DECISION NUMBER:
20230128
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
WORKER – NOT PARTICIPATING
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
S. JOHNSON, APPEALS RESOLUTION OFFICER
OCTOBER 18, 2023
ISSUE
The employer objects to the Eligibility Adjudicator’s decision letter dated January 27, 2023 that allowed entitlement to full loss of earnings (LOE) benefits from January 9, 2023 to January 23, 2023.
BACKGROUND
On January 6, 2023, this truck driver was ascending the stairs when their left boot jammed into the holes. In the course of this event, the worker’s right foot slid down the steps and their left instep bent backwards.
The worker received first medical treatment at the Hospital X on January 7, 2023. In the Hospital X Emergency Department Report dated January 7, 2023, the attending emergency physician provided the diagnosis of a left foot sprain.
Conservative medical treatment was prescribed that included rest, ice, compression and elevate the left foot. The worker was using crutches to ambulate.
The Eligibility Adjudicator allowed initial entitlement for a left foot sprain injury.
In a letter dated January 9, 2023, the employer offered the worker sedentary modified work that allowed for position change and rest breaks as required. The employer extended the worker the opportunity to receive taxi service to and from home until they were able to drive.
On January 25, 2023, the worker officially resigned from employment with the employer.
In a decision letter dated January 27, 2023, the Eligibility Adjudicator allowed entitlement to the payment of full LOE benefits from January 9, 2023 to January 23, 2023 as it was concluded the worker was totally disabled and unfit to return to any type of work due to their left foot sprain injury.
This is the issue for determination.
AUTHORITY
Operational Policy Manual
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 entitlement to full LOE benefits from January 9, 2023 to January 23, 2023 is allowed.
The Operational Policy Manual (OPM) Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – 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 process.
The OPM Document No. 19-02-07 – RTW Overview and Key Concepts – states suitable work is 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. Safe work is defined as follow:
Safe
The following factors should be considered when determining whether post-injury work is safe:
The work does not pose a health or safety risk to the worker (e.g., should not cause re-injury or a new injury either physically or psychologically), to co- workers, or to third parties.
The work is performed at a worksite that is covered by either the Occupational Health and Safety Act or the Canada Labour Code. If a worksite is not covered under these provisions, the workplace parties must satisfy the WSIB that they have taken appropriate steps to ensure that the workplace is safe (e.g., a worker’s permanent residence for work at home arrangements), and
The worker has the functional ability to travel safely to and from the proposed worksite. To determine the worker's ability to travel safely, the following factors should be considered:
whether the worker's work-related injury/disease restricts their capability for safe travel, and
whether the mode of transportation the worker is required to use to travel to the proposed worksite poses a health or safety risk to them or to the general public.
Workers and injury employers are encouraged to jointly resolve expense issues relating to travel to work wherever possible. The basic premise is that workers should not incur additional travel expenses because the work-related injury/disease temporarily dictates a particular mode of travel.
Employer Representative Submission:
In a submission dated July 27, 2023, the employer representative prepared a chronological review of the evidence documented to the case record (pages 2-4). The essence of the employer representative’s position is the weight of the medical evidence does not support the worker’s left foot sprain injury rendered them totally disabled and unfit to return to the sedentary modified work duties offered and made available on January 9, 2023 at no wage loss. It was pointed out the worker had mild left foot swelling that is not significant enough to warrant a level of total disability.
It was submitted the worker was fit to perform the sedentary office duties with the ability to take breaks as required and the provision of transportation to and from the workplace. They could sit and work at their own pace and adjust body positions as required.
Based on the above, the employer representative requests the rescission of LOE benefits from January 9, 2023 to January 23, 2023.
Worker Participation:
The worker is not participating in the employer’s appeal.
In a letter dated March 16, 2023, the worker was advised of the employer’s intention to appeal the decision letter dated January 27, 2023 at the Appeals Services Division. The worker was instructed to complete and return the Worker Participant Form to the WSIB within 30 days if they intend to participate in the Appeals Services Division process or not.
The Worker Participant Form was not completed and returned to the WSIB at the time I received the employer’s appeal for my review and determination.
Findings:
I agree with the employer representative’s position the weight of the medical evidence does not support the worker was totally disabled and unfit to return to any type of work beyond January 9, 2023. In coming to this conclusion, I relied on the following contemporaneous medical reporting documents:
In the Hospital X Emergency Department Report dated January 7, 2023, the attending emergency physician documented swelling on the dorsal aspect of the left mid-foot with normal left ankle range of motion. Left ankle x-rays were reviewed and observed normal findings with no convincing fracture, malalignment or acute/aggressive osseous process of the left ankle or left foot.
In the clinic chart note dated January 13, 2023, the physician documented the worker was in no acute distress, well appearing and mild swelling at the top of the left foot. The worker was using crutches to ambulate. The physician filled out WSIB forms and advised the worker to follow-up with the specialist.
In the Health Professional’s Report (Form 8) dated January 13, 2023, the physician documented the worker was able to bend, twist, lift, operate heavy equipment, operate a motor vehicle, push, pull, sit, stand, use public transportation and use their upper extremities. They were unable to climb, kneel or walk due to pain.
There is a complete absence of medical evidence submitted to the case record beyond January 13, 2023. In resolving this matter, I relied on the worker’s evidence. In a telephone
conversation with the Case Manager on February 1, 2023, the worker confirmed they did not attend any treatment and they achieved a full recovery from their left foot sprain.
I acknowledge the worker’s expressed concerns regarding their left foot pain while ambulating. Despite these concerns, the physician documented the worker was still able to bend, twist, lift, operate heavy equipment, operate a motor vehicle, push, pull, sit, stand, use public transportation and use their upper extremities at the time of the clinic follow-up visit on January 13, 2023. I am of the view the worker’s functional abilities does not support they were totally disabled and completely incapable of returning to some type of work due to their left foot sprain injury with mild swelling.
The fundamental issue to be resolved is whether the modified sedentary work duties were suitable in the context of the the OPM Document No. 19-02-07 – RTW Overview and Key Concepts – previously summarized on pages two to three of this decision. I find the threshold criteria in this policy has not been met. The sedentary office duties were not safe and posed a health and safety risk of re-injury to the worker. In reaching this finding, I relied on the worker’s evidence that described ambulating with crutches, their inability to wear proper footwear during the winter months to travel to and from the worksite and the inability to navigate stairs and buildings to access the rest rooms and work space locations. I have taken particular note of the worker’s evidence documented to the case record and summarized below:
They were unable to put on shoes due to the left foot swelling.
They required the use of crutches to ambulate.
The work area was in the lunchroom of the work container that required climbing up four steps.
The rest rooms were located in the main building away from the work area that required them to go outside and down the four steps.
I find the above factors placed this worker at risk for further re-injury attempting to navigate the work container and main building to access the rest rooms during the winter months while wearing slides/crocs and using crutches to ambulate. Simply put, the worker was unable to wear proper footgear and place weight onto the left foot region until January 23, 2023. The employer representative did not provide any information or additional evidence to rebut this finding. There is nothing documented to the case record to suggest alternative suitable work duties were offered to the worker to remove the barrier regarding their ability to safely ambulate with the use of crutches and their inability to don proper protective footwear during the period in dispute from January 9, 2023 to January 23, 2023.
I accept this employer fulfilled their obligations in the return-to-work process. They provided the worker with an offer of a return to sedentary office duties on January 9, 2023. However, I find the nature and characteristics of the sedentary office duties is unsuitable, as it was unsafe and placed the worker at risk for re-injury. The worker was unable to don appropriate footwear due to left foot swelling and at risk for further re-injury while attempting to navigate outdoors between the work container and the building to access the rest room. They also had to negotiate stairs with the assistance of crutches to walk from the work container to the building during the winter season.
Based on the above, I find the worker is entitled to the payment of full LOE benefits from January 9, 2023 to January 23, 2023 as the threshold criteria in the OPM Document No. 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) – has been established. I have determined the sedentary office duties were not safe and there is no evidence to support the employer provided the worker with an offer of alternate suitable work duties.
CONCLUSION
I conclude entitlement to full LOE benefits from January 9, 2023 to January 23, 2023 is allowed. The employer’s objection is denied.
DATED October 18, 2023
S. Johnson
Appeals Resolution Officer Appeals Services Division