WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190108
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: M. Huot, Appeals Resolution Officer
DATED: October 10, 2019
ISSUE
The worker is appealing the Eligibility Adjudicator’s (EA) September 24, 2018 decision that denied loss of earnings (LOE) benefits from September 17, 2018 onwards. This decision was reconsidered on October 24, 2018 and January 25, 2019, but these reviews did not alter the decision.
BACKGROUND
On September 4, 2018, this now 59 year old labourer injured his lower back while lifting a box containing some construction debris. The worker estimated that the box weighed about 50 pounds. The claim was allowed for a low back sprain/strain.
The worker sought medical attention on September 5, 2018 and the doctor completed a note indicating that the worker was unable to work from September 5 to 12, 2018. The worker started to lose time from work as of September 7th, and returned to work (RTW) on modified duties on September 13, 2018.
LOE benefits were allowed in the claim from September 7 to 12, 2018 inclusive. After working on September 13th and 14th, the worker went off work again effective September 17th. The worker subsequently returned to work on modified duties starting on November 5, 2018.
The EA denied entitlement to LOE benefits from September 17, 2018 onwards when she concluded that the worker was fit to perform the modified work that the employer offered to accommodate him. The worker is appealing the decision to deny LOE benefits; his representative submitted an Appeal Readiness Form (ARF), and the claim was forwarded to the Appeals Services Division.
AUTHORITY
Relevant Operational Policies:
11-02-02 Lost Time Claims
19-02-01 Work Reintegration Principles, Concepts, and Definitions
ANALYSIS
In arriving at my decision, I have reviewed and considered all of the information contained in the claim file, the worker and employer representatives’ submissions as well as the relevant operational policies. I find that the worker has entitlement for LOE benefits from September 17 to October 8, 2018 inclusive, but does not have entitlement to these benefits for the period of October 9 to November 4, 2018. I will explain my rationale.
The worker representative’s (WR) position is outlined in the ARF dated March 14, 2019. The WR submits the following:
That the medical information supports that the worker was physically unable to RTW until October 9, 2018.
Effective October 9, 2018, the worker was fit to RTW on modified duties, but the work offered by the employer was not suitable.
The WR contends that the modified work was not suitable due to the fact that the worksite was a considerable distance from the worker’s home, and would have required prolonged sitting in order to commute to work. He indicates that the medical information states that the worker could RTW effective October 9, 2018 at a location close to his residence, but that the worksite was over 90 kilometres away, and would require more than 2 to 2.5 hours to reach. The WR points out that the worker was limited to 30 minutes of sitting, and he also states that the proposed worksite was well beyond his pre-injury commute. Due to these facts, the WR argues that LOE benefits should be allowed for the period of September 17 to November 5, 2018.
The employer representative (ER) submits that there is no objective medical information on file that substantiates the fact that the worker was totally disabled from working. She indicates that the doctor’s recommendations were based on the worker’s subjective complaints. She also notes the following regarding the location of the modified work location:
That the distance from the worker’s home to the site was 77 kilometres and would take, at most, 54 minutes to drive; this would only require the worker to take one stretch break during his commute if the 30 minute sitting tolerance was accurate.
The worker’s pre-injury commute was only 10 minutes shorter than the modified work site commute.
During the meeting with the return to work specialist (RTWS) on November 1, 2018, the worker demonstrated the ability to sit continuously for one hour and twenty-five minutes.
That the worker’s doctor is located 28 kilometres (KM) from the worker’s residence.
Due to the aforementioned reasons, the ER argues that the denial of LOE benefits for the period in question should be maintained.
Policy 11-02-02 Lost Time Claims, states, in part:
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.
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.
Decision-makers determine, through the review of clinical information, when a worker is fit to go back to his/her pre-injury work, or suitable and available work.
When the worker consulted a doctor on September 5, 2018, the physician noted that the worker was complaining of acute low back pain with some radiation into the right buttocks. The doctor recommended one week off work, treatment, and prescribed some medications. The next visit to the doctor was on September 11, 2018, and the physician noted that the worker was still experiencing lumbar pain, that there was no lumbar tenderness on palpation, and that bending forward was painful. The doctor indicated that the worker was returning to work the next day on modified duties. He indicated that the worker should avoid heavy lifting for the next three weeks.
In the worker’s statement to the Workplace Safety and Insurance Board (WSIB) on September 14, 2018, the worker indicated that he RTW on modified duties on September 12th, that he was performing small tasks, not doing any heavy lifting, and that he had no concerns about the modified work.
The employer indicated that the worker actually RTW on September 13, 2018, and that he was assigned to paperwork. When the worker complained about that work, they assigned him to traffic control work effective September 17th.
On September 17th, the worker told his doctor that he tried to RTW but that he was unable to sustain that. At that point, the doctor described severe point tenderness in the lumbar spine with no radiation of symptoms. New medications were prescribed – Tylenol#3 and Vimovo – and the worker was sent for x-rays. The doctor recommended that the worker cease working at that point. The x-rays done that day did not reveal any significant abnormalities. The worker told the EA that he was unable to work due to the pain he was experiencing. He did not indicate whether there was any specific issue with the modified work.
The worker had a physiotherapy assessment on September 26, 2018. The therapist noted that the worker was unfit to RTW, and indicated that his functional limitations included: avoid carrying/lifting, repetitive bending/twisting movements, kneeling, sitting, standing, climbing stairs/ladders, and use of his upper extremities. The range of motion in the worker’s low back was quite limited due to pain at that point, and the worker was experiencing muscle spasms. The physiotherapist anticipated a RTW on October 10, 2018.
The medical information on file supports that the worker had a significant flare up of his injury starting on September 17, 2018. The worker’s doctor prescribed stronger medications, noted acute lumbar tenderness that was not present on September 11th; on September 26th, the worker’s physiotherapist found that the worker’s range of motion was severely limited, and that there were back spasms.
The physiotherapist concurred with the physician in that he found the worker unfit to work. I find that the objective medical findings establish that the worker was unfit to work in any capacity until October 9th, the date that his doctor indicated he could RTW.
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.
The WR submits that the modified work was not suitable due to the fact that the worksite was a significant distance from the worker’s home, and that the worker’s sitting tolerance prevented him from commuting to work. The WR did not argue that the modified work itself was not suitable, and no issues regarding those tasks were raised during the meeting with the return to work specialist (RTWS) on November 1, 2018.
The worker’s doctor indicated that the worker could RTW on light duties effective October 9, 2018.
The modified work did not require the worker to lift, carry, bend, and he could alternate between sitting and standing as required. The work respected the limitations outlined by the physiotherapist in his September 26th report. I therefore conclude that the evidence establishes that the modified work duties themselves were suitable.
The length of the worker’s commute to work is in dispute as is the worker’s capacity to drive that distance. The WR states that it is 90 KMs, and would take the worker at least 2 hours to travel that distance, whereas the ER states it is 77 KMs, and would take a little under 1 hour. I put more weight on the ER’s assertion than the worker’s regarding this issue due to the following:
Based on my review of the distance from the worker’s residence to the location of the modified work site, the commute is approximately 1 hour; given the distance travelled and roads used, it is difficult to accept that this commute would take 2 to 2.5 hours.
I put less weight on the worker’s statements regarding the duration of the commute to work due to other inconsistencies evident in the claim:
o Although his sitting tolerance was said to be up to 30 minutes at the time, the worker demonstrated the ability to sit for 1 hour and 25 minutes during the RTWS meeting on November 1, 2018.
o When he spoke with the WSIB on September 14, 2018, he indicated that he had no concerns with the modified work duties, and that he was doing small tasks, not doing any heavy lifting; however, when the worker spoke with the WSIB on October 23, 2018 he indicated that the modified work he was doing on September 13 and 14, 2018 involved cleaning and picking up heavy items.
o In his October 23, 2018 statement, the worker indicated that the modified work site was 60 KMs from his home.
Based on the medical reports on file, the worker’s sitting tolerance was at least 30 minutes. I find it reasonable that the worker could have driven to work starting on October 9, 2019 by taking one break during his one hour commute.
The WR indicated that the modified work site was well beyond the worker’s pre-accident commute. He did not specify how much longer the commute was, however, the ER pointed out that the difference in travel time was 10 minutes. I find that this increase in the commute time was not onerous and entirely reasonable.
In summary, I conclude that the evidence establishes that the worker was unable to perform any type of work over the period of September 17 to October 8, 2018 inclusive. Effective October 9, 2018 however, the worker was fit to perform suitable work, and the modified work offered by the accident employer was suitable.
CONCLUSION
The worker’s objection is allowed, in part.
The worker is entitled to full LOE benefits for the period of September 17 to October 8, 2018 inclusive.
The worker is not entitled to LOE benefits for the period of October 9 to November 4, 2018.
DATED: October 10, 2019
M. Huot Appeals Resolution Officer Appeals Services Division