WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190097
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: S. Yjo, Appeals Resolution Officer
DATED: August 30, 2019
ISSUE
The worker objects to the Case Manager’s (CM) July 19, 2017 decision, which denied entitlement to loss of earnings (LOE) benefits from February 16, 2017 to April 10, 2017.
BACKGROUND
On February 15, 2017, this then 45 year-old electrical engineering technologist slipped and fell on the sidewalk and injured his left knee. The worker returned the Election Form and the adjudicator allowed entitlement for a left knee sprain.
The employer offered modified work, at no wage loss, which the worker declined stating that his doctor authorized him off work. The work was found to be suitable and entitlement to LOE benefits from February 16, 2017 to April 10, 2017 was denied. The worker objects to this decision.
AUTHORITY
Operational Policy Manual (OPM) Documents:
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) (July 15, 2011)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
In arriving at a decision in this claim, I have reviewed and considered all the file evidence in the context of the relevant legislation and WSIB policy. I deny entitlement to LOE benefits from February 16, 2017 to April 10, 2017. The following is a summary of my assessment.
The Health Professionals Report (Form 8), dated February 15, 2017, noted the worker was completely disabled. There were no findings outlined.
On February 16, 2016, the employer offered modified work at full wages and confirmed this offer in writing. The worker may work from home and the work involved computer work. The work was not time sensitive so the worker may take breaks as required and alternate positions as needed.
The March 6, 2017 Functional Abilities Form (FAF) noted the worker was unable to mobilize and was unable to work.
The worker attended the Workplace Medical Corporation Occupational Clinic on March 15, 2017 at the request of the employer. The worker ambulated very slowly. There was slight swelling over the medial joint line area. Left knee ranges were difficult to assess as the worker was guarded against any passive movement of the knee. Active flexion was self-limited by pain beyond 25 degrees and active extension was slow but near full. The doctor indicated he was unable to perform orthopaedic and ligament stability testing of the left knee accurately as the worker resisted most of this testing.
The worker was able to sit with his left knee flexed 30 degrees in the open pack positon. The worker will likely require frequent change of position and should avoid driving. He should continue to use a crutch during weight bearing and avoid bending or standing greater than 10 to 15 minutes.
An MRI of the left knee done on March 29, 2017 showed an MCL sprain. There was no tear.
The April 6, 2017 FAF outlined the worker may return to work with restrictions. The worker must be able to sit, stand, and walk as tolerated.
Policy 19-02-01 (Work Reintegration Principles, Concepts, and Definitions) states:
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.
In this case, the employer offered modified work that would not have required the worker to be on his injured leg. The worker had the opportunity to alternate positions and take breaks as required. I find the work described was suitable, consistent with the worker’s functional abilities, and would have fully restored the worker’s earnings. The modified work met the definition as outlined in policy.
Policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) states:
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.
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.
The worker stated that he remained off work at the advice of his doctor. His representative submitted that the first indication the worker was not totally disabled was at the medical assessment on March 15, 2017. She also submitted that the health care professional determines work readiness, not the employer, and that the worker was authorized off work.
The employer representative argued that the modified work was suitable and that the worker did not raise concerns that working at home would be unsafe.
Although the worker indicated his doctor authorized him off work, there was no indication that he mentioned to the doctor that modified work was available and/or if he may return to modified work. The doctor authorizing the worker off work is not sufficient to grant entitlement to benefits in light of modified duties offered.
There was no indication by the doctor that the worker may not perform modified work and there were no objective findings supporting that the worker was unable to perform the modified work offered. Although the health professional provides recommendation on return to work, in this case, the doctor may not have been aware that modified work was available.
In this case, the nature of the injury was not serious enough to prevent the worker from returning to work and entitlement to full loss of earnings would not be in order in accordance with policy. I am also unable to attribute the worker’s loss of earnings to his injury, as suitable work was available and would have fully mitigated the worker’s wage loss when the employer offered modified work on February 16, 2017.
For the reasons outlined, the worker’s appeal is denied.
CONCLUSION
Entitlement to LOE benefits from February 16, 2017 to April 10, 2017 is denied.
The worker’s objection is denied.
DATED: August 30, 2019
S. Yjo Appeals Resolution Officer Appeals Services Division