WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20190084
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Oral Hearing on July 24, 2019
HEARD by: K. Gowans, Appeals Resolution Officer
DATED: July 30, 2019

ISSUES

The worker objects to the denial of entitlement to loss of earnings (LOE) benefits subsequent to June 30, 2017 as set out in the CM decision dated December 8, 2017.

BACKGROUND

On June 27, 2017, this then 46-year-old Educational Assistant (EA) working at a school, was running down a hallway chasing after a student when she experienced a “pop” in her low back and an immediate onset of low back pain. Initial entitlement has since been accepted for a lumbar strain including right leg radiculopathy.

The worker remained off work immediately following the accident and was paid full loss of earnings (LOE) benefits for the three day period between June 28, 2018 and June 30, 2018.

In the CM decision dated December 8, 2017, entitlement to LOE benefits subsequent to June 30, 2017 was denied as it was determined that the worker was not totally impaired and that the employer had suitable work available for the worker to perform.

A subsequent CM letter dated August 27, 2018 denied extended entitlement to CPD.

Initially, the worker objected to both of the above referenced decisions. An oral hearing was convened and took place in Windsor, Ontario on July 24, 2019. During the worker’s testimony, it became evident to all of the participants that a considerable amount of medical information is outstanding, particularly related to various medical assessments conducted subsequent to January 2018. The worker testified that she has seen a number of mental health professionals as well as a chronic pain physician on a weekly basis, with none of their reports available for consideration. There has also been no updated reporting provided by the worker’s family doctor subsequent to December 2017.

Following a brief recess, the worker representative advised that she wanted to withdraw the appeal for CPD (without prejudice) so that the additional information could be obtained and reviewed by the Operations area in relation to continuing entitlement. The representative advised that she would be following up directly with the Operations area on this issue.

As such, both representatives agreed that the only issue I would consider in this appeal is the worker’s request for entitlement to LOE benefits for the period between July 1, 2017 and December 21, 2017, which is the date of the most recent medical information available on file.

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)

Policy Document: 19-02-01 Work Reintegration Principles, Concepts and Definitions

Policy Document: 19-02-02 Responsibilities of the Workplace Parties in Work Reintegration

ANALYSIS

For the reasons set out below, the worker’s appeal is allowed in part.

Policy

Policy 11-02-02, Lost Time Claims, notes that 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.

It goes on to state that 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.

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.

Policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration, states that the workplace parties must co-operate with each other and the WSIB in the RTW process by

• initiating early contact
• maintaining appropriate communication throughout the worker's recovery
• identifying and securing work reintegration (WR) opportunities for the worker
• giving the WSIB all relevant information concerning the worker's WR, and
• notifying the WSIB of any dispute or disagreement concerning the worker's WR.

Policy 18-03-02, Payment and Reviewing LOE Benefits Prior to the Final Review, 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.

The policy notes that 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, among other variables, the day on which the worker’s loss of earnings ceases.

File Review

A Health Professional’s Report (Form 8) completed by a walk-in clinic physician, Dr. Steiman, on June 27, 2017 diagnosed the worker with a lower back sprain and SI joint sacroiliitis. The doctor suggested that the worker needed to remain off work for 3-7 days, as she was “unable to bear weight on R leg”.

The Employer’s Report of Accidental Injury (Form 7) dated June 28, 2017 indicates that the worker was claiming to have injured her lower back while running after one of her students. In an addendum to the Form 7, the employer indicated that they discussed with the worker “returning to work on a (sic) modified duties with extra assistance, but the worker is on partial bed rest until Monday July 3, 2017”, so the offer was reportedly declined. No details regarding the specific nature of the modified duties were provided.

Clinical notes from the worker’s family doctor, Dr. Kizis, indicate that he first saw the worker for her injury on July 5, 2017. The handwritten notes are difficult to decipher. Reference was made to a “pulled muscle” with pain in the right SI joint. A referral was made for what appears to be an unrelated CT scan. A July 5, 2017 x-ray of the pelvis revealed mild degenerative changes within both hips.

Dr. Kizis’ July 6, 2017 chart entry noted the worker continued to present with right SI joint pain, including leg and groin pain. The worker was prescribed pain medication and muscle relaxants. Other parts of the entry are too difficult to read.

A July 6, 2017 Functional Abilities Form (FAF) completed by Dr. Kizis, advised that the worker should remain completely off work. Given the nature of a FAF, no objective medical findings were reported on the form.

The worker provided a statement to the CM on July 10, 2017 as documented in memo#A0002. She described the accident as occurring while she was running down a hall chasing one of her students. While doing so, she “felt something pop” in her low back. She confirmed that she did not twist or turn when the incident occurred.

She reported that she continued to have pain in her back, which radiated into her right leg and groin. She advised she was limited with respect to sitting and standing. Regarding the issue of modified duties, the worker reported that the employer “told her that modified was available”, however no details relating to the nature of the modified work were provided.

The CM concluded that the worker was entitled to three days of LOE (for the remainder of the school year) and that the worker would need to apply for EI while on her summer break, which was her “normal practice”.

Dr. Kizis’ July 13, 2017 progress report confirmed the diagnosis of a sacroiliac joint strain. Dr. Kizis confirmed the worker was partially recovered at that time and anticipated a full recovery within 2-4 weeks. Functional limitations included being unable to bend/twist, climb, lift, push/pull and stand for prolonged periods of time.

The worker began physiotherapy treatment at a Low Back Program of Care (POC) facility on July 18, 2017. The worker presented with severe “guarding” pain in the right SI joint making it difficult to straighten the back. The pain radiated from the back down the right leg, stopping at the knee. There was limited active range of motion (ROM) with all back movements. The physiotherapist diagnosed a right SI joint sprain. When asked if the worker could/should return to work, the physiotherapist indicated “no” because the worker was “now on summer break”. It was anticipated she would return to work when school re-opened in September 2017. Limitations were provided which included no lifting above 5 pounds, no bending or twisting, no sitting or standing for longer than 15 minutes and half an hour of walking.

An August 10, 2017 bone scan report confirmed the presence of mild degenerative disc disease at the L5-S1 level of the lumbar spine. Osteoarthritis was also noted to be present in both AC joints (shoulder) and both hips and knees. Of note, the report mentioned that the worker had undergone a prior bone scan in August 2016, pre-dating the June 2017 compensable accident. The report confirmed that there were no changes when compared to the prior, 2016 scan.

On August 31, 2017, Dr. Kizis completed a “medical certificate” form stating that the worker remained totally disabled and unable to work for a period of one month. No objective findings were provided for support of this position. Conversely, in his August 31, 2017 chart entry, Dr. Kizis refers to the worker “RTW Tuesday”, presumably meaning the start of the school year. He noted the worker no longer had leg pain but was limited with sitting, walking and standing. An earlier chart entry from August 24, 2017 noted that the worker was scheduled to return to work to modified duties on September 5, 2017.

A POC discharge report dated September 9, 2017 noted that the worker continued to present with low back pain that radiated no further than the knee. The worker’s limitations were identified as no standing beyond 25 minutes, no walking beyond 20-25 minutes and no sitting beyond 40 minutes. It was suggested that the worker continue with physiotherapy treatment for an additional six weeks. While the physiotherapist indicated that the worker remained off work, she wrote that this was due to “concern with re-injury in unpredictable work environment as EA with special needs students”.

A POC extension request dated September 13, 2017 noted that the worker suffered a “flare up” of her condition due to prolonged standing at the “recent wedding of daughter”.

Dr. Kizis’ chart entries from September 14, 2017 and September 20, 2017 both suggest that there was no change in the worker’s condition.

In Memo#A0010, dated September 20, 2017, the worker confirmed that she was not able to return to work at the start of the school year in early September 2017. She was still experiencing pain that was made worse with standing. She also confirmed for the CM that she was previously diagnosed in 2016 with fibromyalgia. In the same memo, the CM documented her call with the employer at that time. The employer reiterated that modified work was initially offered at the end of school (in June 2017) and again before school. However, details of the modified work were not recorded. In addition, there is no written documentation regarding the offer and nature of modified work being offered by the employer on file.

Return to work services were initiated in September 2017, with an initial meeting taking place on October 4, 2017. The worker attended the meeting, along with her union president, the principal of the school, a disability management specialist from the employer and the Workplace Safety and Insurance Board (WSIB) return to work specialist (RTWS).

At the time of the meeting, the worker remained off work due to her low back pain and discomfort. The RTWS suggested that the worker start a return to work process with “light natured duties initially” and to have the plan reviewed during her upcoming Specialty Clinic assessment. The employer offered the worker modified work consisting of “academic support with no physical handling/assisting students”. The worker would be integrated as an extra EA “so the full rotation of care is not affected”. It was recommended that she start work at 3 hours per day, 3 days per week. She would increase by one day per week until she worked a full shift. The plan could then be revisited once the results of the Specialty Clinic assessment were known.

While the modified duties were available immediately, the worker indicated that she wanted to wait until she was assessed by the Specialty Clinic and by her family doctor before returning to work.

On October 23, 2017, the worker was assessed at the Workplace Safety and Insurance Board (WSIB) Back Specialty Clinic. She presented with a chief complaint of back pain located in the inferior right side of the lumbar spine. She reported the pain as being 80% back related and 20% right leg related. The worker estimated that her walking, standing and sitting tolerances were all limited to 20 minutes. The report confirmed that the worker received physiotherapy treatment twice a week between July 2017 and October 13, 2017.

In terms of past medical history, a number of medical conditions were identified including arthritis, chronic headaches, fibromyalgia (since 2016), bilateral hip bursitis (since 2016) and osteoarthritis in the knees, ankle and hands.

In terms of activities of daily living (ADLs), the worker stated that pre-accident she was independent with all ADL’s, and enjoyed walking and playing with her grandkids. Post-accident, the worker remained capable of all ADL’s but was unable to walk and play with her grandkids.

The worker reported that she remained of work as “she says there are no modified duties available and she has high pain levels”. It was noted that a return to work plan was set up for October 25, 2017. No reference to the October 4, 2017 meeting was made.

On examination, the worker presented with an antalgic gait and throbbing pain assessed as 7 out of 10 on a pain scale. Lumbar range of motion (ROM) was reduced in all planes.

Reference was made to a prior MRI scan from May 2014, which the orthopaedic surgeon opined revealed mild degenerative disc disease at the L4-5 level and a small disc herniation at the L5-S1 level. There was also an annular tear present at L4-5, slightly deforming the thecal sac.

Barriers to recovery were identified as being the worker’s previously diagnosed fibromyalgia and the worker’s limited participation in daily activities due to pain.

The assessors diagnosed the worker with a lumbar strain along with right leg radiculopathy. Non-occupational diagnoses included degenerative disc disease of L4-5 and L5-S1, bilateral hip osteoarthritis, fibromyalgia and osteoarthritis of the knees and ankles. Given her “high levels of pain on the background of fibromyalgia, multi joint arthritis, DDD of the lumbar spine and anxiety and depression developing since the date of injury”, the Specialty Clinic assessors recommended the worker be referred to a Pain Management program.

The Specialty Clinic assessors also opined that the worker was partially impaired and was capable of returning to work with temporary restrictions. They included no prolonged or repetitive flexion/extension/twisting, no heavy lifting/carrying/pushing/pulling, no above chest level work, no prolonged sitting/standing/walking, no climbing stairs or ladders, no prolonged or repetitive below knee level work and no restraining of students.

The follow-up return to work meeting took place on October 30, 2017. The same plan of the worker returning to work on a gradual basis beginning with “observation duties” was again offered to the worker. The plan indicated that there would be no requirement to physically handle the students or assist with them. Instead, she would be integrated as an extra EA.

The worker again opted to see her family doctor before committing to the return to work plan. She subsequently confirmed that she did not feel capable of returning to work and as such declined the offer.

A November 1, 2017 Functional Abilities Form (FAF) completed by the physiotherapist agreed that the worker was capable of returning to suitable, modified employment, essentially within the same restrictions as those outlined in the Specialty Clinic report.

An MRI scan report dated November 3, 2017 identified multilevel degenerative disc disease, most pronounced at L4-5. It included a broad based disc herniation at L4-5 but no evidence of cord impingement, nerve impingement, canal stenosis or foraminal stenosis.

A November 7, 2017 report from Dr. Zayouna relates to complaints of chest pain. The report noted that the worker had a prior diagnosis of fibromyalgia, for which she sees Dr. Anwar.

A November 15, 2017 report from Dr. Upneja, an Internal Medicine specialist, confirmed that the recent MRI “showed degenerative disc disease not compromising the spinal cord”. The report noted the worker was being seen for her chest pain complaints, which the doctor felt were related to “her pains and arthritis and fibromyalgia”.

By November 29, 2017, Dr. Kizis was reporting that the worker was continuing with physiotherapy treatment “with slow improvement”. He referenced the worker “feeling depressed & anxious”. He prescribed Ativan and made a referral for counselling.

A December 5, 2017 report from rheumatologist Dr. Anwar noted the worker was complaining of fatigue and feeling anxious. The doctor referenced the worker’s prior medical conditions including osteoarthritis, epicondylitis, hip bursitis and myofascial pain, with no reference made of the compensable back/SI injury.

When seen by Dr. Kizis on December 20, 2017, his primary focus related to the worker’s depression and anxiety. He prescribed new medication for her to take and said he would follow-up with her in one month to reassess her “depression & fibromyalgia”.

A December 21, 2017 physiotherapy extension request confirmed the worker presented with “a high level of anxiety and depression”. It went on to state that the worker has “legitimate objective findings” related to her SI injury. The report does not comment on the worker’s employability.

Hearing Testimony

The worker testified that she was employed as an Educational Assistant (EA) with the employer for approximately 20 years prior to her compensable accident. She stated that she worked with all types of young adults (typically aged between 14 and 21) with varying degrees of disabilities. Some were in wheelchairs and needed assistance with most aspects of activities of daily living (ADLs) while some were developmentally challenged, including kids with autism, Downs Syndrome or aggressive behavioural issues.

On the day the injury occurred, the worker was assigned to look after an older student with a history of behavioural issues. As they were leaving a room to walk to a different room, the student “just bolted’ down the hallway. As she was chasing him down the hallway, she felt a “pop” in her low back that caused her to have to stop. The pain radiated down her right leg, causing her to be unable to place any weight on it.

She went to a walk-in clinic where she was diagnosed with a strained SI joint. The doctor told her to remain off work and follow-up with her family doctor in a week. The worker recalled speaking with someone in Head Office about her need to remain off work for the remaining three days of school. She confirmed that the Human Resources Officer spoke with her and told her modified work was available for her to perform, however she followed the doctor’s instructions and remained off work. When asked, she testified that she was unsure what the modified duties would entail.

She confirmed that she applied for, and received, EI benefits for the summer of 2017 when school was out. She testified that this was a typical pattern of her employment, which she did every summer for the 20 years she was employed with the employer. She also confirmed as well that she never looked for alternative employment during the summers in the prior 20 year period.

Throughout the summer of 2017, the worker advised that she attended physiotherapy treatments three time a week, which did not significantly improve her condition. In the interim, she advised she was extremely limited with any activities she could perform and testified that her husband took over most of the household responsibilities.

He would see her doctor weekly, who she states told her to remain off work in order to allow for time to heal. He would periodically alter the medications she took in an effort to help with the pain, however this remained unsuccessful.

When school started in September 2017, the worker confirmed she remained off work as her doctor told her she could not work at that time. As time went on, she started to become depressed and anxious. She testified that her psychological conditions arose due to her inability to “do anything”. She stated that the pain affected all aspects of her life, including playing with her grandkids or enjoying her sailboat.

Concerning her pre-existing conditions, the worker confirmed that she had been diagnosed with bursitis in both hips as well as fibromyalgia prior to the accident. She was also aware of osteoarthritis conditions in other parts of her body. However, for the most part, none of these conditions prevented the worker from working fulltime as an EA. She did confirm missing “the odd day” due to her various conditions, but nothing that prevented her from working full-time. She provided an example of missing time in early June 2017 when her prescriptions for Tramadol had run out and she needed time to see her doctor and get a re-fill.

The worker confirmed that she attended the first return to work meeting set up with the WSIB RTWS in early October 2017. She recalled being told that the employer was willing to offer her modified duties that consisted of being an extra EA on a regular shift. She would not be required to assist with any of the physical activities she normally performed, but rather would be an extra person for academic support.

However, the worker went on to state that it was her understanding that within 3 weeks, she would be expected to have fully reintegrated back into her regular job duties.

She stated that she did not feel capable of any return to work activities at that time and wanted to talk to Dr. Kizis about it before she considered the offer. She also noted that she had an upcoming Specialty Clinic appointment so wanted to see what they said as well.

Subsequent to the Specialty Clinic assessment, the worker confirmed seeing the report, which outlined her restrictions. While she stated that she agreed with the restrictions, she did not feel capable of returning to work. By that time, her depression and anxiety were increasing and it made it difficult for her to even leave her house. She testified that it got so bad it was difficult for her to even enter a grocery store.

She explained that she did not feel she could go back to work, as she would be worried that the unexpected nature of the children’s behaviour could result in her instinctively doing something that would risk re-injury.

In November 2017, she was placed on long-term disability benefits, which she continues receiving to date. Near the end of 2017, the worker’s anxiety and depression increased to the point where Dr. Kizis referred her to see a psychiatrist. She testified that she saw a psychiatrist on one occasion in early 2018, and then a social worker on a couple of occasions through her company’s insurance plan. She also started attending a chronic pain clinic in mid-2018, where she saw a pain clinic physician weekly. Recently, she began seeing a different psychiatrist and had her second appointment with him/her about a week prior to the hearing.

She stated that Dr. Biswas was a locum in Dr. Kizis’s office and has since taken over as her primary physician. It was Dr. Biswas that diagnosed the worker with chronic pain disability as well as arranged for her referrals for psychological treatment.

Presently, the worker continues to feel unable to return to work, in part due to her back pain and in part due to her depression and anxiety. When asked directly if she was able to work in a job that would honour the restrictions put in place by the Specialty Clinic, the worker replied “no”. She also feels that her pre-existing fibromyalgia and hip issues have been made worse by her compensable injury.

When asked why she felt she could not leave the house or go into a grocery store, the worker replied “I have no idea”. She simply reiterated that her anxiety prevented her from doing so.

Given the new details of continuing and new medical treatments subsequent to January 2018 provided in the worker’s testimony, the worker representative confirmed that she wanted to withdraw her appeal related to CPD entitlement until such time as the outstanding medical information was obtained and considered by Operations. She confirmed she would follow-up directly with the Operations area about any request for ongoing entitlement as well as possible entitlement to Psychotraumatic Disability.

In her submissions, the worker representative opined that the worker was essentially totally impaired during the summer period in 2017 and as such should be entitled to full LOE benefits while the worker participated in an active physiotherapy program.

Subsequent to the start of school, the representative submitted that even though the employer offered modified work, she felt the unknown nature of the school environment could place her at increased risk of re-injury. She also suggested that the worker’s family doctor consistently advised her to remain off work during the period under appeal. She is seeking entitlement to full LOE benefits for the entire period under appeal.

The employer representative submitted that entitlement in this claim remains limited to a low back and SI strain. There is presently no entitlement to Psychotraumatic Disability or CPD.

She summarized the medical reporting on file, which included the POC report of July 2018 providing restrictions and the bone scan report of August 2017 as confirming there was no worsening from a scan performed pre-injury.

She opined that the medical reporting, particularly subsequent to July 2017 showed the worker at a level of partial impairment. This was confirmed by the Specialty Clinic report of October 2017.

She submitted that by approximately November 2017, the medical reporting began to focus more on the worker’s psychological symptoms (for which there is no entitlement) than her physical symptoms.

Regarding the period between July 1, 2017 and the start of school in early September 2017, the worker’s normal pattern for 20 years was to claim EI benefits. As such, she opined that there was no actual wage loss during this period as the worker received EI benefits throughout.

Subsequent to the start of school, the representative opined that suitable modified work was available for the worker to perform. She noted that the plan clearly documented that the worker’s job duties would be reviewed at the end of every week to see if she should continue with the same duties or start adding elements of her regular job. There was never any indication that the worker was expected to return to her regular duties within 3 weeks of returning to work.

As such, she submits that all LOE benefit entitlement subsequent to July 1, 2017 should remain denied. In the alternative, she submits that LOE benefits should remain denied subsequent to when the initial RTW meeting took place in October 2017.

Assessment

When I assess all of the available information in the claim file, I find that the worker’s appeal should be allowed in part.

The initial period of lost time being claimed by the worker is the summer period when school is closed. In 2017, this occurred between July 1^st and the return of school on September 5^th. As was confirmed by the worker at the hearing, she is not paid by the employer when school is out for the summer and as such gets to claim EI benefits. She described doing this for every summer she worked with the employer over the past 20 years. She also testified that during the prior 20 years, she never looked for alternative work during the summer months and instead would routinely claim EI benefits.

As is noted in WSIB Legislation, as well as policy 18-03-02, worker’s LOE benefits continue until “the day on which the worker’s loss of earnings ceases”. In this case, the worker’s loss of earnings ceased when the school year was over and summer vacation started. The worker was not scheduled to be paid by the employer for the summer months and as such did not actually incur a loss of earnings. Furthermore, the worker confirmed receiving EI benefits during the summer months, which was typical of her employment pattern.

Given that the worker did not actually lose wages during the period between July 1, 2017 and September 4, 2017, there is no basis to allow for LOE benefits during this period.

Subsequent to September 5, 2017, I find that the medical reporting on file supports a finding of partial, not total, impairment. By July 11, 2017, Dr. Kizis identified restrictions for the worker to follow, albeit knowing she was off work for the summer. Similarly, the POC report from July 18, 2017 noted that the worker was off work for the summer but should be capable of returning to work at the start of the school year in September 2017.

I acknowledge that Dr. Kizis completed a medical form on August 31, 2017 stating that the worker should remain off work for a one month period, however the report did not provide any objective findings to support this position. Rather, his clinical notes from that day implied the worker would be returning to work the following Tuesday (the start of school). He also noted that the worker’s leg pain had resolved by that point.

The September 2017 POC discharge report also provided restrictions. While the assessors stated that the worker had not returned to work, this was related more to a fear of re-injury rather than the worker’s physical condition.

The Specialty Clinic report from October 23, 2017 confirmed the worker’s level of partial impairment and provided temporary restrictions for the worker to follow-up in any return to work attempt. The assessors also confirmed that the worker was capable of performing her regular ADL’s, which again is suggestive of a level of partial and not total impairment.

By November 2017, and into December 2017, I find that the medical reporting was focusing more on the worker’s depression and anxiety than on her physical condition. However, entitlement to Psychotraumatic Disability has not been claimed or accepted in this claim.

As such, I accept that the worker was partially impaired subsequent to September 5, 2017 and was capable of performing work within the precautions outlined in the Specialty Clinic report.

Regarding the availability and suitability of modified work during this period, I note that there are references in the file to the employer stating that modified work was available, both at the end of June 2017, and prior to the start of school in September 2017. However, there is no record in the claim file outlining the nature of the modified work available, so there is no basis to determine whether it was suitable for the worker to perform. The two offers appear to have been made verbally, and the worker was unable to identify what the work duties would involve. There is also no written offer on file for the decision maker to consider.

Therefore, I accept that entitlement to full LOE benefits is in order effective September 5, 2017 as the worker was partially impaired and there is no evidence available to support a confirmed return to work position that would be suitable for her to perform.

However, by October 4, 2017 (the RTW meeting), the offer of modified duties was specified and advised that the worker would be placed as an extra EA in a classroom to provide educational support only. She would not be required to do any physical tasks and would be monitored throughout the return to work process to see what the next steps would be.

I note that the return to work specialist opined that the accommodated work was suitable for the worker to perform. I find I agree with the RTW opinion and conclude that the offer meets the definition of suitable work found in policy 19-02-01. The worker declined the offer of modified duties and remains off work to date.

As such, effective October 4, 2017 I find that the modified work available with the employer was suitable for the worker to perform. I find it remained suitable at least up to December 21, 2017, which is date of the last available medical report on file. Therefore, there is no basis to pay LOE benefits for the period between October 4, 2017 and December 21, 2017. As agreed upon with the workplace parties at the hearing, I make no finding as to the level or nature of benefit entitlement subsequent to December 21, 2017.

CONCLUSION

The worker’s appeal is allowed in part.

There is no entitlement to LOE benefits for the period between July 1, 2017 and September 4, 2017 inclusive. The worker is entitled to full LOE benefits for the period between September 5, 2017 up to but not including October 4, 2017. The worker’s request for LOE benefits for the period between October 4, 2017 and December 21, 2017 is denied. I make no finding as to the level or nature of benefit entitlement subsequent to December 21, 2017.

DATED: July 30, 2019

K. Gowans

Appeals Resolution Officer

Appeals Services Division