WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20180014
OBJECTING PARTY: Employer
REPRESENTED BY: Representative
RESPONDENT: Worker (Not Participating)
HEARING: Hearing in Writing
HEARD BY: F. Amorim, Appeals Resolution Officer
Dated: March 28, 2018
ISSUE
The employer objects to the case manager’s decision dated September 26, 2017 which determined the worker was entitled to loss of earnings benefits from August 31, 2017 to September 5, 2017.
BACKGROUND
On August 30, 2017 this now 52 year old worker tripped and fell injuring his left shoulder. The employer offered him modified work on the same day. The worker sought medical attention was diagnosed with a rotator cuff injury. The worker returned to work on September 7, 2018.
In a letter dated September 8, 2017 the worker was advised that the claim was approved for health care and loss of earnings (LOE) benefits. The employer objected to the allowance of LOE benefits noting the worker was offered modified work.
In a letter dated September 26, 2017 the case manager determined the worker was unable to work due to the shoulder injury from August 31, 2017 to September 5, 2017 and upheld the decision to approve LOE benefits. The employer objects to this decision
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
For the reasons that follow, I find the worker is not entitled to LOE benefits from
August 31, 2017 to September 5, 2017. In arriving at the conclusion, I considered the file record, the employer representative’s submission and relevant operational policies.
The employer’s representative provided an Appeals Readiness Form (ARF) dated
December 21, 2017. The employer representative’s position is the worker was not totally disabled during the period in question. The representative submitted the worker was offered modified work on the day of the injury and the injury would not have precluded him from performing the work. It was also submitted that there were no clinical evidence to support total impairment or authorization to remain off work. I agree with the representative’s position.
Policy 18-03-02 describes the circumstances in which full LOE benefits are paid:
If the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.
Policy 19-02-01, states that the Board views Work Reintegration (WR) as a series of activities which generally starts as soon as the employer learns that a worker has suffered a work-related injury. The policy states that the workplace parties are required to co-operate and fulfil all of their WR obligations. It provides the following definition of suitable work:
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’s Report of Injury (Form 7) included a copy of the modified job offer dated August 30, 2017. The employer indicated they would accommodate the worker’s regular job based on his restrictions. The employer also confirmed that they would be able to offer the worker the following modified work:
Signal man
Flagman/traffic controller
General site clean-up of light debris
Health and safety site monitor
Administrative duties (sedentary).
I note the worker signed the offer on August 30, 2017.
The Health Professional’s Report (Form 8) dated August 31, 2017 indicated the worker injured his left shoulder after a trip and fall. The physical examination findings included contusion/hematoma/swelling, inflammation, sprain/strain, tendinitis/tenosynovitis and a decreased range in motion. A diagnosis of rotator cuff injury was provided and a tear was queried. The worker was referred for x-rays, an ultrasound and physiotherapy. He was also prescribed rest and anti-inflammatory medication. The physician indicated the worker was able to bend/twist, kneel, operate a motor vehicle, sit, stand, use public transportation and walk. He was not able to climb, lift, operate heavy machinery, push/pull and use the upper extremities. The physician also provided another limitation which was listed as the inability to use the left arm and shoulder. The physician opined the worker was unable to work until the investigations were completed to clarify the extent of the injury.
The Functional Abilities Form (FAF) dated September 5, 2017 indicated the worker was capable of returning to work with restrictions. The functional abilities provided included lifting from waist to shoulder with the right shoulder and no ladder climbing. Restrictions included limited pushing/pulling and exposure to vibration with the left arm. In section E under “Additional Comments” the physician indicated there were partial tears to the rotator cuff muscles and that recovery would take approximately six weeks. The worker was authorized to return to modified work.
I note the reconsideration memo dated September 22, 2017 outlines the case was allowed for a left shoulder strain/sprain. In determining the worker was entitled to LOE benefits the case manager accepted the worker was unable to work due to the left shoulder impairment and totally disabled.
In this particular case, there is no evidence that the nature or seriousness of the worker’s left shoulder strain/sprain prevented him from returning to any type of work. The worker did not attend a hospital. He saw a physician the day after his injury. When he saw the physician, he was referred for imaging but not to a specialist.
The medical information provided in the Form 8 is confusing. As noted earlier, the physician indicated the worker had functional abilities and the restriction not to use the left arm. However, the physician also recommended the worker remain off work until the extent of the injury was clarified.
I find that based on the functional abilities identified on the Form 8 the worker could have performed modified work. I also find it probable that the physician was not aware that the employer offered modified work.
The employer offered the worker modified work on the day of injury. I am satisfied the worker was offered modified work given he signed the offer however, he declined the modified work.
There is no information in the file regarding the physical demands of the worker’s regular job or the modified work offered by the employer. Although the physical demands information was not provided, there is no evidence to suggest the worker would not have been able to work with his uninjured right shoulder. The worker did not return to work and did not work with the employer to identify suitable work, as he should have if there was a problem with the modified work offered.
In this case, I find the worker was able to engage in modified work consistent with the functional abilities and restrictions for his left shoulder injury as outlined on the Form 8; he was offered suitable modified work and declined the offer.
As such, I find the worker is not entitled to LOE benefits from August 31, 2017 to
September 5, 2017.
CONCLUSION
The worker is not entitled to LOE benefits from August 31, 2017 to September 5, 2017.
The employer’s objection is allowed.
DATED March 28, 2018
F. Amorim
Appeals Resolution Officer
Appeals Services Division