APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20220049
OBJECTING PARTY: WORKER
REPRESENTED BY: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
HEARING: HEARING IN WRITING
HEARD BY: CORRADO CIRINNA, APPEALS RESOLUTION OFFICER
ISSUE
The worker objects to the case manager decision dated July 21, 2021. This decision denies loss of earnings (LOE) benefits from June 4, 2021 until June 23, 2021.
BACKGROUND
The worker was employed as a loader operator and had worked with this employer since 1992. On May 25, 2021, while operating a loader machine, it abruptly stopped causing the worker to be propelled forward causing them to strike their head.
The worker sought medical attention and was diagnosed as having a concussion and neck strain. The worker briefly returned to work with the employer following the injury, but stopped working as of June 4, 2021 due to increased symptoms. They returned to work with the employer on June 23, 2021.
In a decision dated July 21, 2021, the case manager determined that since there was no medical documentation to support the worker’s inability to perform either their regular or modified duties, loss of earnings benefits from June 4 to June 23, 2021 were denied.
Although the worker continued to remain employed, they were later determined to have a permanent neck impairment. In February 2022, they received a 12% non economic loss (NEL) for the permanent impairment resulting from this injury.
AUTHORITY
Operational Policy Manual
Published
11-02-02 Lost Time Claims April 9, 2021
18-03-02 Payment and Review of LOE Benefits April 9, 2021
ANALYSIS
In arriving at my decision, I had regard for all the information contained in the file, and the applicable policies. There were no further written submissions provided by either the worker representative or the employer to support their respective positions.
Operational policy 18-03-02 states in part that if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.
Policy 11-02-02 states in part that while a worker is unable to perform any type of work, the WSIB issues loss of earnings benefits.
Decision
The worker is entitled to full loss of earnings benefits from June 4, 2021 until June 23, 2021.
Reasons for the Decision
The worker attended the emergency room (ER) department of their local hospital on the day of injury. The hospital report indicates the worker likely sustained a concussion and was discharged with a referral to a concussion and pain clinic. The Health Professionals Report (Form 8) indicates the worker could return to work starting on June 2, 2021. The narrative discharge report from the hospital indicates the worker should get adequate rest and apply ice to any areas of tenderness to reduce swelling and pain. It was recommended they gradually reintroduce activities over the next week or two.
The initial assessment report from the concussion and pain clinic dated June 4, 2021 indicates the worker had suffered a mild traumatic brain injury (MTBI) as a result of the workplace injury. They were noted to have posttraumatic vestibulopathy, posttraumatic headaches and a neck strain. The plan called for the worker to participate in a concussion rehabilitation protocol. The report concludes by stating; “The patient was provided a letter for [their] employer to be off work for another week, followed by a graduated return to work.” This in my view implies that the worker was considered unable to return to work in any capacity for at least one week starting on June 4, 2021.
The report from the neurology nurse practitioner dated June 10, 2021, notes the worker reported ongoing neck pain and intermittent headaches involving the top of their head and the base of their skull that were triggered by rapid head movements and neck pain. The worker also reported dizziness, memory and concentration difficulties. At that time, the worker indicated they would forward the return to work offer from the employer to the clinic for review.
The medical note from the nurse practitioner at the concussion and pain clinic dated June 15, 2021 indicates the worker continued to experience ongoing dizziness, headaches, and neck pain that prevented them from returning to work at that time. The report indicates the worker may be able to return to graduated return to work as of June 22, 2021, if their symptoms improved. This medical note is in my view clear in its assessment that the worker was unable to work in any capacity for at least another week.
A further note from the nurse practitioner dated June 22, 2021, indicates the worker’s concussion symptoms were improving although he continued to have cervicogenic headaches.
The MTBI program of care assessment report dated June 29, 2021 describes the worker’s symptoms as constant headaches triggered by any neck movements, dizziness triggered by bending, turning, and any sudden neck movements, and difficulties with balance indicating that they swayed when walking or turning. In addition to the post concussion symptoms, the worker was noted to have 50% reduced range of motion in his neck. The report noted complicating factors that might delay the recovery included work environment concerns, and laid out a number of restrictions that should be adhered to in the return to work process.
The clinical notes from the family physician are illegible, however it appears the worker was seen in the days after the workplace injury on a few occasions, due to ongoing headaches.
The medical reporting subsequent to the worker’s return to modified duties on June 23, 2021 continued to indicate the worker was experiencing ongoing difficulties with respect to post concussion symptoms and a neck strain. Also the functional abilities forms (FAF) submitted to the file provided ongoing restrictions in terms of the worker’s ability to perform certain physical duties. Restrictions included no repetitive bending, lifting, pushing, and pulling. The FAF also indicates the worker should not be driving machinery such as a bobcat or a forklift due to ongoing dizziness.
The only offer of modified duties contained in the file was temporary offer made by the employer covering the period of time from May 25, 2021 (date of injury) until June 3, 2021. The job duties were described as working on the sort line and performing office work. There is no further job offer submitted to the file covering the period of time from June 4, 2021 until June 23, 2021. The actual physical duties these jobs would entail is unclear. However, I accept that given the worker’s ongoing MTBI symptoms, which included dizziness, headaches, difficulties with balance triggered by head movements, memory and concentration difficulties as well as ongoing neck pain, would likely preclude the worker from working in any capacity
Although the worker did return to modified duties with the employer starting on June 23, 2021, there clearly continued to be ongoing concerns about post concussion symptoms that they were experiencing and there were a number of restrictions that were outlined in order to ensure a successful return to work. Based on the presence of such symptoms even after the return to work, I accept that during the period in question from June 4, 2021 until June 23, 2021, the worker was reasonably unable to return to work in any capacity. I accept that they returned to work at the first opportunity, once they were given medical clearance to do so.
I find it was reasonable for the worker to take a short period of time off work in the immediate aftermath of the work injury. Given the circumstances, I accept the worker sensibly heeded the advice of his treating health care professionals at the concussion and pain clinic. The amount of time they took off work was not excessive or unreasonable given the circumstances, and during this timeframe they were cooperative in a medical rehabilitation program through their involvement in the concussion program of care.
CONCLUSION
The worker is entitled to full loss of earnings benefits from June 4, 2021 until June 23, 2021. The worker’s objection is therefore allowed.
DATED March 7, 2022
Corrado Cirinna
Appeals Resolution Officer Appeals Services Division