DECISION NUMBER: 20220060

OBJECTING PARTY: EMPLOYER

REPRESENTED by: EMPLOYER REPRESENTATIVE

RESPONDENT: WORKER (NOT PARTICIPATING)

HEARING: HEARING IN WRITING

HEARD by: S. JOHNSON, APPEALS RESOLUTION OFFICER

Dated: MAY 10, 2022

ISSUE

The employer objects to the Eligibility Adjudicator’s decision letter dated July 27, 2021 and reconsideration decision letter dated December 17, 2021 that allowed entitlement to the payment of full loss of earnings (LOE) benefits for the five hours lost time from work on July 17, 2021.

BACKGROUND

On July 10, 2021, this caregiver stepped back while holding the client’s door open, missed a step and fell backwards down the steps. The worker completed their shift on July 10, 2021. On July 11, 2021, the worker woke up and felt very sore in the lower back and chest regions.

The worker received first medical treatment on July 11, 2021. In the Health Professional’s Report (Form 8) dated July 11, 2021, the physician diagnosed the worker with a back sprain injury. The physician medically cleared the worker to resume modified work duties on July 13, 2021 within restrictions on bending, twisting, lifting, pushing, pulling and use of the upper extremities.

Initial entitlement was allowed for the worker’s lower back and chest sprain/strain injuries arising from the work incident of July 10, 2021.

The employer was unable to provide the worker with suitable work to accommodate their work-related lower back and chest sprain/strain injuries for the scheduled shift on July 17, 2021. As an alternative, the employer provided the worker with the opportunity to make up for the five hours missed time from work during the week of July 19, 2021. The employer offered administrative tasks in the office for approximately 30 minutes after the worker completed their regular scheduled workday with their client.

The case record documents the worker declined to work the extended shifts for several reasons that included the 45-minute one way drive to the office, perform 30 minutes of modified work and another 45-minute one way drive home.

In a decision letter dated July 27, 2021 and in a reconsideration decision letter dated December 17, 2021, the Eligibility Adjudicator allowed entitlement to the payment of LOE benefits for the five hours lost time from work on the scheduled shift of July 17, 2021. In this decision letter, the Eligibility Adjudicator concluded the employer did not have suitable work available on the scheduled shift of July 17, 2021 to accommodate the worker’s functional restrictions for their work-related lower back and chest sprain/strain injuries.

This is the issue for determination.

AUTHORITY

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) April 9, 2021

19-02-07 RTW Overview and Key Concepts April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Entitlement to Full LOE Benefits for Five Hours Lost Time from Work on the Scheduled Shift of July 17, 2021

I find the worker is entitled to the payment of full LOE benefits for the five hours lost time from work on the scheduled shift of July 17, 2021.

The Operational Policy Manual (OPM) Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) (published April 9, 2021) – states f 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 (RTW) process,

The OPM Document No. 19-02-07 – RTW Overview and Key Concepts (published April 9, 2021) – provides the decision-maker with guidance on some of the key concepts underlying the return-to-work process. This policy examines the concept of available work that exists with the employer at the pre- injury worksite or at another worksite arranged by the employer. When determining whether existing suitable work is available when offered at a worksite location that is not the pre-injury worksite, the WSIB consider factors, such as, whether:

• the distance to travel to an alternate worksite location is reasonable, taking into account both the mode(s) of travel available to the worker and the amount of travel that was required before the injury
• the worker’s injury restricts their capability to travel safely, and
• the job offered at an alternate worksite is more suitable than work available at the pre-injury worksite.

Employer Representative Submissions:

In the Intent to Object Form dated July 23, 2021, the employer submits the light administrative tasks available to the worker during the week of July 19, 2021 is suitable and would have covered all of the lost hours missed on the shift of July 17, 2021.

In the Appeal Readiness Form dated November 16, 2021, the employer representative confirmed the office was closed on July 17, 2021 and modified work duties were not available to the worker. The employer offered modified office duties on alternative days and at the worker’s own convenience to mitigate the five hours lost time from work on the scheduled shift of July 17, 2021.

Worker Submission:

In a letter dated July 28, 2021, the worker was advised of the employer’s intention to appeal the decision letter dated July 27, 2021. The worker was instructed to complete and return the Worker Participant Form to the WSIB within 30 days if they intended to participate in the appeal process.

The Worker Participant Form was not completed and returned to the WSIB at the time I received the employer’s appeal for review and determination.

Findings:

The case record is not contentious regarding the suitability of the administrative duties made available to the worker at a worksite location that is not their pre-injury worksite. The issue to be resolved is whether the worker is entitled to the five hours lost time from work on the scheduled shift of July 17, 2021.

I considered the employer’s evidence regarding the return-to-work activities that transpired after the work incident of July 10, 2021. I have taken particular note of the following:

• The employer confirmed the office was closed on July 17, 2021. They were unable to provide the worker with administrative duties in the office on their pre-scheduled shift of July 17, 2021. The employer asked the worker to come into the office on a different day to make up for the missed scheduled shift from work on July 17, 2021.
• The worker declined the offer to work an extra 30 minutes after they finished their regular scheduled work shifts the following week to make up for the five hours lost time from work on the scheduled shift of July 17, 2021. The worker had to drive one way approximately 45 minutes to work 30 minutes in the office performing administrative work at the end of each of their workday the following week from Monday to Friday.

I accept this employer made every reasonable, necessary and appropriate attempt to mitigate the five hours lost time from work on the worker’s scheduled shift on July 17, 2021. I find this offer does not meet the threshold criteria of available work that exists with the employer in the OPM Document No. 19-02-07 – RTW Overview and Key Concepts (published April 9, 2021). In support of this finding, I first examined the worker’s pre-injury worksite details summarized below:

• In the Employer’s Report of Injury/Disease (Form 7) dated July 12, 2021, the employer documented the worker’s pre-injury work schedule as a caregiver includes eight-hour shifts Monday to Friday and seven-hour shifts on Saturday and Sunday.
• On July 16, 2021, the worker reported they work with two clients. During the period from Monday to Friday, the worker works with a mobile client. On Saturdays and Sundays, the worker works with a client in a wheelchair.
• On July 27, 2021, the employer confirmed the worker’s pre-injury work duties on the scheduled shift for July 17, 2021 was outside of the doctor’s medical recommendations and involved lifting, bending, pushing and pulling. The employer offered the worker modified duties in the office performing light administrative duties after the worker completed their scheduled shifts from Monday to Friday.
• On December 10, 2021, the employer confirmed the office was closed on July 17, 2021 and they were unable to provide the worker with administrative duties for this scheduled shift. The employer offered the worker the opportunity to come into the office on different days to make up for the missed scheduled shift on July 17, 2021. The worker declined to accept this offer as the drive was 45 minutes one way to the office to work 30 minutes after they completed their regular shift with the client.

I am persuaded by the above evidence that supports the modified work duties available at the employer’s alternative worksite location does not meet the threshold criterion for available in the OPM Document No. 19-02-07 – RTW Overview and Key Concepts (published April 9, 2021). I find it is unreasonable for this worker to work their full scheduled shift at their preinjury worksite from Monday to Friday (10:00 am to 5:00 pm) followed by travelling approximately 45 minutes to the employer’s office worksite location to work 30 minutes performing administrative tasks. The worker missed five hours from work on the scheduled shift of July 17, 2021 due to the lack of available suitable work to accommodate their work- related lower back and chest strain injuries. The worker would be required to travel a great distance over the course of approximately 10 extended shifts (almost three hours extra after 5:00 pm) following their regularly scheduled workday to make up for the five hours lost time from work on the scheduled shift of July 17, 2021. I find these factors do not weigh in favour of the modified work at the employer’s alternative worksite location as available described in the OPM Document No. 19-02-07 – RTW Overview and Key Concepts (published April 9, 2021).

I acknowledge the employer’s inability to provide the worker with suitable work duties to accommodate the functional restrictions for their work-related lower back and chest sprain/strain injuries on the scheduled shift of July 17, 2021. This resulted in the payment of full LOE benefits for the five hours lost time from work on the scheduled shift of July 17, 2021. While I am empathetic to this circumstance and the employer’s genuine attempt to mitigate the lost time from work, I am unable to accept the employer’s alternative return-to-work plan as reasonable and in keeping with the definition of available as it exists with the employer in the OPM Document No. 19-02-07 – RTW Overview and Key Concepts (published April 9, 2021).

In my view, I find it is unreasonable to expect this worker to travel to and from the employer’s alternate worksite location over the course of many working days in order to make up for the five hours missed time from work on the scheduled shift of July 17, 2021. In reaching this finding, I had regard for the worker’s pre-injury employment profile as a caregiver that involved working with two clients (one mobile client during the week from Monday to Friday and one wheelchair-bound client on Saturday and Sunday). There has been no evidence submitted to the case record to suggest this worker’s pre-injury employment profile included regular travel to work at the employer’s office located at another worksite at a travel distance of 45 minutes one way.

I find the worker is entitled to the payment of full LOE benefits for the five hours lost time from work on the scheduled shift on July 17, 2021 due to the lack of available suitable modified work duties to accommodate the functional restrictions for their work-related lower back and chest sprain/strain injuries. This finding fits squarely within the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) (published April 9, 2021). This policy states that, 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.

CONCLUSION

I conclude entitlement to the payment of full LOE benefits for the five hours lost time from work on the scheduled shift of July 17, 2021 is allowed.

The employer’s objection is denied.

DATED May 10, 2022

S. Johnson Appeals Resolution Officer Appeals Services Division