Appeals Resolution Officer Decision
Decision Number: 20220105
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer (not participating)
Represented by: Not represented
Hearing: Hearing in Writing
Heard by: M. Haughton, Appeals Resolution Officer Dated: July 6, 2022
Issues
The worker is objecting to the Case Manager’s (CM) decision dated July 8, 2021, which denied entitlement to loss of earnings (LOE) benefits from October 23, 2018 to January 28, 2020. The CM also determined that subsequent to January 28, 2020, the worker was capable of working on a full-time basis, 37.5 hours per week, earning $xx.xx per hour, in the identified suitable occupation (SO) of Other Service Support Occupations.
Background
On November 30, 2017, this journeyman plumber was digging for an underground car wash unit when their right foot became stuck in the mud. While trying to remove their boot from the mud, the worker twisted their right ankle and felt a pop in their right knee. Initial entitlement was accepted for a right knee strain. An Appeals Resolution Officer’s (ARO) decision dated November 16, 2018, denied initial entitlement to a right knee medial meniscal tear; however, the ARO made no finding regarding entitlement for an aggravation of a pre-existing right knee condition. On February 27, 2019, entitlement was reviewed and accepted for an exacerbation of the worker’s pre-existing right knee condition, including meniscal tearing. On May 30, 2019, the CM accepted entitlement to an acute left gluteus minimus muscle strain as a secondary condition due to altered gait and overcompensation for the work-related right knee injury.
The worker returned to modified work following the work-related injury and performed modified work until April 30, 2018, when the employer was no longer able to accommodate the worker’s right knee restrictions. The worker received full LOE benefits from April 30, 2018 to June 27, 2018. On June 28, 2018, the worker underwent right knee surgery, which was accepted under this claim. The worker received LOE benefits from June 28, 2018 to August 23, 2018. The CM denied entitlement to LOE benefits subsequent to August 23, 2018, as the worker had a non-work-related change in circumstance related to a left hip impairment, which overwhelmed the claim and was the contributing factor in the worker’s inability to return to work. The worker went on to have a left hip arthroplasty on February 26, 2019 due to degenerative changes and osteoarthritis in the hip.
An ARO decision dated October 14, 2020, denied entitlement to degenerative changes in the worker’s left hip, including osteoarthritis, as these conditions did not result from the work-related right knee condition. The ARO also denied entitlement to the February 2019 left hip replacement/arthroplasty. The ARO accepted entitlement to LOE benefits from August 23, 2018 to October 23, 2018 and remitted LOE benefits subsequent to October 23, 2018 back to the Operating area for review.
On July 8, 2021, the CM determined the worker was not entitled to LOE benefits from October 23, 2018 to January 28, 2020 as the primary diagnosis and the reason the worker was unable to work was the left hip and the subsequent left hip surgery. The CM identified Other Service Support Occupations as a SO for the worker. The CM determined that effective January 29, 2020, the worker was entitled to partial LOE benefits based on their ability to secure full-time employment in the SO for 37.5 hours per week, earning an entry-level wage of $xx.xx per hour.
The CM also determined the worker reached maximum medical recovery for the right knee on September 20, 2020 and a permanent impairment was identified. On July 12, 2021, the worker received a four (4) per cent Non-Economic Loss (NEL) award for the right knee.
The worker’s objection to the CM’s decision dated July 8, 2021, forms the basis for this appeal.
Authority
Operational Policy Manual
| Policy | Published |
|---|---|
| Policy 11-02-02 Lost Time Claims | April 9, 2021 |
| Policy 15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances | April 9, 2021 |
| Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) | April 9, 2021 |
| Policy 19-02-07 RTW Overview and Key Concepts | April 9, 2021 |
| Policy 19-02-10 RTW Assessments and Plans | November 30, 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 Other Service Support Occupations is an appropriate SO for the worker. I find the worker was partially impaired and entitled to partial LOE benefits based on full-time employment in the identified SO beginning October 23, 2018. My findings and analysis are provided below.
The worker representative included a submission with the Appeal Readiness Form dated January 28, 2022. The representative also included a prior submission dated July 20, 2021. The representative submitted the medical information supported the worker was entitled to full LOE benefits from October 23, 2018 to January 28, 2020. The representative noted the worker had hip concerns for years; however, the worker’s hip issues did not impact their ability to perform their physically demanding job as a plumber/pipefitter. The representative stated the worker was unable to return to work due to their work-related knee injury. The representative noted that if the WSIB was insistent on focusing on the worker’s left hip, then it would be reasonable to assume the worker was disabled due to the hip injury from February 26, 2019, the date of surgery, for a period of three (3) to six (6) weeks. The representative noted the medical information supported the worker’s knee was severely dysfunctional and impacted the worker’s ability to return to work. The representative also submitted the identified SO of Other Service Support Occupations, was not suitable as the SO required sitting, standing, walking, bending, stopping, kneeling and crouching, all of which exceed the worker’s functional restrictions. The representative also noted the worker had no computer skills and the identified SO was a guestimate as to what the worker could have done and did not fully consider the worker’s skillset and abilities.
The employer did not participate in this appeal or provide a submission for consideration.
Following the work-related injury, the worker received treatment for their right knee, but experienced continued right knee symptoms. On June 28, 2018, the worker underwent a right knee arthroscopy with partial medial meniscectomy and debridement of the right knee.
The worker was seen on July 10, 2018 and their right knee was noted to be healing uneventfully. The worker was noted to have poor functionality of the left hip and severe night and activity pain. The worker also reported their left hip gave out and their range of motion of the hip was painful. The worker was referred to a joint program for the left hip. The worker was seen for their left hip pain on August 14, 2018. The worker was noted to have severe arthritis of the left hip and they were identified as a surgical candidate for a total hip replacement. The worker was advised the wait time for the surgery was approximately one (1) year.
An MRI of the left hip completed on August 23, 2018, showed evidence of end-stage osteoarthritis of the left hip joint and a moderate size left hip joint effusion with synovitis secondary to the degenerative changes in the left hip joint. There was also evidence of mild tendinosis of the bilateral gluteal tendons, some bursal fluid collection suggestive of trochanteric bursitis and findings suggestive of a left gluteus minimus muscle strain.
A medical note dated October 22, 2018, indicated the worker was unable to work due to medical reasons as a hip surgery was pending. An Attending Physician’s Statement for Disability Benefits dated October 23, 2018, noted the primary diagnosis as severe left hip osteoarthritis and noted the worker was awaiting a left hip replacement.
An Attending Physician’s Statement Short-Term Disability Claim dated February 21, 2019, provided diagnoses of traumatic chondromalacia of the right knee and left hip. The worker was noted to have experienced progressive knee and hip pain with deterioration. The physician indicated the worker had undergone a right knee surgery on June 28, 2018 and a left total hip replacement had been proposed. The worker was noted to be intolerant to any sustained or repetitive use or positions, lifting and activity about the right knee and left hip.
On February 26, 2019, the worker underwent a left hip arthroplasty with bone grafting. During a follow up assessment on April 3, 2019, the worker was noted to be doing quite well and they were mobilizing with some persistent limping without pain. It was noted that following a hip replacement, several months off were normally recommended before proceeding to regular labour duties; however, upwards of six (6) months could be recommended depending on the type of work and the patient’s recovery. It was noted the worker would have difficulty with tasks requiring crouching, squatting and kneeling.
A clinical record dated April 12, 2019, noted the worker was post-op for the right knee and left hip. The worker’s wounds from the surgeries were noted to have healed and the worker’s functionality was slowly improving. The worker was noted to be unable to return to work.
A report completed by the worker’s physician on July 9, 2019, noted the worker had ongoing pain and dysfunction in their right knee, with significant activity restrictions. The worker was noted to be continuing with physiotherapy. The worker was noted to be unable to meet the heavy physical demands of their job as a plumber due to their right knee and left hip conditions. It was anticipated the worker would be able to return to work in three (3) months.
A clinical record dated September 12, 2019, noted the worker’s left hip was irritable and they were experiencing tri-compartmental right knee pain. The worker indicated they continued to participate in a home exercise program; however, even walking increased their knee pain. The worker was noted to require frequent rest breaks and position changes and they were advised to avoid lifting and climbing due to the right knee and left hip.
A December 23, 2019 clinical record indicated the worker was participating in an ongoing home exercise program for the left hip. The worker also had tri-compartmental irritability in the right knee and they were intolerant to sustained, repetitive, awkward positions that their normal work required. The worker remained off work.
A subsequent clinical record dated January 28, 2020, noted the worker had done well following the total hip replacement; however, they were unable to perform their pre-injury job duties, which required crouching, squatting, kneeling and sustained repetitive heavy activity. The worker was noted to have pain in their right knee and all compartments of the knee were irritable.
Clinical records subsequent to January 28, 2020, indicated the worker had an ongoing right knee impairment. The worker was noted to be too young for a total knee replacement and conservative management of their ongoing symptoms was recommended. The clinical records indicated the worker had reduced range of motion in the right knee and reduced weight bearing capability due to the right knee and left hip. Continued functional precautions for the right knee were recommended.
Policy 15-06-08, Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances, stated that where the worker is temporarily totally disabled/fully impaired because of both the work-related injury/disease and the non-work-related change in circumstance, the WSIB pays full benefits until the level of the work-related impairment is clinically determined. At that time, ongoing benefits are paid commensurate with the degree of remaining work-related impairment. If the work-related impairment is clinically determined to be partial, but the worker is still not able to work, then a SO would be identified and LOE benefits paid based on the earnings of the SO. The Policy goes on to state that LOE benefits are only paid while there is a work-related impairment. If at any point the clinical evidence shows that the sole cause of the worker’s loss of earnings is the post-accident, non-work-related change in circumstance, and no work-related permanent impairment exists, benefits cease.
Policy 11-02-02, Lost Time Claims, states that 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.
Policy 19-02-07, RTW Overview and Key Concepts, indicates that suitable work means post-injury work that is safe, productive, consistent with the worker's functional abilities, and that restores the worker's pre-injury earnings, to the greatest extent possible.
As the worker’s entitlement to LOE benefits is being reviewed retroactively, I also considered the administrative practice document Practice Guidelines For Ordering LOE Benefit Arrears Under WSIA. The document states that full LOE benefits are payable where an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered, but the worker made reasonable efforts to secure suitable employment or engaging in other activities (e.g. active health care treatment) reasonably aimed at improving employability and minimizing LOE. Partial LOE benefits are payable where an impairment exists that prevents the worker from returning to pre-injury employment, no suitable employment has been offered to the worker, but the worker did not make reasonable efforts either to secure suitable employment or improve their employability. The post-accident earnings are to be based on the SO that is achievable without training
In this case, the worker’s pre-injury job duties were not suitable in light of the worker’s right knee injury and the employer was unable to offer modified work subsequent to April 30, 2018. The CM determined the worker reached maximum medical recovery for the right knee on September 20, 2020 and a permanent impairment was accepted. In review of the medical information on the claim file, the worker’s ability to return to work was impacted by both the work-related right knee injury and the non-compensable left hip impairment. The clinical evidence supports the work-related permanent right knee impairment continued to exist and contributed to the worker’s loss of earnings subsequent to October 22, 2018. In review of the medical information on the claim file, the worker was noted to require ongoing functional precautions for the right knee; however, there is insufficient evidence to support the worker was totally disabled as a result of the accepted right knee injury. I find the medical information supports that effective October 23, 2018, the worker was partially impaired as a result of the work-related right knee injury and capable of performing suitable work. In this case, there is no indication the worker made efforts to secure alternate employment subsequent to October 23, 2018, nor was the worker in active health care treatment for the accepted right knee injury.
As the worker was partially impaired as a result of the work-related injury, but not able to return to work, a SO was identified for the worker. As noted in Policy 19-02-10, RTW Assessments and Plans, a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
In identifying a SO for the worker, the CM considered the information provided in the Government of Canada’s Career Handbook. The CM noted that the identified SO included other support occupations, not elsewhere classified, primarily concerned with the provision of services. Those in occupations in this unit group are employed by a wide range of establishments, and may be self-employed. Examples of job titles within the SO included door attendant (except hotel), theatre usher, car jockey, ticket taker, toll booth attendant, laundromat attendant, hotel valet, cloakroom attendant and parking lot attendant.
Jobs within this SO require an average general learning ability; however, there is no specific educational or training requirements. The physical demands of the job within this SO involve sitting, standing and walking, upper limb co-ordination and limited strength. Bending, stooping and crouching may be required for some jobs within the SO; however, not all jobs would require these body positions, or they may be incidental to the task being performed. I note limited strength requires lifting up to five (5) kilograms. While I appreciate the worker had a functional precaution for lifting, the lifting required by the job appears to be negligible.
In considering the information on the claim file and in the Government of Canada’s Career Handbook, I find Other Service Support Occupations is an appropriate SO for the worker. The SO is safe, consistent with the worker’s functional abilities and partially restores the worker’s pre-injury earnings.
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), which states that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. Examples include but are not limited to workers who return to work at reduced hours or wages, and workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
In this case, the worker was able to return to work in the identified SO; however, the SO did not restore their pre-injury average earnings. As the worker had no experience in the SO, the CM used entry-level earnings for the identified SO to adjust the worker’s benefits. The worker’s LOE benefits were adjusted based on the worker’s ability to work 37.5 hours per week in the identified SO, earning $xx.xx. I find the worker is entitled to partial LOE benefits beginning October 23, 2018, based on their ability to secure employment earning an entry level wage of $xx.xx per hour for 37.5 hours per week in the identified SO.
Conclusion
The worker’s objection is allowed in part.
Other Service Support Occupations is an appropriate SO for the worker.
The worker is not entitled to full loss of earnings benefits from October 23, 2018 to January 28, 2020.
Beginning October 23, 2018, the worker was partially impaired and entitled to partial LOE benefits based on full-time employment, 37.5 hours per week, in the identified SO, earning $xx.xx per hour.
DATED July 6, 2022
M. Haughton Appeals Resolution Officer Appeals Services Division