APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240011
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer
REPRESENTED by: self
HEARING: HEARING IN WRITING
HEARD by: l. mansueti, appeals resolution officer
DATED: DECEMBER 13, 2023
ISSUES
The worker objects to the Occupational Disease and Survivor Benefits (OD&SB) Adjudicator decision dated December 21, 2021:
Denying the payment of partial loss of earnings (LOE) benefits from July 7, 2021 to September 29, 2021, and
Confirming they reached maximum medical recovery (MMR) for their COVID-19 infection, with no evidence of a permanent impairment (PI).
BACKGROUND
On December 4, 2020, the worker developed a cough consistent with a COVID-19 infection following a workplace outbreak. The worker tested positive for a COVID-19 infection on December 10, 2020, and they reported it to their employer the same day. The worker was working as a Postal Clerk, and they had worked with the employer for approximately 1 month. A document submitted by the employer confirmed a countersignature for this claim.
As per the decision letter dated December 22, 2020, initial entitlement was granted for a COVID-19 infection for health care and LOE benefits. Secondary entitlement was granted for a pulmonary embolism as well as deconditioning to the neck and shoulders secondary to a COVID-19 infection. The worker received full LOE benefits from December 6, 2020 to April 5, 2021 inclusive. The worker returned to work with the employer on or about April 6, 2021, performing modified duties, 4 hours per shift.
A WSIB Return-to-Work (RTW) Specialist met with the parties on May 19, 2021, and it was agreed the worker would continue to work in a modified capacity at reduced hours. The worker continued to gradually increase to full-time hours by September 29, 2021; and they resumed their regular duties and hours on October 3, 2021. The medical evidence submitted to the record indicated the worker had a right shoulder partial tear.
The decision letter dated December 21, 2021 communicated an Occupational Medical Consultant (OMC) medical opinion was obtained, and it was determined:
The right shoulder tear is not compatible with the worker’s COVID-19 infection
The left shoulder rotator cuff tendinopathy is not a responsibility of this claim
The worker demonstrated significant improvement by July 6, 2021
The decision letter communicated partial LOE benefits were in order from April 6, 2021 to July 6, 2021 inclusive; there is no entitlement to partial LOE benefits from July 7, 2021 to September 29, 2021 inclusive; and the worker was determined to have reached MMR for their COVID-19 infection on July 6, 2021, with no evidence of a PI.
The worker objected to the decision dated December 21, 2021, specifically, the denial of partial LOE benefits from July 6, 2021 to September 29, 2021, and the determination they reached MMR on July 6, 2021 for their COVID-19 infection, with no evidence of a PI. These are now the issues before the Appeals Services Division (ASD).
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
11-01-05 Determining Permanent Impairment
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
November 3, 2014
April 9, 2021 and September 29, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker is entitled to partial LOE benefits from July 7, 2021 to September 29, 2021, and I find they reached MMR on October 3, 2021, with no evidence of a PI.
Review of the Evidence
The record contains the worker’s positive COVID-19 test result dated December 10, 2020. The worker sought emergency medical attention on December 15, 2020, as they developed sharp left sided flank and chest pain on deep inspiration. A computer tomography (CT) scan dated December 15, 2020, showed evidence of pulmonary embolus. The worker returned to hospital emergency on December 19, 2020 as they were experiencing chest pain, and they were referred to the Thrombosis Clinic.
Dr. C. Hou, Hematologist at the Thrombosis Clinic, submitted a report dated December 29, 2020, indicating the worker was diagnosed with blood clots in the context of a COVID-19 infection, for which ongoing treatment and follow-up was required. The worker was advised to remain off work for several weeks. Dr. Hou’s consultation report indicated the worker was diagnosed with bilateral pulmonary embolism (PE), provoked by their COVID-19 infection. The worker’s medication regimen included apixaban and Tylenol.
Dr. D. Harrison, Cardiologist, assessed the worker on January 28, 2021 via telephone consultation. The worker was referred for a cardiology assessment, as they were experiencing palpitation following a COVID-19 infection. The report indicated the worker developed left sided chest pain with dyspnea, and they were experiencing general fatigue and low energy.
On February 10, 2021, Dr. Dr. V. Kubazky, the worker’s primary care physician, assessed the worker. The chart note for this visit indicated the worker presented with right shoulder pain all the way down to the elbow. The chart note dated February 24, 2021, indicated the worker continued to complain of right shoulder pain. The worker was recommended to engage in physiotherapy for right shoulder and neck pain.
Dr. Harrison reassessed the worker on March 10, 2021. The report indicated the worker continued to experience generalized fatigue and shortness of breath. The worker’s strong palpitation was noted to be consistent with premature ventricular complexes. Dr. Harrison indicated the worker’s mild exertional dyspnea was thought to be a consequence of the recent COVID-19 infection and pulmonary embolism; however, the lab work showed evidence of significant dyslipidemia. A stress test was ordered to rule out possible ischemia.
On March 15, 2021, Dr. Hou submitted a report indicating the worker was recommended to engage in a graduated RTW plan, starting with 4 hours per day, effective April 4, 2021, with consideration of increasing hours as tolerated. Dr. Hou’s consultation report dated March 15, 2021, indicated the worker was feeling significantly improved. They reported their cough was 99 per cent gone. The worker indicated they continued to feel fatigued and short of breath after jogging a short distance. They stated they had some generalized aches and pains in their shoulders and neck, as well as joint pain in their lower extremities. Dr. Hou indicated they would continue to monitor the worker on anticoagulation medication for an additional 3 months. Dr. Hou indicated the worker’s joint aches and pains may simply be in keeping with deconditioning. Dr. Hou did not believe it was related to their underlying venous thromboembolism (VTE) or as a side effect of the apixaban.
Dr. Kubazky submitted a script note dated March 17, 2021, stating the worker was prescribed physiotherapy for their right shoulder and neck pain. The chart note for this visit indicated the worker was experiencing pulling on their neck and shoulder. The record contains a right shoulder x-ray dated March 19, 2021, indicating there were no significant arthritic changes or evidence of a fracture. A right shoulder ultrasound showed evidence of a tendinosis with a partial thickness subacute insertional tear at the footplate.
As enumerated in memorandum A dated March 24, 2021, secondary entitlement was granted for pulmonary embolism.
On or about April 6, 2021, the worker returned to work with the employer performing modified duties at reduced hours. M. Francisco, Physiotherapist, submitted a Health Professional’s Report (Form 8) dated April 9, 2021, indicating the worker was diagnosed with a cervical and right shoulder sprain/strain. The record indicated a course of physiotherapy was approved by the operating area from April 9, 2021 to May 21, 2021, as per memorandum B. It was noted temporary secondary entitlement was granted for the shoulders and neck on the basis the worker was determined to be deconditioned due to their COVID-19 infection, as documented in memorandum C.
M. Francisco submitted a Physiotherapy Treatment Extension Request form dated May 11, 2021, seeking approval for treatment until July 5, 2021.
On May 13, 2021, Dr. Harrison reassessed the worker. The worker presented with occasional palpitation, fatigue, and exertional dyspnea, which was likely secondary to the pulmonary embolism. The report indicated the worker was working part-time hours due to fatigue. The worker’s strong palpitation was noted to be consistent with premature ventricular complexes, which were seen on Holter. There was no evidence of ischemia on the stress test. The worker’s fatigue was determined to be a late consequence of the COVID-19 infection, and not a primary cardiac limitation. Medication was not recommended for their occasional premature ventricular complexes.
A RTW Specialist met with the parties on May 19, 2021. It was agreed the worker would continue performing modified duties involving bag sorting, working 4 hours per shift. M. Francisco submitted Functional Abilities Forms (FAFs) dated April 30, 2021 and June 3, 2021, indicating the worker had restrictions in keeping with their neck and right shoulder. The worker was recommended to maintain their current modified hours. The worker continued working their modified duties, 4 hours per shift. The operating area determined further physiotherapy would not be approved, as a decision regarding the right shoulder tear was pending, as documented in memorandum E dated May 31, 2021.
As documented in memorandum D dated May 28, 2021, the RTW Specialist spoke with the worker’s physiotherapist, and they indicated the worker could not advance in their functional abilities until further medical assessment was completed. The Physiotherapist was of the view the worker’s current restrictions should be maintained. The RTW Specialist then spoke with the worker, who indicated they were comfortable continuing with modified duties and they felt they were able to complete tasks with ease. The RTW Specialist then contacted the employer, and advised the operating area was awaiting medical evidence to rule on an ongoing impairment with their neck and shoulder, and indicated the worker’s functional abilities would remain unchanged until a decision is rendered.
A RTW Specialist meeting scheduled for June 2, 2021 was rescheduled for June 21, 2021 on the basis further entitlement for the neck and shoulder was not yet determined. The RTW Specialist contacted the employer on June 2, 2021, to advise the worker’s modified hours and duties would remain unchanged in the interim.
On June 15, 2021, Dr. Hou indicated they did not have any concerns with the worker returning to work at full capacity. There was indication the worker had some musculoskeletal pain, and they would benefit from physiotherapy or chiropractic treatment.
As documented in memorandum F dated June 22, 2021, the worker advised the RTW Specialist they were willing to increase their hours at work in a few weeks time. It was noted an entitlement decision regarding the shoulder and neck remained outstanding. The RTW Specialist closed RTW services, as there was no information available to assist in further RTW planning.
A chart note from Dr. Kubazky dated July 6, 2021, indicated the worker was experiencing neck and shoulder pain. The worker indicated they wanted to return to work. A chart note dated August 17, 2021, indicated the worker wanted to gradually increase their hours at work. The worker reported the physiotherapy treatment was helpful in addressing their neck and shoulder symptoms. Dr. Kubazky submitted a script note dated August 17, 2021, indicating the worker was able to work 5 hours per shift for 2 weeks, and then increase to 6 hours per shift.
Dr. Harrison reassessed the worker on August 24, 2021. The report indicated that while the worker continued to have occasional palpitations, their symptoms were improving overall. Dr. Harrison did not recommend any additional cardiac investigations, and the worker was discharged from care.
The record indicated the worker resumed full hours on September 29, 2021, and they resumed full regular duties and hours on October 3, 2021.
On December 16, 2021, Dr. Y.M. Markus, OMC, reviewed the record and provided an opinion with respect to this case. It must be noted Dr. Markus did not assess or treat the worker at any time. The OMC determined the following:
The tear to the right shoulder is not compatible with COVID-19.
Based on my review, the worker demonstrated significant improvement by July 6, 2021. The need for graduated hours is not supported by medical evidence after this date.
The worker’s level of impairment does not support such a prolonged RTW plan.
Dr. Kubazky submitted a script note dated January 20, 2022, indicating the development of the worker’s right shoulder pain which was suspected to be related to the their COVID-19 infection. Therefore, the worker’s entitlement ought to be extended to include their disability for COVID-19 up until September 29, 2021.
1. Partial LOE Benefit Entitlement – July 7, 2021 to September 29, 2021
The worker representative submitted the worker reported having neck and shoulder pain to their treating health care professionals, which was determined to be related to their COVID-19 infection as confirmed by Dr. Kubazky’s January 2022 note. In addition, the worker representative advanced the worker made efforts to increase their hours at work on a gradual and safe basis, as to avoid further injury. It was noted the worker continued to follow the advice of their health care professionals to maintain working reduced hours. The employer is of the position the decision to limit the worker’s partial LOE benefit entitlement is well supported by the clinical evidence in the record, and it is confirmed by the OMC.
Operational policy 18-03-02 states, in part:
Partial LOE
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 review of the facts of this case, the worker had returned to suitable modified work with the employer on or about April 6, 2021 working partial hours. At the time, the worker was recovering from post-COVID-19 infection complications in keeping with generalized fatigue, shortness of breath, a pulmonary embolism, as well as shoulder and neck pain. The operating area accepted entitlement for the pulmonary embolism and deconditioning of the neck and shoulders. A right shoulder ultrasound dated March 19, 2021, confirmed the presence of a partial thickness tear. A decision regarding entitlement for the right shoulder tear remained outstanding as additional medical evidence was being secured. In the interim, the RTW Specialist and the workplace parties (WPP) agreed at the May 19, 2021 meeting that the worker would continue performing modified duties, working 4 hours per shift. The RTW Specialist remained in contact with the WPP, and maintained the worker’s modified hours and duties would remain unchanged until an entitlement decision is rendered with respect to the right shoulder tear. Of particular note is memorandum F dated June 22, 2021, wherein the RTW Specialist contacted the WPP. The RTW Specialist documented:
Advised [the worker] he should continue to work with his employer as previously noted in plan and that his Adjudicator would be in touch related to entitlement decision once medical received.
Discussion with [the employer] on 22Jun2021 and advised the CM is continuing to seek medical to determine ongoing entitlement to shoulder and neck claim. Advised that at this time, I am unable to advance hours or duties in plan as noted above and as such would be closing RTW services until the CM clarifies entitlement to shoulder/neck under claim. [The employer] confirms work remains available and [the employer] can continue to accommodate 4 hours per shift and modified work.
The evidence supports the worker continued to work their modified work duties at reduced hours as directed by the RTW Specialist. The worker continued to participate in health care treatment, and gradually worked toward increasing their hours at work until they eventually full regular duties and hours on October 3, 2021.
I acknowledge Dr. Markus opined the worker demonstrated significant improvement by July 6, 2021, and the medical evidence did not appear to support the need for graduated hours after this date. While I appreciate the OMC’s opinion on this point, I must consider all of the facts and circumstances in rendering this decision. In review of this case, I have placed significant weight on the fact the RTW Specialist informed the WPP the worker’s modified work schedule ought to be maintained until a decision regarding the right shoulder was rendered. I find it would be unreasonable to expect the worker to have resumed full regular hours on July 6, 2021, when they were clearly and specifically advised by the RTW Specialist to continue working 4-hour shifts on June 22, 2021. It is also noted the employer was in agreement with the RTW plan to continue offering modified work at 4 hours per shift; therefore, I do not accept the worker’s partial LOE benefit entitlement should end on July 6, 2021.
I accept Dr. Markus’ opinion in that the worker was making significant gains in their recovery by July 6, 2021, and the subsequent medical evidence supports they were interested in increasing their hours at work with the support and guidance of Dr. Kubazky. While it may be argued the worker’s ongoing recovery issues were stemming from their non-compensable right shoulder tear, I disagree with this view. I find the worker’s ongoing recovery barriers were likely in keeping with their deconditioned post-COVID-19 infection neck and right shoulder symptoms, for which entitlement was granted. Whether or not the worker has a right shoulder tear does not negate their neck and shoulder symptomology and its impact on their recovery and ability to return to work.
In summation, I accept the worker received direction from the RTW Specialist to continue to work their modified work schedule at reduced hours until the CM rendered a right shoulder entitlement decision. On their own volition, the worker gradually increased their hours at work under the guidance of Dr. Kubazky, and resumed regular hours on September 29, 2021. Based on the foregoing, I find the worker is entitled to partial LOE benefits from July 7, 2021 to September 29, 2021.
2. MMR/PI
As enumerated in operational policy 11-01-05:
A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached.
A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
The policy indicates MMR means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease. A PI means an impairment that continues to exist after the worker reaches MMR.
As per the Intent to Object (ITO) form, it appears the worker is contesting the denial of PI for their COVID-19 infection; however, there are no arguments pertaining to this issue in the worker representative’s submission. The employer representative submitted the worker’s MMR date ought to remain unchanged.
In review of the evidence before me, I find the worker fully recovered from their COVID-19 infection and associated complications on October 3, 2021, the date they resumed full regular duties at full-time hours. I find there is no evidence to support the worker has an ongoing impairment as related to their COVID-19 infection; as such, MMR has been reached on October 3, 2021, with no evidence of a PI.
CONCLUSION
I conclude:
The worker is entitled to partial LOE benefits from July 7, 2021 to September 29, 2021.
The worker reached MMR for their COVID-19 infection on October 3, 2021, with no evidence of a PI.
The worker’s objection is allowed in part.
DATED December 13, 2023
L. Mansueti
Appeals Resolution Officer
Appeals Services Division