APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230082
OBJECTING PARTY: REPRESENTED by:
WORKER WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER (not participating)
HEARING:
videoconference March 2, 2023
HEARD by: INTERPRETER: DATED:
S. Vagadia, appeals resolution officer YES MARCH 31, 2023
ISSUE
The worker objects to a Case Manager’s (CM) September 22, 2022 decision that found she was capable of working full-time as of October 3, 2022.
BACKGROUND
Entitlement was granted to a left knee strain due to a November 30, 2017 slip and fall accident. The operating area also approved a January 12, 2018 recurrence and surgery for a medial meniscal tear.
A March 25, 2021 Appeals Resolution Officer (ARO) decision:
Granted entitlement to a permanent left knee impairment.
Denied secondary entitlement to a low back injury.
Denied loss of earnings (LOE) benefits from December 6, 2019. This was because the compensable permanent impairment did not prevent the worker from performing her pre-injury duties.
A January 21, 2022 decision from the Workplace Safety and Insurance Appeals Tribunal (WSIAT):
Noted the worker received a 6% non-economic loss (NEL) award for her left knee.
Granted secondary entitlement to a low back strain and found a permanent impairment was evident.
Found the worker was not capable of performing her pre-injury duties.
Found she was not capable of working in any capacity without work transition (WT) assistance from the WSIB.
Granted full LOE benefits from December 6, 2019 pending a WT assessment.
The worker returned to work (modified duties on graduated hours) on July 26, 2022 with the accident employer.
A CM’s September 22, 2022 decision indicated the worker was able to work full-time in suitable employment. The CM noted the worker was participating in a graduated return-to-work (RTW) plan with the accident employer. She received partial LOE benefits accordingly, which were to end at the completion of her graduated RTW. I note a specific end date was not provided in the decision letter. The CM appeared to reference an August 26, 2022 meeting with a Return to Work Specialist (RTWS) that anticipated a return to full hours as of October 3, 2022.
A November 28, 2022 ARO decision:
Noted the worker’s total NEL award increased to 20% in recognition of her permanent low back impairment.
Granted entitlement to a psychotraumatic disability.
Lastly, a CM’s January 26, 2023 decision granted entitlement to a December 19, 2022 recurrence. The CM found the worker returned to her pre-deterioration state on December 30, 2022.
AUTHORITY
Operational Policy Manual
Published
19-02-07 RTW Overview and Key Concepts 19-02-10 RTW Assessments and Plans
April 9, 2021 November 30, 2020
ANALYSIS
Worker testimony
The employer hired the worker in 1991. She reviewed her pre-injury cleaning duties, the accident history, and her return to work efforts. This included assistance from the RTWS.
The modified job, which began in the summer of 2022, involved cleaning the lobby area as best as she was able (within her restrictions). She no longer cleaned rooms and took breaks when needed. The employer provided a chair and she had a place where she could do stretch exercises. The worker confirmed the employer was supportive in this regard and allowed her to take breaks whenever needed.
Despite this, the worker was unable to resume work full-time. She stated she was unable to work more than 5 hours per shift due to increased symptoms (which included stiffness, pain, and instability). She also stated she had a very long commute (about 2 hours each way by public transportation). The worker does not have a driver’s license and commuted this way prior to her injury.
The worker uses pain medication, creams, and ice to help alleviate her symptoms. She also makes sure to do her stretch exercises regularly and takes breaks when needed. However, she still has to regularly stand and walk as part of the modified job. As each workday passes, her symptoms increase (Mondays are better than Fridays). Because of this, the worker no longer works Wednesdays. She regularly calls in sick that day but the employer has continued to pay her for the day (5 hours).
The worker indicated she is able to work 20 hours per week (four 5-hours shifts) and is looking to receive partial LOE benefits from the WSIB. She stated her physiotherapist recommended the schedule. Despite this, the worker does not want to switch to part-time status at work (which was offered by the employer). This was because she would lose her seniority, benefits and potentially have to work weekends. The employer has not made a formal decision on that issue yet.
Worker representative submission
The worker fully cooperated with her return to work. Despite her best efforts, she was only capable of working part-time. She was entitled to partial LOE benefits based on her actual earnings. In addition to her permanent organic impairments, the worker has a compensable psychotraumatic disability, the consequences of which have not been fully recognized.
A review of the job coaching reports noted the worker continued to have discomfort, difficulties, and pain. Although her job allowed for frequent breaks, it still required a lot of standing and walking. Because of this, the worker was unable to work more than 4 shifts per week (5 hours per shift).
A review of the medical evidence on file supported this assertion. The worker continued to experience bouts of intense pain and difficulties with her knee and low back. Consequently, the treating physiotherapist recommended part-time hours only. One also had to consider the worker’s commute, which was approximately 4 hours roundtrip each day.
All of the above factors supported the worker was incapable of full-time employment. As per WSIB policy, she was therefore entitled to partial LOE benefits on a permanent basis based on her ability to work 20 hours per week.
Analysis
I find the worker is entitled to partial LOE benefits based on the higher of her actual earning or ability to work 25 hours per week (5 days per week, 5 hours per shift). I note the following in arriving at my decision.
To begin, policy 19-02-10 confirms consideration may be given to part-time employment. It states that if a worker was working full-time hours, but a return to full-time hours is not feasible due to the work-related injury/disease, a SO with part-time hours may be considered. Policy 19-02-07 provides additional guidance. It defines suitable work, as 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. A job is considered consistent with the worker's functional abilities when the tasks and/or duties associated with the job can be performed within the reported physical/cognitive capabilities of the worker.
In this case, a June 8, 2022 meeting between the workplace parties and RTWS reviewed the worker’s restrictions and the possible job of Public Area Attendant. It involved cleaning the back / staff / office areas (someone else cleaned the front area). It was not time sensitive and allowed for required breaks. Duties included vacuuming, removing garbage and recycling, as well as maintaining two change rooms and five staff washrooms. The job was found to be suitable with accommodation and a graduated plan was developed.
A RTWS June 10, 2022 memo noted the worker was concerned about the bending involved in the job, as she did not want to make her back worse. A RTWS June 13, 2022 memo noted the equipment the worker required to do the job safely. This included a long handle toilet brush and extended reacher / grabber. Job coaching was also approved.
There are various job coach reports on file, which found the worker was able to perform the duties safely with the accommodations provided by the employer. However, an August 11, 2022 RTWS memo noted the worker had increased pain. The employer found new tasks for her to perform, which reduced the worker’s pain.
An August 24, 2022 RTWS memo noted the worker raised concerns about being able to work full-time but she indicated she would try. An August 26, 2022 RTWS meeting noted the worker had increased pain, which may have been due to cleaning bathrooms in a confined space. It was agreed the graduated RTW plan would be extended to October 3, 2022.
The worker saw her family doctor on September 15, 2022. The clinical note indicated she had increased pain working 5 hours per day. The worker also felt she was unable to work every day.
A RTWS September 22, 2022 memo noted the worker’s view that she could not work more than 5 hours per shift due to increased pain. She attributed this to the walking and standing in the job. Although she was not performing tasks outside of her restrictions and taking breaks when needed, she had difficulty lasting more than 5 hours. She also noted her commute, which was described at 3 hours roundtrip.
An October 8, 2022 memo documented a conversation with the treating physiotherapist. Although the duties appeared suitable, the worker had difficulty increasing her hours because it caused increased pain. The physiotherapist also noted the worker had more pain during treatment recently.
The worker saw her family doctor on October 13, 2022. The worker reiterated her concern about working every day and working more than 5 hours per shift. A physiotherapist provided a report dated October 19, 2022. It noted the worker’s pain and suggested she could only work 3 days per week (5 hours per day).
A November 3, 2022 RTWS memo recommended additional job coaching. The work hours were to be revisited. The intent was to maintain 25 hours per week and more gradually increase the work hours. This was because of the difficulties the worker encountered.
Another RTWS meeting took place on November 8, 2022. The job coach was scheduled for November 18, 2022 and it was agreed the worker would remain at 5 hours per day for an additional week. A November 21, 2022 Job Coach Report discussed the possibility of adjusting the worker’s schedule.
On November 23, 2022, the RTWS spoke with the Job Coach. The worker was performing tasks correctly and the duties were suitable. However, she reported increased pain (not the result of a specific task) after 5 hours. The worker wanted to switch to a 3-day schedule (15 hours per week). I note this was not accepted. Lastly, A RTWS December 1, 2022 memo noted services were closed.
I note the employer further adjusted the worker’s job duties after her initial return to work in the summer of 2022 due to reported increased pain. The worker confirmed she had no issues with the new duties the employer offered, which she continues to perform to date. I note the worker has a 20% NEL award for her left knee and low back permanent impairments. With the significant accommodations provided by the employer, I find the modified duties the worker performed were suitable. However, the job is not sedentary in nature. The tasks require standing and walking which I find were made suitable due to the ability to take frequent breaks whenever required, with the employer’s full support. However, I accept the worker’s testimony that she could not work more than 5 hours, as it caused increased symptomatology. I do not accept that she was only capable of working 3 or 4 days per week. In my view, given the worker’s injury and the nature of the accommodated duties offered by the employer, I find she had the ability to work 5 days per week at reduced hours. The reduced hours meant less symptoms and allowed for more rest between shifts.
Consequently, the worker is entitled to partial LOE benefits from October 3, 2022 based on her ability to work 25 hours per week (or her actual hours if they were greater). This is a permanent restriction specific to the modified duties offered by the employer. I make no finding on the worker’s ability to work full-time in other, sedentary capacities.
CONCLUSION
As outlined in the above decision I conclude the worker was capable of working 25 hours per week in the permanently modified position offered by the employer. She is entitled to partial LOE benefits from October 3, 2022 accordingly.
The worker’s objection is allowed in part.
DATED March 31, 2023
S. Vagadia
Appeals Resolution Officer
Appeals Services Division