WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180031
OBJECTING PARTY: Worker
REPRESENTED by: Self
RESPONDENT: Employer (Not participating)
HEARING: June 4, 2018
HEARD by: K. Gowans, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Interpreter
DATED: June 7, 2018
ISSUES
The worker objects to the denial of full loss of earnings (LOE) benefits for the period between May 23, 2017 and June 26, 2017 (less two days worked on or about May 29, 2017 and May 31, 2017) as outlined in the Eligibility Adjudicator (EA) decision dated June 19, 2017 and the Case Manager (CM) decision dated July 18, 2017.
BACKGROUND
On May 12, 2017, this then 37 year old truck driver was stepping down from the cab of his truck when he twisted his left ankle and fell on his outstretched left arm. He sought immediate medical attention and was diagnosed with a severe left ankle sprain and a fracture of the left distal radius. He was treated conservatively with an ankle splint and forearm cast.
The worker remained off work following the accident and was paid full LOE benefits. The employer offered the worker modified duties effective May 23, 2017. The worker attempted the modified work on May 29, 2017 and again on May 31, 2017 however he remained off work following the two attempts until he was able to return to modified duties effective June 26, 2017.
In the EA decision dated June 19, 2017, it was determined that the modified duties available with the employer were suitable at no wage loss. As such, entitlement to LOE benefits for the period between May 23, 2017 and May 29, 2017 were denied.
For similar reasons, entitlement to LOE benefits for the period between June 2, 2017 and June 26, 2017 was denied as outlined in the CM decision dated July 18, 2017.
AUTHORITY
Policy Document : 11-02-02 Lost Time Claims
Policy Document : 18-03-02 Payment and Reviewing LOE Benefits (Prior to the Final Review) (Document date July 15, 2011)
ANALYSIS
For the reasons set out below, I find that the worker is entitled to full LOE benefits for the period between May 23, 2017 and June 26, 2017 less the two days he worked at the end of May 2017.
Policy
Policy document 11-02-02 directs that if a worker is unable to perform any type of work, the WSIB issues wage loss benefits or loss of earnings benefits. Decision-makers monitor the claim through the use of progress reports, which are reviewed as often as the severity of the injury dictates to ensure the worker is recovering as expected. It goes on to state that decision-makers determine, through the review of clinical information, when a worker is fit to go back to his/her pre-injury work, or suitable and available work.
Policy 18-03-02 states that 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,
Claim File Review
Following the accident, the worker was seen at a local emergency department where x-rays were taken of the left wrist and ankle. The left wrist x-ray revealed a nondisplaced fracture of the distal radius while the left ankle x-ray identified moderate anterolateral soft tissue swelling but no fracture.
An orthopaedic surgeon’s progress report dated May 19, 2017 noted that the wrist injury would be treated non operatively through the use of a cast. For the “severe left ankle sprain”, the worker was prescribed physiotherapy treatment to “work on balance, proprioception, range of motion and strengthening”. A four week follow-up appointment was made. There was no comment made in the report related to the worker’s level of impairment or any ability to return to work.
A May 19, 2017 chart entry from the worker’s family doctor noted that the worker was seen wearing a cast on his arm and a “foot cast” on his left foot. It was noted that he “is off currently” and that he would be seen by the specialist in follow-up in one month. Again, no mention was made as to the worker’s level of impairment or ability to return to modified duties.
The chart entry dated June 2, 2017 noted that the worker presented with “left ankle pain swelling”. The doctor indicated that the worker had started back to work performing light office duties. A request for an ultrasound was made and the worker was told to rest and elevate his foot.
The left ankle ultrasound was performed on June 12, 2017. The report confirmed that the worker was seen to rule out a tear. It identified fluid around the peroneus and flexor tendons as well as edema of the lateral malleolus but no acute tear.
The June 14, 2017 family doctor chart entry confirmed that the ankle was continuing to heal, with less pain, but that the worker need to continue elevating it for recovery purposes.
On June 19, 2017, the EA spoke to the worker and employer as documented in memo#A0004. The employer confirmed the accident history and advised that modified duties were offered to the worker verbally on May 23, 2017. The duties were to involve clerical work in the office. It was self-paced, all work could be done with one hand, there was “no pressure” for quotas and the worker would be able to elevate his leg.
The worker confirmed that the offer of modified duties was made on May 23, 2017 and that the duties offered were light and self-paced. The worker advised that he initially declined the offer “due to his leg pain” as his foot continued to be very swollen. It was documented that the worker returned to work on May 29, 2017 but was off again as of June 2, 2017. There is no documentation available to indicate how the return to work experience was or why he stopped working again as of June 2, 2017.
The EA concluded that the modified work offered by the employer was suitable for the worker to perform effective May 23, 2017 and as such denied entitlement to LOE benefits for the period between May 23, 2017 and when the worker returned to work on May 29, 2017. I note that there was limited medical information on file at the time of the decision, other than the original reporting from the hospital.
The claim record confirms that physiotherapy was only initiated as of June 20, 2017 (presumably after the allowance of the claim, which occurred one day earlier). The initial physiotherapy chart entry documents the worker complaining of left ankle pain and being unable to weight bear fully on the left foot. It was noted that the pain increased with long periods of standing to walking. Objectively, swelling, tenderness, bruising and skin discoloration was noted by the assessor. Treatment was to consist of manual soft tissue therapy, ultrasound therapy, icing and IFC treatment. A functional abilities form (FAF) completed by the physiotherapist suggested that the worker was unable to return to work at that time.
When seen on June 21, 2017, the physiotherapist documented that the worker still had pain, significant spasms and significant swelling of the left ankle along with a decreased range of motion (ROM). Ongoing treatment was still being provided. Similar findings were noted in the June 23, 2017 entry.
The June 23, 2017 orthopaedic surgeon report noted that the worker was continuing with physiotherapy treatment and that his wrist cast was removed. The worker was to start with physiotherapy for the wrist and continue with physiotherapy for the ankle.
The June 26, 2017 physiotherapist’s chart entry noted the worker had less pain in the ankle although the swelling persisted. He had difficulty moving the ankle and wrist in all directions. Continued elevation of the ankle was recommended.
The claim record confirms that the worker returned to the modified duties available with the employer on June 26, 2017. Physiotherapy treatment continued until discharged from care on August 28, 2017. He was subsequently authorized to return to regular duties on September 18, 2017.
Hearing Testimony
At the hearing, the worker provided testimony in a straight-forward and credible manner. He testified that following the accident, his left wrist was broken and his left ankle was severely sprained. When he was seen at the hospital, he said that the doctors told him to rest and elevate his left foot “above my heart level” to help with the swelling.
He stated that on or around May 23, 2017 he was in contact with his employer who offered him light, modified duties. At the time, he said his foot and ankle continued to be very swollen and painful. In addition, he had not heard from the WSIB about his claim and as such had been unable to start physiotherapy treatment.
He stated that he attempted to return to work on May 29, 2017. He did not dispute in any way the nature of the modified duties offered. He confirmed they were light and allowed him to sit as required and work with one hand. However, he stated that when he was at work, he was unable to keep his leg elevated above his heart level (i.e. lying down or reclined). He was given a bench to put his leg on however sitting for a prolonged period of time caused increased swelling to return.
Contrary to what the employer reported about his time at work, the worker stated that he remained home the following day (May 30, 2017) in an effort to reduce the swelling. While home that day, he stayed in a reclined position with his leg elevated.
This helped a bit so he decided to try and return to work again on May 31, 2017. However, by the end of his shift the swelling had returned to the point where it was almost as bad as when he was first injured. Again, he had still not started physiotherapy as he didn’t have a claim number.
He said he made an appointment with his family doctor and saw him on June 2, 2017. He said the doctor was worried that there was a tendon issue in his ankle that wasn’t identified on the initial x-rays. As such, he told him to stay off work and get an ultrasound. He confirmed the ultrasound did not find any tendon issues but stated that the swelling remained. Shortly after the ultrasound, the worker’s claim was established and on June 19, 2017 he was contacted by the EA who allowed the claim and authorized physiotherapy treatment.
He stated that he started physiotherapy immediately (on June 20, 2017) and again was told to remain off work until he had received some treatment. He stated that he received ultrasound, icing, and TENS treatments on the ankle.
After receiving 3 treatments he said the swelling started to diminish as did the pain. This allowed him to return to the modified duties effective June 26, 2017. He confirmed that he continued to receive treatment and require modified duties subsequent to this date but did not need to stay off work. He eventually was able to return to his regular job duties sometime in September 2017.
Assessment
When I assess all of the available information in the claim file, I find that the worker was essentially totally impaired for the period between May 23, 2017 and his return to work date of June 26, 2017 and therefore is entitled to full LOE benefits for this period, less the 2 days worked in May 2017.
In reaching this conclusion I note that the medical reporting leading up to the offer of modified duties identified a fractured left wrist and severely sprained left ankle. When the worker saw the orthopaedic surgeon on May 19, 2017, he confirmed that the ankle was “severely” sprained and that the worker required physiotherapy treatment. The doctor made no suggestion that the worker could return to work at that time.
In keeping with the worker’s testimony, I note that the claim was not established at that time as the employer never sent in an Employer’s Report of Accidental Injury (Form 7). In fact, there is still no Form 7 on file. As such, he didn’t have an allowed claim in order to start the prescribed physiotherapy treatment.
The worker ultimately attempted to return to work on May 29, 2017 but found that the swelling in his foot began to worsen. This was due to the fact that he couldn’t elevate his foot as high as required to keep the swelling under control. He stayed home the following day to see if the swelling went down. He then tried to return to the modified duties the following day, May 31, 2017. Unfortunately, the swelling increased and he again laid off work.
His testimony is entirely in keeping with the medical documentation on file. Following his failed return to work attempts, the worker saw his family doctor on June 2, 2017. The doctor ordered an ultrasound to rule out a tear of some sort. It is reasonable to accept the worker’s testimony that he was told to remain off work until such time as the ultrasound was done and the physiotherapy treatment was started.
Following the allowance of the claim, the worker immediately arranged for physiotherapy treatment, which started on June 20, 2017. After receiving three treatments, the worker testified that his swelling had reduced to the point where he could return to work, which he did.
In reviewing all of the medical reporting on file, there was no indication in any of the documentation to support or suggest that the worker could return to work before June 26, 2017. This, again, is in keeping with the worker’s straightforward testimony.
As such, I accept that for all practical purposes the extent of the worker’s left ankle pain and swelling rendered him unable to earn any income in suitable employment for the period between May 23, 2017 and June 26, 2017, less the 2 days he attempted to return to work at the end of May 2017. The rest allowed the worker to eventually return to temporary modified employment and then achieve a full recovery from the injury. As such, I accept entitlement to full LOE benefits for the period between May 23, 2017 and June 26, 2017 less time worked.
CONCLUSION
The worker’s appeal is allowed. The worker is entitled to full LOE benefits for the period between May 23, 2017 and June 26, 2017 less 2 days worked on or about May 29, 2017 and May 31, 2017.
DATED, June 7, 2018
K. Gowans
Appeals Resolution Officer
Appeals Services Division