WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190088
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (not participating)
HEARING: Hearing in Writing
HEARD by: S. van Veen, Appeals Resolution Officer
DATED: May 17, 2019
ISSUE
The worker objects to the October 18, 2018 decision of the Eligibility Adjudicator, reconsidered on November 7, 2018, to deny entitlement to loss of earning benefits from October 3, 2018 to
October 25, 2018.
BACKGROUND
On September 26, 2018, this 32 year old Personal Support Worker (PSW) was assisting a nurse to transfer a patient, when she struck her right foot on the wheel of the patient’s wheelchair. Following her injury, the worker sought medical attention in hospital and then with her family physician. She was diagnosed with a right ankle sprain. Post-injury, the worker attempted modified duties for one shift but did not continue. She claimed loss of earnings benefits for her subsequent lost time, from October 3, 2018 to October 25, 2018 inclusive.
In an October 18, 2018 decision, the Eligibility Adjudicator (EA) advised the claim was allowed for a right ankle sprain injury, but benefit entitlement was limited to health care. The EA denied entitlement to loss of earnings (LOE) benefits, as it was determined that during the period of lost time, suitable modified duties had been offered by the accident employer and there was a lack of medical evidence to support the worker was unable to perform the modified duties. The EA’s reconsideration decision of November 7, 2018 confirmed the denial of LOE benefits for the worker’s claimed period of lost time, extending from October 3, 2018 to October 25, 2018.
The worker appealed the October 18, 2018 decision and is requesting full LOE benefits from
October 3, 2018 to October 25, 2018.
AUTHORITY
Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
In arriving at a decision on the presenting issue, I have considered the evidence on file, submission, relevant policy and legislation. For the reasons set out below, I find the worker is not entitled to LOE benefits for her claimed lost time, as she was partially disabled and had declined suitable modified work available with her employer.
The worker’s representative (WR) argued that the worker was unable to do modified work and was requested to rest by her physician, as verified by the Functional Abilities Form (FAF) of October 4, 2018. The WR submitted that the FAF was incorrectly completed, since the physician indicated the worker was unable to do any work, but then proceeded to provide restrictions, implying she could work. However, those restrictions rejected any work movement and prescribed rest for most of the items, which the WR submitted was equivalent to no work as first indicated. The WR added that the same physician’s medical notes, stating no work from October 3 to October 25, 2018, is supportive evidence that the worker was unfit for any work, despite the lack of indicated physical findings. The WR submitted the clinical evidence supported the worker was totally impaired by her right ankle injury and entitled to full LOE benefits from October 3, 2018 to October 25, 2018.
The employer did not submit a Respondent Form and thus provided no additional submission in regards to the worker’s appeal, beyond the file records.
Policy 18-03-02, “Payment and Reviewing LOE Benefits,” provides that a worker who has a loss of earnings as a result of a work-related injury, is entitled to payment of LOE benefits. If the nature and seriousness of the injury completely prevents the 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 and all aspects of the work-reintegration process. When a worker is partially disabled and cooperating in work-reintegration activities, full LOE benefits may also be paid, providing the worker does not decline an offer of suitable work.
In this case, in the evening of September 26, 2018, the worker and a nurse were transferring a resident from a wheelchair. In the process, the worker indicated that she stumbled and hit/caught her right foot on the wheel of the wheelchair. Her nurse co-worker noted no issue with the patient transfer and was unaware of the worker having sustained an injury at that point. The worker herself did not consider the injury of significance and made a report to her employer the next day, where she indicated that her ankle was swollen, and that she had attended a hospital for assessment.
The September 27, 2018 hospital report documented that the worker was seen for complaints of pain and tenderness to her right lateral malleolus. According to the worker, she worked as a PSW, and was lifting someone at work and thought she hit her right ankle. After walking on the foot today, she noticed swelling and iced the ankle. The report noted that the worker walked into the hospital. The assessment found that while she had pain, there was full range of motion of the foot/ankle. She was discharged with a diagnosis of “foot pain NYD” (not yet determined) and was sent for right ankle x-rays. There was no medical authorization for lost time or indicated limitations for a return to work. The employer similarly noted the worker did not present with any clinical note or information from this visit to hospital.
The worker was seen in hospital again on October 1, 2018 for right ankle pain. She reiterated the workplace injury with continued symptoms to the lateral aspect of the ankle. Objectively, however, it was noted that there was “no injury noted,” and “patient ambulating well.” Right ankle x-rays showed that the lateral soft tissue was swollen but with no evidence of fracture or dislocation. She was discharged with a diagnosis of right ankle injury. Following the assessment, the hospital physician completed a Health Professional’s Report (Form 8). The Form 8 cited that the worker had sustained a right ankle sprain/strain injury from the September 26, 2018 workplace accident. Based on the assessment and findings, the hospital physician considered the worker capable of modified duties to commence the following day, on October 2, 2018. She was prescribed light duties for two days; avoiding climbing, kneeling, and operating heavy equipment.
With the Form 8 details, the employer offered the worker sedentary modified duties which involved visiting residents, nail care in resident room or lounge, assisting with feeding, call-ins and labelling new resident items. The worker could alter her position from standing to sitting as needed, and assistive devices were available, if required. The employer was willing to work with the worker if she had concerns about any tasks.
According to the employer, the worker accepted the modified duties and returned for one modified shift on October 2, 2018. She then declined the modified duties but provided no reasons or concerns with the duties, to her employer. According to the worker, although her modified duties had her sitting, she was working one on one with a patient who was getting up and walking around frequently. The amount of walking aggravated her right ankle, increasing her pain and swelling. She did not return to work following that shift.
The worker then saw her family physician, Dr. Jakota, on October 3, 2018. This was the first visit with her doctor, post-injury. Dr. Jakota completed a Functional Abilities Form (FAF) on October 4, 2018, now citing the worker was physically unable to return to any work, retroactively dating from September 27, 2018. It was noted she had no functional abilities except using her hands and driving a car. Yet, there were no physical findings or assessment details provided to explain the clinical recommendations, which were so significantly different from the earlier hospital assessments, of only two days prior. Rest and physiotherapy were prescribed.
Dr. Jakota then provided the worker with three separate “sick notes,” simply stating the worker was seen on October 3, October 11 and October 15, 2018 and she “was unable to work and/or attend school due to medical reasons,” through to October 25, 2018. The notes provided no reasons for the absences, no diagnosis or objective physical findings.
The physiotherapist’s initial assessment report of October 15, 2018 documented the relevant functional activities of the worker’s pre-injury PSW duties and associated physical demands. On functional abilities assessment, the physiotherapist noted the worker demonstrated she had functional limitations in prolonged weight bearing and stair climbing, which would preclude a return to her regular PSW duties. However, considering the assessment findings, the physiotherapist reported the worker was capable of modified work.
The worker went on to have a right ankle ultrasound on October 17, 2018 which showed anterior talofibular ligament strain with the remaining ligaments and tendons intact.
For the visit of October 22, 2018, Dr. Jakota completed another FAF now indicating the worker was capable of returning to work with restrictions, commencing October 24, 2018, with precautions on prolonged walking/standing, lifting, stair/ladder climbing. Again, no objective findings were provided.
On November 7, 2018, Dr. Jakota spoke with the EA and offered additional information. The physician advised that on the initial visit, he was aware the worker was limping, having difficulty weight bearing and she was definitely not able to do her regular PSW work. The physician admitted that he was unaware, however, about modified duties having been offered. As the doctor requested, a copy of the modified duties was sent to Dr. Jakota, to offer comment on the worker’s ability to perform the duties and supportive objective physical findings to explain why she could not perform the work offered.
In an October 27, 2018 letter to the EA, Dr. Jakota wrote that the worker was suffering from chronic right ankle pain post-injury at work. She had normal x-rays and the right ankle ultrasound showed anterior talofibular ligament strain with tiny joint effusion. She reported problems with pain on walking, standing and painful range of movements of the right ankle. She was to continue with physiotherapy treatment and a referral was made for a specialist consultation. There was no clinical explanation as to why the worker had been unable to perform the sedentary modified duties, which had been offered to her through her period of claimed lost time.
The worker did return to the same modified duties as her employer offered, on October 30, 2018.
In assessing the totality of information and contrary to the WR’s arguments, I find the foregoing evidence establishes the worker sustained a minor right ankle sprain/strain injury in the workplace accident, which was at no point totally disabling, post-injury. The initial hospital assessments and diagnostics found little in the way of impairment in the right ankle and prescribed a brief period of modified duties. The subsequent assessments were with the family physician, who endorsed continued total disability, but did not offer any objective clinical findings to support that the worker was rendered incapable of any return to suitable work from October 3, 2018 to October 25, 2018, as she claimed. Her physician admitted to having been unaware of any modified work offer and when provided with the details of the duties, did not offer any clinical explanation on why the worker was incapable of performing the available light duties through this interval. It is also noteworthy that the physiotherapist’s reported findings and assessment on October 15, 2018, maintained the worker was capable of modified work and she demonstrated the functional abilities for carrying out the available modified duties, as above described. Those modified duties remained available with her employer through her claimed period of lost time. Ultimately, I find the objective clinical evidence supports the worker was partially disabled and, as she declined the suitable modified work, her claimed wage loss from October 3, 2018 to October 25, 2018 was not caused by her minor right ankle sprain/strain. Thus, the worker has not met the policy conditions for payment of LOE benefits during this period and entitlement is denied.
CONCLUSION
Entitlement to LOE benefits from October 3, 2018 to October 25, 2018, is denied.
The worker’s objection is denied.
DATED: May 17, 2019.
S. van Veen
Appeals Resolution Officer
Appeals Services Division