WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190074
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
HEARING: Hearing in Writing
HEARD by: M. Huot, Appeals Resolution Officer
DATED: September 18, 2019
ISSUE
The worker is appealing the Case Manager’s (CM) January 2, 2019 decision that denied loss of earnings (LOE) benefits from October 16, 2018 onwards in this claim for the worker’s lower back injury.
The worker representative’s (WR) submissions also reference an issue that has not been ruled on by the operating area and is therefore not before me. This issue is entitlement for a chronic pain condition.
BACKGROUND
On September 22, 2017, this now 24 year old worker injured his lower back while lifting a 30 to 40lbs piece of wood/panel with a colleague. The worker reported the injury to the employer and sought medical attention on the date of accident. He was working as a sander at the time of the injury, and had been working for the accident employer (AE) since February 2017.
The worker was off work until October 2, 2017, at which point he returned to work on modified duties, but was then laid off again effective October 17, 2017.
A return to work specialist (RTWS) met with the workplace parties at the end of November 2017 to facilitate the return to work (RTW). The RTWS determined that the modified work duties offered by the AE were suitable, and the worker resumed working effective December 11, 2017 when he started a graduated RTW plan.
On January 3, 2018, the worker went off work following a flare up of his back injury. He resumed working after that, but worked reduced hours. Although the worker continued to work reduced hours up to April 2018, partial LOE benefits were only allowed up to February 10, 2018.
The worker continued performing the modified work duties until July 10, 2018 when he sustained a work-related head injury. He was off work until July 31, 2018, and started a gradual RTW plan at that time. He resumed working his full hours on modified duties as of August 27th, but then was on vacation from September 10 to 30, 2018. He resumed working on October 1st, but then went off work due to his back injury effective October 16, 2018.
A permanent impairment was recognized in this claim for a lumbar sprain/strain with L5 nerve root syndrome. The worker reached maximum medical recovery on September 17, 2018 and received a 7% non-economic loss (NEL) benefit. The worker has objected to the NEL benefit quantum, and this is proceeding under a different appeal.
The CM denied entitlement to LOE benefits for the lost time that began on October 16, 2018 when she concluded that the AE was offering the worker suitable work at no wage loss. The worker is appealing the decision to deny LOE benefits; the WR submitted an Appeal Readiness Form (ARF), and the claim was forwarded to the Appeals Services Division. Although the employer is participating in the Appeal, they did not submit any further information.
AUTHORITY
Relevant Operational Policies:
11-02-02 Lost Time Claims
19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
In arriving at my decision, I have reviewed and considered all of the information contained in the claim file, the WR’s submissions, as well as the relevant operational policies. I find that the worker does not have entitlement for LOE benefits, and I will explain my rationale.
Review of medical information:
On November 22, 2017 the worker began a physiotherapy treatment program. The therapist noted that the worker had an acute muscle/soft tissue strain in the low back area, and central disc bulging at L5/S1 based on an MRI that took place on November 4, 2017.
By early January 2018, the treating physiotherapist indicated that the worker could return to work provided he avoid lifting more than 10lbs, avoid frequent bending and lifting from ground level, sit no more than 30 minutes, avoid standing for more than 15 minutes and avoid work above shoulder level.
A Regional Evaluation Centre (REC) assessment took place on January 23, 2018. At that point, the worker reported a 50% recovery of his symptoms since the date of injury. The range of motion (ROM) findings for his lumbar spine were 90 degrees in flexion, 30 degrees in extension, 25 degrees in right lateral flexion and 30 degrees for left lateral flexion.
The REC recommended a gradual RTW plan with an anticipated return to the full pre-injury job after eight weeks. The REC noted that the worker had a high level of perceived disability that was not consistent with the objective findings of the physical injury.
The worker attended an assessment at the Back and Neck Specialty Clinic on May 3, 2018. This assessment concluded that the worker had sustained a lumbar sprain/strain with left L5 nerve root syndrome. Although the worker reported some intermittent radicular symptoms, there was no evidence of structural or nerve root compression.
The Specialty Clinic assessment recommended the following work-related restrictions: avoid prolonged or repetitive flexion, extension, twisting, heavy lifting, carrying, pushing, pulling, above chest level work, prolonged sitting, standing, walking, climbing stairs and ladders, prolonged or repetitive below knee level work.
On June 21, 2018 the worker was assessed by a physiatrist. At that point, the worker reported 70% improvement with the physiotherapy treatment he had received. He had ceased using medications for his injury, and he had full ROM in his back with pain at the end points. The doctor told the worker to avoid lifting more than 5kg, and to avoid repeated bending or lifting.
The worker had a follow up at the Specialty Clinic on September 17, 2018. He told the clinic that he was working full-time, regular duties as a Sander, and this involved constant standing and lifting up to 15kg. He rated his pain at 8/10. The ROM findings were reported to be essentially the same as they were during the initial assessment in May 2018. The doctor felt that the worker had reached maximum medical recovery, and that he was left with a permanent impairment to his lower back. His permanent restrictions were: avoid heavy lifting and carrying, pushing and pulling, standing, walking and below knee level work.
On September 18, 2018 the worker was re-examined by the physiatrist he had consulted in June. At that point, the worker reported that his low back pain and left leg radicular symptoms were mild and sporadic. The doctor’s recommendations were the same as when he had seen the worker in June 2018. When he saw this doctor again on November 7, 2018, he told the physician that he had started new work in “sales”. The restrictions recommended by the doctor remained unchanged.
A functional abilities evaluation (FAE) took place on November 21, 2018. The FAE concluded that the worker’s general strength tolerance put him in the sedentary range based on handling loads of up to 5kg on an occasional basis, having the opportunity to self-pace, and change position as needed to avoid prolonged sitting.
The worker had an assessment by a psychologist on June 26, 2019 due to ongoing psychological issues he was experiencing that he related to his work injury. He reported having severe pain in his legs at that point. Although some treatment sessions were recommended, the worker was found to have no limitations from a psychological perspective.
WR’s Submissions:
The WR submits that the medical information supports the fact that the worker should not lift more than 5kg and that he should avoid repeated bending or lifting. He states that the pre-injury job was classified as very heavy, and that even the modified work duties offered by the employer involved repetitive and prolonged lifting, bending and carrying more than 5kg. The WR argues that the worker’s injury was aggravated by the modified work, and that he is therefore entitled to LOE benefits from October 16, 2018 onwards.
The WR submitted a medical assessment that was done on June 14, 2019, and this assessment agreed with the Specialty Clinic and the physiatrist’s findings. These doctors noted that the worker’s initial injury was worsened by the RTW on modified duties because this work involved repetitive straining/lifting. The worker told the assessors that the modified work he was assigned to in the Quality Control area required him to lift and move items weighing up to 50lbs, and that he had to bend repetitively or for sustained periods. This assessment concluded that the worker was unfit to resume his pre-injury job or similar jobs.
The doctors recommended he avoid any jobs that require: prolonged sitting, standing or walking, bending, lifting, carrying, pushing, and/or pulling any more than a few kilograms. They also noted that the worker should avoid repetitive movements at the lower back and hips.
Assessment:
Policy 11-02-02 Lost Time Claims, states, in part:
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. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.
While the 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.
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.
The medical information establishes that the worker sustained a low back strain/sprain with non-surgical L5 root involvement. The medical reports concur in their conclusion that the worker has functional limitations that put him in the sedentary job demands level. In this case, I find that the medical evidence concerning the worker’s injury does not establish that he is unable to perform any type of work. In fact, the information on file confirms that the worker obtained other employment after he ceased working for the AE. I also note that the WR does not make the argument that the worker is unfit for any type of work, he submits instead that the modified work offered by the AE was not suitable, and this is the factor that this appeal turns on.
Policy 19-02-01 Work Reintegration Principles, Concepts, and Definitions defines suitable work as post-injury work (including the worker’s pre-injury job) 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.
There were two interventions by the RTW specialists in this case, the first was on December 5, 2017, and the second was on March 5, 2018. The modified work that the AE offered consisted in quality control (QC) work. Based on the information on file, this QC work was the modified work that the worker continued to perform up to his last day worked in October 2018.
The QC work consisted in checking and fixing imperfections, and operating a cutter to cut cardboard corners. Several accommodations were incorporated in the RTW plan in order to make this work fit within the worker’s physical limitations. A chair was provided, micro-breaks, self-paced work, no lifting or flipping activities, and a raised working surface to avoid bending. Of note, the worker’s functional abilities at the time of the initial RTW specialist intervention were: weight bearing up to 15 minutes, sit up to 15 minutes, up to 5 stairs, no lifting, no ladder climbing, limited bending/twisting, avoid pushing or pulling, avoid work at or above shoulder height.
When the RTW specialist met with the workplace parties again in March 2018, the worker’s functional abilities had changed slightly as he was then able to manipulate weights of up to 10lbs. His other limitations remained essentially unchanged. The worker raised concerns about the suitability of the modified work but the RTW specialist concluded that the duties were suitable based on the fact that: the worker had the ability to change position from sitting to standing as required; that there was no productivity quota expectations – the work was self-paced; repetitive bending was not required; the worker was only to lift items of up to 10lbs – co-workers could help lift heavier pieces.
Although the last RTW specialist intervention addressed the fact that the REC has proposed a gradual return to pre-injury duties, this evidently did not proceed and the worker continued to perform the QC work until he ceased working on October 16, 2018.
The AE indicated that they had a need for the QC work – in fact, they continued to have the worker perform this work on an ongoing basis; they considered this productive work. There were no issues raised regarding whether the work was safe, and it allowed the worker to restore his pre-injury earnings.
There is some slight variance in the medical reports regarding the worker’s functional abilities. In this case, a Functional Abilities Evaluation was conducted however, and I place the most weight on the results of this assessment as this testing objectively evaluates the participant’s physical abilities. The FAE is specifically designed to establish what a person’s physical limitations are, and the results in this case were consistent with the general limitations recommended in the other medical reporting on file.
Based on the FAE’s findings, the worker’s functional abilities allow him to perform the modified work in QC that the AE had in place for him when he ceased working in October 2018. The weight of the items handled were less than 5kg. He could alternate between sitting and standing as needed. The job was self-paced and did not require frequent bending. I find that the modified work was suitable since it met the criteria of being safe, productive, and was within the worker’s functional abilities, and restored his pre-injury earnings.
In summary, I conclude that the worker is not entitled to LOE benefits from October 16, 2018 onward due to the fact that the low back sprain/strain with L5 nerve root syndrome injury does not render him totally disabled, and that the modified work offered by the AE was suitable.
CONCLUSION
The worker’s objection is denied.
DATED: September 18, 2019
M. Huot
Appeals Resolution Officer
Appeals Services Division