<!--mc:cls:cover-masthead-->
APPEALS RESOLUTION OFFICER DECISION
**Decision Number:** 20220120
**Objecting Party:** Worker
**Represented by:** Worker representative
**Respondent:** Employer (not participating)
**Hearing:** Hearing in writing
**Heard by:** M. Haughton, Appeals Resolution Officer
<!--mc:cls:cover-meta-->
**Dated:** July 6, 2022
<!--mc:close:case-cover-->
## ISSUES
The worker is objecting to the Case Manager’s (CM) decision dated July 8, 2021, which denied entitlement to loss of earnings (LOE) benefits from October 23, 2018 to January 28, 2020. The CM also determined that subsequent to January 28, 2020, the worker was capable of working on a full-time basis, 37.5 hours per week, earning $14.25 per hour, in the identified suitable occupation (SO) of Other Service Support Occupations, National Occupational Classification (NOC) 6742.
## BACKGROUND
On November 30, 2017, this journeyman plumber was digging for an underground car wash unit when their right foot became stuck in the mud. While trying to remove their boot from the mud, the worker twisted their right ankle and felt a pop in their right knee. Initial entitlement was accepted for a right knee strain. An Appeals Resolution Officer’s (ARO) decision dated November 16, 2018, denied initial entitlement to a right knee medial meniscal tear; however, the ARO made no finding regarding entitlement for an aggravation of a pre-existing right knee condition. On February 27, 2019, entitlement was reviewed and accepted for an exacerbation of the worker’s pre-existing right knee condition, including meniscal tearing. On May 30, 2019, the CM accepted entitlement to an acute left gluteus minimus muscle strain as a secondary condition due to altered gait and overcompensation for the work-related right knee injury.
The worker returned to modified work following the injury until April 30, 2018, when the employer was no longer able to accommodate the worker’s right knee restrictions. The worker received full LOE benefits from April 30, 2018 to June 27, 2018. On June 28, 2018, the worker underwent right knee surgery, which was accepted under this claim. The worker received LOE benefits from June 28, 2018 to August 23, 2018. The CM denied entitlement to LOE benefits subsequent to August 23, 2018, as the worker had a non-work-related change in circumstance related to a left hip impairment, which overwhelmed the claim and was the main contributing factor in the worker’s inability to return to work. The worker went on to have a left hip arthroplasty on February 26, 2019 due to degenerative changes and osteoarthritis in the hip.
An ARO decision dated October 14, 2020, denied entitlement to degenerative changes in the worker’s left hip, including osteoarthritis, as these conditions did not result from the work-related right knee condition. The ARO also denied entitlement to the February 2019 left hip replacement/arthroplasty. The ARO accepted entitlement to LOE benefits from August 23, 2018 to October 23, 2018 and remitted LOE benefits subsequent to October 23, 2018 back to the Operating area for review.
On July 8, 2021, the CM determined the worker was not entitled to any LOE benefits from October 23, 2018 to January 28, 2020 as the primary diagnosis and the reason the worker was unable to work was the left hip and the subsequent left hip surgery. The CM identified Other Service Support Occupations as a SO for the worker. The CM determined that effective January 29, 2020, the worker was entitled to partial LOE benefits based on their ability to secure full-time employment in the SO for 37.5 hours per week, earning an entry-level wage of $14.25 per hour.
The CM also determined the worker reached maximum medical recovery for the right knee on September 20, 2020 and a permanent impairment was identified. On July 12, 2021, the worker received a four (4) per cent Non-Economic Loss award for the right knee.
The worker’s objection to the CM’s decision dated July 8, 2021, forms the basis for this appeal.
## AUTHORITY
Operational Policy Manual
Published
11-02-02 Lost Time Claims
April 9, 2021
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related
April 9, 2021
Change in Circumstances
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
April 9, 2021
19-02-07 RTW Overview and Key Concepts
April 9, 2021
19-02-10 RTW Assessments and Plans
November 30, 2020
## ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find Other Service Support Occupations is an appropriate SO for the worker. I find the worker was partially impaired and entitled to partial LOE benefits based on full-time employment in the identified SO beginning October 23, 2018. My findings and analysis are provided below.
The worker representative included a submission with the Appeal Readiness Form dated January 28, 2022. The representative also included a prior submission dated July 20, 2021. The representative submitted the medical information supported the worker was entitled to full LOE benefits from October 23, 2018 to January 28, 2020. The representative noted the worker had hip concerns for years; however, the worker’s hip issues did not impact their ability to perform their physically demanding job as a plumber/pipefitter. The representative stated the worker was unable to return to work due to their work-related knee injury. The representative noted that if the WSIB was insistent on focusing on the worker’s left hip, then it would be reasonable to assume the worker was disabled due to the hip injury from February 26, 2019, the date of surgery, for a period of three (3) to six (6) weeks. The representative noted the medical information supported the worker’s knee was severely dysfunctional and impacted the worker’s ability to return to work. The representative also submitted the identified SO of Other Service Support Occupations, NOC 6742, was not suitable as the SO required sitting, standing, walking, bending, stooping, kneeling and crouching, all of which exceed the worker’s functional restrictions. The representative also noted the worker had no computer skills and the identified SO was a “guestimate” as to what the worker could have done and did not fully consider the worker’s skillset and abilities.
The employer did not participate in this appeal or provide a submission for consideration.
Following the work-related injury, the worker received treatment for their right knee, but experienced continued right knee
minicounsel