Appeals Resolution Officer Decision
Decision Number: 20220119
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer
Represented by: Employer Representative
Hearing: Hearing in Writing
Heard by: M. Haughton, Appeals Resolution Officer
Dated: March 9, 2022
Issues
The worker is objecting to the Case Manager’s (CM) decision dated December 7, 2015, which denied entitlement to loss of earnings (LOE) benefits from August 15, 2015 to November 26, 2015.
Background
On February 19, 2015, this screening officer sustained injuries to their neck and right shoulder when they attempted to break the fall of a passenger who tripped on an anti-fatigue mat as they walked toward the worker. The worker reported the incident to the employer on February 19, 2015 and sought medical attention on February 20, 2015. Initial entitlement was accepted for strain type injuries of the neck and right shoulder.
On October 29, 2015, the CM allowed entitlement to LOE benefits from October 28, 2015 to November 11, 2015 to allow the worker to participate in a physiotherapy program. It was expected the worker would begin a graduated return to work plan on November 12, 2015. On June 17, 2016, the CM clarified the worker was entitled to LOE benefits from October 28, 2015 to November 10, 2015.
On December 7, 2015, the CM reviewed the worker’s entitlement to LOE for various periods, including August 15, 2015 to November 26, 2015. On August 14, 2015, a passenger accidentally elbowed the worker in the right arm. A new claim for this incident was established and denied. Entitlement to LOE benefits was subsequently reviewed under this claim. The CM indicated there was no evidence to support a deterioration of the worker’s right arm condition and the worker was not entitled to LOE benefits for August 15, 2015 to November 26, 2015 as the modified work offered by the employer remained suitable and available. The CM reconsidered and upheld this decision on March 31, 2016.
An Appeals Resolution Officer’s (ARO) decision dated November 25, 2016, confirmed the worker was entitled to LOE benefits from October 28, 2015 to November 10, 2015. The ARO also confirmed the employer was entitled to 25 per cent Second Injury and Enhancement Fund (SIEF) cost relief.
A subsequent ARO decision dated September 12, 2018, denied entitlement to LOE benefits for February 20, 2015 to February 24, 2015, March 4, 2015 to March 24, 2015, April 14, 2015 to April 16, 2015, May 1,2,9,15,16,19, 2015, June 13,14,22,23,29, 2015, July 26, 2015, August 2, 8, 9, 2015 and May 18, 25, 26, 2016. The ARO accepted entitlement to LOE benefits for March 2, 2015 to March 4, 2015. The ARO also determined the worker had made a full recovery with no permanent impairment for the accepted neck strain. The ARO confirmed entitlement for a right shoulder rotator cuff tear and granted a permanent impairment for this diagnosis. The ARO determined the worker reached maximum medical recovery for the right rotator cuff tear on April 4, 2016 and the worker was granted entitlement to a Non-Economic Loss (NEL) assessment. The ARO denied entitlement to psychotraumatic disability and chronic pain disability. The worker went on to receive a six (6) per cent NEL award for the right shoulder on November 6, 2018.
The worker’s objection to the CM’s decision dated December 7, 2015 and the subsequent reconsideration of that decision on March 31, 2016, forms the basis for this appeal.
Authority
Operational Policy Manual
Published
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) July 15, 2011
Policy 19-02-01 Work Reintegration Principles, Concepts, and Definitions December 3, 2012
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 the worker is entitled to LOE benefits from August 15, 2015 to October 27, 2015, inclusive. The worker is also entitled to LOE benefits from November 10, 2015 to November 26, 2015, inclusive. My findings and analysis are provided below.
The worker representative included a submission with the Appeal Readiness Form dated August 31, 2021. The representative noted that prior to August 14, 2015, the worker was participating in modified work; however, the work was exacerbating the worker’s symptoms as it required repetitive use of the right arm. The worker was subsequently referred for a specialty clinic assessment. The representative noted that after the worker was assessed at the Shoulder and Elbow Specialty Clinic, a further assessment at the Back and Neck Specialty Clinic and treatment for pain management was recommended. The September 30, 2015 report from the Back and Neck Specialty clinic indicated a graduated return to work plan was recommended after the worker was able to wean off Tylenol over one (1) to two (2) weeks, with six (6) to eight (8) weeks of aggressive physiotherapy. The worker subsequently participated in treatment with the specialty clinic. The representative submitted that full LOE benefits should have been granted to the worker, at minimum, from September 30, 2015, or the date of the specialty clinic report upon which treatment and the return to work plan was based. The representative stated the worker did not have access to treatment until October 28, 2015 and the worker should be eligible for benefits for the interim period between the date of the specialty clinic assessment and inclusive of their treatment period and return to work start date. The representative noted the worker received LOE benefits from October 28, 2015 to November 10, 2015; however, a return to work meeting was not scheduled until November 27, 2015 and a return to work plan was not established. As a result, the worker was entitled to LOE benefits from November 11, 2015 to November 27, 2015.
The employer provided a submission with the Respondent Form dated December 16, 2021. The employer referenced medical reports on the claim file from the specialty clinic and the worker’s physiotherapist and noted that while functional precautions were required, the worker was able to engage in return to work activities. The employer also referenced a Return to Work Meeting Memo dated September 23, 2015, which indicated the worker’s pre-injury job was suitable with accommodations and documented the employer’s ability to provide accommodated work. The employer stated the worker was capable of performing the modified work offered and the modified work was suitable. The employer submitted there was no objective medical information to substantiate the lost time from work and the worker was not totally disabled. The employer stated the worker was not entitled to LOE benefits from August 15, 2015 to November 26, 2015.
Following the work-related injury, the worker received treatment for their injuries. The worker initially remained off work before returning to modified work. A Health Professional’s Progress Report (Form 26) dated July 25, 2015, noted the worker’s right arm injury had been exacerbated by repetitive use. A return to work date was noted to be unknown.
As noted in memo 32 dated August 5, 2015, the CM requested a Nurse Consultant complete a referral to a specialty clinic as the worker had been attending chiropractic treatment since March 2015 without improvement. The CM also indicated the worker had no improvement while off on vacation. The worker was noted to have agreed to participate in the assessment.
A Functional Abilities Form (FAF) dated August 14, 2015, noted the worker was unable to return to work. The worker was noted to be awaiting an appointment with a back and neck specialist and a pain management program.
A clinical record dated August 17, 2015, noted the worker was struck in the right shoulder and right arm by a passenger, which resulted in a significant accentuation of their pain. The worker was noted to have a marked amount of tenderness and soreness involving the right shoulder, which had a radicular component radiating to the right forearm and hand. The worker was noted to have exacerbated their right shoulder injury and they were unable to return to work. The worker was prescribed Toradol and Ativan.
An FAF dated August 17, 2015, indicated the worker had re-injured their right arm on August 14, 2015. The physician indicated the worker had been improving but the August 14, 2015 incident had set the worker back and they were unable to return to work.
The worker was seen at the Shoulder and Elbow Specialty Clinic on August 31, 2015. The worker’s active range of motion was noted to be limited by pain and guarding. The worker was diagnosed with a right shoulder strain, a cervical strain, right shoulder myofascial pain and a right shoulder partial thickness rotator cuff tear. Functional precautions were provided and the involvement of a return-to-work coordinator and an occupational therapist was recommended to assist in the identification of suitable work. A multidisciplinary pain management program and eight (8) weeks of active physiotherapy and a consultation with the Back and Neck Specialty Clinic were also recommended.
The worker was seen at the Back and Neck Specialty Clinic on September 30, 2015. The worker was diagnosed with a cervical muscle sprain. The worker reported they were unable to return to work while they were taking Tylenol 3 and they indicated they would attempt to wean off this medication over the next week and then return to work. The worker was noted to be able to return to modified work and a graduated return to work plan starting with four (4) hours per day and progressing by one (1) hour weekly until their full hours were attained was recommended. Functional precautions were provided for above shoulder activity with the right upper extremity, pushing and pulling with the right arm and repetitive or sustained neck flexion. The worker was noted to be able to alternate between sitting, standing and walking as tolerated. Once rehabilitation was completed the worker was noted to be able to begin adding regular duties to their return to work activities, beginning at two (2) hours per day and increasing by two (2) hours per week until they had resumed their regular work duties at full hours. The worker was noted to require an aggressive physiotherapy program.
FAFs from the worker’s physician dated October 6, 2015 and October 22, 2015 noted the worker was unable to return to work as the worker was awaiting treatment and an MRI.
A Non-Surgical Treatment Intake Report dated October 28, 2015, noted the worker had entered an eight (8) week treatment program with an expected completion date of December 22, 2015. It was expected the worker would return to modified work at full hours at the conclusion of treatment.
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits beginning when the loss of earnings begins. The policy also states that if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.
Policy 19-02-01, Work Reintegration Principles, Concepts, and Definitions, defines suitable work as post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
I note a return to work meeting was held on September 23, 2015, and the worker’s pre-injury job with accommodation was determined to be suitable; however, a specific plan for the worker’s return to work was not developed. As noted in the Return to Work Meeting Memo/Plan, the worker indicated they did not want to return to work until they had been assessed at the Back and Neck Specialty Clinic. The worker was subsequently seen at the specialty clinic on September 30, 2015 and a graduated return to work plan was recommended; however, no further steps were taken to provide the worker with the recommended graduated return to work plan. I note the recommendation from the Shoulder and Elbow Specialty Clinic regarding the involvement of a return-to-work coordinator and an occupational therapist to assist in the identification of suitable work for the worker was also not implemented at this time.
The worker began treatment with the specialty program on October 28, 2015 and was engaged in treatment three (3) days per week. It was recommended the worker refrain from any work activities when they commenced the physiotherapy treatment program and the worker’s work duties would later be incorporated while the worker was attending the physiotherapy program. The Return to Work Specialist was of the opinion that the worker’s pre-accident duties were suitable within this arrangement and there were several duties the worker was able to rotate through, where no accommodations were required. As a result, LOE benefits were approved from October 28, 2015 for a two week period, after which the worker was to commence the return to work plan on a graduated basis.
An ARO decision dated November 25, 2016, confirmed the worker was entitled to LOE benefits from October 28, 2015 to November 10, 2015. The ARO acknowledged the employer demonstrated a willingness to provide modified employment for the worker for this period; however, the worker was following the recommendations by the WSIB in order to aid and assist them in the return to work process. The ARO accepted the worker's level of impairment prevented them from resuming modified employment from October 28, 2015 to November 10, 2015.
A graduated return to work plan was again recommended subsequent to November 10, 2015; however a return to work meet was not held until November 27, 2015, when a plan was developed. The worker continued in treatment subsequent to November 10, 2015.
In review of the information on the claim file, I note the worker symptoms remained significant enough to warrant a referral to a specialty clinic on August 5, 2015. The medical information on the claim file indicated the worker experienced an increase in their right shoulder symptoms subsequent to the August 14, 2015 incident. The worker actively participated in assessments with the specialty clinics and then engaged in treatment with the specialty clinic beginning October 28, 2015.
While I note the report from the specialty clinic dated September 30, 2015, indicated the worker was able to return to modified work on a graduated basis, there is no evidence the worker was provided with a graduated return to work plan. I note the employer was able to provide the worker with modified work; however, there is no indication the worker was re-engaged in return to work activities subsequent to September 30, 2015 or that a graduated return to work plan was offered or available to the worker. I note these same circumstances applied subsequent to November 10, 2015, when the medical information supported the worker was able to return to modified work on a graduated basis; however, a formal graduated plan was not provided until November 27, 2015, when a return to work meeting was conducted.
Noting the documented change in the worker’s level of impairment, I find the nature of the worker’s injury prevented them from returning to work from August 15, 2015 to September 30, 2015 and accordingly, the worker’s loss of earnings resulted from their workplace injuries. I find the worker was able to return to suitable work on September 30, 2015; however, in the absence of a confirmed graduated return to work plan, I find there is insufficient evidence to support suitable work was available to the worker from September 30, 2015 to October 28, 2015 and from November 11, 2015 to November 26, 2015. As a result, I find the worker incurred a wage loss as a result of their work-related injury and is entitled to LOE benefits for these periods.
Conclusion
The worker’s objection is allowed.
The worker is entitled to LOE benefits from August 15, 2015 to October 27, 2015, inclusive. The worker is also entitled to LOE benefits from November 10, 2015 to November 26, 2015, inclusive.
DATED March 9, 2022
M. Haughton
Appeals Resolution Officer
Appeals Services Division