Worker v. Employer, 2023 CanLII 100126

20230110

REPRESENTED by:

HEARD by:

DATED:

AUGUST 4, 2023

ISSUE

The worker is objecting to the Case Manager’s (CM) decision dated April 6, 2022 in which entitlement to loss of earnings (LOE) benefits from July 19, 2020 onward was denied.

BACKGROUND

On June 18, 2019, this worker injured their low back while lifting a heavy box. Entitlement to benefits was granted for a disc protrusion at the L4-5 level.

The worker participated in a work reintegration (WR) program with the accident employer. They were able to progress to full hours and duties in early 2020. Further WR interventions took place in June 2020 and the worker was again placed on modified work duties.

The worker went off work after July 19, 2020, reportedly due to non-compensable medical issues. They returned to work again for a few hours on November 3, 2020, but did not continue.

In a decision dated December 11, 2020, the CM notified the worker in part that their absence from work was due to non-compensable medical issues and not the work-related injury. The CM did not explicitly indicate that they were denying entitlement to LOE benefits for this lost time. On February 25, 2021, the CM issued another letter where they stated that the worker was considered to be off work for reasons unrelated to the work-related low back injury.

The worker was determined to have a permanent impairment as a result of their compensable low back injury. They were assessed with a 22 percent Non-economic Loss (NEL).

Entitlement to benefits for a psychotraumatic disability was denied on September 1, 2021. This decision was upheld by an Appeals Resolution Officer (ARO) on September 7, 2022.

On April 6, 2022, the CM reconsidered the previous decisions of December 11, 2020 and

February 25, 2021. In this letter, the CM clearly stated that the worker was not entitled to LOE benefits

subsequent to July 19, 2020. The worker’s inability to work was determined to be due to

non-compensable issues and not the low back impairment. The employer had suitable work within the restrictions for the low back injury.

The decision was reconsidered and upheld on April 12, 2023.

Worker’s Position

The worker representative argues in part that the workplace accident and injury aggravated the worker’s pre-existing mental health issues. They state that the worker should have entitlement to benefits for a psychotraumatic disability. Note that this issue has already been addressed by an ARO. The worker representative also states that the worker is totally disabled as a result of their compensable low back injury and should be entitled to LOE benefits.

Employer’s Position

The employer representative questions whether I have jurisdiction to address the LOE issue given the previous ARO decision. In terms of the merits of the issue in dispute, the employer representative argues in part that the employer demonstrated a willingness and ability to accommodate the worker’s low back impairment. The worker decided to move further away from the place of employment. The worker’s absence from work after July 19, 2020 was due to psychological issues, not the low back condition.

AUTHORITY

Operational Policies Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-07 RTW Overview and Key Concepts

September 1, 2021

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the worker is not entitled to loss of earnings (LOE) benefits from when they stopped working after July 19, 2020.

I must first address the matter raised by the employer representative regarding whether I have jurisdiction to address this issue. In their submission dated June 20, 2023, the employer representative argues that an Appeals Resolution Officer (ARO) made the final decision of the WSIB on this issue in a decision dated September 7, 2022. The employer representative states that the worker had claimed to be unable to work after July 19, 2020 due to mental health issues. The ARO upheld the decision to deny entitlement to benefits for a psychotraumatic disability under this claim. The representative states that the worker is presently objecting to the Case Manager’s (CM) decision dated December 11, 2020 in which LOE benefits were denied as the worker was off work due to psychological issues.

In their decision dated September 7, 2022, the ARO addressed the worker’s objection to the CM’s decision dated September 1, 2021 in which entitlement to benefits for a psychotraumatic disability was denied. The ARO upheld this decision. The ARO did not make any findings on whether the worker should be entitled to LOE benefits after July 19, 2020. They did not make a final decision on this issue.

On the Appeal Readiness Form (ARF) dated March 6, 2023, the worker representative identified the December 11, 2020 decision as the decision letter with the issue in dispute being “LOE Ongoing”.

The December 11, 2020 letter from the CM does not explicitly state that LOE benefits were denied. The CM states that the worker was “off work at the present time for reasons unrelated to your lower back.” This implies that LOE benefits are not in order, but the CM did not indicate this. They did not reference a policy on LOE benefits in their letter.

The CM issued another letter on April 6, 2022. In this letter, they state that they were confirming the previous decisions of December 11, 2020 and February 25, 2021 in which “it was determined that your work absence was unrelated to your compensable lower back injury.” At this time, the CM explicitly stated that LOE benefits from July 19, 2020 were denied. This is the issue in dispute. The April 6, 2022 decision was effectively a further confirmation or elaboration of the December 11, 2020 decision. This is why I identified the April 6, 2022 decision as being the one from which the issue in dispute arises.

While the CM declared that the worker’s absence from work was due to their psychological issues, and therefore LOE benefits were not in order, the ARO did not specifically address the LOE issue in their decision to deny entitlement to benefits for a psychotraumatic disability. A final decision on whether the psychological condition was the reason for the absence has not been made. I have jurisdiction to address this issue.

WSIB Operational Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers who experience a wage loss due to the work-related injury may be entitled to LOE benefits. Regarding the payment of full LOE benefits, the policy 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 (RTW) process.

This worker has entitlement to benefits for a low back injury sustained on June 18, 2019. It was accepted that they have a permanent impairment as a result of this injury. They were assessed with a 22 percent Non-economic Loss (NEL).

The worker received full LOE benefits for some periods after the date of injury. Partial LOE benefits were paid from October 18, 2019 to January 4, 2020 while the worker participated in a work reintegration (WR) program with the accident employer.

The worker went off work again on or around July 19, 2020. The worker representative states that the worker is totally disabled and cannot return to work.

The medical evidence does not support the worker representative’s position that the worker was totally disabled due to their compensable low back injury as of July 19, 2020 and unable to work. The evidence supports that the worker stopped working due to their non-compensable psychological condition.

In May 2020, the worker told the Return to Work Specialist (RTWS) that they were managing fine with the modified work plan. They had recently moved an hour away from the employer, and said that the commute was difficult given their low back injury. The worker did later raise some concerns about their WR program. They said that they were having to perform heavy lifting tasks. The RTWS discussed this with the employer. There was some confusion about the duration of the restrictions due to a disruption in the medical evaluations due to the pandemic.

On July 9, 2020, the RTWS met with the workplace parties. The employer indicated that they could accommodate the worker’s restrictions by allowing them to work as a customer pick-up attendant. The RTWS assessed that this position was suitable for the worker and consistent with the restrictions for their low back injury. Policy 19-02-07 RTW Overview and Key Concepts defines “suitable work” as follows:

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.

On July 15, 2020, the Back and Neck Specialty Program reported that the worker’s low back condition was improving with treatment. The worker said that they were moving better. They said that following the July 9, 2020 WR meeting, they were managing much better in the workplace. The worker’s prognosis was good.

When the worker went off work as of July 19, 2020, they did not state that it was due to a change in their low back condition or issues with the WR plan. They did not request intervention from the RTWS. They reportedly told their employer that they were unable to work due to non-compensable mental health issues. This is what was indicated in the medical reporting from the time as well.

The worker had a telephone consultation with their family doctor (FD) on July 21, 2020 for their mental health issues. The FD advised the worker to take time off work. On July 31, 2020, the worker told their FD that they were unable to manage their psychological issues and wanted to take time off work. The FD completed an insurance form on August 14, 2020 on which they indicated that the worker was unable to work due to depression.

The Specialty Program reported on August 10, 2020 that the worker said they had gone off work for three months “for reasons not related to this injury.” They had also stopped attending the rehabilitation program for their back injury “for personal reasons.” They last attended on July 20, 2020. As a result, their prognosis for recovery was downgraded. The Specialty Program continued to state that the worker was partially disabled in terms of the work-related injury, and fit to perform suitable work.

During a telephone consultation with the FD on October 7, 2020, the worker said that they remained depressed and continued to have back pain. The worker said that they were not ambulating well and did not feel they could work. There are no clinical findings for the low back that would support that the condition had deteriorated as the FD did not see the worker in person.

The worker saw their FD in person on October 27, 2020. They said that their mood had improved. They reported having back pain that limited the chores they could do around the house. They expressed a willingness to return to work. The FD cleared them to return to the modified work duties on

November 2, 2020. The Functional Abilities Form (FAF) completed by the FD on this date indicates that the worker had a setback and needed lighter job duties. It is unclear what could have caused the worker’s low back condition to worsen since they had not worked since July 19, 2020.

It is evident that the worker stopped working as of July 19, 2020 due to non-compensable psychological issues. There is no clinical evidence to support that there had been a significant worsening in the worker’s compensable low back condition that rendered them totally disabled as of this date. The employer continued to be willing and able to accommodate the worker’s low back restrictions.

The worker reportedly worked for a few hours on November 3, 2020 and then went off again.

The physiotherapist submitted a report on November 4, 2020 in which they stated that the worker was reportedly “off work for reasons outside of low back injury.”

The worker completed another insurance claim form on November 5, 2020. They indicated on this form that they were unable to work due to depression. The low back injury is not mentioned on the form. On the claim form completed by the FD on November 11, 2020, they indicated that the psychological issues were the primary reason for the worker’s absence from the workplace.

The FD completed another insurance form on December 4, 2020 indicating that the worker was unable to work due to depression that began July 21, 2020. The worker was not said to be unable to work due to the compensable low back condition.

The worker was reassessed at the Specialty Program on December 7, 2020. The worker reported that they had been off work since July 2020 due to mental health issues. They said that they were on

short-term disability benefits and were planning on moving to long-term disability benefits. They reported that their back pain had increased and they had stopped performing their home exercise program. Range of motion (ROM) of the worker’s lumbar spine was significantly reduced when compared to the previous assessment. The reasons for this are unclear. A return to treatment was expected to bring improvement. The worker remained fit to work in terms of their low back impairment.

When the worker was reassessed again on February 23, 2021, they reported that their back condition had improved with treatment, but it was still worse than it had been prior to August 2020. They had two cortisone injections that did not help. The report states, “The client has not returned to work since the injury. [They report they] will be going on long term disability due to mental health issues. [They do] not plan to return to work.” In terms of the low back impairment, the worker remained fit to work with restrictions on prolonged sitting, standing and walking greater than 30 minutes, and heavy lifting over 35 pounds on an occasional basis.

The medical evidence does not support the worker representative’s position that the worker was totally disabled as a result of the compensable low back injury after July 19, 2020 and unable to work. When the worker stopped working, it was clearly due to their non-compensable psychological issues. This was what the worker reported to the employer and on their insurance claim forms, and what they told the various health care professionals treating their low back condition. The orthopaedic surgeon at the Specialty Program continued to express that the worker remained fit to perform suitable work within the restrictions for their low back condition.

The work that was available to the worker was determined to be suitable by the RTWS following the July 9, 2020 meeting. The worker told the Specialty Program that they were managing fine before they went off work. I note that there was some question as to whether the employer would be able to accommodate the worker’s low back impairment on an ongoing basis. However, they had done so for a year. It cannot be said definitely what would have happened had the worker not had to stop working due to non-compensable health concerns. With further intervention, a sustainable or permanent position with the employer could have been identified. It appears as though the worker did not plan to return to work with the accident employer, having moved away from the area and informed the Specialty Program in February 2021 that they did not intend to return to work.

As the worker’s wage loss after July 19, 2020 was not due to the compensable low back injury, they are not entitled to LOE benefits.

CONCLUSION

The worker is not entitled to LOE benefits from July 19, 2020 onward. The objection is denied.

DATED August 4, 2023

C. Marr

Appeals Resolution Officer Appeals Services Division