DECISION NUMBER:

20230067

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

SELF

HEARING:

VIDEOCONFERENCE – APRIL 25, 2023

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

DATED:

APRIL 28, 2023

ISSUES

The worker, through their representative, is objecting to the following:

1. The Case Manager’s decision of April 19, 2022 denying entitlement to ongoing loss of earnings (LOE) benefits as of April 8, 2022;

2. The Case Manager’s decision dated July 22, 2022 determining that there has not been a breach of the employer’s re-employment obligation; and,

3. The Case Manager’s decision of August 31, 2022 determining that maximum medical recovery (MMR) was achieved on July 12, 2022 with no ongoing work-related impairment.

BACKGROUND

On February 9, 2022, the worker was performing their assigned labourer duties involving a 100-foot long and 9.5 feet in diameter steel pipe. As the worker walked out of the pipe, their footing gave away, causing them to fall onto their left side and twisting the left shoulder backwards and up. A Workplace Safety and Insurance Board (WSIB) decision letter dated February 14, 2022 allowed initial entitlement to health care benefits and LOE benefits for the neck and left shoulder. The employer subsequently ended the employment relationship maintaining that there was a layoff due to a work shortage.

A Case Manager’s decision letter dated April 5, 2022 confirmed that entitlement had previously been granted for sprain/strain injuries of the low back, neck and the left shoulder. The Case Manager authorized entitlement to a left shoulder partial thickness tear of the supraspinatus that measured less than 2 x 2 millimetres. The decision letter of April 19, 2022 denied entitlement to LOE benefits as of April 8, 2022 as the project the worker was hired for had finished. The Case Manager’s decision letter dated July 22, 2022 determined that the worker was fit to perform pre-injury accommodated work as of May 18, 2022. The Case Manager accepted that the employer intended to re-employ the worker once a

position became available and that the layoff was unrelated to the work injury or claim for benefits. The decision letter stated that the employer was prepared to re-employ the worker on a new site but that the worker declined to participate.

The employer issued a letter to the worker on August 24, 2022 requesting a reply in writing by September 15, 2022 if the worker wished to discuss returning to employment with them. The Case Manager’s decision letter dated August 31, 2022 determined that the worker’s low back issue was not work-related. The Case Manager denied entitlement to further health care benefits or LOE benefits from the accepted MMR date of July 12, 2022. The administrative decision of January 4, 2023 determined that the worker’s objections to the decision letters of April 19, 2022, July 22, 2022 and August 31, 2022 would be resolved by an oral hearing. The issues are now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

11-01-05 Determining Permanent Impairment

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

19-05-02 Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements

19-05-03 Compliance with the Re-employment Obligation - Construction Industry

November 3, 2008

November 3, 2014

September 1, 2021

April 9, 2021

April 9, 2021

January 2, 2015

ANALYSIS

I find that LOE benefits are in order from April 8, 2022 until the workplace injuries fully recovered as of the MMR date of July 12, 2022. I further find that there is no entitlement to the claimed disc herniations and that the employer is not in breach of their re-employment obligation. My reasons for these findings are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

The worker representative maintains that the employer did not have any modified duties available for the worker and that there is no evidence of attempting to identify any modified duties. In the view of the worker representative, the worker experienced a significant trauma involving a tear of the left shoulder rotator cuff as well as herniated discs identified by MRI. The argument is made that there is a difference between the worker attending a concert and dancing on April 2, 2022, and performing construction work. In the view of the worker representative, there is no evidence to suggest that the worker required modified duties or was otherwise impaired by a pre-existing condition prior to the workplace injury.

It is submitted that in the clear absence of light duties, entitlement to LOE benefits is in order until the worker was able to secure employment on their own in trucking with certain accommodations. The worker representative requests a determination that MMR has not been reached, and entitlement is in order for the herniated discs, with LOE benefits from April 8, 2022 until the worker returned to work. In addition, the worker representative requests that there be further investigations to determine if there is

entitlement to partial LOE benefits for any potential wage difference between the accident earnings and the worker’s current actual earnings.

Employer’s position

It is the employer’s position that the case record contains evidence showing greater functional abilities being demonstrated by the worker than what is documented within the Functional Abilities Form completed on March 15, 2022. The employer also maintains that the chiropractor documents treating the areas of the neck, shoulder, and lower back prior to February 9, 2022.

With respect to the issue of re-employment, the employer cites documentation within the case record of there being a good relationship with the worker. In the employer’s view, the relationship changed once the construction project ended. The employer describes themselves as being very small and maintains that there is agreement that modified duties had not been available due to the nature of the work.

However, the employer argues that on May 18, 2022 the worker chose not to discuss return-to-work plans and that the only job available in XX would have been offered to the worker had they participated. The employer also states that the worker was paid for travel to and from the worksite.

Worker’s testimony

The worker explains that their pre-accident health was perfectly fine. Within testimony, the worker describes only having a prior workplace injury involving a concussion. While the worker received treatment for other areas of injury, this was as a preventative measure. In reference to the evidence showing them dancing at a concert on April 2, 2022, the worker indicates that it was a poor choice, that some alcohol was involved, and that they were immobile for the next few days.

The worker verifies that they were hired on a temporary contract helping to put in storm drains that was expected to take six weeks, although it went longer due to delays. On the day of injury, the worker fell with their arm twisted back and up. Although they struck their head, there was no concussion as they were wearing a hard hat. By the next morning, the worker could not turn their neck. After approximately one week, the worker began to notice pain in their lower back and having difficulties bending and twisting. Given the increasing low back pain with physiotherapy, the worker was referred for a MRI scan of the lower back which identified two herniated discs.

It is the worker’s testimony that they were unable to return to work until September 2022 due to low back mobility issues. The worker describes having difficulties with bending, twisting, standing, driving, and being in prolonged positions. According to the worker, they do not recall being offered any light duties and thought that the Record of Employment issued by the employer was for tax purposes only. The worker explains that they never went back to work with the employer and instead starting looking for work in late August 2022 to early September 2022 at which point they obtained employment in trucking with a new employer who provides them with a flexible schedule but fewer hours than their pre-accident employment pattern.

The worker describes continuing to have problems with mobility and pain, as well as occasional locking of the lower back. At times, the worker spends weekends stuck in bed as they cannot move. The worker indicates that they mainly self-fund treatment, has had cortisone shots, and continues to perform a home exercise program.

1. Ongoing loss of earnings benefits as of April 8, 2022

I accept that entitlement to LOE benefits are in order beyond the end of the contract on April 8, 2022 up to July 12, 2022 (non-inclusive). The employer states that the temporary project ended on April 8, 2022 and that the other employees moved on to different jobs. The worker’s testimony confirms that they continued to participate in the authorized treatment until the determined MMR date of July 12, 2022.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), requires the wage loss to be as a result of the work-related injury. Full LOE benefits may be in order if the work-related injury prevents a return to any type of work or if suitable duties are not available within the worker’s functional abilities. Entitlement to partial LOE benefits may be in order if the worker is able to safely perform suitable duties at partial hours or for less than pre-injury earnings.

Briefly, I accept that there is general agreement that the worker was hired for a temporary contract that essentially ended on April 8, 2022. As I will explain in more detail below, I find that the work-related injuries reached MMR with no ongoing impairment as of July 12, 2022. I observe that the Clinical Expert authorized an extension of treatment for the lower back from May 5, 2022 to June 2, 2022 while a Nurse Consultant then approved a further extension until July 12, 2022.

Policy 19-02-07, RTW Overview and Key Concepts, defines suitable work in part as post-injury work that is safe, productive and is consistent with the worker’s functional abilities. I acknowledge the employer’s argument that the Functional Abilities Form of March 15, 2022 lists restrictions while the short video clip on file shows the worker dancing on April 2, 2022. Nevertheless, I note that the Functional Abilities Form lists the ability to stand and walk for 30 minutes and sit for 60 minutes, with a restriction of non-repetitive lifting within certain weight limitations. According to the employer, the drive to the concert would be approximately 30 minutes each way. Further, I find that the very short video does not show the worker lifting, repetitively bending, or performing any other physical activity that is beyond the abilities listed within the form. For this reason, I find that the video is not a significant piece of evidence when determining the worker’s functional abilities.

Turning to the medical evidence dating after April 8, 2022, I observe that the treatment discharge report for the shoulder dated May 3, 2022 identifies ongoing limitations as tolerated for lifting and overhead activities, as well as pushing and pulling with the left arm. The Clinical Expert’s review of May 5, 2022 identifies ongoing low back weakness with bending and lifting. On that date the treating physiotherapist provides an opinion that the worker has had an 80% recovery of the low back injury.

Again, there is general agreement that there were no modified duties at the temporary contract site. The employer states that they could not offer light office duties as they do not actually have an office. I am aware that the employer had another job located in XX from April 20, 2022 to June 3, 2022. However, both the worker and employer appear to agree that this site is quite far from the worker’s home at an estimated 2.5 to 3 hours each way. In my view, such a commute would not be suitable given the worker’s ongoing lower back restrictions.

In summary, I accept that the worker was not fit to resume pre-accident duties at the end of the temporary contract on April 8, 2022. Further, I find that the worker continued to participate in authorized health care treatment up to July 12, 2022. In my view, there is insufficient evidence of any suitable available modified duties from April 8, 2022 up to July 12, 2022. Therefore, in keeping with Policies

18-02-03 and 19-02-07, I find that LOE benefits are in order for an ongoing work-related injury from April 8, 2022 to July 12, 2022 (non-inclusive) as the work-related injury prevented a return to full regular duties and suitable duties were not available.

2. Has there been a breach of the employer’s re-employment obligation?

I am not persuaded that there is evidence of a breach of the employer’s re-employment obligation.

Written confirmation from the worker signed on February 23, 2022 confirms discussing return to work with the employer on February 10, 2022. A Record of Employment issued to the worker on

March 8, 2022 lists the reason as illness or injury. The case record documents that the tunnelling at the accident worksite (the Y project) ended on April 8, 2022. A different project in Z County ran from March 28, 2022 to April 6, 2022 (or prior to the date that the Case Manager ended LOE entitlement). As mentioned above, the XX project took place between April 20, 2022 and June 3, 2022 (or prior the date of MMR as determined by the Case Manager). A separate project in the County of A was tentatively scheduled to run from June 13, 2022 to June 17, 2022.

It is the worker’s testimony that the employer hired them for AZ driving of a flatbed truck while performing general labour duties on the days that they were not on the road. Once hired, the worker describes their actual duties as a lot of manual labour. The worker confirms receiving the registered letter from the employer dated August 24, 2022 requesting a reply in writing if they wished to discuss returning to employment with them. The worker describes not reaching out to the employer but instead forwarding the letter to their representative. According to the worker, they recall a maximum of three conversations with the employer post-injury, one of which may have been the employer calling them. In any event, the worker confirms that one of these conversations was about return to work. With respect to the discussion of May 18, 2022, the worker states that they did not feel comfortable returning to work with the employer.

Policy 19-05-02, Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements, requires construction employers to offer to re-employ their injured construction workers who have been unable to work due to a work-related injury. The obligation to

re-employ begins when the employer is notified that the injured construction worker is medically able to perform the essential duties of their pre-injury job, suitable construction work, or suitable non-construction work. Following notification, the employer must offer to re-employ the injured worker in the first job that becomes available that is consistent with the worker’s medical ability to return to work.

In all cases where the worker is medically able to perform some type of construction work, an employer who has more than one construction job available must offer to re-employ the worker in the construction job that is most similar in nature and earnings to the one the worker had on the date of injury. The obligation to re-employ continues until the earliest of:

• Two years from the date of injury;

• One year after the worker is medically able to do the essential duties of the pre-injury job;

• The date the worker declines an offer of work; or,

• The date the worker reaches age 65.

In this case, the Case Manager contacts the employer in May 18, 2022 to explain that the worker is able to return to modified duties. During a separate discussion with the Case Manager on the same day, the worker apparently indicates that they were not willing to work with the employer anymore due to trust concerns. On May 21, 2021, the employer informs the worker’s mother that the job did not turn out as planned and that as a non-unionized company they are not able to perform any active duties on site. The Case Manager contacts the employer on May 30, 2022 to discuss the Record of Employment issued to the worker. That same day the worker explains to the Case Manager that what they meant during the discussion of May 18, 2022 was they did not feel fit to return to any type of work, not that they were severing the employment relationship with the employer. Regardless, on June 1, 2022, the employer verbally confirms a willingness to offer suitable duties if they should become available.

Like Policy 19-02-07, Policy 19-05-02 defines the term suitable work in part as post-injury work that is safe, productive, and consistent with the worker’s functional abilities. In situations involving non-unionized workers, the re-employment obligations only apply to employers if, during the effective period of the

re-employment obligation, the employer is still employing non-union workers at the workplace where the worker was injured or at a comparable workplace. If no such workers are being employed at the workplace where the worker was injured or at a comparable workplace, no re-employment obligation applies.

A construction employer’s re-employment obligation commences on the day it receives notice that a

non-union worker, who meets the “unable to work” threshold, is medically able to work. Policy defines the term comparable workplace as having a location within a reasonable distance of the worker’s home when considering the following:

• The mode of travel available to the worker;

• The travel norms for construction workers in the worker’s trade who work for the injury employer; and,

• The amount of travel that was required before the injury.

Policy 19-05-03, Compliance with the Re-employment Obligation – Construction Industry, requires the WSIB to ensure that construction employers have fully complied with their obligation to offer to re-employ construction workers who, as a result of a work-related injury, have been unable to work. If a construction employer terminates an injured construction worker’s employment within six months of having

re-employed them, the WSIB presumes that a breach of the re-employment obligation has occurred. Policy clarifies that the employer can rebut the presumption by showing that the termination of the worker’s employment was not caused in any part by either the work-related injury, related treatment, or the claim for benefits.

In order to determine compliance with the re-employment obligation, Policy 19-05-03 requires consideration of if the worker has met the “unable to work” threshold, that the worker is medically able to return to work and the employer has been notified of their level of fitness, and the re-employment obligation is still in effect. Decision-makers are then to consider whether the employer has offered employment consistent with the worker’s ability to return to the pre-injury job, suitable construction work, or suitable work other than in construction as part of an ongoing responsibility to offer the most similar work to the pre-injury job when it becomes available. Decision-makers must also consider if the employer is willing to accommodate the worker or workplace to the needs of the worker and has provided written notice of the particulars of the way in which the employer intends to accommodate the worker. Like Policy 19-05-02, comparable employment requires considering such factors as the geographic location of the alternative worksite.

Policy 19-05-03 states that the WSIB is committed to assisting small construction employers (those with 20 or less employees) in meeting their re-employment responsibilities. Policy outlines that the WSIB is sensitive to the needs of small construction employers in the re-employment process, particularly with respect to providing case management assistance. Employers may provide relevant evidence to rebut the presumption under Policy 19-05-03 by providing documentation not limited to company policy or established company practices. No re-employment penalty is applied and the worker is not entitled to

re-employment payments if the employer successfully rebuts the presumption. However, Policy 19-05-03 explains that the worker may continue to experience a work-related loss of earnings which entitles them to further LOE benefits under Policy 18-03-02.

After considering all of this information, I finds that there is no evidence of this small construction employer being able to provide suitable available duties at the original work site post-injury. With respect

to the Z County job, the documentation from the employer indicates that the required tasks include shovelling for extended periods, lifting, twisting, bending, and standing on uneven wet muddy surfaces. When considering the XX project, I find that the worksite is not within a reasonable distance of the worker’s home given that both parties indicate it is a much longer distance involving a 2.5 to 3 hour drive each way. Importantly, it is the worker’s testimony that they mainly drove to the worksite pre-accident and only travelled with the crew approximately 10% of the time. I have also considered the County of A project that was scheduled tentatively from June 13, 2022 to June 17, 2022.

Documentation from the employer indicates that another contractor was providing all labourers for this job and that other employees were joining as operators and welders.

Finally, I am aware of the worker’s testimony with regards to being hired as an AZ driver. However, the case record contains confirmation of specific documentation being required given that the worker is considered underage before an application can be submitted to the insurer for approval and pricing. By comparison, it is the worker’s testimony that they do not recall receiving this paperwork and was not aware that a third party actually owned the truck. Regardless, I find that there is insufficient evidence that the worker had the appropriate insurance to drive an AZ truck for the employer.

To summarize, I accept that there is sufficient evidence of the employer being willing to re-employ the worker as required under Policy 19-05-02. Yet, I find that is insufficient evidence of there ever being any suitable work being available that the employer could have provided to the worker had they been willing to participate in return-to-work activities. I further find that there is no evidence of there being suitable work at a comparable workplace. Consequently, it is my view that the employer has rebutted the presumption under Policy 19-05-03 and I accept that the worker’s layoff/termination is unrelated to the work-related injury, treatment, or claim for benefits. Accordingly, I find that the employer is not in breach of their re-employment obligation.

3. Maximum medical recovery and ongoing entitlement

I find that there is no work-related impairment as of July 12, 2022. I also find that the MRI-identified disc herniations are unrelated to the workplace injury of February 9, 2022. The worker representative suggests that MMR has not yet been reached and that ongoing entitlement is in order, including to low back disc herniations.

The worker describes within their testimony that they never had an MRI of the lower back prior to the workplace injury of February 9, 2022. According to the worker, they first started experiencing shooting lower back pain down into the buttock and/or leg approximately one week post-injury, or around the same time that they first noticed the lower back pain. The worker explains that they did not report this shooting lower back pain to any health professional for approximately 1.5 months as they did not wish to be accused of adding symptoms. Instead, the worker hoped that the symptoms would go away on their own.

It is the worker’s testimony that they still see the physiotherapist regularly for the lower back, although the neck and shoulder may also receive treatment if they are acting up. The worker indicates that the left shoulder and neck hardly bother them at all other than receiving occasional soft tissue treatment as maintenance treatment. During testimony, the worker explains that they did not perform any work duties between the date of injury and September 2022.

Policy 11-01-01, Adjudicative Process, requires clinical compatibility of diagnosis with accident history. To put it another way, the medical diagnosis must be shown to have resulted from, or been caused by, the accident.

Policy 11-01-05, Determining Permanent Impairment, defines the term maximum medical recovery (MMR) as a plateau in recovery at which point further significant improvement in the work-related injury is unlikely. Policy outlines that in order to determine that a permanent impairment exists, decision-makers must confirm that the ongoing impairment is a result of the work-related injury. Policy 11-01-05 directs decision-makers to review the clinical evidence in order to determine MMR and if there is any ongoing work-related impairment. A recovery from the work-related injury is considered to have been made if there is no evidence of an ongoing work-related impairment at the time that MMR is reached.

I observe that the Health Professional’s report of February 23, 2022 provides the diagnosis of a back sprain. The clinical chart note of the same date confirms that there is good range of motion on flexion, extension, twisting, and tilting of the low back. I note that there are no neurological deficits identified. The Low Back Injuries Program of Care initial assessment report of March 10, 2022 documents low back pain without radiation. Straight leg raise is confirmed to be negative, as are the lower extremity myotomes.

The initial assessment provides the diagnosis of a lumbar sprain/strain. A clinical chart note dated March 22, 2022 confirms ongoing lower back pain but does not document any complaint of radicular or shooting pain.

As discussed above, the treating physiotherapist discharged the worker from treatment for the shoulder in early May 2022. The outcomes summary report of May 3, 2022 states that the shoulder’s range of motion is within normal limits and is equal bilaterally. The physiotherapist clearly indicates that there is no recommendation for a referral to a shoulder specialist. On May 5, 2022, the physiotherapist indicates that the lower back has achieved an estimated 80% recovery and that the worker is responding well to core exercises simulating construction tasks. Once more, I find that there is no evidence of any clinical signs involving any radicular symptoms from the lower back.

I find that the first clinical confirmation of radicular or shooting back pain is the hospital emergency report dated May 20, 2022. I acknowledge that the report indicates the worker’s complaint of pain shooting over the left buttocks and down the thigh. The Health Professional’s Progress Report of May 29, 2022 discusses a worsening of the worker’s condition since the last visit and that the worker reports developing low back pain shooting over the left buttocks and going down the legs. The resulting MRI of the lower back performed on June 25, 2022 shows an L4-5 diffuse disc protrusion with a more central disc bulge measuring 4 millimetres as well as an L5-S1 diffuse disc protrusion with possible impingement on the S1 nerve roots. The MRI provides a clinical impression of mild degenerative disc disease and facet arthropathy, particularly at L4-5 and L5-S1.

Overall, I find that there is insufficient evidence of any radicular or shooting pain from the lower back between February 9, 2022 and May 20, 2022. I further accept that the clinical report of May 29, 2022 suggests that there has been a more recent development of radicular symptoms. Given this three-month gap in continuity of complaint, I do not accept that the MRI findings of June 25, 2022 are the result of the workplace accident of February 9, 2022. As a result, I find that there cannot be entitlement to the diffuse disc protrusions at L4-5 and L5-S1 under Policy 11-01-01 as I am not satisfied that this diagnosis is the result of the workplace accident.

I appreciate the worker’s testimony regarding their ongoing issues involving the lower back, neck, and left shoulder. Even so, Policy 11-01-05 requires clinical evidence in order to determine if there is any ongoing work-related impairment. In this particular situation, I find that there is insufficient evidence to establish an ongoing work-related injury involving the lower back, neck, or left shoulder as of July 12, 2022. Therefore, I find that MMR was achieved with no permanent impairment effective July 12, 2022. On this basis, I accept that there can be no ongoing entitlement to either health care benefits or LOE benefits from the accepted MMR date of July 12, 2022.

CONCLUSION

I conclude the following:

1. Ongoing loss of earnings (LOE) benefits are in order for the non-inclusive period of April 8, 2022 to July 12, 2022 (less any applicable earnings or assignment).

2. The employer is not in breach of their re-employment obligation.

3. Entitlement to the requested two lower back disc herniations (L4-5 and L5-S1) is not in order.

Maximum medical recovery (MMR) was achieved on July 12, 2022 with no ongoing work-related impairment for either the neck, left shoulder, or lower back.

There is no further entitlement to either health care benefits or LOE benefits as of July 12, 2022.

The worker’s objection is allowed in part.

DATED April 28, 2023

K. MacMillan

Appeals Resolution Officer Appeals Services Division