APPEALS RESOLUTION OFFICER DECISION
decision number: 20230001
OBJECTING PARTY: worker
RESPONDENT: employer
REPRESENTED by: employer representative
HEARING: VIDEOCONFERENCE – July 28, 2022
HEARD by: stephanie waters, appeals resolution officer
ADDITIONAL ATTENDEES: support person for the worker American sign langugae interpreter American sign langugae interpreter
ISSUES
The worker objects to the Case Manager’s (CM’s) August 12, 2021 decision, which:
- Denied entitlement to benefits for neck or bilateral shoulder injuries;
- Denied entitlement to full loss of earnings (LOE) benefits for the periods of April 21, 2021 to May 6, 2021, May 17, 2021 to June 2, 2021, and from July 14, 2021 onward.
BACKGROUND
The worker’s date of hire was August 18, 2020. On February 18, 2021 while working as a merchandiser, this now 58-year-old worker experienced an injury to her right hand when the automatic doors at the front of the store closed on it. The worker started losing time from work the next day and returned to modified duties on February 25, 2021.
The operating area initially granted entitlement for a right hand strain and full LOE benefits from February 19, 2021 until the worker resumed modified work on February 25, 2021. The operating area later extended entitlement to include a right hand crush injury, right index finger tendon sheath ganglion and flexor tendon tenosynovitis, right-sided carpal tunnel syndrome and pronator syndrome, and an aggravation of right thumb arthritis.
The worker performed modified duties until she stopped working on March 24, 2021 to have a cyst on her right hand drained. The CM indicated the worker returned to modified duties on April 12, 2021 while the worker indicated she returned to work on April 5, 2021. The CM granted full LOE benefits for the period of March 24, 2021 to April 12, 2021 while the worker was off work to have her hand cyst drained.
The worker completed modified duties until she stopped working on April 21, 2021. The family doctor completed a Functional Abilities Form (FAF) on this day, indicating the worker was physically unable to work for two weeks due to pain in her neck and shoulders. The worker attributed this pain to overcompensating with her neck and shoulders trying to do repetitive work for long hours with one hand while performing modified duties. The worker remained off work until she returned to modified duties on May 7, 2021.
The worker attended a Specialty Clinic (SC) assessment on May 13, 2021. The SC plastic surgeon and occupational therapist indicated the worker could continue working with restrictions for vigorous gripping and lifting with the right hand. The clinicians concluded the current modified work was within the worker’s physical abilities at regular hours. A family doctor note dated May 19, 2021 indicated the worker could not work as of May 17, 2021 due to ongoing right hand pain and emotional distress. The worker stayed off work from May 17, 2021 until June 2, 2021.
A Return to Work Specialist (RTWS) met with the worker and employer on June 2, 2021. The RTWS confirmed the employer had suitable modified work available for the worker at reduced hours (24 hours per week). The worker returned to modified duties on June 3, 2021, but stopped working on July 14, 2021. The worker stated she was unable to work because she was unable to wear safety gloves due to pain from her injury. On July 19, 2021, the CM indicated they were unable to accept the worker not being able to wear gloves as a medical restriction from her injury.
On August 12, 2021, the CM denied entitlement for injuries to the worker’s neck or shoulders because medical reporting did not diagnose an injury to these areas. The CM denied entitlement to LOE benefits from April 21, 2021 to May 6, 2021, and from May 17, 2021 to June 2, 2021. They explained the modified work remained suitable and medical information indicated the worker was off work for non-compensable reasons during these periods.
Also within the August 12, 2021 decision letter, the CM granted partial LOE benefits as of June 3, 2021 since the worker resumed modified work at reduced hours. The CM maintained entitlement to partial LOE benefits rather than granting full LOE benefits as of July 14, 2021 when the worker stopped working. This was because the CM found the modified work remained suitable and medical information did not support the worker was totally disabled.
The worker objected to these decisions and submitted an Appeal Readiness Form.
AUTHORITY
Operational Policy Manual Published
15-05-01 Resulting from Work-Related Disability/Impairment April 9, 2021
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:
- The worker is not entitled to benefits for injuries to her neck or shoulders;
- The worker is not entitled to any LOE benefits from April 21, 2021 to May 6, 2021;
- The worker is not entitled to any LOE benefits from May 17, 2021 to June 2, 2021;
- The worker is not entitled to full LOE benefits from July 14, 2021 onward.
The worker’s appeal is denied.
Preliminary Issue – Witness Testimony
An approved witness was unable to attend the hearing. All parties agreed the witness would provide a written statement to file and the employer’s representative would have an opportunity to provide a reply regarding the witness’s testimony.
The witness provided two similar written statements on August 19, 2022 and August 22, 2022. The witness indicated they worked at the same store and knew the worker since shortly after her hire. The witness stated the worker was a hard worker who attempted to work while her hand was hurting, and confirmed the worker stated doing the same job for a long time made her neck, shoulders, and hand sore. The witness indicated they sometimes helped the worker move merchandise on and off high shelves because the worker could not climb ladders or lift heavy items after the accident.
The witness stated most staff do not wear gloves all the time and they knew the glove hurt the worker’s sore right hand. The witness indicated the worker is off work and says she has been told there is no work for her. The witness stated the worker’s name is no longer in the computer system. The witness also stated they have seen the worker come to the store more than 10 times but HR is not there.
Preliminary Issue – Employer Representative’s Reply to Witness Testimony
The employer’s representative provided a written response to the witness’s written statements on September 2, 2022. The representative argued the statements do not provide support for the issues claimed and the appeal should be denied.
The employer’s representative argued the comment about gloves is irrelevant because others not wearing gloves is not the issue and the witness did not know details beyond the worker complaining of pain from the gloves. The representative stated the comment about there not being work for the worker is not corroborated, and the worker’s name would not be placed on a schedule if she was not working or claimed she could not work. Lastly, the employer’s representative stated there is always an HR representative present at the store that the worker could communicate with.
Worker’s Testimony
The worker testified that on February 18, 2021, she arrived at work and the sliding doors were closed. A colleague indicated she could come through and the worker physically spread the sliding doors with both hands. The sliding doors closed on both of her hands and no one came to help when she screamed. The worker pulled her left hand out and eventually used that hand to pull her right hand out. The employer’s representative asked about the difference in this description from the one provided on the Worker’s Report of Injury/Disease (Form 6). The worker restated the doors closed on both hands but she had a worse injury to her right hand. She confirmed she is right handed.
The worker stated she returned to work doing shelving and picking orders. This involved putting merchandise on shelves as well as pulling items from shelves. The worker stated the shelving units are high and deep, and tools used to grab items at the back of shelves were not available, so the worker had to reach to the back of deep shelves in a non-ergonomic way to get some items. The worker interacted with small items and packages and avoided any heavy products (paint cans) or materials (steel) that would hurt her hand. The worker perform this task for her entire shift in a self-paced manner.
The worker tried using her right hand and arm for this work but it became very sore. The worker said her family doctor, the hospital doctor, and her supervisor told her to not use her right hand. The worker started performing all work tasks with her left hand and arm. The worker stated she was not used to using her left hand. The worker also described having to twist her wrists to read labels and ensure she was pulling the right items from shelves.
The worker testified she started feeling pain in both shoulders as well as the middle/back of her neck with pain shooting out both sides. The worker saw her family doctor about this pain in April 2021. The worker stated the family doctor provided her with the same medication she had been taking since the initial accident. The worker did not receive treatment for her neck or shoulders because she does not have benefits to pay for treatment.
The worker stated she was off work from April 21, 2021 to May 6, 2021 due to pain in her right hand, shoulders and neck, and because she did not feel accommodated. However, the employer called her to go back to work, and the worker resumed modified duties on May 7, 2021. The worker stated the employer provided multiple tasks including computer work inputting item numbers, cleaning appliances, and picking light items from the lighting and plumbing areas. The worker confirmed this work remained self-paced and the supervisor found other work for her if the worker had difficulty with a certain task.
The worker testified that generally employees, including herself, are required to wear safety gloves at work in certain aisles (such as the lumber aisle), but not all the time or for all tasks. After the accident, the worker stated her supervisor forced her to wear gloves at all times regardless of the task she was doing to “be more safe”. The worker felt this was discriminatory because other staff were not required to wear gloves all the time. The worker was required to wear safety gloves with blue latex gloves underneath.
The worker explained she found it difficult and painful to wear these gloves. Keeping the gloves on made her right hand sore and swollen. It was difficult for her to get the glove on her right hand due to this pain. It was also difficult for her to get the glove on her left hand because her right hand was sore and weak.
Due to these issues, the worker was given larger gloves. However, the worker stated they were too big and made it difficult to avoid dropping items, which the worker felt was unsafe. The worker requested different-sized gloves but did not receive other gloves and stopped asking. The worker stated the hospital doctor told her not to wear gloves and she does not know why the doctor did not put this in their report.
In May 2021, the worker found the variety of tasks hurt her hand, neck, and shoulders. She also stated she had an argument with her employer about wearing the gloves. After the argument, the worker went to her family doctor who told her to stay off work. The worker remained off work based on her doctor’s medical advice from May 17, 2021 to June 2, 2021. The worker returned to modified work after this time performing similar work.
On July 14, 2021, the worker stated her supervisor asked her to do a different task, which the worker refused because it was too heavy. The supervisor gave the worker a small tool for counting and the worker did this task for a while wearing a glove on her left hand but not her right hand. The worker testified that the supervisor returned and said the worker needed to wear gloves on both hands for the task. The worker stated they had another argument and she told the employer she could not wear a glove on her right hand. The employer then sent her home saying they had no work she could do while not wearing gloves.
The worker indicated she contacted the employer a few weeks later asking if she could come back to do order picking but the employer said they had no work for her. The worker stated her family doctor indicated she could return to cashier or order picking work with her injury. The worker indicated she last emailed the employer in August 2021 but did not receive a reply. She did not know she was supposed to contact the WSIB about her return to work. She physically goes to the store occasionally but her previous supervisor and manager have left the store, and she is unable to talk to anyone in Human Resources, so she remains off work. The worker stated she is very disappointed, frustrated, and has had difficulty with bills without any income. She wants to return to modified work and have more communication from the employer.
I asked the worker about the glove liners provided by the SC, as documented within the November 25, 2021 report. The worker explained the doctor gave her these black gloves/liners because her right hand always felt cold. The doctor stated the liners were not for work purposes. The worker indicated these liners did not have rubber in them and she had less difficulty wearing them.
The worker testified she still has a shooting pain in her right hand despite receiving an injection and doing physical therapy. She cannot lift her right arm above shoulder level and she still has pain from her shoulder to elbow. The worker has an upcoming appointment with the hospital in September 2022 regarding her right hand and carpal tunnel syndrome. The worker highlighted that this injury is very serious, her hand’s function has not been the same since the accident, and her hands are very important to her for communication.
Worker’s Position
It is the worker’s position that she should receive entitlement for injuries to her neck and shoulders. She argued pain in these areas developed because she overcompensated with her left hand and arm performing modified work while her right hand was injured.
It is also the worker’s position that she should receive LOE benefits for her periods of time off work. The worker argued she was unable to work as of April 21, 2021 and May 17, 2021 due to injuries and pain in her right hand, neck, and shoulders. The worker added that the employer sent her home on July 14, 2021 because the worker said she could not wear safety gloves due to her right hand injury, and the employer said they had no work for her that could be done without safety gloves. The worker argued she was following medical advice and medical reports support she could not wear safety gloves due to her injury.
Employer’s Position
It is the employer representative’s position that the worker is not entitled to healthcare benefits for neck or bilateral shoulder injuries because there is no medical evidence to establish an injury or disability related to the worker’s neck or shoulders.
It is also the employer representative’s position that the worker is not entitled to LOE benefits for the three periods in question. The employer’s representative stated the employer offered modified work that was safe, sustainable, and within the worker’s functional limitations for her compensable injury. They added that the work was self-paced in nature, the employer provided different work whenever the worker raised a concern about a particular task, and the worker did not maintain communication with the employer about a return to work after August 2021. The employer’s representative argued there is no factual or medical evidence showing the modified work was unsuitable, or that the worker was totally disabled or unable to wear safety gloves at work due to her compensable injury.
Assessment of Entitlement
- I find the worker is not entitled to benefits for injuries to her neck or shoulders.
It is the worker’s position that she is entitled to benefits for injuries to these areas. It is the employer representative’s position that the worker is not entitled to benefits for neck or bilateral shoulder injuries. Information on file supports the employer representative’s position.
I considered the fact that the worker does not attribute her neck and shoulder pain to the initial work accident. Instead, the worker describes her neck and shoulder pain as a secondary condition resulting from overcompensating for her right hand injury while performing modified duties. For this reason, I considered the policy that outlines when entitlement may be granted for a secondary physical condition due to a work-related injury.
Policy 15-05-01 (Resulting from Work-Related Disability/Impairment) states that entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
I find the worker is not entitled to benefits for injuries to her neck or shoulders because medical evidence available on file does not confirm any diagnosed injury to these areas following the work accident. I understand the worker reported an onset of neck and shoulder pain in April and May 2021 while performing modified work. I also understand the family doctor indicated the worker was unable to work due to this pain in an FAF dated April 21, 2021. However, since medical reporting does not provide a diagnosis for any injury to the worker’s neck or shoulders, I am unable to establish the worker developed a secondary condition to her neck or shoulders due to her work-related right hand injury or the modified work she performed as a result of this injury.
- The worker is not entitled to any LOE benefits from April 21, 2021 to May 6, 2021.
It is the worker’s position that she is entitled to LOE benefits for this period. It is the employer representative’s position that LOE benefits are not in order since suitable modified work remained available. Information on file supports the employer representative’s position. I will provide a brief summary of the available modified work and the relevant medical information and then complete my analysis.
Summary of Available Modified Work
The employer provided an offer of temporary modified work in March 2021. This included duties such as bay maintenance, front facing product, and dusting/cleaning displays with the worker’s uninjured hand. The worker reported having issues facing some of the heavier products such as paint cans with only her left hand.
The RTWS met with the worker and employer on April 9, 2021 to discuss the available modified work. The RTWS and employer confirmed the worker could perform these duties in a self-paced manner, and that she should avoid any task or product that was beyond her functional abilities. The worker confirmed her understanding to avoid any tasks that were too difficult for her to perform.
The employer provided another written offer of modified work on April 13, 2021. This included dusting displays, facing product through the store from floor level to above shoulder height only (because the worker was unable to move ladders with one hand), and sitting at a flooring desk completing various reading and computer training. The tasks required lifting and pulling less than 10kg, standing, crouching/bending, sitting, and keyboard work with one hand to key numbers. The document indicated personal protective equipment (PPE) was required for the dusting and product facing tasks.
Summary of Relevant Medical Evidence
On April 7, 2021, the family doctor completed an FAF indicating the worker could return to work with restrictions. They indicated the worker had full abilities for walking, standing, sitting, stair and ladder climbing, driving, and using public transit. The worker should limit lifting to 5-10kg maximum, avoid bending/twisting repetitive movement of the hands, and limit right hand gripping and pinching.
The family doctor submitted another FAF on April 21, 2021, stating the worker was physically unable to return to work and required two weeks of rest due to pain in her neck and shoulders. The worker submitted a letter on May 7, 2021, indicating she was off work from April 21, 2021 to May 6, 2021 due to ongoing right hand pain as well as neck and shoulder pain from using her left hand too much. This is consistent with the worker’s testimony provided during the hearing.
I find the worker is not entitled to LOE benefits from April 21, 2021 to May 6, 2021.
When making my decision, I considered the policy that explains when LOE benefits may 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:
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 return-to-work process.
Although the worker had ongoing right hand pain and limitations since the accident, this did not prevent the worker from performing modified duties prior to April 21, 2021. The family doctor confirmed the worker was capable of performing light duties with right hand restrictions and the worker demonstrated her ability to do so previously. The medical evidence attributes the change in the worker’s capacity for work to the onset of pain in her neck and shoulders. I previously determined the worker did not have entitlement to benefits for injuries to these areas. As such, it appears the worker was unable to work during this period due to non-compensable conditions and symptoms.
Additionally, I find the modified work offered and discussed in April 2021 was suitable and consistent with the worker’s functional limitations for her compensable right hand injury. The worker had no compensable restrictions for standing, crouching/bending, sitting, or keyboarding with her left hand. There is no indication the worker would be required perform any repetitive movements, gripping, or pinching with her right hand, or lift any product or object weighing more than 10kg.
I find medical evidence demonstrates the worker was unable to work during this period due to non-compensable conditions. I find there is insufficient medical evidence to establish the nature or seriousness of the worker’s right hand injury prevented her from performing the suitable modified work during this time. For these reasons, I find the worker is not entitled to LOE benefits from April 21, 2021 to May 6, 2021 because I cannot establish the worker had a loss of earnings as a result of her work-related injury during this period.
- The worker is not entitled to any LOE benefits from May 17, 2021 to June 2, 2021.
It is the worker’s position that she is entitled to LOE benefits for this period, while it is the employer representative’s position that the denial of LOE benefits should be upheld. Information on file supports the employer representative’s position. I will again provide a brief summary about the available modified work and relevant medical reports before completing my analysis.
Summary of Available Modified Work
The RTWS spoke with the worker’s informal representative on May 20, 2021, who provided an update on behalf of the worker. The informal representative stated there were several issues causing the worker increased pain and anxiety, including communication issues with the worker’s supervisor. Additionally, the worker stated she had been given heavy tasks to do with her left arm, including repetitive facing of products, and ladder climbing to reach higher shelves.
By comparison, the employer’s representative informed the RTWS on May 21, 2021 that the worker had not been asked to handle any heavy items, and the worker had spent most of her time reading and doing online work/training videos at a desk.
Summary of Relevant Medical Evidence
The family doctor completed an FAF on May 5, 2021, indicating the worker could resume work with restrictions due to right hand pain as well as pain in her left shoulder, arm, and hand. The family doctor recommended the worker limit lifting to 5kg maximum, pushing/pulling with the right arm, work at or above shoulder level, and repetitive movement, gripping, and pinching with both hands.
The worker attended an SC assessment with a plastic surgeon and occupational therapist on May 13, 2021. The clinicians recommended the worker avoid lifting, pushing, and pulling over 5kg as well as vigorous gripping with the right hand. They also recommended the worker take frequent micro breaks. The clinicians concluded the available modified duties were within the worker’s current physical abilities at regular hours.
A family doctor note dated May 19, 2021 stated the worker was unable to work as of May 17, 2021 due to ongoing right hand pain and emotional distress.
I find the worker is not entitled to LOE benefits from May 17, 2021 to June 2, 2021.
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. The policy adds that a worker is generally entitled to full LOE benefits if the nature or seriousness of the injury prevents them from returning to any type of work, or suitable work is not available.
I recognize there is a discrepancy in medical reporting regarding the worker’s ability to work during this period. On May 13, 2021, the SC clinicians indicated the worker was able to perform the available modified work with restrictions for her right hand injury. In comparison, the family doctor indicated the worker was unable to work in any capacity as of May 17, 2021. I placed more weight on the SC clinicians’ conclusion over the family doctor’s conclusion for multiple reasons.
The SC recommendations were provided by a multidisciplinary team of medical experts specializing in physical injuries, limitations, treatment, and recovery. Additionally, the SC clinicians provided functional limitations based on the worker’s compensable injury with a detailed rationale to support their recommendations. The family doctor listed functional restrictions and the worker’s inability to work due to non-compensable conditions including emotional distress and pain in her left shoulder, arm, and hand.
I understand the worker stated she was given heavy tasks to do with her left arm, including repetitive product facing. I am unable to accept that this made the modified work unsuitable. During the RTWS meeting in April 2021, the worker was told to perform tasks in a self-paced manner and avoid any task that was too heavy or difficult. The worker confirmed her understanding at that time. The worker also testified during the hearing that she could self-pace the work and that she spoke with her supervisor about any tasks she felt were too heavy or difficult for her to perform. Although the worker felt the product facing was repetitive and too heavy, I find there is insufficient evidence to demonstrate the worker was required to move products weighing over 5kg or do this task repeatedly without taking breaks as needed.
I understand the worker also stated she was required to climb ladders to reach higher shelves while performing modified work. However, I am unable to identify medical evidence during this period indicating the worker had any restriction for ladder climbing due to her right hand injury. Additionally, the worker did not raise ladder climbing as an issue impacting her ability to work during her testimony regarding this issue.
Considering the above, I find the modified work remained suitable and within the worker’s compensable restrictions during this time. Documentary and clinical evidence on file confirms some of the worker’s restrictions and her inability to work as of May 17, 2021 were due to non-work-related symptoms and conditions. I find the worker is not entitled to LOE benefits from May 17, 2021 to June 2, 2021 because I cannot establish the worker had a loss of earnings as a result of her work-related injury during this period.
- The worker is not entitled to full LOE benefits from July 14, 2021 onward.
It is the worker’s position that she is entitled to ongoing LOE benefits because she could not wear safety gloves due to her injury, and the employer said there was no work available for her to do without safety gloves. It is the employer representative’s position that LOE benefits are not in order because the employer offered suitable work within the worker’s limitations and there is no medical evidence to show the worker was totally disabled or unable to wear safety gloves due to her injury. Information on file supports the employer representative’s position.
During testimony, the worker indicated she stopped working as of July 14, 2021 because she could not wear safety gloves due to her right hand injury, and the employer said there was no work available that she could do without wearing safety gloves. I understand the worker testified that she felt discriminated against because other employees were not required to wear gloves at all times, and the witness stated most staff do not wear gloves all the time.
I will clarify that my jurisdiction is limited to determining whether the worker was restricted from wearing safety gloves due to her right hand injury and, subsequently, if the modified work was unsuitable as of July 14, 2021. I will provide a summary of how this issue arose and then complete my analysis.
The May 13, 2021 SC report indicated the worker could resume modified duties with restrictions for lifting, pushing, and pulling up to 5kg as well as vigorous right hand gripping. The SC clinicians also recommended the worker wear a splint on her right hand at night. The clinicians provided a wrist lacer splint and instructions on its use during the assessment.
The RTWS met with the worker and employer on June 2, 2021. The employer confirmed they still had suitable modified work available. However, the employer only had part-time modified work (up to 24 hours per week) available until full-time modified work (40 hours per week) would be available as of July 19, 2021. The worker returned to these duties on June 3, 2021 until she stopped working on July 14, 2021.
In a note dated July 14, 2021, the family doctor stated the worker could not wear a glove on her right hand due to a medical condition, and could not wear a glove on her left hand because pulling on the glove caused pain in her injured hand. The family doctor provided a similar note on August 3, 2021, stating the worker could not wear a safety glove due to ongoing right hand pain. In a third note on August 9, 2021, the family doctor indicated the worker needed to wear a wrist and hand brace day and night due to medical illness.
On July 15, 2021, the employer’s representative contacted the CM indicating they received the family doctor’s note stating the worker could not wear gloves due to her injury. The employer’s representative stated the worker had been wearing these safety gloves previously, and the modified work still available with the employer required the worker to wear safety gloves. The CM spoke with the worker’s informal representative shortly thereafter about the safety gloves. The informal representative explained the glove was too tight on the worker’s right hand due to the wrap on her hand if she wore the right sized glove.
The informal representative added that the fingers of the glove were too long if the worker wore a bigger sized glove.
The worker testified that the SC doctor told her verbally not to wear gloves and she understood this information through the Sign Language interpreter present at the appointment. It is the worker’s understanding that the SC doctor accidentally did not include this restriction in their report.
The CM contacted the SC on August 6, 2021 to discuss the worker’s return to work restrictions. The CM spoke with an individual with access to the worker’s file since the therapist who assessed the worker was no longer at the clinic. The SC employee stated there was no documented restriction for the worker to avoid wearing gloves. The SC employee also clarified that the worker was only recommended to wear her right hand splint/brace at night rather than all day.
During a follow-up assessment on November 25, 2021, the SC clinicians recommended the worker continue to limit lifting, pushing, and pulling up to 5kg. They indicated the worker should avoid ladder climbing as well as sustained, repetitive, or forceful gripping or pinching with the right hand. The SC clinicians acknowledged the worker’s reported difficulty taking her work gloves on and off, but did not indicate the worker was restricted from wearing these gloves, or was unsafe doing so. The clinicians also provided glove liners for the worker to wear to assist with cold sensitivity.
I find the worker is not entitled to full LOE benefits as of July 14, 2021.
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:
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 return-to-work process.
The worker previously raised concerns about wearing the safety gloves in relation to her wearing her hand splint day and night as recommended by the family doctor, whereas the SC clinicians recommended she only wear the splint at night. I placed more weight on the SC’s recommendation to wear the splint at night rather than the family doctor’s recommendation to wear it at all times. This is noting the SC clinicians are medical experts regarding physical injuries and recovery, and were the ones who provided this medical device. It appears the worker’s difficulty wearing the right sized glove on her right hand was partially due to wearing a hand splint for a period of time inconsistent with the compensable treatment recommendations on file.
I understand the worker testified she was worried about dropping items while wearing the larger gloves. However, I find there is insufficient evidence that wearing a larger sized glove with longer fingers to accommodate the size of the splint posed a safety risk or was outside the worker’s compensable limitations. There is no indication for why the worker could not wear a correctly-sized glove on her left hand and wear a larger glove on her right hand since she testified that she did not use her right hand to perform modified duties.
I understand the worker reported having pain and difficulty taking safety gloves on and off due to her injury. With that said, the fact that wearing safety gloves caused discomfort does not establish that doing so was unsafe or outside the worker’s functional abilities due to her compensable injury. Although the worker stated the SC clinicians informed her not to wear gloves, there is no medical evidence from the SC confirming this restriction. The May 2021 report documents multiple functional limitations but does not indicate any concern or limitation regarding the worker wearing safety gloves. An SC employee verbally confirmed this in August 2021.
Similarly, in November 2021, the SC clinicians acknowledged the worker’s difficulty with wearing safety gloves but did not state it was unsafe or outside the worker’s compensable restrictions to do so. In fact, the SC clinicians provided her with glove liners to wear for cold sensitivity. While the worker testified these liners were easier to wear than the safety gloves, the worker would still be required to pinch and grip with each hand to pull these gloves on and off.
The SC clinicians and family doctor provided conflicting recommendations regarding the worker’s ability to wear safety gloves. I placed significant weight on the fact that the SC clinicians did not document any formal restriction for the worker wearing safety gloves due to her injury. This is because a multidisciplinary team of medical professionals jointly assessed the worker’s condition and determined appropriate restrictions to assist with the worker’s symptoms and recovery. Additionally, the worker wore safety gloves for work from February 2021 until she stopped working on July 14, 2021.
I find the balance of medical evidence does not support the worker was unable to wear safety gloves for work due to her compensable right hand injury, or that the nature or seriousness of the worker’s injury prevented her from returning to the available modified work. I find the modified work available with the employer remained suitable despite requiring the worker to wear safety gloves. As such, I find the worker is not entitled to full LOE benefits as of July 14, 2021 because I cannot establish the worker had a full loss of earnings as a result of her work-related injury beyond this date.
CONCLUSION
I find:
- The worker is not entitled to benefits for injuries to her neck or shoulders;
- The worker is not entitled to any LOE benefits from April 21, 2021 to May 6, 2021;
- The worker is not entitled to any LOE benefits from May 17, 2021 to June 2, 2021;
- The worker is not entitled to full LOE benefits from July 14, 2021 onward.
The worker’s appeal is denied.
DATED September 6, 2022
Stephanie Waters Appeals Resolution Officer Appeals Services Division