DECISION NUMBER:

20220094

OBJECTING PARTY:

WORKER

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

HELEN SHAW, APPEALS RESOLUTION OFFICER

DATED:

JUNE 8, 2022

ISSUE

The worker is objecting to the denial of loss of earnings (LOE) benefits, in the Case Manager decision of December 9, 2021.

BACKGROUND

The worker was employed as a truck driver. On November 25, 2019, the worker slipped while coming down from the top of a dump truck, falling on the ground and sustaining sprains/strains, contusions and lacerations of the lower back, left hip, left thigh, left knee and left elbow. The worker was in their mid-50s at the date of injury.

The worker continued to work their regular job duties and was laid off effective December 13, 2019 due to a seasonal shortage of work. The worker claimed entitlement to LOE benefits. In a decision dated February 3, 2020, the Case Manager denied entitlement to LOE benefits for a seasonal work disruption.

The worker was not recalled to work, due to ongoing work shortages. In a decision dated

October 8, 2020, it was accepted that a permanent work disruption had occurred as of June 1, 2020, noting the worker had not been recalled to work for the season. The file was referred to a Return to Work Specialist (RTWS) to determine a suitable occupation (SO). In a decision dated November 13, 2020, it was determined that the worker could work as a Light Delivery Driver, earning a median wage of $xx.xx per hour. The decision determined that no LOE benefits were payable following the permanent work disruption because the worker could restore their wage loss in a job in the SO.

The worker appealed the denial of LOE benefits following the initial work disruption, as determined in the Case Manager decision of February 3, 2020. The denial of LOE benefits for the temporary work

disruption was confirmed in a decision by an Appeals Resolution Officer (ARO), dated January 7, 2021, because the worker was off work due to a regular seasonal layoff.

In a decision dated July 22, 2021, temporary entitlement was allowed for a psychotraumatic disability for the diagnosis of depression. In a letter dated July 29, 2021, the worker’s former representative requested recognition of a permanent impairment and reconsideration of the worker’s level of impairment, noting the allowance of entitlement for a psychotraumatic disability.

The Case Manager decision of December 9, 2021 accepted entitlement for a permanent low back impairment, diagnosed as a lumbar spine sprain/strain. There was no ongoing entitlement for sprain, strain, contusion or laceration injuries of the left hip, left thigh, left elbow and left knee. It was determined that the worker had reached maximum medical recovery (MMR) for the low back as of

September 23, 2021. The decision also denied entitlement to LOE benefits in the claim, as the Case Manager was unable to establish that the worker’s wage loss was directly related to the injuries in this claim.

On December 22, 2021, the worker was rated with a 12% Non-Economic Loss (NEL) benefit for the work related low back sprain/strain.

A permanent impairment was also recognized for the worker’s psychotraumatic impairment, with the worker reaching maximum psychological recovery by February 3, 2022, when they were discharged from treatment. On February 24, 2022, the worker was awarded a 13% NEL benefit for Adjustment Disorder, resulting in a total NEL benefit of 25% in this claim.

AUTHORITY

Operational Policy Manual Published

15-06-03 Entitlement Following Permanent Work Disruptions

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

November 3, 2014

January 2, 2018

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find the worker is entitled to full LOE benefits from June 1, 2020. My reasons are explained below.

The prior ARO decision of January 7, 2021 denied entitlement for LOE benefits for the temporary work disruption that started in December 2019 and I have no authority to reconsider that decision. It was determined that the work disruption became permanent on June 1, 2020 and the prior ARO decision did not address entitlement for the permanent work disruption; therefore, I will consider entitlement to LOE benefits from June 1, 2020 when the work disruption was determined to be permanent.

Entitlement to LOE benefits following the permanent work disruption was addressed in the Case Manager decision dated November 13, 2020. That decision was not included on the Appeal Readiness Form submitted by the worker’s former representative on January 5, 2022. However, there was an Appeal Readiness Form submitted for the November 13, 2020 decision on December 29, 2020, which was not referred to the Appeals Services Division. I find the decision of November 13, 2020 was the

foundation for the subsequent denial of LOE benefits in the decision of December 9, 2021 and must be addressed if I am to properly consider entitlement to LOE benefits.

The employer is not participating in the appeal and did not submit a Respondent Form.

According to operational policy 15-06-03, if a worker requires permanent suitable work due to the work- related injury at, or subsequent to the start of the permanent work disruption, the decision-maker identifies the worker’s SO in order to determine entitlement to additional LOE benefits. A worker’s SO represents a category of jobs suited to their transferable skills that are safe, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the extent possible.

A SO had not previously been identified for the worker and the pre-injury job duties as a truck driver were no longer suitable. Given those circumstances, operational policy 15-06-03 required that an appropriate SO be determined for the worker and the worker would be entitled to full LOE benefits while participating in work reintegration or return to work services.

When considering the worker’s ability to find employment in alternate work, the SO recommendation contained in the Return to Work Consult Memo dated November 10, 2020 was based on the following restrictions for the worker’s low back impairment, taken from the Specialty Program Report of

August 27, 2020:

• Walking up to 100 metres;
• Standing up to 15 minutes;
• Sitting up to 30 minutes;
• Stair climbing up to 5 steps;
• Lifting waist to shoulder limited to 0-5 kg;
• Lifting above shoulder limited to 0-5 kg;
• Pushing/pulling limited to 0-5 kg;
• Avoid driving if left foot is required – due to reported neurological issues/numbness in left foot;
• Able to take public transportation;
• Bending/twisting rare frequency;
• Restricted operating of motorized equipment;
• Restricted exposure to vibration;
• No low level work, crouching or lifting below waist height due to ongoing lumbar spine active range of motion and strength limitations;
• Allow for self-pacing, frequent changes in position, and micro breaks as needed.

The decision of November 13, 2020 noted that the SO of Light Delivery Driver would allow the worker to deliver light items, such as fast food or drug store items, which would be within the 5 kg lifting restriction. That decision also determined that there would be no significant wage loss if the worker earned a median level wage of $xx per hour in the SO.

The restrictions used for the SO determination differed from the accepted permanent restrictions in an important way. The following permanent restrictions were accepted for the low back impairment in the decision of December 9, 2021:

• Walking – up to 100 meters, occasional as tolerated
• Standing – up to 15 minutes, occasional as tolerated
• Sitting – up to 30 minutes, occasional as tolerated
• Stair climbing – up to 5 steps with assistance of railings
• Lifting from floor to waist: limited – 0-5 kg
• Lifting waist to shoulder: limited – 0-5 kg
• Lifting above shoulder: limited – 0-5 kg
• Pushing/pulling: limited – 0-5 kg
• Ladder climbing: none due to safety/stability concerns
• Ability to drive a car, short distances only – less than 15 minutes

The SO determination was based on the worker only needing to avoid driving if use of the left foot was required, but the permanent restrictions limit the worker’s ability to drive a car to short distances only, up to 15 minutes. Although the worker could possibly have found work as a Light Delivery Driver with only short trips, the cumulative amount of driving could exceed the worker’s functional abilities and the driving restriction would significantly limit job availability. The worker’s lifting limitations would have further restricted the types of delivery jobs for which the worker could have applied.

Based on the worker’s transferable skills from their prior work history, the only other direct entry SO considered in the Return to Work Consult Memo was Kiosk Sales Clerk. After reviewing all of the medical evidence, I am not satisfied that the worker was likely to be able to find employment in a direct entry SO without additional return to work assistance.

Although no specific psychological restrictions were recommended for the worker, reports identified potential return to work barriers. A Mental Health Specialty Program Comprehensive Assessment Report dated November 10, 2021 diagnosed the worker with Somatic Symptom Disorder with Predominant Pain and Adjustment Disorder with Mixed Anxiety and Depressed Mood. It was recommended that the worker participate in a multi-disciplinary Mental Health Program. The report identified several barriers to return to work success, including pain and somatic related focus and distress, pain coping challenges, actual/perceived limitations, social support challenges, duty demands and work-related anger. There were no apparent psychological restrictions for return to work, but pain and functional barriers were reported, necessitating some accommodations to facilitate a successful return to work. These recommendations were supported in the treatment progress reports provided by the Outpatient Mental Health Specialty Program. The worker was discharged from treatment on February 3, 2022 and the discharge report noted that the worker would benefit from involvement of a Return to Work Specialist.

According to operational policy 18-03-02, if the nature or seriousness of the injury 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 work reintegration process. The medical evidence supports that the worker is capable of work within the recognized restrictions, but no suitable work was available with the employer. The worker co-operated in health care measures and treatment, but despite the recognized permanent impairments and return to work barriers, the worker has been paid no LOE benefits and has received no return to work assistance. I find that situation is not consistent with the operational policies on permanent work disruptions and payment of LOE benefits.

Noting the barriers presented by the worker’s physical and psychological impairments, I find it is not reasonable to expect that the worker would have been able to secure employment in a SO in the general labour market without having return to work assistance. The worker is entitled to full LOE benefits from June 1, 2020, when the work disruption was determined to be permanent, as well as return to work services.

CONCLUSION

I conclude the worker is entitled to full LOE benefits from June 1, 2020 to date. The worker is also entitled to a return to work assessment, to assist in determining a SO and developing a return to work plan. The duration of LOE benefits is to be determined by the operating area, based on the outcome of the return to work services.

The worker’s objection is allowed.

DATED June 8, 2022

Helen Shaw

Appeals Resolution Officer Appeals Services Division