WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190107
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
HEARING: Hearing in Writing
HEARD by: M. Kimevski, Appeals Resolution Officer
DATED: September 24, 2019
ISSUE
The worker objects to the Eligibility Adjudicator’s December 13, 2018 decision. Initial entitlement was limited to health care benefits for a neck injury. Entitlement was denied for the upper back; and for loss of earnings (LOE) benefits from October 30, 2018 to November 10, 2018; from November 11 to 18, 2018; and from November 19, 2018 to December 5, 2018.
The Appeal Readiness Form (ARF) and the referral from the operating area specifically identified the issue under dispute as the denial of LOE benefits. Thus, I make no findings in this decision pertaining to entitlement for the upper back.
BACKGROUND
The claim was established for an accident on October 19, 2018, when the worker, then a 55 year old Outlet Greeter sat down on a bench where there was no room to stand in order to move a larger table for a party. Then with a co-worker (on the other side of the table), she lifted the table up to just below shoulder height and shifted along the bend moving her arms and when she released the table, she felt sharp pain.
The worker continued to work full regular duties and hours from October 19 to 30, 2018. She was then absent from work from October 30, 2018 to November 10, 2018. The worker returned to work on November 10, 2018 and worked a full shift, but at the end of her shift she was issued a suspension relating to an incident on October 29, 2018; the worker was suspended from work from November 11 to 18, 2018. The worker did not return to work on November 19, 2018 and remained off work until December 5, 2018.
The December 13, 2018 letter advised that entitlement was allowed for health care benefits for a neck sprain/strain. There was no entitlement for the upper back as there was no diagnosis. Entitlement to LOE benefits was not in order from October 30, 2018 to November 10, 2018 and from November 19, 2018 to December 5, 2018 as the medical information did not support complete disablement and the modified duties offered were suitable. Entitlement to LOE benefits from November 11 to 18, 2018 was also not in order as the worker was suspended (unrelated to the work injury) and again was able to perform the modified duties offered.
Following receipt of additional information, the decision was reconsidered and a letter dated February 13, 2019 was issued advising the decision remained unchanged.
The case was referred to the Appeals Services Division for consideration of the outlined issue. The worker’s representative requested a hearing in writing to resolve the appeal; therefore, the decision was completed based on the information contained in the claim file.
AUTHORITY
Operational Policies
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
In reaching my conclusion, I considered all of the available information in the context of the relevant operational policy and legislation. For reasons that will follow, I do not find in favour of the worker.
The worker’s representative provided a submission with the ARF indicating that the worker was offered modified duties in a Runner position and polishing cutlery, but the worker felt her position as a Greeter was more suitable than the modified duties being offered. On October 23, 2018 the worker’s pain progressed; she sought massage treatment and was referred for physiotherapy treatment.
The worker’s representative indicates that there is a discrepancy in that the employer claims the worker refused work on October 28, 2019 because she was working as a hairdresser, but the worker does not work as a hairdresser. When asked to come into work, the worker told the supervisor that she needed to get ready and still do her hair so she would not be able to get to work by the time the employer was requesting.
The worker’s representative went on to indicate that the worker re-aggravated her injury and went to the hospital. She was given medication and did not attend work from October 31, 2018, as she was unable to drive. Then on November 20, 2018, her family physician confirmed she could not return to work pending her MRI of the neck. Thus, it is requested that the worker be granted LOE benefits as she co-operated and participated based on the doctor’s recommendations.
The employer was not a participant in the appeal; therefore, no additional information was put forth for consideration.
The issue in this case relies on an assessment of the worker’s ability to return to work and the suitability of the work offered. It is important to note that policy 18-03-02 titled Payment and Reviewing LOE Benefits (Prior to Final Review) states the following in part,
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.
In this case, the evidence does not support that the worker had a loss of earnings as a result of the work-related injury for the dates in question as she was capable of working and suitable modified work was available.
First, with respect to the worker’s level of impairment the evidence does not support a complete inability to work, the worker was capable of performing suitable work.
Clinical notes were obtained from the physiotherapist and on the October 24, 2018 examination, the worker’s scapular range of motion (ROM) was okay but had pain; she had pain elevating her right arm but was achieving full ROM; she had some paraesthesia in the right hand; and the clinical impression was a cervical strain with right neurogenic signs. There is no indication based on the findings that the worker was totally disabled.
There is an October 30, 2018 emergency record on file and I note the attending physician was Dr. Lobsinger. The report indicates neck pain started on October 19, 2018 and initially it improved but then got worse. Complaints of neck pain and stiffness. Treatment included Celebrex, Fexeril and exercises.
Dr. Lobsinger completed a Health Professional’s Report (Form 8) on October 30, 2018 and it indicates the worker was lifting a table and was diagnosed with a wry neck. The report indicates that return to work was discussed and the worker could perform modified duties. Based on the functional abilities outlined, the worker could: bend/twist, climb, kneel, operate a motor vehicle, push/pull, sit, and stand, use public transportation; use upper extremities; and walk. The worker was not able to lift or operate heavy equipment. Thus, the Form 8 clearly supports the worker was capable of participating in return to work and performing suitable work.
A clinical entry on October 31, 2018 from the family physician indicates the worker had neck pain, she was in physical therapy and emergency gave her Celebrex and Flexeril. There is no evidence to support a change in the level of impairment from the previous day.
The physiotherapist completed a Musculoskeletal Program of Care (POC) Initial Assessment Report on November 7, 2018, which indicates the worker was capable of working and the report indicates the worker was concurrently being seen for her right knee. I note there is also a clinical note for November 7, 2018, which indicates the worker’s neck was better; but she was off work and was still very stiff and tense about all issues. Thus, at this point, the worker was capable of working and her condition was improving.
I note a clinical entry from the worker’s family physician and a Health Professional’s Progress Report (Form 26) both dated November 20, 2018 indicate the worker needs sick leave; she has severe neck pain and painful ROM, but no neurological findings and MRI is pending. However, this entry does not support total impairment. The fact that the worker was awaiting further investigation does not render her totally incapable of working in any capacity.
The MRI of January 3, 2019 indicates degenerative changes within the cervical spine and moderate to severe left-sided neural foraminal narrowing at C6-7 with abutment of the exiting left-sided C7 nerve root. Interestingly the MRI indicates left sided findings and the worker was complaining about the right side. Nonetheless, these are underlying findings and have no impact on my conclusion that the worker was capable of performing suitable work.
Therefore, I acknowledge the position of the worker’s representative; however, I am not of the same view. The accepted work-related injury is not considered to be of such seriousness that it completely prevented the worker from returning to work. With respect to the worker’s medications, it is clear that the emergency physician, who prescribed them, did not find they would pose any issue, nor is there any medical evidence to suggest such.
I find the worker is considered partially impaired and capable of suitable modified work for the dates in question. Further, whether the worker was a hairdresser or not does not impact my conclusion on the worker’s ability as my findings are solely based on the medical information.
In considering the job offer, I note that policy 19-02-01 titled Work Reintegration Principles, Concepts, and Definitions outlines that 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 worker’s position is that of a Greeter, which the worker confirmed is a position typically offered to those requiring modified work. She was also offered modified duties polishing cutlery.
I note an initial modified work offer dated October 19, 2018, which indicated the task would be polishing cutlery, but it was crossed out and the worker declined participation in the offer and actually continued in her Greeter position.
There is also a November 2, 2018 letter addressed to the worker from the employer, confirming a conversation and offer of modified work. The duties were to include polishing cutlery, with the ability to sit and stand as needed, micro-breaks, self-paced and self-regulated as indicated in the initial modified work offer of October 19, 2018. Additionally, the worker was offered modified work as a Greeter, providing customer service, seating patrons; can also be performed self-paced and self-regulated with micro-breaks as needed. The duties continued to be available at any time at full wages and hours.
Consequently, based on the abilities and limitations as outlined on the Form 8 dated October 30, 2018, I find the modified duties were completely within the worker’s functional abilities; and the work offered is considered safe and suitable based on the injury.
In conclusion, the worker was capable of return to work and the employer made suitable work available. Therefore, the worker is not entitled to LOE benefits for the claimed periods.
CONCLUSION
The decision denying loss of earnings benefits is confirmed.
The worker’s objection is denied.
DATED: September 24, 2019
M. Kimevski
Appeals Resolution Officer
Appeals Services Division