APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230100
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by: DATED:
J.L. Hughson, appeals resolution officer AUGUST 9, 2023
ISSUES
The worker objects to the Case Manager’s (CM) decision dated October 28, 2021, which denied their entitlement to loss of earnings (LOE) benefits from October 27, 2021.
BACKGROUND
On July 9, 2021, this Caretaker sustained a lower back injury while using a heavy mop filled with water in a small bathroom. The Eligibility Adjudicator (EA) allowed the worker’s claim for initial entitlement to benefits for a lower back sprain/strain, as well as LOE benefits from July 12, 2021.
The worker attended a return-to-work (RTW) meeting virtually on September 3, 2021. Although modified duties were identified, the worker did not return to work due to side effects caused by a muscle relaxant. The worker was assessed at the Back and Neck Specialty Program on October 7, 2021. At this time, the clinicians stated there was no need for the worker to continue taking muscle relaxants.
In their decision dated October 28, 2021, the CM denied the worker’s entitlement to LOE benefits from October 27, 2021, as suitable modified work was available.
The worker objects to the decision dated October 28, 2021, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
ANALYSIS
I find the worker’s claim is allowed for entitlement to LOE benefits from October 27, 2021, to November 17, 2021, inclusive. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the worker’s representative (WR) indicated that LOE benefits should be allowed from October 7, 2021; however, in their decision dated October 28, 2021, the CM denied LOE benefits from October 27, 2021, not October 7, 2021. As a result, only the issue of entitlement to LOE benefits from October 27, 2021, is within my jurisdiction. The WR contended that the worker’s claim should be allowed for entitlement to LOE benefits because the worker should not be denied benefits due to a medication being used to treat their workplace injury. Further, they noted that the employer did not allow the worker to return to work with the medication they were taking.
In their submission, the employer’s representative (ER) contended that LOE benefits from October 27, 2021, should remain denied as the modified duties were suitable, which the worker refused for non-compensable reasons.
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states in part that
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 (RTW) process…
Dizziness symptoms were as a result of work-related injury
In the Caretaker’s Modified Work Assessment dated August 19, 2021, the worker’s chiropractor confirmed that the worker had been prescribed a muscle relaxant which could impair the worker’s performance or safety, directing the reader to the worker’s family doctor. In the family doctor’s Health Professional’s Report (Form 26) dated September 9, 2021, they stated that the worker was taking a medication which was causing light headedness, dizziness, and fatigue.
In the Back and Neck Specialty Program Comprehensive Assessment Report, dated October 7, 2021, the clinicians commented on the worker’s medication, confirming the worker was taking a muscle relaxant (baclofen) which caused a significant change in the worker’s symptoms. They went on to state, in part, that
There is no role for continued muscle relaxants. [The worker] may do physiotherapy without these as [they report] they make [the worker] dizzy.
The report indicated that the clinicians had been unable to contact the worker’s family doctor directly to discuss their findings, but confirmed they would send a copy to the family doctor for them to review.
As documented in a memo dated October 22, 2021, the worker told the RTW Specialist that their family doctor had asked them to start taking Lyrica (also known as pregabalin). The worker stated that their current half dose of muscle relaxant with two pills of Lyrica were helping them manage their pain and allowing them to function better. They stated that there was still some minor dizziness, but it went away quickly. The worker also noted that they had tried to increase their dosage of Lyrica, but this caused major side effects.
On October 26, 2021, the RTW Specialist documented their call with the worker in Memo A. The worker had seen their family doctor the day before. The family doctor recommended that the worker continue to take Lyrica and baclofen. The RTW Specialist referenced the specialty program’s recommendation about baclofen. The worker stated they felt “stuck in between because [their] doctor clearly thinks [the worker] needs it.” Despite this, the worker said they planned to stop taking baclofen to see if they could still tolerate physiotherapy the next day.
The worker spoke with the CM on October 27, 2021, as documented in Memo B. In this memo, the worker explained that the doctor at the specialty program had not told the worker to stop taking baclofen – instead, the doctor said that they were not sure if baclofen was helping the worker. The worker noted that the physiotherapist at the specialty program had suggested the worker consult with their family doctor about medications. Further, the worker stated that the specialty program’s Worker Summary Report, dated October 7, 2021, did not mention a medication change was needed. Following their specialty program appointment, the worker saw their family doctor on October 8, 2021. As a result of this appointment, the family doctor reduced the worker’s dosage of baclofen to half, and added a new medication, Lyrica. The worker said they had a reduction of pain with Lyrica, but were still adjusting to the new medication. They continued to experience dizziness.
The CM contacted the specialty program in the same memo. The specialty program’s Coordinator said “they would lean towards” the worker, which I take to mean that they were likely to agree with the worker’s understanding of what happened at the specialty program assessment on October 7, 2021. The Coordinator went on to state that they sent the report to the family doctor, and the worker did follow-up with their family doctor, which resulted in a medication adjustment as suggested by the specialty program. They stated that the worker reported dizziness during their appointment, and baclofen was identified as the cause. The Coordinator noted that baclofen is a strong medication compared to the diagnosis. Further, they noted that Lyrica would help the worker feel better.
The family doctor’s chart notes support that the worker was prescribed baclofen and Lyrica as early as October 10, 2021, confirming the family doctor’s response to the recommendation from the specialty program.
The family doctor provided a medical note, dated October 28, 2021, in which they stated
The patient requires the use of pregabalin medication on a regular basis to help control [their] symptoms. I would recommend that [the worker] continue to take the pregabalin as prescribed regularly. I am doubtful [the worker] would manage to function in a physically strenuous job in [their] current state.
In the Functional Abilities Form (FAF) dated November 18, 2021, the family doctor confirmed that the worker was no longer experiencing significant side effects from their medication.
In the CM’s decision dated October 28, 2021, they determined the medication causing the worker’s dizziness was not in accordance with the specialty program’s recommendations. While I agree that the specialty program indicated the worker did not require baclofen, it is unreasonable to expect the worker to stop taking it without introducing a replacement. Especially in this case, where the medication was having a significantly positive effect on the worker’s pain and function, as documented in the specialty program’s report dated October 7, 2021. Further, at the recommendation of the specialty program, the worker brought up this issue in their next appointment with their family doctor on October 8, 2021. As a result of this appointment, the worker began to titrate off of baclofen and onto a new medication, Lyrica. Although Lyrica also caused dizziness, it is common to experience side effects when first taking a new medication. The family doctor’s chart notes from October 10, 2021, indicate that the worker was not prescribed baclofen after that date.
Although the ER indicated in their submission that the opinion of the specialty program should be weighted more heavily than that of the family doctor, I note that the specialty program did not direct or suggest that the worker stop taking baclofen without replacing it with an appropriate alternative. Further, the specialty program’s Coordinator accepted the worker’s reporting of events, which was that they had been asked by the clinicians to discuss the medication further with their family doctor. The worker did this by October 10, 2021, at the latest.
Given the above, I find the worker’s dizziness symptoms were as a result of their compensable lower back strain/sprain injury, as the medical information supports that baclofen and Lyrica were prescribed by the family doctor for this injury, and that the worker’s dizziness was caused by these medications. After the specialty program indicated muscle relaxants were not needed, the family doctor prescribed a new medication and began to reduce the worker’s dose of baclofen. Although the new medication caused dizziness as well, this was resolved by November 18, 2021, which I find to be a reasonable time period considering the worker transitioned from one medication to another.
Availability of modified work
I find there was no modified work available to the worker from October 27, 2021. As noted in the RTW Meeting Memo/Plan, dated September 10, 2021,
…the employer has a policy whereby if medications cause drowsiness/dizziness then the worker would not be allowed to work for safety reasons.
This was confirmed by the employer in Memo C, dated October 29, 2021, when they stated that if the worker was taking a medication that caused a safety concern, such as drowsiness, they would not allow them to come back to work.
Entitlement to LOE benefits from October 27, 2021
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states in part that
A worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins.
I find the worker is entitled to full LOE benefits from October 27, 2021, to November 17, 2021, inclusive. During this period, the worker was experiencing compensable side effects due to medications prescribed for their work-related lower back injury. The employer indicated they would not allow the worker to return to work in any capacity while experiencing these side effects. As there was no modified work available to the worker from October 27, 2021, and as the worker’s loss of earnings was as a result of their work-related injury, I find the worker is entitled to LOE benefits from this date, as provided in policy 18-03-02.
I limit the worker’s entitlement to LOE benefits to November 17, 2021, inclusive, as the FAF dated November 18, 2021, indicated the worker was no longer experiencing significant side effects as of November 18, 2021. Given the decision letter dated October 28, 2021, only addresses the worker’s entitlement to LOE benefits as a result of medication side effects, I leave it to the operating area to determine the worker’s entitlement to LOE benefits from November 18, 2021.
CONCLUSION
The worker’s objection is allowed.
The claim is allowed for entitlement to LOE benefits from October 27, 2021, to November 17, 2021, inclusive.
DATED August 9, 2023
J.L. Hughson
Appeals Resolution Officer
Appeals Services Division