning to work as of April 22, 2017.
In considering the job offer, I note that policy 19-02-01 entitled Work Reintegration Principles, Concepts, and Definitions outlines that suitable work means post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
I note the employer outlined that modified duties were verbally offered on the date of accident and then in writing on April 24, 2017. The modified duties included checking, cleaning and replacing guest room door locks and other duties as assigned within the worker’s restrictions and the worker would be paid for the hours worked at his regular rate of pay.
There is no dispute that modified work was offered to the worker. It is documented that the worker confirmed he was offered light modified duties where he would be able to inspect locks, check batteries etc. and he would also be able to take rest breaks as required. The worker advised that he returned to those duties on April 26, 2017, but was in too much pain and went home. The worker did not describe any particular problem or difficulty with the actual duties.
Based on the duties described they do not exceed the restrictions that were initially outlined and the duties are also within the more specific limitations that were provided on the FAF of April 24, 2017. Furthermore, a Return to Work Specialist was also involved and in reviewing the results of the return to work meeting on May 17, 2017, I note the restrictions were the same as those provided on April 24, 2017 and the worker was able to perform the duties of changing batteries in door locks, which were the same duties that were initially offered. Therefore, this further supports the modified duties that were offered were safe and suitable to the restrictions.
In conclusion, I do not consider the injury in this case to be of such seriousness that it completely prevented the worker from returning to any type of work. The medical information supports the worker was partially disabled and capable of a return to suitable work from the outset, and the modified duties that were offered were suitable; therefore, there was no loss of earnings as result of the injury.
CONCLUSION
Entitlement to loss of earnings benefits is not supported. The worker was capable of performing the suitable modified work that was offered.
The worker’s objection is denied.
DATED February 27, 2018
M. Kimevski
Appeals Resolution Officer
Appeals Services Division