APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20250023
OBJECTING PARTY: worker
REPRESENTED by: Worker representative
RESPONDENT PARTY: employer (not participating)
HEARING: HEARING IN WRITING
HEARD by: Sujethra Nadarajah, appeals resolution officer
ISSUE(S)
The worker objects to the following two decisions:
The June 3, 2024 Case Manager (CM) decision that determined the worker was capable of working full hours and denied entitlement to partial loss of earnings (LOE) benefits from May 28, 2024 onwards.
The July 29, 2024 CM decision that outlined the worker’s accepted permanent restrictions, which provided the worker was able to lift to 5 kgs above shoulder level.
BACKGROUND
On March 22, 2023, this worker, a CNC machinist, injured their right shoulder when they fell backwards, catching themselves on a machine with the right arm. Entitlement exists in this claim for a right arm sprain/strain injury and right shoulder traumatic rotator cuff tear. The worker remained at work performing modified duties until August 10, 2023, at which point they underwent surgical intervention for their right shoulder tear. The worker returned to a graduated return to work plan on April 22, 2024.
The June 3, 2024 decision determined the worker was capable of working full hours at work and denied entitlement to loss of earnings (LOE) benefits from May 28, 2024 onwards. The worker representative (WR) objected to this decision.
The July 29, 2024 decision determined the worker reached MMR with a permanent impairment for the right shoulder rotator cuff tear as of July 12, 2024. This decision also outlined the worker’s accepted permanent restrictions based on the July 12, 2024 WSIB Specialty Clinic Report. The WR objected to this decision.
On September 2, 2024, the worker representative (WR) submitted the Appeal Readiness Form (ARF). The worker’s objection to the denial of partial LOE benefits and the denial of recognition of a permanent restriction for above shoulder activity form the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) September 1, 2021
11-01-05 – Determining Permanent Impairment November 3, 2014
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. As I will explain below, the worker’s objection is allowed in part.
Worker Position
In reaching my conclusion, I have reviewed the WR ARF. Based on the ARF and the September 20, 2024 conversation between the WR and the CM, the worker requests recognition of a permanent restriction for any above shoulder activity and entitlement to partial LOE benefits based on the fact that the worker is only capable of working four hours per shift. The WR relies on the existing medical records on file to support their position.
Employer Position
The employer was not a participant in the appeal; thus, no information was submitted for consideration.
1. LOE Benefits
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states in part
Partial LOE
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 include but are not limited to:
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.
This policy indicates partial LOE benefits are approved and continue if the worker is prevented from returning to their full regular duties or pre-injury hours at work because of their work-related injury or if it is determined that no suitable work is available.
The CM in their June 3, 2024 decision determined the worker was not entitled to any LOE benefits beyond May 29, 2024. The WR is requesting entitlement to partial LOE benefits on the basis that the worker is only capable of working four-hour shifts.
In coming to my determination, I have placed significant weight on the April 17, 2024 and August 28, 2024 RTW Meeting Memo/Plans and the May 24, 2024 and July 12, 2024 WSIB Specialty Clinic Reports.
The April 17, 2024 RTW Meeting Memo/Plan provided the worker was capable of performing their pre-injury duties with accommodations. The worker was to gradually increase from four hours to pre-injury hours from April 22, 2024 to June 3, 2024. The duties involved:
using overhead crane with chains to pick up component, placing component on fixture with pins and clamping in place, moving pallets into machine and running machine, making adjustments inside the machine with hand tools and mallets, and taking measurements with calipers to ensure quality and consistency
constant standing, frequent walking, rare forward and above shoulder reaching, rare bilateral lifting at waist height up to 50 lbs with assistance, occasional to frequent bilateral forward reaching/carrying, lifting from floor to waist height up to 15 lbs, occasional to frequent bilateral and dominant hand unilateral forward reaching, occasional to frequent unilateral hand gripping and twisting with torque, occasional unilateral wrench usage against force, and light use of mallet away from the body against light force
The duties were self-paced, and the worker had the capacity to take 2-3 minute breaks every 45-60 minutes. The worker was to request assistance if there were any parts that they were unable to lift. The worker was to keep their arms close to their body and gradually integrate overhead lifting if required. Overhead lifting was not a normal task, the highest level the worker generally worked at was shoulder height, using a torque.
The May 24, 2024 WSIB Specialty Clinic Report provided the worker was to work accommodated duties for four hours per day until the next follow up. At the worker’s next follow up, on July 12, 2024, the assessors recommended the worker gradually increase an hour every week, from four hours to pre-injury hours. The purpose of the graduated return to work was to allow the worker to build on their tolerance for return to work and minimize the risk of reinjury to their right shoulder.
Upon reviewing the information on file, I find the worker is entitled to partial LOE benefits from May 29, 2024 to August 4, 2024. I find the Specialty Clinic assessors recommendation to be reasonable and allowed the worker to slowly increase their tolerance while taking the required breaks from work for recovery. Beyond August 4, 2024, I find the worker can work pre-injury hours based on the details of the August 28, 2024 RTW Meeting Memo/Plan.
The August 28, 2024 RTW Meeting Memo/Plan confirmed the employer continued to have modified duties available for the worker on a full-time basis. The worker’s accommodations included no heavy lifting tasks (including replacing the tools in the magazine or loading the material into the machine via crane at the start of a cycle and clamping it into place) and self paced activities with micro-breaks. The worker’s reaching demands were occasional.
While I acknowledge the family doctor recommended the worker remain at four hours per shift, they did not provide objective findings to support their position. Accordingly, I do not place significant weight on their recommendation.
Further, in the August 2, 2024 RTW Meeting Memo/Plan, the worker reported ongoing significant pain in both shoulders, which impacted their activities of daily living and sleep. While I acknowledge having pain in the left shoulder presents more barriers to remaining at work, there is no entitlement in this claim for the left shoulder. Accordingly, I am unable to consider the worker’s left shoulder pain in the determination relating to the worker’s ability to return to work.
Therefore, with the information available to me, I find the worker is entitled to partial LOE benefits from May 29, 2024 to August 4, 2024, based on the following breakdown:
May 29, 2024, to July 21, 2024 – four hours worked per shift
July 22, 2024 to July 28, 2024 – five hours worked per shift
July 29, 2024 to August 4, 2024 – six hours worked per shift
August 4, 2024 and beyond – return to pre-injury hours
The worker is not entitled to LOE benefits beyond August 4, 2024 as I find the worker was capable of working their pre-injury duties at work.
2. Accepted Permanent Restrictions
Policy 15-01-05, Determining Permanent Impairment, defines permanent impairment as an “impairment that continues to exist after the worker reaches MMR”. An impairment can mean “a physical or functional abnormality or loss, including disfigurement, which results from an injury”.
In this case, the worker reached MMR with a permanent impairment for the right shoulder rotator cuff tear as of July 12, 2024. The worker had no restrictions with walking, standing, sitting, stair climbing, driving, and using transit. The CM outlined the accepted permanent restrictions for the worker’s right shoulder in their July 29, 2024 decision:
Lifting floor to waist: 0 to 5 kg
Lifting waist to shoulder: 0 to 5 kg
Lifting above shoulder: 0 to 5 kg
Pushing/Pulling: 0 to 5 kg
Ladders: 1 to 3 steps
Limit repetitive bending/twisting movement of the right shoulder and arm to occasional basis
The WR is requesting recognition of a permanent restriction for no above shoulder activity due to their work injury.
Upon reviewing the medical information on file, I find the worker does not have a complete restriction for use of the right shoulder in all above shoulder activity for their compensable right shoulder injury.
The March 25, 2024 WSIB Specialty Clinic Report provided the assessors anticipated the worker would have restrictions for above shoulder use due to the severity of the worker’s injury coupled with their pre-existing arthritis. The report did not provide that the worker’s osteoarthritis of the right shoulder and right elbow worsened due to the work injury; rather it was listed as a relevant non-occupational diagnosis. I note that as there is no entitlement to the worker’s pre-existing osteoarthritis, any limitations the worker experiences related to their osteoarthritis are not considered as part of the accepted permanent restrictions for the right shoulder rotator cuff tear injury.
The July 12, 2024 WSIB Specialty Clinic Report provided the worker had the capacity to lift above shoulder level, up to 5 kgs. When assessed, the worker’s strength for their right arm was between 4-5/5 for all categories. The worker’s right shoulder range of motion findings provide they were capable of performing some above shoulder activity:
flexion was 150-175 degrees (normal is 180 degrees)
extension was normal (normal is 60 degrees)
abduction was 140-160 degrees (normal is 180 degrees)
While the family doctor supported the worker was unable to do above shoulder activity with the right shoulder on multiple Functional Abilities Forms (i.e., August 18, 2024, September 21, 2024), the family doctor only advised the worker was limited in their abilities due to the worker’s subjective complaints of pain.
In coming to my determination, I place significant weight on the July 12, 2024 WSIB Specialty Clinic Report as the assessors are specialists in the field, physically assessed the worker’s functional abilities and completed multiple contemporaneous in-person assessments of the worker. As the family doctor did not provide any objective findings to support their position, I do not place significant weight on this opinion.
Therefore, on a balance of probabilities, I find the worker could reasonably lift to 5kgs over shoulder level.
CONCLUSION
The issues are concluded as follows:
The worker is entitled to partial LOE benefits from May 29, 2024 to August 4, 2024, less any monies paid by the worker for working beyond the accepted gradual return to work schedule. No LOE benefits are payable beyond August 4, 2024.
The worker can lift to 5 kgs above shoulder. This is not a permanent restriction.
The worker’s objection is allowed-in-part.
DATED December 18, 2024
Sujethra Nadarajah Appeals Resolution Officer Appeals Services Division
NOTICE – IMPLEMENTATION INFORMATION
The objection is allowed or allowed in part. Based on the Appeals Resolution Officer’s review, there appears to be information outstanding which may be required to implement this decision. The following information is required to implement this decision:
- the worker’s actual hours worked from May 29, 2024 to August 4, 2024
This decision will be implemented once this information is received. If there are any questions about the status of the claim, please call the general enquiry number at 1-800-387-0750.
Please note: The operating area ultimately determines what information is required for implementation of an Appeals Resolution Officer decision and the Case Manager may require information which has not been identified by the Appeals Resolution Officer. Should this be the case, the Case Manager will be in contact to advise what additional information is required.