DECISION NUMBER: 20230004
OBJECTING PARTY: WORKER
REPRESENTED by: NOT REPRESENTED
RESPONDENT: EMPLOYER
REPRESENTED by: NOT REPRESENTED, NOT PARTICIPATING
HEARING: HEARING IN WRITING
HEARD by: D. PEDDLE, APPEALS RESOLUTION OFFICER
ISSUES
The worker objects to the Case Manager’s (CM) January 10, 2022 decision denying loss of earnings benefits (LOE) from December 9, 2021 onwards.
BACKGROUND
On November 24, 2021 while employed as a security guard, this worker was descending stairs when they twisted their left ankle. Initial entitlement to benefits was authorized for a left ankle strain/sprain and LOE until December 9, 2021.
On January 10, 2022, the CM denied LOE from December 9, 2021 onward as they determined the worker was partially impaired, and the employer arranged suitable modified duties; the worker objects.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-07 RTW Overview and Key Concepts
September 1, 2021
April 9, 2021
ANALYSIS
Having carefully considered all available information, legislation and relevant operational policies I find that LOE is in order from December 9, 2021 through January 20, 2022; my rationale follows.
Worker’s Position
The worker contends they are entitled to LOE benefits as there must have been a miscommunication; the Surgeon recommended work cessation for six weeks.
Employer’s Position
The employer is not participating in this appeal and there is no clear indication of their position in the file. Upon review, I infer they believe suitable modified duties were arranged.
Evidence and Analysis
Operational policy 19-02-07 RTW Overview and Key Concepts stipulates that a worker's ability to return to work can be determined through a decision by the WSIB. Determining a worker’s ability to work involves examining their medical records, symptoms, functional abilities and degree of impairment.
Operational policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states a worker who has a wage loss a result of a work-related injury is entitled to LOE beginning when the loss of earnings begins. Benefits continue until the earliest of:
the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.
A November 30, 2021 ER report states the MD queried a peroneal tendon subluxation and provided the worker with an air cast. The MD recommended rest, elevation and seven days off work until assessment at the fracture clinic.
On December 7, 2021 Dr. Guy, Orthopedic Surgeon, assessed the worker with a potential peroneal tendon subluxation and completed a Form 8 stating the worker was required to wear an air cast with complete immobilization for four weeks, followed by therapy, bracing and would not be able to commence modified duties until January 17, 2022.
The Form 8 states the worker could stand and walk, but “with [a] brace” that they would not begin utilizing for another four weeks. My interpretation is that Dr. Guy explicitly advised the worker to remain off work until January 17, 2022 and avoid walking until they weaned off the air cast into the brace.
On December 9, 2021, the employer offered modified duties assisting with telephone calls, supporting the switchboard and managing in-person inquiries. The email states transportation could be arranged, the work was seated and allowed for elevation of the leg.
Dr. Guy provided a letter clarifying their opinion and supporting this appeal, stating it was felt that the worker had a peroneal tendon subluxation, the worker was instructed to wear an air cast, limit weight bearing and remain off work for at least four weeks until reassessed. When reassessed on January 7, 2022, the worker’s condition was improved, they began intermittently using a brace, were advised to commence physiotherapy and it was then that modified work would have been possible, if the worker progressed with therapy, bracing and no longer required the air cast. The worker remained off work “as instructed” and modified duties were not feasible noting immobilization, crutches, limited weight bearing and inability to drive.
A Musculoskeletal Program of Care Initial Assessment Report states the worker began therapy on January 19, 2022, had standing and walking abilities of 2/10, 0/10 stairs, and a Functional Abilities Form of January
21, 2022 provided the first clinical authorization to begin modified work in accordance with the Surgeon’s expectations and recommendations.
Having carefully considered the evidence, I am resolving this appeal in favour of the worker. Granted, the employer arranged seated sedentary duties as well as transportation and the worker could have physically travelled to work utilizing crutches and an air cast. However, whether the worker should have gone to work is a different matter. Multiple MDs including an Orthopaedic Surgeon explicitly instructed them not to work during the acute phase - allowing for rest, immobilization, limited weight bearing, elevation, healing, and weaning off the cast with therapy - prior to resuming work. I accept the uncontroverted medical opinions and find it reasonable to allow a brief period of rest and time off work during the acute phase of recovery.
In summary, I find that the nature of this injury prevented working in any capacity from December 9, 2021 until January 20, 2022 in accordance with operational policy 19-02-07 and the medical records on file. The worker suffered wage loss due to a workplace injury, the criteria under operational policy 18-03-02 are met and the worker is entitled to LOE benefits from December 9, 2021 until January 20, 2022.
CONCLUSION
The worker’s objection is allowed; LOE benefits are in order from December 9, 2021 through January 20, 2022.
DATED October 21, 2022
D. Peddle
Appeals Resolution Officer Appeals Services Division