Employer v. Worker, 2019 CanLII 103833

Workplace Safety and Insurance Board

Appeals Resolution Officer Decision

Decision Number: 20190083
Objecting Party: Employer
Represented by: Employer Representative
Respondent: Worker (Not participating)
Hearing Method: Hearing in Writing
Heard by: H. Mohamed, Appeals Resolution Officer
Dated: September 24, 2019

Issue

The employer objects to the Case Manager’s (CM) decision dated March 12, 2019, and April 3, 2019, which granted the worker loss of earnings (LOE) benefits from November 18, 2018, to February 1, 2019.

Background

On November 18, 2018, this now 27-year-old part-time personal support worker sustained a low back injury while pulling a client. The incident was reported immediately, and the worker went to the hospital the same day. The emergency room physician completed a Health Professional’s Report (Form 8) indicating that the worker had sustained a lumbar strain. No investigations were ordered, and the worker was advised to return to modified duties on November 21, 2018.

The employer made an offer of modified work on November 19, 2018, which consisted of light office duties as well as light field duties.

The worker declined the modified job offer, and provided a medical note from Dr. Sinha, her family physician, which stated she would be off work due to her injury until further notice. No further medical information was submitted to file.

The worker spoke to an Eligibility Adjudicator (EA) on January 3, 2019, stating that her family physician had not cleared her for returning to work. The worker advised that she was pregnant and was spending most of her day in bed. Furthermore, the worker expressed concerns about the suitability of the modified work that was offered.

On February 1, 2019, a Return to Work (RTW) Specialist reviewed the modified work offer and concluded that the worker could perform the light office duties offered by the employer. However, the RTW Specialist felt that light field duties were likely unsuitable.

In a decision dated March 12, 2019, the CM noted that she had accepted the opinion expressed by the RTW Specialist, and approved the payment of LOE benefits until February 1, 2019. LOE benefits beyond this date were denied as the worker could have gone back to work on that day performing light office duties. The employer has objected to this decision.

The worker subsequently went off on a maternity leave as of February 14, 2019.

In response to the employer’s objection, the CM provided a reconsideration decision dated April 3, 2019. The CM explained that the worker was entitled to full LOE benefits until February 5, 2019, because part of the modified duties offered was unsuitable, and this determination was only made following a RTW Specialist review. (It should be noted that while this letter indicates that benefits were not paid beyond February 5, 2019, the payments sequences on file confirm the worker has not received any LOE benefits beyond February 1, 2019.)

Accordingly, the sole issue to be determined in this appeal is whether the worker is entitled to LOE benefits from November 18, 2018, to February 1, 2019.

Authority

Workplace Safety and Insurance Act (WSIA), 1997

Operational Policies:

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

19-02-01 Work Reintegration Principles, Concepts and Definitions

11-02-02 Lost Time Claim

Analysis

I find the worker is only entitled to LOE benefits until November 20, 2018 (inclusive). Benefits beyond this date should be rescinded. My reason and analysis follows.

The employer representative’s (ER) essentially submits that the worker should not be paid any LOE benefits in this claim because suitable modified work was available, and there are no objective medical findings to suggest the worker was totally disabled from working. The ER points out that there is no medical information authorizing the worker to remain off work after November 28, 2018. Since the WSIB Policy 11-02-02 clearly states that the medical evidence must show that a worker’s inability to work is due to the work-related injury, LOE benefits should not have been approved. Furthermore, the ER argues that the modified work was suitable, and would have fully restored the worker’s pre-accident wages. Accordingly, the ER requests that all LOE benefits paid in this claim be rescinded.

The worker has chosen not to participate in this appeal.

According to the medical information on file, the worker suffered a lumbar strain on November 18, 2018. The emergency room record is difficult to read, but I can see that no investigations were ordered and the worker was told to take Tylenol as required. The emergency room physician also documented that the worker was 20 weeks pregnant. The diagnosis provided was a lumbar strain. I note the emergency room physician also completed a Form 8 confirming this diagnosis, and indicating the worker was medically restricted from bending/twisting, lifting, pushing/pulling, and standing. More importantly, the physician advised the worker could commence modified duties as of November 21, 2018.

The only other medical report on file is a note from Dr. Sinha dated November 29, 2018. It appears that the ER did not receive this note as part of the claims file access, or received a poor copy. In any case, this note simply states that the worker would be off work due to her injury until further notice. No physical findings were provided and no investigations were ordered.

The employer made an offer of modified duties on November 19, 2018. The modified duties offer letter indicated that the following duties were available:

• Light office duties:
  • Alphabetizing, putting together black files, photocopying documentation;
  • Educational training;
  • Other light duties of this nature
• Light field duties:
  • Respite/companionship care
  • Job shadowing
  • Clients within the limitations below

The offer noted that the limitations being accommodated within the above tasks:

• Not able to:
  • no heavy lifting
  • no excessive bending at the waist
  • no excessive crouching
  • no excessive of walking or standing
  • limited lifting from waist to shoulder
  • limited stair climbing

The offer went on to note that the worker would be assisted by a co-worker whenever required. Furthermore, the worker would be accommodated in the office and that transportation could be provided if required. Finally, the modified duties were available at the worker’s preinjury hours. I note the worker declined these duties.

In a conversation with the EA on January 3, 2019, the worker stated that she was currently six months pregnant, and that her physician had told her she was unable to return to work. The worker reported that sitting, bending, and standing would be difficult for her and that she was spending the majority of her day lying in bed. The worker reported that she also had some bleeding due to the injury.

The worker also spoke to the CM on January 16, 2019, reiterating that she experienced some bleeding following the incident, however this had stopped and the baby was okay. The worker confirmed she was diagnosed with a lumbar strain and was prescribed over-the-counter Tylenol if required. The worker advised that as she was pregnant, treatment options were limited and she was unable to attend physiotherapy. The worker advised she had followed up with her family physician, who recommended that she required complete “bed rest.” The worker said she also followed up with her obstetrician to make sure her pregnancy was not at risk, and was told that there were no concerns. The worker reported spending the majority of her day lying down because of pain in her back and because she felt tired. The CM noted that laying down was not recommended for low back injuries and that her fatigue could reasonably be related to her pregnancy. Concerning the modified job offer, the worker reported she was unclear as to what accommodations the employer would provide. The worker also reported that she was fearful of returning to work and risking her baby. Given the worker’s concerns, the CM referred the claim to a RTW Specialist to assist with the return to work planning.

The RTW Specialist noted that prior to the injury, the worker worked on average of only seven (7) hours a week. The RTW Specialist noted that after speaking with the employer she was deeming the light office duties position to be suitable based on the worker’s current functional abilities. However, the light field duties position was deemed unsuitable. The worker advised she did not feel she could perform any work given the extreme pain and discomfort she was experiencing with her back. The worker reported that she had a follow-up appointment with her physician on February 6, 2019 and she would discuss the job offer with him them (this seems to suggest that the offer had not previously been discussed with Dr. Sinha).

It does not appear that the worker went back to work prior to leaving on her maternity leave as of February 14, 2019.

Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The policy goes on to state that 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. If the worker does not co-operate, the WSIB may reduce or suspend the worker’s LOE benefits.

Policy 11-02-02 (Lost Time Claims) states 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.

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, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings. When considering whether an offer of work is suitable, the workplace parties and the WSIB consider whether the work is safe, i.e., whether

• the work poses a health or safety risk to the worker (e.g., should not cause re-injury or a new injury), to co-workers, or to third parties
• the work is performed at a worksite that is covered by either the Occupational Health and Safety Act (OHSA) or the Canada Labour Code, and the worker has the functional ability to travel safely to and from the proposed worksite.

Section 40(2) of the WSIA states that a worker shall co-operate in his or her early and safe return to work by,

(a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery and impairment;

(b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores his or her pre-injury earnings;

(c) giving the Board such information as the Board may request concerning the worker's return to work; and

(d) doing such other things as may be prescribed.

Having carefully reviewed the evidence, I find the worker was able to perform the modified duties outlined by the employer. I agree with the ER that the Operating Area based their decision to pay LOE benefits without any supporting rationale.

The initial Form 8 clearly indicated that the worker was capable of returning to work on modified duties by November 21, 2018. Restrictions were also provided on this Form. It is worth emphasizing that the emergency room physician was also aware that the worker was 20 weeks pregnant, and yet still recommended that she could return to work on November 21, 2018. Conversely, the medical note provided by Dr. Sinha provides no objective medical evidence or rationale as to why the worker was unable to work in any capacity. The CM simply accepted the family physicians note at face value, and made no attempt at explaining why she preferred this opinion to the emergency room physician’s recommendations. In my view, if a family physician is going to contradict an emergency room physician’s opinion, then at the very least a clear rationale needs to be provided along with objective physical findings. In the absence of this information, I find this medical note carries very little weight.

No medical evidence was submitted to suggest that the work-related injury caused any complications to the worker’s pregnancy or that the modified duties would have posed any risk factors to her condition. The worker reported that she had seen her obstetrician following the injury, but there is no report from her on file. If the worker was capable of working as a PSW in the days prior to her injury (a physically demanding job), then I see no reason why she could not have worked in an office setting after the injury for a few hours a day. According to the file, the worker was only working an average of two hours a day pre-accident.

There is also no evidence that the worker provided a copy of the modified job offer to Dr. Sinha when she saw him on November 29, 2018. There is no indication from the medical note that the physician was even aware that light office work was available or that the employer was willing to provide transportation to and from work. There is also no evidence that she showed the modified duties to her physician at her follow-up medical appointment on February 6, 2019 either. It could be argued that had the physician been aware that light office duties were available, the recommendation to remain off work may not have been given. Since the worker was only working a few hours a day prior to the accident, I see absolutely no reason why she could not have returned to work performing light office duties. It is unclear if the physician was even aware that the worker only worked very limited hours.

The worker’s statement that she wasn’t clear about what the modified work involved is a weak argument at best. If the worker, who had been working for her employer for over four years, had questions or concerns about the modified duties being offered, then she had a legal obligation under section 40 of the WSIA to contact her employer and discuss the various duties in order to better understand what was being offered. Had the worker still felt unsure about the suitability of work after this conversation, I may have been inclined to arrive at a different conclusion. Instead, the worker made no contact with her employer and simply stayed home until she was contacted by a RTW Specialist. All the RTW Specialist did was speak to the employer about the work being offered, and based on that conversation concluded that light office duties were suitable while light field duties were not. The worker could have done this herself, and it did not require a RTW Specialist to initiate these discussions.

I note the worker also reported she was unable to participate in any kind of active physiotherapy because of her pregnancy. Firstly, there is no evidence she even required therapy since the original Form 8 made no mention of this. Secondly, even if the worker required physiotherapy, I am not convinced that she could not have participated in such treatment while pregnant. According to the American Pregnancy Association, physiotherapy during pregnancy is not only safe, but also recommended. It is noted that up to 70% of women suffer from back pain while pregnant and there are many treatment modalities available at physiotherapy clinics to treat these symptoms.

Finally, I have also considered the Workplace Safety and Insurance Appeals Tribunal (WSIAT) Discussion Paper titled “Low Back Pain” prepared by Dr. Albert Yee (orthopaedic surgeon), Dr. Safraz Mohammed (neurosurgeon) and Dr. Barry Malcolm (orthopaedic surgeon). This paper was revised in February 2015 and updated in October 2016. Medical discussion papers, such as the one I am referencing here, deal with medical topics that frequently arise in appeals. They are written by independent experts who are recognized in their fields of specialization. The papers are intended to provide the decision maker with a general overview of medical topics. While I am not bound by any information or opinion expressed in a discussion paper, I may consider and rely on the general medical information provided by the paper in reaching a particular decision.

In response to the question of whether there are any particular restrictions in work activities following a back injury, the authors provide the following response:

Mandated medical restrictions (i.e. a physician suggests that this physical activity is not medically recommended) need to be individualized. In general, in the acute phase after back injury, we advise patients on a ‘very brief (1-2 day) rest’ period followed by a graduated physical activity regime. Patient ‘functional tolerances’ may reflect what an individual may be able to perform physically, with those activities not ‘medically restricted’ by their treating physician. The patient, the type of back injury, and an understanding of a patient’s particular work environment and work related activities are all considered in determining any potential restrictions that may be required. (Emphasis added).

The authors, who are specialist in the field of low back injuries, confirm that in most cases a gradual return to physical activity is the best course of action shortly after a low back injury. In my view, being off work for nearly 3 months following a lumbar strain is completely unreasonable and excessive, particularly when suitable office work with transportation was available. While I accept that being pregnant was an additional factor that needed to be considered, I have not been provided with any objective medical evidence that bed rest was the best form of treatment in this case. In my view, the worker’s obstetrician would have been in the best position to comment on this issue, and yet no attempt was made by the Operating Area to obtain a copy of her report or to contact her by phone to discuss the worker’s case.

In summary, I find the worker was not totally disabled from working because of the work-related injury. Furthermore, I find that the modified work offered by the employer was suitable. While the RTW Specialist found one aspect of the work to be unsuitable, the office work was clearly deemed suitable for a low back injury. In my view, the worker had an obligation to contact her employer to discuss the modified duties and to discuss those duties with her physician or obstetrician. There is no evidence that this was ever done. In my opinion, it would not have mattered what work was offered by the employer, as the worker had made up her mind that she would not be returning to work. The worker’s pregnancy seems to have played a major factor in this decision.

For these reasons, I find the worker is not entitled to LOE benefits beyond November 20, 2018. LOE benefits paid beyond this date should be rescinded and a non-recoverable overpayment should be created. While the worker is not required to pay back these benefits, the employer’s cost statement should be adjusted to reflect this decision.

Conclusion

The worker is only entitled to LOE benefits until November 20, 2018. LOE benefits paid beyond this date should be rescinded, and removed from the employer’s cost statement. The resulting overpayment should be made non-recoverable.

The employer’s objection is allowed in part.

DATED: September 24, 2019

Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division