Workplace Safety and Insurance Board
DECISION NUMBER: 20220016
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: EMPLOYER REPRESENTATIVE
HEARING: HEARING IN WRITING
HEARD by: SUJETHRA NADARAJAH, APPEALS RESOLUTION OFFICER
ISSUE
The worker objects to the Case Manager’s (CM) February 8, 2019 decision that denied entitlement to Loss of Earnings (LOE) benefits, as the modified offer of work was suitable.
BACKGROUND
On May 22, 2018, this worker, a process operator, tripped over a pallet and struck their left arm/shoulder on a metal object. The worker reported the injury and was offered modified duties to start the following day. The worker declined the offer and remained off work following the injury. Entitlement was granted for a left arm proximal humerus fracture.
The February 8, 2019 decision letter accepted entitlement for the diagnosis of adhesive capsulitis, along with LOE benefits from May 23, 2018 to August 1, 2018, as the worker was totally impaired and unable to return to work in any capacity. LOE benefits beyond August 1, 2018 were denied as the modified duties offered were within the worker’s functional abilities and the worker declined to return to work.
The worker submitted an Intent to Object Form dated April 14, 2019, and on reconsideration, there was no change in the decision.
The October 26, 2020 letter determined the worker achieved maximum medical recovery with a permanent impairment as of January 29, 2019. The worker was granted an 11% Non-Economic Loss (NEL) benefit on November 20, 2020.
On August 26, 2021, the worker representative (WR) submitted the Appeal Readiness Form (ARF) related to the February 8, 2019 decision letter. The worker objection to the denial of LOE benefits beyond August 1, 2019 forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
19-02-01 – Work Reintegration Principles, Concepts, and Definitions 19-02-02 – Responsibilities of the Workplace Parties in Work Reintegration
December 3, 2012 January 2, 2015
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker. As I will explain, the worker was capable of returning to work on August 1, 2018 to the modified duties offered by the employer; therefore, I find LOE benefits are not in order beyond this date.
In reaching my conclusion, I also reviewed the ARF and attached submission dated August 26, 2021. It is opined that this claim should be reconsidered and LOE benefits be granted from August 1, 2018 to February 1, 2019. The WR argued:
- the worker was unable to return to any type of work until February 1, 2019
- the modified work offered was not suitable
- the modified work offered was never made available
I note the WR submission also referenced an objection to the November 7, 2018 decision about the determination to discontinue taxi reimbursement as of November 16, 2018. As this issue is not properly before me, I make no findings pertaining this issue. Should the worker wish to pursue this issue, they need to address it with the operating area.
The employer representative (ER) completed the Respondent Form on November 19, 2021 and agreed to proceed with a Hearing in Writing. They provided a submission and argued the denial of LOE benefits should be upheld as the operating area gave appropriate weight to the evidence and correctly applied the policy when making their decision.
Accepted Functional Abilities
The July 18, 2018 Functional Abilities Form (FAF) indicated the worker was capable of returning to work with restrictions as of August 1, 2018. The physiotherapist stated the worker had significant range of motion limitations of the left wrist, elbow and shoulder, along with pain. The restrictions on the report included:
- lifting with the left arm and limited use of the left arm for gripping and pinching
- exposure to vibration for the hand/arm
- operating motorized equipment
- use of public transit or drive a car
The July 26, 2018 medical report from Dr. Tran provided the worker was not experiencing any pain, had ongoing stiffness and had passive range of motion. The fracture’s alignment was well maintained and the doctor recommended the worker continue physiotherapy treatment.
Given the worker was recovering from their fracture, was able to take part in physiotherapy and had the medical authorization to return to work in a modified capacity as of August 1, 2018, I find the worker was partially disabled, and capable of returning to light sedentary duties with no use of the left arm.
Offer of Modified Work
On June 28, 2018, the employer emailed the worker an offer of modified work duties including:
- sedentary tasks including office clerical/work
- work at own pace/micro breaks as needed
- day shift work and reduced hours when recommended
- transportation to and from work when recommended by a health professional
- privileged parking if walking is a restriction
- further accommodations if required
On November 19, 2021, the ER submitted a letter with further clarifications on the duties that were available for the worker as of June 28, 2018:
- computer work with required training that involved use of the mouse only
- sorting and filing paperwork with one hand and sending faxes
- answering phones and light cleaning
- clerical administration
Suitability Determination
Policy 19-02-01, Work Reintegration Principles, Concepts, and Definitions, defines suitable work:
Suitable work means post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
A job is considered consistent with the worker's functional abilities when the tasks and/or duties associated with the job can be performed within the reported physical/cognitive capabilities of the worker.
Given the modified work plan and medical information provided above, I find the offer of modified duties was suitable and therefore LOE benefits are not in order.
The WR’s first argument provided the worker was unable to return to any type of work until February 1, 2019. To support this, they indicated Dr. Tran’s reports of December 6, 2018 supported their position. This report stated, “she would be advised to stay off her regular labour work for about 8 more weeks and then she can return back to modified duties at that time”. The WR indicated that because Dr. Tran also submitted a FAF of that date indicating the worker could not return to work, it confirmed the worker was unable to work until February 1, 2019.
While I acknowledge the WR’s position, when analysing the above quoted statement, the doctor indicated the worker was unable to perform ‘regular labour duties’. The doctor does not provide an objective rationale for why the worker would not be capable of performing light sedentary duties given the doctor indicated the worker’s forward elevation was about 95 degrees, the fracture had healed and the doctor continued to recommend the worker attend their physiotherapy treatment. Accordingly, I do not find the worker was totally impaired, and rather, as mentioned above, I find the worker was partially impaired and able to perform one-handed light or sedentary duties.
The WR’s second argument indicated the modified work was not suitable. Their arguments included:
- the employer did not indicate the proper accommodation would be provided for the computer training, as it is a two-handed job, and given the worker’s limited computer skills, the employer would have had to provide general training as the worker did not use a computer at home
- the worker would not have been capable of performing filing duties without training and if it required lifting boxes, the worker would not functionally have been capable of performing this activity
- the employer did not provide clarity on the volunteering, faxing, or printing duties or provide information on whether the worker would receive the training required
- the worker would not have been capable of answering phones as the worker was not comfortable conversing in English
While I agree that the offer of June 2018 does not provide a detailed account of all the modified duties available, it clearly confirmed the worker would not be required to use their injured arm, no lifting duties were listed, the worker would receive the required training to perform the modified duties, and would be working at no wage loss. Further, the employer was clear that further accommodations could be made as required.
A review of the file confirmed the worker did not elaborate on the specific duties they believed to be outside of their functional abilities at the time the employer made the offer, for the employer to have had the opportunity to adjust their offer accordingly. Pain is subjective and it alone does not confirm the work duties were outside of the worker’s functional abilities. I do not place significant weight on the WR concerns about possible tasks that were outside of the worker’s abilities as there is no objective information to support those concerns. The worker had the opportunity to ask for further clarification on numerous occasions when the employer reached out, but with the information on file, I do not find the worker was interested in creating a more suitable return to work plan. Accordingly, based on the accepted functional abilities provided above, I find the modified offer of work was safe, productive, consistent with the worker’s functional abilities and restored their pre-injury earnings.
The WR’s third argument stated there were no available modified duties on August 1, 2018. They argued the employer made their initial offer on the date of injury, and after the worker declined the offer, made the same offer subsequently in June, however the employer did not extend the offer on or around August, and therefore it is not clear that the work duties remained available for the worker at that time.
I do not find that because the employer made the offer two times previously, it means they need to make the offer again, to confirm the work remains available. At no point did the employer advise the modified duties were no longer available. Rather, the employer submitted an email chain from October 24, 2018, in which the employer stated, “we do continue to have modified duties available”. I find this supports the employer’s position that the offer remained available from the date of injury and onwards. Further, as the worker declined the offer the following day, I do not find the worker would have returned to work in August, had the offer been formally reiterated at that time.
Therefore, I find the modified duties are consistent with the worker’s functional abilities and the duties were suitable.
Policy 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration, states, in part:
Where offered job is found to be suitable—adjusting wage loss benefits
If the WSIB determines that the job offered is suitable, a finding is made that the worker is able to earn the earnings associated with the suitable job. The WSIB then
- verbally informs both parties of its decision
- adjusts the worker’s wage loss benefits, and
- confirms its decision in writing.
The worker’s wage loss benefits are adjusted by deducting the earnings associated with the suitable job from the pre-injury earnings—whether the worker has accepted the suitable job offer or not. The worker’s wage loss benefits are generally adjusted as of the date of the worker’s next available shift.
As I find the duties offered by the employer were suitable and available at no wage loss, LOE benefits are not in order beyond August 1, 2018.
CONCLUSION
The decision denying LOE benefits is confirmed. The worker objection is denied.
DATED February 7, 2022
Appeals Resolution Officer Appeals Services Division