DECISION NUMBER:

20220079

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

C. ANZIL, APPEALS RESOLUTION OFFICER

MAY 11, 2022

ISSUE

The worker representative on behalf of the worker is objecting to the decision letter dated May 19, 2021. The worker was found to have achieved maximum medical recovery (MMR) as of May 18, 2021 and a permanent impairment was evident but they did not have any ongoing physical restrictions or limitations.

BACKGROUND

On February 26, 2021 this then mid fifty year old Warehouse Associate reported they were separating a bundle of steel wire trays when some of the trays slipped and fell and caught their left fifth finger in their glove on the end. The medical evidence from the emergency department at the hospital provided the diagnosis of amputation of the soft tissues distal to the left fifth distal phalanx. The system generated letter to the worker dated March 2, 2021 explained initial entitlement and loss of earning (LOE) benefits were allowed.

Full LOE benefit payments began on March 1, 2021. The worker followed up with the Specialist and according to the medical evidence dated March 9, 2021 in summary, the worker was advised to continue light duty for the next four weeks. The Return to Work (RTW) Memo/Plan memorandum based on the meeting date of March 23, 2021 via teleconference with the workplace parties, revealed the employer did not have any suitable modified work available for the worker and the full LOE benefit payment continued.

The medical evidence from the Specialist dated April 7, 2021 reported in summary, that aside from tenderness the worker had recovered well with a good range of motion and they were to continue modified duties with protection of the fingertip for the next 4 – 6 weeks and full duties should be possible after that. A second RTW meeting occurred on April 7, 2021 via teleconference and the worker was offered a training position-verbal instruction with the employer at no wage loss. The record shows the worker returned to modified work with the injury employer on April 8, 2021.

According to memorandum A0012 dated May 19, 2021, the worker was to have a follow up appointment with the Specialist on May 18, 2022 however the appointment was cancelled and the Specialist contacted

the worker by phone. The worker reported they were told there was no need for any further appointments. The Case Manager (CM) noted the worker reported they were continuing to perform suitable work and they were slowly returning to pre-injury duties and the employer was supportive. Based on this evidence, the CM determined the worker had achieved MMR with a permanent impairment evident of the left fifth finger as of May 18, 2021 and that there were no ongoing physical restrictions for the work-related injury. This decision was communicated to the worker with the letter dated

May 19, 2021.

The worker representative submitted the Intent to Object Form dated October 25, 2021 that objected to the decision dated May 19, 2021. The Appeal Readiness Form dated December 1, 2021 was received on the record and an oral hearing was requested to resolve this objection. The letter from the Appeals Registrar to the worker representative dated February 9, 2022 identified the issue and indicated the method of resolution to resolve this objection is a hearing in writing. The worker representative provided a written submission to support this objection dated April 20, 22 and this matter is now before me.

AUTHORITY

Operational Policy Manual Published

11-01-05 - Determining Permanent Impairment 11-02-02 - Lost Time Claims

November 3, 2014

January 2, 2015

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I have not decided in favour of the worker and I will explain.

In summary, the worker representative argued the medical evidence from the Specialist dated

April 7, 2021 indicated the worker required 4 – 6 weeks of modified work. The worker has achieved MMR however the worker continued to required modified work restrictions.

In summary, Operational Policy 11-02-02 indicates the Workplace Safety and Insurance Board (WSIB) determines, through the review of clinical information, when a worker is fit to go back to their pre-injury work, or suitable and available work.

The medical evidence from the Specialist dated April 7, 2021 in summary reported, “He has a re- epithelialized and aside from tenderness has recovered well with good range of motion. I have recommended that he may perform modified duties with protection of his fingertip for the next 4 to 6 weeks and full duties should be possible after that he understands to return to see me if his progress does not follow the schedule.”

The worker spoke with the CM on May 19, 2021 and reported what had transpired with the Specialist the day before as previously noted in this decision. There was no indication in the evidence provided by the worker and recorded in memorandum A0012 of the record that there was any concern with the duties they were performing, in fact the worker reported the employer was very supportive. It was determined the worker had achieved MMR as of May 19, 2021 because the worker was discharged from the care of the Specialist, the worker was not in any treatment and they had returned to work at no wage loss with

the employer and were progressing back to full duties. In the absence of any ongoing medical evidence to support the worker was limited because of the nature of the injury, I am unable to conclude the worker required any permanent physical limitations beyond the date MMR is achieved.

The Return to Work Memo/Plan dated April 7, 2021 had an end date of May 24, 2021 which is actually a few days after the six week mark from the appointment date with the Specialist where the worker was advised to continue with modified work for 4 – 6 weeks. I afford weight to the medical evidence from the Specialist dated April 7, 2021 that did not anticipate the worker would require any limitations beyond the 6 week mark and if the worker was unable to return to full duty after 6 weeks they were to return to see the Specialist. The evidence provided by the worker pertaining to the conversation with the Specialist on May 18, 2021 did not reveal any issues with the worker’s fitness to return to full duty with no limitations.

The worker was left with a permanent impairment because of the work-related injury. A 1% Non- Economic Loss (NEL) award was determined for the amputation of the soft tissues distal to the left fifth distal phalanx according to the decision letter dated October 28, 2021 however, the nature of the injury has not resulted in any ongoing permanent physical restrictions or limitations for the accepted diagnosis supported with clinical evidence.

CONCLUSION

I conclude, there are no permanent physical restrictions or limitations after the date maximum medical recovery is achieved for the allowed amputation of the soft tissues distal to the left fifth distal phalanx.

The worker’s objection is denied.

DATED May 11, 2022

C. Anzil

Appeals Resolution Officer Appeals Services Division