DECISION NUMBER:

20220122

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

HEARING:

HEARING IN WRITING

HEARD by:

ROD COTTER, APPEALS RESOLUTION OFFICER

DATED: SEPTEMBER 21, 2022

ISSUE

The worker is objecting to the November 30, 2021 case manager decision that denied entitlement to loss of earnings (LOE) benefits from November 29, 2021.

BACKGROUND

The worker began working for the employer in 2006, and was employed as a concrete floor and formwork foreman in 2021. They had a non-occupational right shoulder condition that was scheduled to be operated on in January 2022.

On November 1, 2021, they felt pain and heard a crunching in their right arm and shoulder while attempting to lift and maneuver of a concrete grinding machine with a colleague. They suspected the accident exacerbated their prior injury.

The worker sought immediate medical attention. The treating physician diagnosed a possible rotator cuff and biceps tear. The physician recommended the worker off work for a week, and that the worker not use their right arm at all until surgery. The claim and LOE benefits were allowed.

A return to work meeting on November 23, 2021 resulted in a plan for the worker to return to alternate accommodated duties on November 29, 2021. The employer reported the available duties included directing trucks, making dial covers for sleeves, spraying sealer, rolling and cutting plastic, organizing the tool room, driving a scrubbing machine, and caulking.

On December 3, 2021, the worker reported they did not return to work, were off for non-occupational reasons, and would return to modified duties on December 6, 2021.

The employer reported the worker returned to work on December 6, 2021 with no concerns, but submitted a medical note on December 7, 2021 indicating they would be absent for several months. The worker’s family physician provided a functional abilities form indicating the worker was physically unable to return to work.

In their decision dated November 30, 2021, the case manager denied entitlement to LOE benefits from November 29, 2021 on the basis that suitable work at no wage loss was available to the worker. The worker representative’s objection to this decision forms the basis of the appeal before me.

AUTHORITY

Operational Policy Manual

Published

11-02-02 - Lost Time Claims

April 9, 2021

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

September 1, 2021

19-02-07 - RTW Overview and Key Concepts

November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons outlined below, I am denying the worker’s objection.

Positions and Submissions

The position of the worker representative is that the modified work offered to the worker by the employer was not within the worker’s restrictions.

The representative submits that the Return to Work Specialist (RTWS) did not review the offered duties, or any other job listed in the RTW memo of November 23, 2021. Furthermore, they contend that the Case Manager did not even ask the worker about the job duties performed on December 6, 2021. They simply contacted the employer who indicated that the worker returned to work that day and everything went well.

The representative states that the worker attempted to perform the available modified duties on December 6, 2021. The job was entitled “Dowel Sleeve Covering”. The worker sat in a chair and their left arm had to cross their body to right side to grab plastic, pull it across their body, hold onto piece of metal, then their right hand would have to press down on machine to iron and seal plastic.

They state the worker performed this job approximately 500 times from 7am to 4:30pm. On December 6, 2021, the worker complained to their Supervisor at 11:00am that the job was not

suitable due to the repetitive nature of the job and the fact that job had to be performed using both hands. The supervisor was unable to modify the job and confirmed there was no other work available. The worker then saw their family physician, Dr. Ross, who upon hearing of the work performed on December 6, 2021, authorized the worker off work.

The worker representative argues that Dr. Ross’ report of January 11, 2022 confirms the work provided by employer was unsuitable, and re-iterates the need for worker to remain home to recover to avoid further damage to their shoulder.

The representative further states that the worker requested a RTW meeting in early February of 2022 to review if the employer had any modified work available, and the employer lied to the RTWS in stating that

the worker had resigned their employment with them. The representative submits this was untrue, but neither the RTW Specialist nor the Case Manager bothered to confirm the resignation with the worker or with their office.

Noting the above, the worker representative is requesting that LOE benefits be granted to the worker from November 29, 2021 to date and ongoing.

The employer is not participating in the appeal and has not provided a submission. The case record does not reflect their position on the worker’s objection.

Relevant Policy

According to operational policy 11-02-02 - Lost Time Claims, to authorize the payment of loss of earnings (LOE) benefits, WSIB decision-makers must determine that the clinical evidence shows that a worker’s inability to work is due to his or her work-related injury. The worker must also have clinical authorization to be off work.

Pursuant to policy 18-03-02 - Payment and Reviewing LOE Benefits, a worker who has a loss of earnings due to a work-related injury is entitled to LOE. Full LOE is generally payable if the nature or seriousness of the injury completely prevents a worker from returning to any type of work. Similarly, full LOE is also generally payable if a worker is able to return to some form of work but the WSIB determines that no suitable work is available.

Operational Policy 19-02-07 - RTW Overview and Key Concepts defines suitable work as work that is safe, productive, consistent with a worker’s functional abilities, and restores the worker’s pre-injury earnings to the greatest extent possible. When suitable work that restores a worker’s average pre-injury earnings is available, no LOE benefits are payable because there is no wage loss due to the work-related injury.

Evidence and Findings

I find the evidence supports that suitable work was available to the worker from November 29, 2021. The worker is therefore not entitled to LOE benefits from November 29, 2021.

The worker was scheduled to return to work on November 29, 2021, but did not return to work until December 6, 2021, reportedly due to unspecified non-occupational reasons.

The job the work representative indicates the worker performed when they returned to work on December 6, 2021 was ostensibly not within the worker’s prescribed functional abilities and restrictions. The worker’s restrictions essentially amounted to little to no use of the right arm according to the November 29, 2021 functional abilities form (FAF) from Orthopaedic Surgeon Dr. Halman.

The worker provided a FAF from Family Physician Dr. Ross on December 7, 2021 indicating that they were physically unable to return to work. As the worker’s injury was to the right shoulder only, I do not accept that the worker was physically unable to perform any work. I accept Dr. Halman’s

November 29, 2021 FAF as a more accurate description of the worker’s functional abilities from December 6, 2021.

According to case memo A0020 dated December 8, 2021, the worker indicated the available work was not suitable but declined to participate in further return to work activities. The employer confirmed that modified duties continued to be available.

According to memo A0038 dated March 2, 2022, the worker acknowledged that they should have contacted the case manager or RTWS regarding their concerns with the work they performed on December 6, 2021, but only went to their doctor and obtained an FAF indicating they couldn’t work.

Given (1) the statutory requirement under the Workplace Safety and Insurance Act for the employer to offer available suitable work and the corresponding penalties for failing to do so, (2) the employer’s identification with RTWS assistance of a number jobs and job duties that could be completed with the use of a single arm including directing trucks and operating a ride on scrubbing machine, and (3) the above noted communications, I find the evidence supports that suitable work was available to the worker from December 7, 2021.

I further find the evidence supports the worker declined the offer of suitable employment and declined to participate in the return to work process where in the offered job duties and the worker’s concerns with them would have been reviewed in detail.

Contrary the worker representative’s submission, I find Dr. Ross’ report of January 11, 2022 does not confirm that the work provided by employer was unsuitable, and that the report does not provide any substantive evidence as to why or how the worker’s shoulder injury rendered the worker physically unable to return to work.

The worker is not entitled to LOE benefits from November 29, 2021 according to policy 18-03-02 - Payment and Reviewing LOE Benefits because the evidence supports that suitable work was available to the worker from November 29, 2021.

CONCLUSION

The worker’s objection is denied. The worker is not entitled to LOE benefits from November 29, 2021.

DATED September 21, 2022

Rod Cotter

Appeals Resolution Officer Appeals Services Division