Worker v. Employer, 2021 CanLII 140788

decision number:

20210039

worker

REPRESENTED by:

worker representative

employer

REPRESENTED by:

employer representative

HEARD by:

Stephanie waters, appeals resolution officer

DATED: NOVEMBER 4, 2021

ISSUES

The worker objects to the following decisions made in their claim:

The Eligibility Adjudicator’s (EA’s) January 15, 2021 decision that denied entitlement to loss of earnings (LOE) benefits from December 29, 2020 onward;
The Case Manager’s (CM’s) March 11, 2021 decision that the worker was partially impaired and capable of completing suitable modified work;
The CM’s April 26, 2021 decision that:

a. The worker’s neck strain would reach maximum medical recovery (MMR) without a permanent impairment by May 28, 2021;

b. The modified duties offered by the employer outlined in the return to work plan meeting dated January 21, 2021 remain suitable;

The CM’s June 3, 2021 decision that the worker’s head/concussion injury would reach MMR without a permanent impairment by June 11, 2021.

BACKGROUND

The worker’s date of hire was November 24, 2020. On December 17, 2020 while working as a package handler, this now 19-year-old worker bent down to pick up a box and hit their head on the slide where boxes come down from as they stood back up. The claim is allowed for a mild traumatic brain injury as well as a neck and trapezius strain.

The worker started losing time from work on December 21, 2020. The employer offered modified duties to the worker as of December 29, 2020, which included light office and clerical duties as well as breaks when needed. The worker attempted the modified duties on December 29, 2020 but was sent home. The worker states they were sent home due to their concussion symptoms while the employer states the worker was sent home because they smelled of cannabis. The worker has not returned to work to date.

In a letter dated January 15, 2021, the EA confirmed the claim was allowed for healthcare benefits and for LOE benefits from December 21, 2020 until December 28, 2020 because a medical report stated the worker was unable to work for 8 to 14 days. The EA denied LOE benefits from December 29, 2020 onward because the worker was sent home for a non-work-related issue, modified work was available, and medical reports did not show the worker was unable to perform the modified duties.

A Return to Work Specialist (RTWS) met with the workplace parties to develop a return to work plan on January 21, 2021. The employer confirmed clerical and small sorting duties remained available. The worker would be able to self-pace their work and take breaks, including from the computer screen, as needed.

The worker attended an occupational health assessment program (OHAP) on January 22, 2021, and the doctor and chiropractor concluded the worker could complete the modified duties available with the employer. The worker’s physiotherapist submitted a Functional Abilities Form (FAF) on March 8, 2021, stating the worker was physically unable to return to work. On March 11, 2021, the CM issued a letter determining the worker was partially impaired and capable of suitable duties within the restrictions provided during the January 22, 2021 medical assessment. Within the letter, the CM explained their rationale for placing more weight on the OHAP medical report.

Hospital records confirm the worker had a non-occupational seizure on March 26, 2021. On April 16, 2021, the OHAP report indicated this seizure appeared to aggravate the worker’s head and concussion symptoms. In a memo dated May 7, 2021, the CM accepted the non-work-related second accident aggravated the worker’s compensable mild traumatic brain injury symptoms, which could potentially prolong the recovery period.

On April 26, 2021, the CM determined the worker’s neck and trapezius strain would reach MMR without a permanent impairment by May 28, 2021 based on the medical reports on file. They also determined the modified work identified during the January 21, 2021 RTWS meeting remained suitable. In a subsequent letter dated June 3, 2021, the CM determined the worker’s head/concussion injury would reach MMR without a permanent impairment by June 11, 2021 based on the medical reports on file.

The worker’s representative objected to these decisions and submitted Appeal Readiness Forms.

AUTHORITY

Operational Policy Manual

Published

11-01-05 (Determining Permanent Impairment) 11-01-13 (Benefit of Doubt) 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review))

November 3, 2014 October 12, 2004 January 2, 2018 & April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find:

Entitlement to full LOE benefits is in order from December 29, 2020 until January 17, 2021 inclusive;
Entitlement to LOE benefits is not in order from January 18, 2021 onward because the worker was partially impaired and suitable work was available;
The worker’s neck and trapezius strains reached MMR without a permanent impairment by May 28, 2021;
The worker’s head/concussion injury did not reach MMR as of June 11, 2021.

As such, the worker’s appeal is allowed in part.

Employer’s Position

It is the employer representative’s position that the decisions in dispute should be upheld. They argued the worker was capable of working modified duties and LOE benefits are not in order. The employer’s representative also argued medical evidence supports the worker reached MMR and recovered from their injuries.

To support their position, the employer’s representative noted the worker was sent home when they attempted modified work because they smelled like cannabis and did not return to work after this date. They stated there is no medical evidence to support the modified work offered to the worker was not suitable, and noted the worker demonstrated an ability to accommodate their schooling within their level of impairment. The representative also argued more weight should be placed on the OHAP medical report because a doctor specializing in the worker’s type of injury completed an extensive assessment.

Worker’s Position

It is the worker representative’s position that the worker’s compensable injuries did not resolve and the worker has an ongoing impairment from these injuries requiring treatment. It is also the worker representative’s position that the worker should receive full LOE benefits from the date of injury until April 16, 2021, and ongoing after this date. Alternatively, they argued the worker should receive partial LOE benefits based on the graduated return to work plan recommended in the OHAP report dated April 16, 2021.

To support their position, the worker’s representative argued the April 16, 2021 OHAP report indicated the worker was totally disabled, and it was never verified if a graduated return to work plan was available as recommended by the April 16, 2021 OHAP report. The representative stated the worker’s benefits were cut off after this date based on an incorrect WSIB determination that the worker had pre-existing seizures.

The worker’s representative also stated they seek consideration for full LOE benefits from September 10, 2020 and ongoing.

Clarification of Review

Within their October 15, 2021 submission, the worker’s representative requested entitlement to full LOE benefits from September 10, 2020 and ongoing. The accepted date of injury in this claim is December 17, 2020. Entitlement to LOE benefits before this predates the work incident and has not been reviewed for entitlement so I do not have the jurisdiction to consider this request. Additionally, on January 15, 2021, the EA granted entitlement to LOE benefits from December 21, 2020 (the worker’s first day of lost time) to December 28, 2020, so this issue has already been resolved in the worker’s favour. As such, I will only comment on entitlement to LOE benefits from December 29, 2020 onward.

Assessment of Entitlement

I find entitlement to full LOE benefits is in order from December 29, 2020 until January 17, 2021 inclusive.

It is the worker representative’s position that the worker was totally disabled and full LOE benefits are in order. It is the employer representative’s position that LOE benefits are not in order because suitable work was available. Information on file supports the worker representative’s position for this period.

A doctor at the hospital assessed the worker on December 23, 2020. They documented the worker had ongoing headaches, foggy thinking, minor memory issues, nausea and vomiting since the work incident. The doctor indicated the CT scan did not show any intracranial hemorrhage and diagnosed the worker with a concussion. The doctor completed a Health Professional’s Report (Form 8) stating the worker should stay off work for 8 to 14 days until their concussion symptoms resolved. The next medical report regarding the worker’s condition is a clinic note from a doctor at a walk-in clinic on January 6, 2021. The doctor noted the worker still had a headache but did not have any blurry vision or vomiting, and recommended the worker rest and avoid using screens.

The employer gave the worker a written offer of modified duties, which the worker signed on December 29, 2020. This included the worker’s pre-injury duties with modification for lighter lifting, as well as light office duties including computer use and clerical taping damages. The worker could work their pre-injury hours and take breaks as needed.

The worker attempted the modified duties on December 29, 2020. The worker stated after 20 minutes the employer asked how they were doing. The worker stated the employer sent them home after the worker said they had a headache. By comparison, the employer stated they sent the worker home and told them to return to work on January 4, 2021 because the worker smelled of cannabis, had red eyes and their head hurt.

Policy 11-01-13 (Benefit of Doubt) states that where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.

The employer stated the worker was sent home because they smelled of cannabis. They did not explain why the worker was told to remain off work until January 4, 2021, and did not provide evidence regarding their internal policies regarding cannabis use and disciplinary steps for these situations. There is also no corroborating evidence to establish the worker smelled of or was under the influence of cannabis while at work on this date.

In this case, there is no evidence beyond the worker and employer’s statements to determine whether the worker was sent home on December 29, 2020 due to their concussion symptoms or because they smelled of cannabis. Since the evidence for both positions is approximately equal in weight, I find the issue should be resolved in favour of the worker in accordance with Policy 11-01-13 (Benefit of Doubt). Noting this, I am accepting the employer sent the worker home from December 29, 2020 until January 4, 2021 due to concussion symptoms the worker was experiencing.

When making my decision, I considered the policy that explains when LOE benefits can be paid. Policy 18-03-02 (Payment and Reviewing LOE Benefits) states:

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 providing the worker co-operates in health care measures and all aspects of the work reintegration process.

Although the employer offered modified duties to the worker on December 29, 2020, the employer sent the worker home until January 4, 2021. With this in mind, I find suitable work was not available to the worker during this period. The employer’s representative also argued there is no medical evidence showing the modified work was not suitable. I find medical evidence from the hospital doctor and walk-in clinic doctor who assessed the worker in person supports the nature or seriousness of the worker’s compensable injuries and related symptoms completely prevented the worker from returning to any type of work, including modified work requiring screen use, from December 23, 2020 until January 17, 2021. As such, in accordance with Policy 18-03-02 (Payment and Reviewing LOE Benefits), I find the worker is entitled to full LOE benefits from December 29, 2020 until January 17, 2021 inclusive.

I find entitlement to LOE benefits is not in order from January 18, 2021 onward because the worker was partially impaired and suitable work was available.

It is the worker representative’s position that the worker was totally disabled and full LOE benefits are in order. It is the employer representative’s position that LOE benefits are not in order because suitable work was available. Information on file supports the employer representative’s position as of January 18, 2021.

As previously discussed, the employer offered modified pre-injury duties as well as light office and clerical duties on December 29, 2020. The RTWS met with the workplace parties on January 21, 2021 to develop a return to work plan. The employer confirmed modified duties remained available at the worker’s pre-injury hours, and they could provide transportation to and from work if medically supported. The worker would be allowed to self-pace their work without any production requirements and could take micro breaks as needed to manage the worker’s sensitivity to physical exertion, noise, and light (including from a computer monitor).

The employer stated they had clerical and “small sort” duties available on an ongoing basis. The clerical duties included assisting a supervisor with paperwork and computer work, address corrections, repackaging and re-taping packages, sourcing items not in packaging, and sorting non-labelled freight. Small sort duties included sliding and rotating boxes as needed so the label was the correct direction for scanning. The worker would not need to move items weighing more than 5kg and could stand, walk, or take seated breaks as needed.

On January 22, 2021, the walk-in clinic doctor documented the worker still had headaches that were worse with light and noise, but the worker was experiencing relief from symptoms with physiotherapy. The doctor stated the worker did not have any focal neurological deficits, was neurologically alert and oriented, and had a normal gait and speech.

On January 22, 2021, an OHAP doctor specializing in mild traumatic brain injuries and a chiropractor also assessed the worker. The worker reported they had ongoing headaches, dizziness, photophobia, phonophobia, blurred vision, sleep disturbances, fatigue, cognitive difficulties, and behavioural disturbances. However, the worker reported a 20-30% improvement in their symptoms. The doctor and chiropractor concluded the modified work detailed during the January 21, 2021 RTWS meeting were suitable, and the worker could return to these duties at full-time hours within the following restrictions:

Lifting, pushing, and pulling should be limited to a maximum of 11lbs (5kg);
Avoid exposure to bright lights and loud noises by wearing eye/ear protection as needed;
Bending/twisting should be limited to an occasional basis;
Activities requiring attention to detail/concentration, memory, problem solving, and multi-tasking should be limited to an occasional basis;
Computer work should be limited to an occasional basis;
Reading, writing, and paperwork should be limited to an occasional basis;
No ladder climbing or working at heights;
No operating heavy machinery;
Take rest breaks as needed.

The January 22, 2021 report defined “occasional basis” as 1-33% of an 8-hour workday. During a follow-up assessment on April 16, 2021, the doctor and chiropractor stated again that the worker could perform the suitable modified duties identified on January 21, 2021 at full-time hours within the same restrictions, and could gradually increase their lifting capabilities over a period of 10 weeks.

In comparison, the worker’s community physiotherapist submitted medical reports on February 3, 2021, March 3, 2021, March 8, 2021, March 31, 2021 and April 1, 2021 stating the worker was unable to work due to their concussion and associated symptoms. Despite this conclusion, the physiotherapist indicated the worker could perform unrestricted sitting, standing and carrying, limited lifting, pushing, pulling, squatting, and walking, and computer work and visual tasks (reading and non-computer tasks) for up to 30 minutes at a time.

I considered the conflicting medical opinions when making my decision. I placed more weight on the opinion provided by the OHAP doctor and chiropractor than the opinion provided by the community physiotherapist for multiple reasons. The OHAP medical reports document extensive in-person assessments of the worker by an interdisciplinary team of medical professionals who specialize in mild traumatic brain injuries. The doctor and chiropractor provided detailed findings and rationales to support their conclusions and recommendations for the worker’s treatment and return to work. These medical professionals also provided opinions based on a review of all relevant and available medical reports.

By comparison, the medical reports from the community physiotherapist repeatedly indicate the worker was unable to complete any work despite confirming the worker had some functional abilities. The physiotherapist did not provide a rationale for why they felt the worker was unable to perform the available modified work within their functional restrictions.

Additionally, I find the physiotherapist’s findings and recommendations appear to be made without all available information. On February 3, 2021, the physiotherapist stated the worker was unable to complete school due to their symptoms. However, the worker confirmed they were attending school online all day Monday to Friday except Thursday afternoons. On March 3, 2021, the physiotherapist recommended a referral for an OHAP mild traumatic brain injury assessment and a RTWS assessment, but the CM implemented both of these intervention services as of January 2021.

For the above reasons, I placed more weight on the medical reports provided by the OHAP doctor and chiropractor. I accepted the doctor and chiropractor’s conclusions that the worker was partially impaired and capable of some work, including the available modified work, at full-time hours within the summarized restrictions.

The worker’s representative argued entitlement to full LOE benefits is in order because the April 16, 2021 OHAP report indicated the worker was totally disabled. Alternatively, the worker’s representative argued the worker should receive entitlement to partial LOE benefits because it was never verified if a graduated return to work plan was available as recommended by the April 16, 2021 OHAP report. Information on file does not support this position.

I find the January 22, 2021 and April 16, 2021 OHAP reports conclude the modified duties identified on January 21, 2021 were suitable and the worker could perform these duties within their restrictions. There is no indication the doctor or chiropractor opined the worker was totally disabled due to their compensable injuries. Additionally, there is no indication the doctor and chiropractor recommended work at reduced hours since they consistently determined the worker could perform the modified duties at full-time hours.

I understand the January 22, 2021 OHAP report indicated the modified duties identified on January 21, 2021 were suitable. With that said, I find the modified duties offered on December 29, 2020 and on January 21, 2021 are essentially the same. Both offers included limited lifting, light office and clerical work, self-pacing, and breaks as needed. Although the clinic note on January 6, 2021 indicated the worker was unable to return to work because they could not use any screens, there are no medical reports after this date (and prior to the January 22, 2021 OHAP assessment) to demonstrate the worker was unable to work or use screens. In fact, the worker informed the CM they began school online the week of January 18, 2021. The worker explained they attended classes all day, five days per week, on the computer. The worker managed their symptoms by staying at the computer for a short period and then walking away and listening to the class.

When making my decision, I again considered the policy that explains when LOE benefits can be paid. 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 LOE benefits beginning when the loss of earnings begins. The policy adds:

In summary, I find the worker demonstrated an ability to complete computer work and work with screens as of January 18, 2021. I find there is no medical evidence on file to establish the worker’s injury completely prevented them from returning to any type of work as of this date. I placed significant weight on, and accepted the conclusions of the OHAP doctor and chiropractor determining the modified work offered by the employer was suitable and the worker could perform these duties at full-time hours.

I find the worker was partially disabled from their compensable injuries as of January 18, 2021, and suitable work was available to the worker. As such, I am unable to establish the worker had a loss of earnings as a result of their work-related injuries from January 18, 2021 onward. I find entitlement to LOE benefits from January 18, 2021 onward is not in order in accordance with Policy 18-03-02 (Payment and Reviewing LOE Benefits).

I find the worker’s neck and trapezius strains reached MMR without a permanent impairment by May 28, 2021.

It is the worker representative’s position that the worker did not fully recover from their neck and trapezius strains, and has an ongoing impairment from this injury requiring treatment. It is the employer representative’s position that medical evidence supports the worker reached MMR and recovered from this injury. Information on file supports the employer representative’s position. For the reasons that follow, I find the worker’s neck and trapezius (upper back) strains reached MMR without a permanent impairment by May 28, 2021.

The worker’s physiotherapist provided a treatment outcome summary and discharged the worker from treatment on April 1, 2021. They documented the worker’s mid back and shoulder active range of motion was full and functional. The physiotherapist also indicated the worker was unable to work due to their concussion symptoms, but did not document the worker had any ongoing impairment due to their neck and upper back.

The OHAP doctor and chiropractor reassessed the worker on April 16, 2021. The worker reported their neck and trapezius pain improved and they were not using any medication for their neck or trapezius. The doctor and chiropractor documented the worker had full and normal neck range of motion, tone and symmetry. Within this report, the doctor and chiropractor indicated the worker had not returned to work but this appeared to be due to concussion symptoms and not the worker’s neck and trapezius strain. The doctor concluded the worker would achieve full functional recovery for their neck and trapezius strain within 6 weeks with education and rehabilitation.

Within a supplementary report dated April 28, 2021, the physiotherapist documented the worker’s neck rotation was limited by 10%. However, by June 2021, the physiotherapist provided documents indicating the worker’s ongoing treatment and functional limitations were related only to their concussion injury. There are no medical reports after April 28, 2021 demonstrating the worker had any ongoing impairment related to their compensable strain injuries.

When making my decision, I considered the policy that explains how to determine if a worker recovered from a compensable injury. Policy 11-01-05 (Determining Permanent Impairment) states that a recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached. To determine when MMR is reached, decision-makers consider whether

Recent clinical evidence indicates any change in the work-related injury
The worker is receiving or will receive treatment that is likely to improve the work-related injury, or
The worker is receiving treatment or using medication to maintain the current level of recovery.

I find recent clinical evidence does not show any change in the work-related neck and trapezius strains. The worker’s range of motion was normal in early April 2021, and slightly limited in late April 2021. The worker received additional rehabilitation treatment as recommended by the OHAP doctor so that by June 2021, there is no medical evidence establishing the worker had any ongoing work-related impairment from this injury. The physiotherapist treating the worker did not recommend any additional treatment likely to further improve this injury, and did not indicate the worker was receiving treatment or using medication at that time to maintain their current level of recovery. There was also no follow-up OHAP assessment recommended.

Considering the above, I find medical evidence supports the worker reached MMR for their neck and trapezius strains by May 28, 2021. I also find the worker fully recovered from this injury because there is no medical evidence of an ongoing or permanent work-related neck or trapezius impairment. As such, in accordance with Policy 11-01-05 (Determining Permanent Impairment), I find the worker’s neck and trapezius strains reached MMR without a permanent impairment by May 28, 2021.

I find the worker’s head/concussion injury did not reach MMR as of June 11, 2021.

It is the worker representative’s position that the worker did not fully recover from their head/concussion injury, and has an ongoing impairment from this injury requiring treatment. It is the employer representative’s position that medical evidence supports the worker reached MMR and recovered from this injury. Information on file supports the worker representative’s position. For the reasons that follow, I find the worker’s head/concussion injury did not reach MMR as of June 11, 2021, and it cannot yet be determined if the worker has a permanent impairment.

The worker had a non-occupational seizure on March 26, 2021, which caused the worker to hit their head when they fell. A CT scan report of the worker’s head on the same day indicated a normal study. On April 16, 2021, the OHAP doctor and chiropractor stated this seizure event appeared to aggravate the worker’s mild traumatic brain injury symptoms. Although the worker’s representative stated the worker’s benefits were cut off based on a WSIB determination that the worker had pre-existing seizures, I do not find this to be the case. In fact, the CM accepted this non-work-related second accident aggravated the worker’s compensable mild traumatic brain injury symptoms.

On April 16, 2021, the OHAP doctor and chiropractor documented the worker reported severe and persistent post-concussive physical, cognitive and behavioural symptoms with very limited reported improvement. The doctor noted the worker has a pre-existing history of anxiety, depression, and multiple prior concussions. The doctor indicated the worker’s prognosis for full functional recovery from the mild traumatic brain injury was guarded.

The OHAP doctor recommended the worker continue to attend active therapy for the head/concussion injury until the worker could attend a comprehensive multidisciplinary specialist assessment at the WSIB Neurology Specialty Program. The doctor recommended this referral to further comment on the worker’s prognosis and recovery timelines as well as treatment and return to work recommendations. A Nurse Consultant reviewed this recommendation on May 3, 2021 but did not refer the worker to the Neurology Specialty Program because the worker was currently under the care of a neurologist in the community.

The medical reports on file from the community neurologist are limited. The neurologist assessed the worker on March 15, 2021 and concluded the worker had some element of post-concussion symptoms such as headaches and difficulty with sleep, memory and concentration. The neurologist recommended headache prevention techniques and ongoing concussion rehabilitation for these symptoms.

However, the neurologist stated they were more concerned about prior health events including a loss of consciousness event the worker experienced in October 2020, an October 2017 CT scan completed based on the indication for “seizures”, and an event in grade 10 when the worker’s heart stopped for 30 seconds. The neurologist’s other treatment recommendations focused on investigating these events. The neurologist’s follow-up report on May 19, 2021 focused primarily on these health events that predated the work incident and only briefly commented that the worker was seen regarding post-head injury symptoms.

On June 9, 2021, the physiotherapist treating the worker on an ongoing basis provided a medical report indicating the worker remained unable to work due to post-concussion syndrome. The physiotherapist indicated the worker was partially recovered and continued to improve, but full recovery was not yet known. The physiotherapist submitted a subsequent treatment extension request on June 14, 2021, recommending additional active treatment to further improve the worker’s head/concussion injury symptoms. The treatment extension request was denied the next day based on the CM’s determination that the worker’s head/concussion injury reached MMR without a permanent impairment by June 11, 2021.

When making my decision, I considered the policy that explains how to determine if a permanent impairment exists. Policy 11-01-05 (Determining Permanent Impairment) states: to determine that a permanent impairment exists, the decision-maker must confirm that

MMR has been reached
Evidence of ongoing impairment exists, and
The ongoing impairment is a result of the work-related injury

Policy 11-01-05 (Determining Permanent Impairment) explains that to determine when MMR is reached, decision-makers consider whether

Recent clinical evidence indicates any change in the work-related injury
The worker is receiving or will receive treatment that is likely to improve the work-related injury, or
The worker is receiving treatment or using medication to maintain the current level of recovery.

I find medical evidence on file demonstrates the worker did not reach MMR for their head/concussion injury by June 11, 2021. Recent clinical evidence on June 9, 2021 indicated the worker had a change and improvement in their work-related injury, but had an ongoing functional impairment. Medical reports confirm the worker was receiving active treatment to maintain their current level of recovery, and the physiotherapist treating the worker on an ongoing basis indicated additional active treatment would likely improve the work-related injury.

For these reasons, I find there is no medical evidence on file indicating the worker’s head/concussion injury fully resolved because medical evidence supports the worker had an ongoing work-related impairment related to this injury beyond June 11, 2021. I also find there is no medical evidence or opinion on file establishing the worker’s recovery from this injury plateaued since the medical professionals treating the worker (the OHAP doctor and chiropractor as well as the community neurologist and physiotherapist) recommended additional treatment likely to improve the work-related injury.

Noting this, in accordance with Policy 11-01-05 (Determining Permanent Impairment), I find the worker’s head/concussion injury did not reach MMR without a permanent impairment by June 11, 2021. With that said, although medical reports support the worker had an ongoing work-related impairment and the OHAP report indicated the prognosis for full recovery was guarded, I find I do not have the information on file to determine the worker’s MMR date or whether they have/had a permanent impairment at that time.

For this reason, I will remit benefits flowing from this decision to the operating area to determine when the worker reached/reaches MMR and if they have a permanent impairment for their head/concussion injury at that time. I note the April 16, 2021 OHAP report recommended a referral to the WSIB Neurology Specialty Program for a specialized assessment of the worker and commentary on the worker’s prognosis, recovery timelines, treatment, and return to work recommendations.

I find a referral to this specialty program is appropriate to determine if the worker’s recovery has plateaued, or what additional treatment should be completed for the worker’s recovery. This is noting the physiotherapist recommended additional treatment to improve the work-related injury but the treatment extension request was denied. This is also noting the medical reports on file from the community neurologist are limited and focused on health events that predate the work incident.

I also find this specialized assessment would help determine the worker’s condition, prognosis, and recovery from the compensable injury. This is noting the worker has confirmed a history of prior concussions and a physiotherapist note dated November 21, 2020 (less than four weeks before the work incident), documented the worker had post-concussion syndrome with light and noise sensitivity as well as physical, cognitive, oculomotor dysfunction.

CONCLUSION

I find:

Entitlement to full LOE benefits is in order from December 29, 2020 until January 17, 2021 inclusive;
Entitlement to LOE benefits is not in order from January 18, 2021 onward because the worker was partially impaired and suitable work was available;
The worker’s neck and trapezius strains reached MMR without a permanent impairment by May 28, 2021;
The worker’s head/concussion injury did not reach MMR as of June 11, 2021.

I remit benefits flowing from this decision to the operating area to determine when the worker reached/reaches MMR for their head/concussion injury and if they have a permanent impairment at that time.

The worker’s appeal is allowed in part.

DATED November 4, 2021

Stephanie waters

Appeals Resolution Officer

Appeals Services Division