WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20180015
OBJECTING PARTY: Worker
REPRESENTED by: Union
RESPONDENT: Employer
REPRESENTED by: Paralegal
HEARING: Hearing in Writing
HEARD by: D. Gowanlock, Appeals Resolution Officer
Dated: March 29, 2018
ISSUES
The worker is objecting to the Case Manager’s August 31, 2016 decision that confirms the suitability of alternate/modified work and the denial of entitlement to a loss of earnings benefits after June 24, 2016.
BACKGROUND
This now 60 year old cashier was hired by the grocery store in September of 2012.
On June 23, 2016 the worker reported a bilateral shoulder injury caused by her regular part time cashier duties. Medical reporting confirmed diagnoses of bilateral frozen shoulder as well as bilateral tears of the subscapularis tendons. A Physical Demands Analysis was obtained and a medical opinion sought from the WSIB Physician. The worker’s duties as a cashier were considered to be a significant casual factor in the development of the bilateral tears and the frozen shoulders and the worker’s bilateral shoulder injuries were confirmed as being a work-related in the August 17, 2016 decision letter.
On August 31, 2016 the worker spoke with the Case Manager and confirmed that she remained at work performing accommodated duties at reduced hours. The worker agreed that she was offered modified work at pre-injury hours however she chose to work three five hour shifts based on her doctor’s recommendations. In speaking with the employer, the Case Manager confirmed that accommodated duties and pre-injury hours were offered to the worker. The Case Manager wrote to the worker on August 31, 2016 confirming that the accommodated duties were suitable at pre-injury hours and as a result, entitlement to a partial loss of earnings benefit after June 24, 2016 was denied.
Worker’s Position
The worker objects to this decision. The worker provided an Intent to Object Form which did not include any new information. The worker representative provided an Appeal Readiness Form dated September 19, 2017 objecting to the August 31, 2016 decision and requested an oral hearing for the purposes of initial entitlement. The request for an oral hearing was denied and the worker representative provided a submission dated February 7, 2018 in support of the worker’s request for a loss of earnings benefit after June 24, 2016.
Respondent’s Position
The employer is participating in the appeals process. The employer representative will rely on their earlier submission dated November 24, 2016. It is the positon of the representative that the worker chose to self-restrict her hours although her pre-injury hours remained available to her. The employer supports the Case Manager’s decision.
AUTHORITY
The following Operational Policies apply:
11-02-02 Lost Time Claims
18-03-02 Payment and Reviewing LOE Benefits
19-02-01 Work Reintegration Principles, Concepts and Definitions
ANALYSIS
In my review I have had regard for the claim file information, relevant policy, legislation and the submissions put forth by the worker representative and the employer representative with respect to the issues. I have considered all the evidence and the following is a summary of my decision.
Issue: Suitability of alternate/modified work and the denial of entitlement to a loss of earnings benefits after June 24, 2016.
I find that the alternate/modified work offered to the worker was suitable and that the worker was capable of participating in a return to work program based on her pre-injury hours and therefore I find that the criteria required allowing a loss of earnings benefit has not been met. I arrived at this decision based on the following:
Case Details
According to memorandum # 4 dated July 14, 2016, memorandum #9 dated August 15, 2016 and memorandum #A0002 dated October 17, 2016, initial entitlement for bilateral shoulder injuries was accepted based on diagnoses of tendonitis, rotator cuff partial tears and impingement.
Memorandum #3 dated July 6, 2016 documents the worker’s statement. She explained the activities that she performed as a cashier that she attributed to the development of her shoulder injuries. She began to feel discomfort in February of 2016 and saw her doctor for shoulder pain. When her symptoms did not improve she returned to the doctor on June 13, 2016 at which time she was sent for an ultrasound and treatment with a chiropractor.
The family physician submitted a Health Professional’s Report – Form 8 on June 6, 2016 and reported that as a result of bagging groceries the worker developed sprain/strains and rotator cuff injuries in her bilateral shoulders. The worker was referred for chiropractic treatment. Page two of the Form 8 which provides restrictions and tolerances for return to work, was not included.
The Shoulder Program of Care (POC) Initial Assessment Report dated August 2, 2016 competed by a chiropractor indicates that the worker was restricted in terms of carrying, lifting, reaching, pushing, pulling and repetitive work. The worker was instructed to remain at work and perform other modified light jobs with modified hours.
On August 11, 2016, at the request of the Case Manager, the WSIB Physician reviewed the case and opined that the diagnoses of bilateral shoulder subscapularis tears, biceps tendonitis and bilateral frozen shoulder would be compatible with the worker’s job duties. The WSIB Physician supported the work restrictions provided by the chiropractor and noted that modified duties and hours were recommended.
On August 31, 2016 the Case Manager spoke to the worker at which time she confirmed that she remained at work performing accommodated duties at reduced hours and completing light tasks that involved light sweeping, dusting, putting away items that customer did not want and replacing and changing labels. All activities were self-paced. The worker agreed that she was offered accommodated duties at her regular pre-injury hours but she decided to complete only three five hour shifts per week based on her doctor’s recommendation. In terms of her activities of daily living, she was able to lift both arms in front of her just under her chest. She had difficulty reaching her arms out to the side and was able to lift to waist height. She was unable to reach behind her back. She was able to dress herself and shower on her own however it was painful to shampoo her hair. She was not performing any cleaning or laundry at home. She was able to cook but did not put dishes away.
After speaking to the worker, the Case Manager documented that entitlement to a partial loss of earnings was not approved given the absence of objective clinical findings to support the worker’s inability to perform the accommodate duties in accordance with her pre-injury hours.
On September 9, 2016 a Return to Work Specialist (RTW) met with the workplace parties. Based on the functional abilities for both shoulders documented on the POC dated August 2, 2016, the RTW concluded that the alternate duties of checking expiry dates and facing, tagging, price checks, overrides and refunds and returns were well within the accepted precautions and therefore suitable based on three eight hour shifts or twenty four hours a week.
The POC Outcomes and Summary Report dated September 22, 2016 documents no significant change although worker reported pain relief with therapy. The worker had limited bilateral shoulder internal rotation and abduction to less than 50%. The chiropractor continued to provide work limitations and indicated that the worker was able to work modified duties and hours.
On October 6, 2016 the worker was assessed at the WSIB Surgical Speciality Clinic. After examination, the assessors confirmed that the worker was partially recovered with further recovery anticipated. In terms of return to work, the worker was instructed to continue with modified duties within her restrictions and tolerances.
The worker was reassessed at the WSIB Surgical Speciality Clinic on February 21, 2017. The worker reported that she continued to work part time performing modified duties, fifteen hours a week. The modified duties included performing refunds, sweeping and desk work. The worker reported that she was not coping with her current work demands and that they were aggravating her symptoms.
The worker was reassessed at the WSIB Surgical Speciality Clinic on June 20, 2017 at which time she confirmed that she was performing modified work including sweeping, over-rides, floor walks for inventory and using both hands to scan products on shelves for inventory. She had recently tried working her cashier duties and was not successful. The assessors recommended that the work restrictions remain in place at least for another four weeks.
The worker was reassessed at the WSIB Surgical Speciality Clinic on August 10, 2017 at which time she confirmed that she continued to work fifteen hours a week floor walking involving inventory and scanning. She confirmed that she had made some improvement since the last visit. The assessors recommended permanent restrictions for both shoulders. Tolerances were not measured.
According to memorandum #A0025 dated September 20, 2017 the employer was not willing to permanently accommodate the worker given her level of cooperation.
According to memorandum #A0050 dated December 28, 2017 the employer ceased to accommodate the worker as of November 6, 2017 and payment of a full loss of earnings benefit was paid to the worker for participating in work transition services.
Findings
In determining whether the alternate duties of checking expiry dates and facing, tagging, price checks, overrides and refunds and returns is suitable, I am guided by policy 19-02-01 Work Reintegration Principles, Concepts and Definitions which provides general guiding principles in Work Reintegration (WR). Appropriate and early WR that maintains the dignity and productivity of the worker plays an important role in the worker’s rehabilitation and recovery. It also describes Suitable Work as post-injury work (including pre-injury) 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 outlined in her February 7, 2018 submission, the worker representative argues that the worker did not self-limit her working hours and that she was following her doctor’s advice. The representative referenced the Adjudicative Advise document and argues that the worker should use common sense and listen to what her body is trying to tell her. Further, the worker should not ignore the warning signs of overdoing it. Returning to work too early could cause damage and result in further injury for the worker and more time away from work. On several occasions the worker had expressed to her doctor her concerns and that she was not able to cope with her current work demands as they were causing her symptoms to be aggravated.
In considering the arguments put forward by the worker representative, I note that although the worker reported that she was not able to cope with her current work demands as they were causing her symptoms to be aggravated, at no time has the worker clarified what task or tasks aggravated her bilateral shoulder injuries and why. The alternate duties of checking expiry dates and facing, tagging, price checks, overrides and refunds and returns duties as documented in the September 9, 2016 are either visual in nature or require minimal handling, button pushing or minimal button pushing/scanning. In my view, these duties would not require any more functional ability or tolerance than the worker’s activities of daily living and I am having difficulty accepting that the duties are not suitable and that these specific tasks would aggravate the worker’s bilateral shoulder injuries. Further, I note that the return to work plan confirmed that the worker would only work with small light weight items. She had the right to refuse unsuitable work and was able to self-pace. She was also able to request assistance as required. Based on the return to work plan of September 9, 2016 and the medical evidence available to me, I am satisfied that the alternative duties offered and confirmed in the September 9, 2016 return to work plan are suitable and consistent with the worker’s functional abilities.
The worker representative argues that the worker did not self-limit her work hours and that she was following her doctor’s advice. However, I note that the worker did not clarify what physician was guiding her in terms of her return to work. The family physician has not provided any documentation other than page 1 of a Form 8 and has not provided any information in terms of restrictions and return to work. The Shoulder Program of Care (POC) Initial Assessment Report dated August 2, 2016 competed by a chiropractor indicates that the worker was instructed to remain at work and perform other modified light jobs with modified hours. To date, the chiropractor has not provided specific details in terms of what modified hours were recommended and I am unable to find that any further clarification has been provided by the assessors at the WSIB Surgical Speciality Clinic.
In determining whether the criteria allowing entitlement to a partial loss of earnings benefit after June 24, 2016 has been met, I am guided by policy 11-02-02 which states that a worker may be entitled to benefits/services if the worker suffers a work-related injury/disease and the worker loses time from work, has a loss of wages/earnings, or has a permanent disability/ impairment. Decision-makers 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.
I am also guided by policy 18-03-02 which states that in some cases, a worker may return to the identified suitable occupation at reduced hours or lower wages than what was projected. There is a need to examine why the earnings and/or hours have been reduced. If the decision-maker is satisfied that the worker chose to work fewer hours or at lower earnings, the loss of earnings will be paid based on the earnings established as part of the work transition plan, rather than at actual earnings.
The correspondence dated August 11, 2016 provided by the employer representative outlines the worker’s pre-injury work schedule and hours. For the weeks ending May 28, June 11 and June 18, 2016 she worked 10 shifts for a total of 68.5 hours. On average, she worked 6.85 hours a shift. Working a five hour shift in a modified return to work plan, in my view, would constitute working reduced hours.
As a result of my analysis, I find that the alternative duties offered and confirmed in the September 9, 2016 return to work plan are suitable and consistent with the worker’s functional abilities. Neither the worker nor her representative has provided an explanation as to what alternate tasks specifically aggravated her bilateral shoulder injury and why she was unable to work her pre-injury hours. The medical documentation on the case record does not provide clinical evidence to show that the inability to work is due to the work-related injury and therefore, I find that the criteria required allowing a loss of earnings benefit has not been met. I find that the worker chose to under-employ herself and that the medical evidence supports that she was capable of working alternate duties at her regular pre-injury hours. Therefore, I find that the worker is not entitled to a partial loss of earnings benefit.
CONCLUSION
I conclude:
The alternative/modified duties offered and confirmed in the September 9, 2016 return to work plan are suitable and consistent with the worker’s functional abilities. The worker was capable of working alternate duties at her regular pre-injury hours and the worker is not entitled to a partial loss of earnings benefit.
The worker’s objection is denied.
DATED March 29, 2018
D. Gowanlock
D. Gowanlock
Appeals Resolution Officer
Appeals Services Division