DECISION NUMBER:
20220080
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
WORKER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
S. JOHNSON, APPEALS RESOLUTION OFFICER
JULY 15, 2022
ISSUE
The employer objects to the Eligibility Adjudicator’s decision letter dated July 13, 2021 and reconsideration decision letters dated October 18, 2021 and March 11, 2022 that allowed entitlement to the payment of full loss of earnings (LOE) benefits from July 5, 2021 to August 23, 2021.
BACKGROUND
On July 2, 2021, this truck driver lost their footing while climbing out of the truck and began to fall. In the course of this event, the worker tried to brace themselves with their right wrist when they fell to the ground.
The worker received first medical treatment on July 2, 2021. In the Hospital Emergency Record Report dated July 3, 2021, the orthopaedic surgeon documented the worker was first seen at the hospital where they were diagnosed with a right wrist fracture and placed in a splint. The orthopaedic surgeon was contacted and recommended the worker be seen on an urgent basis given the lack of a reduction performed on the right wrist at the hospital on July 2, 2021. The worker was admitted to the hospital and underwent right wrist distal radius open reduction and internal fixation surgery on July 4, 2021. They were placed in a cast and instructed to remain non-weight bearing for two weeks until the next clinic visit.
Initial entitlement was allowed for LOE and health care benefits for the worker’s right wrist distal radial and ulnar fracture injury including entitlement to surgery on July 4, 2021.
On July 5, 2021, the employer offered the worker modified duties that involved sitting in the truck and providing verbal instruction to new drivers. The worker declined to return to the modified work duties due to their work-related surgically treated right wrist fracture injury.
In a decision letter dated July 13, 2021 and in reconsideration decision letters dated October 18, 2021 and March 11, 2022, the Eligibility Adjudicator allowed entitlement to the payment of full LOE benefits from July 5, 2021 to August 23, 2021. In these decision letters, the Eligibility Adjudicator concluded the worker was totally disabled and unfit to return to any type of work.
This is the issue for determination.
AUTHORITY
Operational Policy Manual
Published
11-02-02 Lost Time Claims
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
April 9, 2021
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 from July 5, 2021 to August 23, 2021
I find entitlement to the payment of full LOE benefits from July 5, 2021 to August 23, 2021 is allowed. The Operational Policy Manual (OPM) Document No. 11-02-02 – Lost Time Claims (published
April 9, 2021) – provides the decision-maker with guidelines to review a worker’s level of impairment arising from a work-related injury. While the worker is unable to perform any type of work, the WSIB issues wage loss benefits or loss of earnings benefits. The WSIB monitors the claim through the use of progress reports, which are reviewed as often as the severity of the injury dictates to ensure the worker is recovering as expected. This policy states that the 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 clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.
The OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) (published April 9, 2021) – states 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.
Employer Representative Submission:
In a submission attached to the Appeal Readiness Form dated February 9, 2022, the employer representative requests the denial of entitlement to the payment of full LOE benefits from July 5, 2021 to August 23, 2021 for the following reasons:
The worker was offered modified work duties on July 5, 2021 that involved riding along as a passenger in the truck performing verbal training sessions with new drivers.
The worker declined the modified work duties.
There is no clinical objective basis as required by WSIB policy to allow entitlement to LOE benefits.
There is nothing to suggest the worker was incapable of doing anything including performing activities of daily living.
If the worker was able to use public transportation, then they were able to sit in a truck performing verbal training sessions with new truck drivers.
Worker Submission:
In a letter dated December 22, 2021, the worker was advised of the employer’s intention to appeal the decision letter dated July 13, 2021 at the Appeals Services Division. The worker was instructed to complete and return the Worker Participant Form to the WSIB within 30 days if they intend to participate in the appeal process or not.
The Worker Participant Form was not completed and returned to the WSIB at the time the employer’s appeal was referred to me for my review and determination.
Findings:
I accord significant weight to the medical evidence that supports the nature and seriousness of the worker’s surgically treated right wrist fracture injury prevented a return to any type of work during the period in dispute from July 5, 2021 to August 23, 2021. I relied upon the following medical evidence:
In the Operative Report dated July 3, 2021, the orthopaedic surgeon documented the worker’s post-operative course of treatment consisted of non-weight-bearing and a follow-up in two weeks with a cast change and x-rays (emphasis added by this Appeals Resolution Officer).
In the FAF dated July 21, 2021, the orthopaedic surgeon documented the worker is physically unable to work at this time for greater than 14 days. The worker’s abilities and/or restrictions would be reassessed in six weeks’ time.
In the Outpatient Record Report dated August 18, 2021, the orthopaedic surgeon removed the worker’s right wrist cast and referred them for physiotherapy treatments. In this report, the orthopaedic surgeon documented the worker’s right wrist was doing okay.
In the FAF dated August 25, 2021, the physiotherapist documented the worker is capable of returning to work with restrictions at regular full-time work hours.
In my view, the orthopaedic surgeon is in the best position to provide medical treatment plans and recommendations for the worker’s work-related right wrist fracture injury. The orthopaedic surgeon is the worker’s primary health care professional who had the opportunity to assess the worker immediately after the work incident of July 2, 2021, perform urgent right wrist surgery on July 3, 2021, and monitor the worker’s post-operative recovery and treatment plans. The significance of the worker’s level of impairment is captured in the Operative Report dated July 3, 2021. In this report, the orthopaedic surgeon documented the worker was to remain non-weight bearing in a cast for two weeks until the next follow-up visit.
In all of the reports submitted to the case record during the continuity period from July 3, 2021 to August 23, 2021, the orthopaedic surgeon did not express a medical opinion to suggest the worker was fit to return to some type of work sooner than August 23, 2021. In the FAF dated July 21, 2021, the orthopaedic surgeon clinically authorized the worker to remain off from work and their functional abilities and restrictions for return-to-work planning activities would be examined in approximately six weeks’ time.
I acknowledge the employer representative’s expressed concerns regarding the offer of available suitable modified work duties to accommodate the worker’s right wrist injury on July 5, 2021. I find the nature and seriousness of the worker’s surgically treated right wrist injury prevented a return to any type of work during the period in dispute from July 5, 2021 to August 23, 2021. During this six week period of time, the worker was fully co-operative in both their medical and rehabilitation plans to enable a successful return-to-work outcome on August 23, 2021.
I find this worker did nothing more than they could have done by following the orthopaedic surgeon’s advice to remain off from work and completely immobilized in a cast and sling to promote healing of the right wrist fracture. I examined the employer representative’s position there is nothing in the case record to suggest this worker was incapable of doing anything, including activities of daily living. I disagree with this position as it is not an accurate description of the facts and evidence documented to the case record regarding the worker’s limitations during the acute phase of recovery from their work-related right wrist fracture injury. I have taken particular note of the following:
On July 8, 2021, the worker reported they are unable to do very much, the injury is to their dominant hand and their hand is currently in a cast and sling (Eligibility Lost Time Template).
On July 9, 2021, the worker reported they are taking pain killers every four hours following the surgery on July 4, 2021. The medications are making them drowsy. The doctor advised them to rest and take the medications.
On July 14, 2021, the worker reported they are to remain off from work after the reassessment with the surgeon on July 21, 2021. They are still in a cast and sling and they are having trouble doing most things due to being right hand dominant.
On August 23, 2021, the worker reported they saw the surgeon in follow-up on August 18, 2021 and the cast was removed. They still have limited mobility in the right hand and they were referred for physiotherapy. The first appointment is scheduled on August 25, 2021. The orthopaedic surgeon cleared a return to modified work duties on August 23, 2021.
Based on the above, I find the required elements in the OPM Document No. 11-02-02 – Lost Time Claims (published April 9, 2021) and the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) (published April 9, 2021) – have been established to support entitlement to the payment of full LOE benefits from July 5, 2021 to August 23, 2021. The weight of the medical evidence from the orthopaedic surgeon supports the nature and seriousness of the worker’s surgically treated right wrist fracture injury prevented a return to any type of work for six weeks. There is clinical authorization on file from the orthopaedic surgeon for the worker’s lost time from work during the period in dispute from July 5, 2021 to August 23, 2021.
Since I have found the worker was totally disabled and unfit to return to any type of work from
July 5, 2021 to August 23, 2021 due to their work-related surgically treated right wrist fracture injury, the issue concerning the suitability of the available modified work duties during this period no longer requires review and consideration.
CONCLUSION
I conclude entitlement to full LOE benefits from July 5, 2021 to August 23, 2021 is allowed. The employer’s objection is denied.
DATED July 15, 2022
S. Johnson
Appeals Resolution Officer Appeals Services Division