APPEALS RESOLUTION OFFICER DECISION
decision NUMBER:
20230102
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
c. goegan, appeals resolution officer
ISSUES
The worker is objecting to the December 2, 2022 decision of the Case Manager approving partial loss of earnings (LOE) benefits from April 1, 2022 based on the ability to earn full-time (40-hours per week) determined earnings of $15 per hour.
BACKGROUND
The relevant details of the case are succinctly documented in an October 29, 2020 Appeals Resolution Officer (ARO) decision as well as a February 14, 2022 decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT). However, it is necessary for me to provide a history of the case in order to place the present issue under appeal in context.
On October 20, 2018, this then 48-year old cashier tripped over a cart in the checkout area of a store and fell onto their right knee. Entitlement in the claim was accepted for a right knee bruise, acute bleeding in the knee joint and symptomatic exacerbation of pre-existing osteoarthritis. The worker missed several shifts from work before returning to regular modified duties by October 29, 2018. They continued performing modified duties until January 3, 2019, after which they laid off, noting the severity of the right knee condition.
The worker underwent diagnostic investigations that revealed the presence of a full-thickness tear of the anterior cruciate ligament (ACL) in the right knee. The Case Manager denied entitlement to the ACL tear. The worker ultimately attended an assessment at a WSIB Lower Extremity Specialty Clinic where an orthopaedic surgeon identified psychological issues and opined the worker may require a total knee replacement in the future. Following the examination at the Specialty Clinic, the worker attended a psychological assessment and a psychologist diagnosed them with an adjustment disorder with mixed anxiety and depressed mood.
The Case Manager initiated Return to Work (RTW) services that commenced by February 2019. The worker also began attending psychological treatment in March 2019 through a Community Mental Health Program (CMHP). The treating psychologist in the CMHP reported the worker was in emotional distress at that time and recommended they remain off work until they received treatment for anxiety and depression.
By September 2019, the worker continued to remain off work and the psychologist continued to report they could not sustain occupational function. The worker also underwent total knee replacement surgery that took place on September 4, 2019. The Case Manager determined the work-related knee injury resolved with no residual impairment and denied entitlement to the total knee replacement surgery. The Case Manager also denied entitlement to both a psychotraumatic disability and chronic pain disability (CPD) under the applicable WSIB policies. The worker later required a surgical revision of the total knee arthroplasty that took place on June 15, 2021.
In the October 29, 2020 decision, the ARO concluded the worker did not have entitlement to the right ACL tear or the total knee replacement. The ARO also denied entitlement to a psychotraumatic disability and CPD. The worker appealed the ARO decision to the WSIAT. In the February 14, 2022 decision, the WSIAT denied entitlement to the right ACL tear and CPD. However, the WSIAT granted the worker entitlement for the right total knee arthroplasty and a psychotraumatic disability. The WSIAT returned the claim to the Operating Area to address nature and duration of the benefits flowing from the decision.
Following the WSIAT decision, the Case Manager determined the worker reached maximum medical recovery for the right knee arthroplasty by March 31, 2022. They received an 8% non-economic loss (NEL) award for a permanent right knee impairment on September 30, 2022.
In a decision dated December 2, 2022, the Case Manager indicated the worker remained in psychological treatment and had partially improved with respect to the psychotraumatic disability. Accordingly, the Case Manager concluded further monitoring of the worker’s psychological condition was necessary. The Case Manager also approved the payment of full LOE benefits from September 28, 2019 until April 1, 2022. However, she determined that as there was no clinical evidence to establish the worker’s level of impairment beyond April 1, 2022, the worker was entitled to partial LOE benefits from that date based on the determined full-time (40-hours per week) earnings of $15 per hour (the Ontario minimum wage).
The Case Manager later referred the worker for an assessment at a WSIB Mental Health Specialty Clinic that took place on December 5, 2022. Following the assessment, the Operating Area approved further psychological treatment. The Case Manager reactivated RTW services in January 2023 and in a
March 10, 2023 decision, she reinstated full LOE benefits as she found the worker was co-operating in RTW services.
The worker, through their representative, objected to the December 2, 2022 decision of the Case Manager concerning the reduction in LOE benefits from April 1, 2022 and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
Reference Material:
WSIB Adjudicative Advice Document titled “Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA”, dated March 1, 2002
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker is entitled to full LOE benefits from April 1, 2022 until March 10, 2023.
The Worker’s Position
The worker’s representative completed and returned the January 27, 2023 Appeal Readiness Form (ARF) requesting an oral hearing as the method of resolution in this appeal. The Appeals Registrar denied the request for an oral hearing on May 16, 2023 and invited written submissions from the parties.
The worker representative provided no further submissions for consideration. On the ARF, the representative identified the issues as full LOE from April 1, 2023 and the ability to work 40-hours per week and earn $15 per hour but did not provide a specific argument for consideration.
The Employer’s Position
In submissions dated May 8, 2023, the employer’s representative argued the decision to reduce LOE benefits from full to partial from April 1, 2022 is correct, as there is no medical evidence that supports the worker was totally disabled from April 1, 2022. The representative submitted the worker was able to attend school in 2021 and subsequently obtained two different jobs as a medical screener and assignment co-ordinator for two different employers. The representative submitted that the demonstrated ability to work should disqualify the worker from receiving full LOE benefits from April 1, 2022.
Entitlement to Full LOE Benefits from April 1, 2022
I will begin by pointing out that following the February 14, 2022 WSIAT decision, the Case Manager ultimately reinstated full LOE benefits on March 10, 2023, which was the date she established as the date the worker began participating in RTW services. I also note the worker remains in receipt of full LOE benefits, continues to participate in RTW services and the Operating Area has yet to determine whether the worker has reached MMR for the psychotraumatic disability. Therefore, my decision in this appeal only pertains to entitlement to LOE benefits for the period from April 1, 2022 until March 10, 2023.
According to Policy 18-03-02 (Payment and Reviewing LOE Benefits), a worker is entitled to receive LOE benefits if the nature or seriousness of the injury completely prevents the worker from returning to any type of work. A worker who can return to some form of work is entitled to full LOE benefits if suitable work is not available providing the worker co-operates in health care measures and all aspects of the work-reintegration process.
The policy also states that 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 of such workers include:
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.
As the December 2, 2022 decision concerned the payment of a retroactive period of LOE benefits pursuant to the February 14, 2022 WSIAT decision, I found it helpful to refer to the March 1, 2002 WSIB Adjudicative Advice Document titled Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA.
The Practice Guidelines recommend that when a decision-maker is granting LOE benefits retroactively for past periods in which they were reduced or discontinued the following guidelines should be taken into account:
Full LOE benefits where the impairment prevents the worker from returning to the pre-injury job, no suitable work has been offered and the worker is making reasonable efforts to secure a suitable job or is engaging in other activities (e.g. active health care treatment) reasonably aimed at improving employability and minimizing LOE.
Partial LOE benefits where the impairment prevents a return to the pre-injury job, no suitable employment has been offered, but the worker has not made reasonable efforts to either secure suitable work or improve their employability. LOE benefits are paid based on a SO the worker can perform without training based on a labour market re-entry assessment.
Partial LOE benefits where the impairment prevents a return to the pre-injury job, no suitable employment has been offered but the worker has found a job and is currently earning. Where the worker has attempted to mitigate the wage loss by actually finding a job, current earnings are used to pay the LOE benefits.
Given the evidence before me, I find the worker is entitled to full LOE benefits from April 1, 2022 until March 10, 2023, less any income she received in employment during the period. In reaching that conclusion, I have taken particular note of the following:
Chart notes from Dr. Thomas, a family doctor, ranging from November 9, 2021 to March 14, 2022 indicate the worker continued to consult Dr. Thomas concerning adjustments to anti-depressant medications.
Medical records from Dr. Nousiainen, an orthopaedic surgeon, confirmed the worker attended post-operative follow-up appointments after undergoing a surgical revision of the right total knee arthroplasty on June 15, 2021. A December 17, 2021 report indicated the worker was maintaining their physiotherapy regimen approximately six-months after the surgery. Dr. Nousiainen indicated he would see the worker in June 2022 for the one-year follow-up in order to obtain repeat x-rays. While there was no report concerning the one-year follow-up in the record, I note the Operating Area requested medical records from Dr. Nousiainen before the June 2022 assessment took place. As Dr. Nousiainen reported the worker remained fully compliant in the December 17, 2021 report, I find it more probable than not they remained complaint with the right knee rehabilitation in 2022.
Chart notes from Dr. Bakhshi, a family doctor, between November 24, 2021 and March 1, 2022 described the worker attending regular appointments for their mental health and discussing volunteer and job opportunities. A February 25, 2022 chart note indicated the worker felt ready to attend a job interview. In a subsequent chart note, Dr. Bakshi stated the “interview went well” and the worker was waiting for a response.
An April 1, 2022 letter from Dr. Bakshi indicated had the diagnosis of chronic major depressive disorder and anxiety disorder. Dr. Bakshi indicated the worker had partially improved with psychotherapy and recommended they continue with treatment.
An April 5, 2022 letter from Dr. Kobrossi, a chiropractor, confirmed the worker attended an assessment on March 31, 2022 to obtain range of motion measurements for the right knee.
A Nurse Consultant referred the worker for an assessment at a WSIB Mental Health Specialty Clinic on November 25, 2022 and the assessment took place on December 5, 2022. In the report that followed the assessment Dr. Aleem, a psychiatrist, and Dr. Ng, a psychologist, indicated the worker treatment with Dr. Bakshi for major depressive and anxiety disorder ended in in April or May 2022 and consisted of coping strategies and finding a job. The assessors indicated the worker did not find the treatment with Dr. Bakshi helpful. Dr. Aleem and Dr. Ng described the worker attempting to return to work twice since January 2019. They indicated the worker left their first job due to interpersonal strain with a former manager. They also noted the worker was terminated from their second job as an assignment coordinator the previous week. Upon questioning, the assessors indicated the worker had submitted a human resources complaint prior to the dismissal due to interpersonal strain and a lack of training. The worker advised Dr. Aleem and Dr. Ng they were looking for another job, with hopes of finding a remote job to manage the physical symptoms they experienced with using public transit. The assessors endorsed the diagnosis of a major depressive disorder and opined the worker had not reached maximum medical recovery. They recommended psychological treatment with an evaluation of treatment response after 16-weeks. They recommended the worker begin engagement in RTW services to find suitable alternate work.
In a case file memo dated January 12, 2023, the worker spoke with the Case Manager and agreed to participate in RTW services. The worker submitted a copy of their resume to the Operating Area on March 1, 2023 that indicated they had worked at two jobs in 2022 as a medical screener and an assignment coordinator. They subsequently met with a RTW Specialist on
March 10, 2023 and the Case Manager reinstated full LOE benefits.
Suitable work with the employer was no longer available to the worker on April 1, 2022. With respect to entitlement to LOE benefits from April 1, 2022, I agree with the employer’s representative that the worker was not totally disabled and does not qualify for full LOE benefits from April 1, 2022 under the first criterion specified in Policy 18-03-02 (Payment and Reviewing LOE Benefits).
In my view, however, the evidence referenced above demonstrates the worker made a reasonable effort to secure a suitable job and engaged in health care measures reasonably aimed at improving their employability. As such, I find the worker meets the second criterion in the policy that states a worker is entitled to full LOE benefits if suitable work is not available provided they co-operate in health care measures and all aspects of the return to work process.
The worker attended psychological treatment with Dr. Bakhshi and consulted Dr. Thomas concerning anti-depressant medications in 2022. Based on the reporting of Dr. Nousiainen, I find it more probable than not the worker remained complaint with their right knee rehabilitation in 2022. The worker obtained two jobs with two different employers in 2022. While the exact reason their employment in the second job ended was unclear, the worker attended the initial assessment at the WSIB Mental Health Specialty Clinic where Dr. Aleem and Dr. Ng reported the termination occurred after the worker filed a human resources complaint. Dr. Aleem and Dr. Ng also questioned the worker about their intention to return to the workforce and the worker confirmed they continued looking for suitable employment. The worker subsequently spoke with the Case Manger on January 12, 2023 and agreed to co-operate with RTW services. They submitted a copy of their resume to the Operating Area and met with the RTW Specialist on March 10, 2023. Accordingly, I am satisfied the worker engaged in health care activities reasonably aimed at improving their employability and made reasonable efforts to secure a suitable job.
In conclusion, I find that as suitable work was not available and the worker made reasonable efforts to improve their employability, secure a suitable job and mitigate the wage loss that resulted from the injury, they are entitled to full LOE benefits from April 1, 2022 until March 10, 2023 less any income received from employment during the period.
CONCLUSION
I conclude the worker is entitlement to full LOE benefits from April 1, 2022 until March 10, 2023 less any income received from employment during the period.
The worker’s objection is allowed.
DATED July 14, 2023
C. Goegan
Appeals Resolution Officer
Appeals Services Division