DECISION NUMBER:

20230074

OBJECTING PARTY:

WORKER

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

ROD COTTER, APPEALS RESOLUTION OFFICER

MAY 29, 2023

ISSUE

The worker is objecting to the September 2, 2022 case manager decision that denied entitlement to loss of earnings (LOE) benefits from June 10, 2022.

BACKGROUND

The worker sustained a right shoulder and elbow sprain/strain injury on July 30, 2020 with a prior employer. The case manager determined the worker recovered from the injury on September 23, 2020.

The worker began working for the employer as merchandiser / stocker on October 23, 2020. The worker initiated a claim for benefits on June 9, 2022 by filing a worker’s report of injury. They reported that on April 11, 2022, they experienced a gradual onset of right shoulder pain while lifting objects weighing up to 50 lb. They stated they reported the injury to their supervisor on April 11, 2022, who asked them to obtain a functional abilities form (FAF), which they did.

The worker obtained another functional abilities form on April 30, 2022. The form indicated the worker was to limit overhead lifting, as well as pushing or pulling with the right arm. The worker provided a further FAF to the employer on June 1, 2022 that indicated the worker was unable to do any lifting. On June 10, 2022, the worker’s treating physiotherapist provided a note highly recommending the worker be off work until June 19, 2022 due to acute shoulder tendon inflammation.

In a letter dated June 14, 2022, the employer representative stated the worker reported shoulder pain on April 11, 2022, but indicated that it was due to a prior workplace injury with a different employer. They stated the worker provided an FAF on April 12, 2022, was placed on modified duties as per the restrictions on the FAF, and then called in sick on June 9, 2022 before providing a note to be off work.

In a decision dated June 21, 2022, the eligibility adjudicator allowed the worker’s claim for a right shoulder injury.

Following a return to work meeting on July 5, 2022, a WSIB return to work specialist (RTWS) determined the employer continued to have suitable duties available that might include door greeting/counting, sign audits, and making customer phone calls. The employer indicated they would coordinate this work and expected the worker to return to work on July 6, 2022.

The worker underwent an occupational health assessment on July 15, 2022. The physician diagnosed occupational subacromial bursitis with surrounding myofascial pain due to repetitive strain with a relevant non-occupational diagnosis of rotator cuff strain in 2020 that caused intermittent pain with overhead activities.

In a decision dated September 2, 2022, the case manager determined the duties offered by employer were suitable and consequently denied entitlement to LOE from June 10, 2022. The worker’s objection to this decision forms the basis of the appeal before me.

In a further decision dated January 25, 2023, the case manager concluded the worker reached maximum recovery with no permanent impairment as of January 17, 2023.

AUTHORITY

Operational Policy Manual

Published

11-02-02 - Lost Time Claims

April 9, 2021

18-03-02 - Payment and Reviewing LOE Benefits

September 1, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons outlined below, I am allowing the worker’s objection in part.

Positions and Submissions

The position of the worker is that they were offered work that exceed their FAF restrictions. Performing the work resulted in further injury and their physiotherapist deeming it unsafe for them to return to work on June 9, 2022.

The worker further states that, when they were cleared to return to work with restrictions on July 15, 2022, the employer did not respond to the FAF’s they provided or to phone calls.

The employer representative’s position is that in there were no errors in the September 2, 2022 case manager decision in regard to interpretation of applicable polices or the assessment of evidence.

They submit that, although the employer was initially under the impression the worker’s injury was not sustained with them, the employer still accommodated the worker based on the worker’s FAF, showed willingness to work with the worker’s restrictions, and went above and beyond to accommodate.

Relevant Policy

According to operational policy 11-02-02 - Lost Time Claims, to authorize the payment of loss of earnings (LOE) benefits clinical evidence must show that a worker’s inability to work is due to his or her work- related injury. The worker must also have clinical authorization to be off work. If the worker does not have clinical authorization to be off work, loss of earnings benefits cannot be paid.

Pursuant to policy 18-03-02 - Payment and Reviewing LOE Benefits, a worker who has a loss of earnings due to a work-related injury is entitled to LOE. Full LOE is generally payable if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, provided they co-operate in health care measures and all aspects of the work reintegration process.

Full LOE is also generally payable if a worker is able to return to some form of work but the WSIB determines that no suitable work is available. Suitable work is work that is safe, productive, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the greatest extent possible.

When suitable work that restores the worker’s average pre-injury earnings is available, no LOE benefits are payable because there is no wage loss due to the work-related injury.

Evidence and Findings

I find the worker is entitled to LOE from June 10, 2022 to July 6, 2022, and from July 15, 2022 to the worker’s eventual return to work that reportedly occurred on October 31, 2022.

In doing so, I find the evidence supports that suitable modified duties involving no use of the worker’s right arm were offered to the worker, but were not consistently available in practice. The worker’s attempts to perform duties that were outside of their restrictions consequently resulted exacerbations of their injury.

The worker’s September 21, 2022 submission indicates they were provided work that exceeded their restrictions on May 28, 2022, and assigned work for “night merch” on June 3, 2022 and June 4, 2022 that also exceed their restrictions. Between June 9, 2022 and July 15, 2022, the worker states the flower centre was closed and they were placed in grocery fulfilment, a job that exceed their FAF restrictions.

The deterioration in the worker’s functional abilities from April 30, 2022 to June 1, 2022 followed the by physiotherapist’s June 10, 2022 recommendation that the worker be off work until June 19, 2022 due to acute shoulder tendon inflammation supports that the worker engaged in activities over the period that exacerbated their injury and were therefore not suitable.

The employer representative maintains the employer offered suitable work, meeting the worker’s restrictions as per the worker’s FAF. They provided a copy of the offer of modified duties dated

June 20, 2022 for merchandising sign audit and door entry greet and count positions. The offer states the positions could be performed with no use of the right arm.

The employer representative’s June 27, 2022 letter however confirms the worker performed duties involving preparing boxes and as a cashier assistant, both of which would in my view exceed the worker’s no lifting and limited pushing and pulling restriction from June 1, 2022.

During the July 5, 2022 return to work (RTW) meeting, the worker stated they stopped working because they were was asked to complete work tasks outside of their functional abilities and voiced concerns that this may happen again.

The employer reviewed the process to follow if the worker was assigned work that was not suitable consisting of informing the person requesting that they perform the work they are not able to, then escalating any issues to a manager, an AGM or HR and the case manager or RTWS.

The memo indicates the worker was expected to return to work on July 6, 2022 to allow the HR Manager to coordinate suitable work duties.

I find the employer’s direction to the worker regarding procedures to follow if duties exceeding their restrictions were assigned to them, and the day required by the employer to coordinate suitable duties, support the worker’s reporting that they were assigned and performed work outside their restrictions prior to July 6, 2022.

The worker’s reporting that they were assigned “night merch” shifts where door entry greeter positions and conceivably merchandising sign audit duties would not have been available further supports the workers reporting. I have not been directed to any substantive evidence contradicting the worker’s reporting, which is consistent with the medical evidence.

I however find the July 5, 2022 RTW meeting documentation supports that suitable work was available to the worker from July 6, 2022, but not after July 15, 2022.

The worker’s September 21, 2022 submission and statement on July 6, 2022 indicate the worker did not return to work on July 6, 2022 because their physiotherapist had put them off work for ten days. The physiotherapist FAF dated July 4, 2022 however indicates the worker was able to return to duties that did not involve pushing, pulling, stocking shelves, or exposure to vibration.

The worker was wearing a right arm immobilisation brace while out of the house prior to, at the time of, and after the July 5, 2022 RTW meeting. The employer’s June 20, 2022 offer of work however did not involve use of the right arm. The RTWS also acknowledged the worker’s right arm immobilization and that the reportedly available duties involving door greeting and counting, sign audits, and making customer phone could plausibly have been completed without use of the right arm.

Although OHAP Physician Dr. Mindra suggested the worker return to modified hours with no bilateral lifting and frequent microbreaks when they saw the worker on July 15, 2022, I am not persuaded that the recommendation for modified hours and frequent microbreaks should reasonably apply retroactively, or that modified hours were necessary for work that did not involve any use of the right arm.

OHAP Occupational Therapist (OT) Robinson recommended no return to on July 15, 2022 due to the worker’s high perceived pain, limited ROM/strength and function, decline in mental health, and previous failed RTW attempts. After connecting with the RTWS on July 21, 2022, OT Robinson agreed that a return to the modified work available was appropriate provided the worker’s limitations were respected. The worker reportedly agreed with the RTW recommendations when OT Robinson discussed the recommendations with them on July 22, 2022.

According to the worker’s submission, they contacted the employer regarding the updated restrictions provided by OT Robinson and Dr. Mindra, and later with updated restrictions from Dr. Laptner who the worker saw on August 18, 2022 at the WSIB Upper Extremity Program to further to further assess their

injury. The worker’s submission indicates the employer indicated they would contact the WSIB to approve the return to worker, but that they had not received further communication from the employer or WSIB as of September 20, 2022.

Considering OT Robinson’s July 15, 2022 recommendation that the worker not return to work, the updated and more limiting restrictions recommended on July 15, 2022, and the absence of documentation to confirm that work within the updated restrictions was available to the worker from July 15, 2022, I find the evidence supports that suitable work was not available to the worker from July 15, 2022.

The worker is entitled to full LOE from June 10, 2022 to July 6, 2022 and from July 15, 2022 to their return to work on October 31, 2022 according to policy 18-03-02 - Payment and Reviewing LOE Benefits because over the period the worker had clinical authorization to be off work or was able to return to modified duties but no suitable work was available.

CONCLUSION

The worker’s objection is allowed in part. The worker is entitled to full LOE from June 10, 2022 to

July 6, 2022, and from July 15, 2022 to their return to work that reportedly occurred on October 31, 2022.

DATED May 29, 2023

Rod Cotter

Appeals Resolution Officer Appeals Services Division