Worker v. Employer, 2022 CanLII 74704

20220082

REPRESENTED by:

N/A

REPRESENTED by:

N/A

HEARD by:

DATED:

MAY 19, 2022

ISSUE

The worker objects to the Eligibility Adjudicator’s (EA) decision dated August 24, 2021, which accepted entitlement to a low back strain injury occurring on July 26, 2021, however denied entitlement to payment of loss of earnings (LOE) benefits on July 27, 2021 and from August 16, 2021 onward.

BACKGROUND

On July 26, 2021, this production test technician was seated on a chair that was on an uneven surface. When the worker arose, the chair fell over, causing the worker to lose their balance and twist awkwardly, resulting in an onset of low back pain.

The worker reported the injury to the employer on July 26, 2021. They were then out of the country on a pre-scheduled trip from July 28, 2021 to August 15, 2021. The worker sought first medical attention on August 16, 2021, when they were diagnosed as having a low back strain.

On August 24, 2021, the EA reviewed the claim file information and accepted entitlement to a low back strain for health care benefits. Entitlement to payment of LOE benefits for July 27, 2021 was denied, as the worker did not have clinical authorization to be off work on that date. The EA further determined that the worker was partially impaired with an ability to perform suitable work, however no limitations were provided by the physician, and as such, entitlement to LOE from August 16, 2021 onward was denied.

The worker was cleared to return to full duties as of August 23, 2021, per the medical report of August 16, 2021. The worker remained off work.

On October 29, 2021, the EA reviewed new medical information and reconsidered and upheld the decision of August 16 2021.

The worker’s objection to the EA’s decision dated August 24, 2021 forms the basis for this appeal.

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

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. In considering the information, I find the worker is not entitled to payment of LOE benefits for July 27, 2021 and following August 16, 2021. The reasons for my decision are outlined below.

The worker completed an Intent to Object (ITO) form dated August 27, 2021, in which they objected to the decision to deny payment of LOE benefits. They stated that the doctor who completed the Health Professional’s Report (Form 8), provided incorrect information, and at the time of the assessment, they were “in very bad pain”. The worker noted that the doctor performed x-rays, provided pain medication, and advised them to return if they did not improve. The worker returned to the emergency department on August 20, 2021, as the pain was unbearable. The doctor provided a different pain medication and advised them to go to a walk-in clinic if necessary. They attended a walk-in clinic on August 23, 2021, which resulted in the worker being referred for physiotherapy treatment. The physiotherapy treatment commenced on August 24, 2021. The worker completed an Appeal Readiness Form (ARF) on December 13, 2021, which reiterated their position that they object to the denial of payment of LOE benefits.

The employer is not participating in the appeal, and did not return a Participant Form. They have not provided their position or additional information regarding the matter at hand.

The worker provided the details of the workplace accident as noted above, in communication with a Workplace Safety and Insurance Board (WSIB) customer service representative on August 19, 2021. The worker advised they reported the workplace incident to their manager on the date of injury, and this is supported in the details provided in the Employer’s Report of Injury (Form 7). The worker reported that they were off work on July 27, 2021, and stated that they travelled to India for a family emergency on July 28, 2021. They returned from their pre-scheduled trip on August 15, 2021. The worker then attended the hospital emergency department on August 16, 2021.

According to Policy 11-02-02, Lost Time Claims,

The WSIB reviews the information on file to determine a worker's entitlement to benefits. 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.

I have also considered Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), which 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. This is providing

that the worker co-operates in health care measures and all aspects of the work reintegration process.

In this case, the issue to be determined is whether the worker was able to return to work, and if so, whether the work available was suitable for them to perform.

I have reviewed the Form 8 that was completed by the emergency room physician on August 16, 2021. It notes the area of injury as the low back, and recommends a return to regular job duties as of August 23, 2021. It notes that the worker has full functional abilities. In comparing the clinical chart notes from the hospital, the chart states that the worker injured mid-lower back on July 26, 2021 while at work. They complain of mid-lower back pain, non-radiating at present, no numbness or tingling in lower extremities. The doctor notes that the worker has pain, tenderness, decreased range of motion, and spasm. The diagnosis is back strain and the worker is prescribed toradol and naproxen. An x-ray is completed which provided findings of: minor biconcave morphology of the L5 vertebral body, may be developmental. Non- specific straightening of the lumbar lordosis. No acute fracture or traumatic malalignment of the lumbar spine.

On August 24, 2021, the worker was assessed by the physiotherapist, who diagnosed a lumbar muscle strain, and noted that the worker’s pain rating was nine (9) out of ten (10). They had low back pain without radiation and were having difficulty performing their activities of daily living. The limitations noted were lifting, kneeling, bending, twisting, sitting, standing and using upper extremities. It was recommended they remain off work until September 25, 2021.

The treating physiotherapist completed a Form 8 with an assessment date of August 14, 2021. In reviewing the claim file information, it was confirmed that this document was backdated and corresponded to a date that the worker was out of the country. Noting this, I have not considered this medical documentation as I find it to be invalid.

While I acknowledge and accept that the worker had back pain related to a lumbar strain injury occurring on July 26, 2021, I find that the evidence supports that the worker was partially impaired and able to perform sedentary-level job duties. The worker did not seek medical attention until August 16, 2021, and I find that they therefore did not have clinical authorization to be off work on July 27, 2021. In keeping with policy 11-02-02, I find that there is no entitlement to payment of LOE benefits for this date. In reviewing the medical evidence, I note that there were no limitations or medical restrictions provided by the emergency department physician based on the assessments of August 16, 2021 and August 20, 2021. There were no objective medical findings to support that there was anything more significant than a strain injury, and no radiculopathy was noted. I place more weight on the reports from the treating physician than from the physiotherapist, as they are contemporaneous and a physician surpasses a physiotherapist in terms of expertise in medical assessments. I do not find that incorrect information was reported on the initial Form 8 completed by the doctor, as the information was in alignment with the clinical chart notes from the hospital.

In reviewing the claim file information pertaining to the worker’s pre-injury job, I note that their position is a testing technician, which requires them to sit in a chair and test electronic circuits. The worker uses a machine and computer to ensure the circuit is working correctly; they sometimes use tools to perform this task. The worker may be required to walk for 15 minutes out of an eight (8) hour shift. On a rare basis, they could lift from three (3) to five (5) kilograms. I find that the worker’s job duties were safe and suitable for them to perform and would not put the worker at any risk of re-injuring their back, noting the sedentary nature of the duties.

Consequently, in light of the fact that I have concluded that the worker’s job duties were safe and suitable for them to perform, I find that the worker does not meet the criteria for entitlement to LOE benefits under policy 18-03-02. As a result, I confirm the denial of payment of LOE benefits from August 16, 2021 onward, as suitable work was available.

CONCLUSION

I confirm that the worker is not entitled to payment of LOE benefits on July 27, 2021 or from August 16, 2021 onward as suitable work remained available.

The worker’s objection is denied.

DATED May 19, 2022

Appeals Resolution Officer Appeals Services Division