APPEALS RESOLUTION OFFICER DECISION
decision number:
20220054
OBJECTING PARTY:
worker
REPRESENTED by:
not represented
RESPONDENT:
employer (not participating)
REPRESENTED by:
not represented
HEARING:
HEARING IN WRITING
HEARD by:
m. haughton, appeals resolution officer
ISSUES
The worker is objecting to the Eligibility Adjudicator’s (EA) decision dated October 15, 2021, which denied entitlement to loss of earnings (LOE) benefits. The EA reconsidered and upheld this decision on December 1, 2021.
BACKGROUND
On August 5, 2021, this right hand dominant warehouse associate experienced pain in their left hand and left shoulder, which they attributed to performing their regular job duties. The worker indicated they were required to pick items weighing five (5) to 10 pounds from a conveyor belt on their left side, using their left hand and then pack the items into boxes using their bilateral hands. The worker indicated they packed 80 items per hour and they completed this task for their entire shift (10 hours). The worker reported they were unable to control the pace of their work and as a result, they did not have sufficient recovery time between tasks. The worker sought medical attention on August 10, 2021 and reported their symptoms to the employer on August 12, 2021.
On October 15, 2021, the EA allowed initial entitlement to a left hand and left shoulder strain/sprain. The EA denied entitlement to LOE benefits as there was no medical information to confirm the worker was totally disabled and unable to return to work.
On December 1, 2021, the EA reconsidered and upheld the October 15, 2021 decision. The EA indicated there was no objective medical documentation to support the worker’s lost time from work and inability to perform modified work from August 13, 2021 to October 15, 2021.
The worker resumed their regular hours and job duties on March 23, 2022. The Case Manager determined the worker reached maximum medical recovery on March 29, 2022, with no evidence of an ongoing work-related impairment.
The worker’s objection to the EA’s decision dated October 15, 2021 and the subsequent reconsideration of that decision on December 1, 2021, forms the basis for this appea
AUTHORITY
Operational Policy Manual
Published
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
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 the worker is entitled to LOE benefits from August 13, 2021 to October 14, 2021, inclusive. My findings and analysis are provided below.
The Appeal Readiness Form dated December 21, 2021, noted that further medical information had been provided to support the worker’s entitlement to LOE benefits.
The employer did not participate in this appeal or provide a submission for consideration.
On the Worker’s Report of Injury (Form 6), the worker indicated their injury resulted from repetitive motion at work. The worker indicated they were unable to lift their left hand and they had pain in their left shoulder.
On the Employer’s Report of Injury (Form 7) dated October 16, 2021, the employer indicated that modified work was offered to the worker on October 14, 2021. The employer indicated the worker had not provided them with a Functional Abilities Form (FAF) or a Health Professional’s Report (Form 8). The employer noted they were made aware the worker sought medical attention on August 13, 2021; however, a Form 7 was not filed until October 16, 2021.
Following the onset of their symptoms, the worker sought medical attention on August 10, 2021. A clinical record dated August 10, 2021, indicated the worker had left shoulder pain and reduced range of motion on all planes. The worker had full range of motion of the neck and elbows. The worker was diagnosed with left shoulder pain and they were referred to physiotherapy. The worker was advised to avoid overhead lifting and they were provided a note for work.
A medical note dated August 10, 2021, indicated the worker was totally disabled from August 10, 2021 to August 18, 2021. The worker was diagnosed with left shoulder pain and a reassessment was scheduled for August 18, 2021.
Clinical records from the worker’s physiotherapist support the worker received treatment for the left shoulder from August 18, 2021 to September 3, 2021. The clinical records support the worker had left shoulder pain and reduced range of motion. Further clinical records from the physiotherapist were not provided.
X-rays and an ultrasound of the worker’s left shoulder were completed on August 12, 2021. The x-rays of the left shoulder showed no evidence of fracture, dislocation or arthropathy. The ultrasound of the left shoulder showed evidence of mild tenosynovitis and the subscapularis tendon was tendinotic along the distal segment. There was no evidence of tendon tearing, bursitis or impingement.
The employer’s Healthcare Provider Request for Information (RFI) Form was completed by a physician on August 18, 2021. The worker was diagnosed with left rotator cuff tendinitis. The worker was noted to be unable to return to work from August 18, 2021 to August 27, 2021. The worker was noted to have left shoulder pain and restricted range of motion. The worker was also noted to require physiotherapy.
The worker was seen in follow up with their physician on August 30, 2021 and they were referred to an orthopaedic surgeon. The worker was also provided another note for work.
The employer’s Healthcare Provider RFI Form was completed by a physician on August 30, 2021. The physician noted the worker continued to have severely restricted movement of the left shoulder and was unable to return to work until September 24, 2021.
A clinical record dated October 18, 2021, noted the worker had been referred for an MRI for chronic left shoulder pain. The worker was provided a note for work.
In review of the information on the claim file, I note the worker has no prior claims with the Workplace Safety and Insurance Board (WSIB) and may not have been aware of the requirement to assist the employer in identifying suitable modified work. The employer indicated they were not provided with medical information regarding the worker’s injury; however, I note there are copies of completed Healthcare Provider RFI Forms on the claim file. It is unclear why the employer did not receive copies of these forms; however, a lack of medical information would not have hampered the employer’s ability to offer modified work. The employer was aware the worker had an injury to the left upper extremity and could have offered the worker modified work that did not require the use of the left arm. The employer offered modified work on October 14, 2021; however, the offer of modified work was not provided for review. It is unclear if the worker accepted the offer of modified work or when the worker returned to modified work. The worker returned to their regular hours and duties on March 23, 2022.
Policy 18-03-02, states in part that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The Policy also states that 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
In this case, the medical information supports the worker was unable to return to their pre-injury job duties following the August 5, 2021 work-related injury and suitable work was not offered and available to the worker. As a result, the worker incurred a wage loss due to the work-related injury beginning on August 13, 2021. I find the worker was able to return to some form of work; however, suitable work was not offered by the employer until October 14, 2021. As the worker participated in health care measures, I find the worker is entitled to LOE benefits from August 13, 2021 to October 14, 2021.
I have made no findings regarding the worker’s entitlement to LOE benefits beginning October 15, 2021.
CONCLUSION
The worker’s objection is allowed.
The worker is entitled to loss of earnings benefits from August 13, 2021 to October 14, 2021, inclusive.
DATED May 20, 2022
M. Haughton
Appeals Resolution Officer
Appeals Services Division