APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250018
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT PARTY:
EMPLOYER (Not Participating)
HEARING:
VIDEOCONFERENCE – oCTOBER 18, 2024
HEARD by:
Kelly Gordon, appeals resolution officer
october 22, 2024
ISSUE
The worker, through their representative is objecting to the Case Manager’s (CM) decision dated October 20, 2023. Specifically, the worker objects to the denial of Loss of Earning (LOE) benefits from August 1, 2022 to August 8, 2022.
PRELIMINARY ISSUE
Prior to the start of the hearing, the worker representative referred to the CM’s decision dated October 20, 2023, that denied entitlement to LOE benefits from August 1, 2022 to August 8, 2022. However, the representative stated the worker remained off work completely until August 30, 2022. Therefore, they requested that in this appeal I rule on entitlement to LOE benefits from August 1, 2022 to August 30, 2022.
Although the employer is not participating in this appeal, I reviewed the evidence on file, and note the information provided by the employer supports the worker did not return to work until August 30, 2022. The employer has submitted attendance sheets that confirm the worker did not work from August 1, 2022 to August 30, 2022. As such, I advised the worker representative that I will rule on entitlement to LOE benefits from August 1, 2022 to August 30, 2022 as requested.
BACKGROUND
The history and nature of this claim is well documented in the Appeal Resolution Officer’s (ARO) decision of July 28, 2023. As such, I will only provide a brief history in order to place the issue under this appeal into context.
On July 8, 2022, this worker had a discussion with their lead hand and senior lead hand about the quality of their work. During the discussion, the worker became upset, they threw their gloves to the ground, and as they started to walk away, the lead hand pushed the worker causing them to land backwards on the ground. As a result of the fall, the worker suffered contusions and strain type injuries to their left hand and left hip.
On July 25, 2022, the Eligibility Adjudicator (EA) denied entitlement in this claim as they found the worker removed themself from the course of employment. Specifically, they found the worker was the aggressor in a fight with their lead hand. The worker objected to this decision, and the claim was referred to Appeals Services. In the decision dated July 28, 2023, the ARO found the worker was not the aggressor, nor was there a fight. As such, the ARO found the worker did not remove themself from employment. The ARO allowed initial entitlement to health care benefits for the left hip and left-hand sprains and contusions. The ARO directed the Operating Area to determine the worker’s entitlement to LOE benefits.
The employer offered the worker modified duties starting July 12, 2022. The worker returned to the duties offered, and although the worker worked reduced hours, the employer paid the worker based on full time hours. When the EA denied entitlement in this claim, the employer advised the worker they would be paid for hours worked only. The worker went off work completely from August 1, 2022 to August 30, 2022.
The CM issued a decision dated October 20, 2023, confirming the allowance of LOE benefits for the worker’s lost time from work on July 11, 2022. The CM states the worker does not have entitlement to LOE benefits while working reduced hours from July 12, 2022 to July 29, 2022, as the employer paid the worker their full wages for this period. However, the CM denied entitlement to LOE benefits from August 1, 2022 to August 8, 2022, as the worker remained off work when the employer had suitable modified duties available at full time hours.
The worker representative submitted the Appeal Readiness Form (ARF) dated August 2, 2024, confirming the worker’s objection to the denial of LOE benefits for the worker’s lost time from work from August 1, 2022 to August 30, 2022.
The worker’s objection to the denial of LOE benefits from August 1, 2022 to August 30, 2022, forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
19-02-07 RTW Overview and Key Concepts 18-03-02 Payment and Reviewing LOE Benefits (Prior to the Final Review)
April 9, 2021 September 1, 2021
ANALYSIS
For the reasons that follow, I find the worker does have entitlement to full LOE benefits from August 1, 2022 to August 30, 2022. In reaching this decision, I have carefully considered all the available information on file, the worker’s testimony, and the relevant operational policies.
During the appeal hearing, the worker testified that they have worked for this window manufacturer since June 5, 2020. They are a full-time worker, and they work from 6:30am to 3:00pm, Monday to Friday. The worker testified they drive approximately 15 minutes to work each day.
The worker testified that on the day of accident, they asked their lead hand for help as the pieces they were holding were heavy. The lead hand refused, and started yelling at the worker stating the pieces the worker welded were not to specification. As the lead hand was yelling, the worker began to cry. The worker then removed their gloves, threw their gloves, and started to walk away. The lead hand then pushed the worker causing them to fall. The worker landed on their left side, and they hurt their left hand and left hip. A lady that was working close to the incident helped the worker get up. The palm of the worker’s hand turned blue, and they felt immediate left hip pain. Another lead hand who witnessed the incident told the worker to go to first aid, and a co-worker helped the worker walk to first aid. A manager then came and took the worker to the Human Resources (HR) office. The worker met with the HR person, and the HR person told the worker to go home and rest for two days. The HR person told the worker that the employer would pay them for their lost time from work. On the day after the accident, the worker sought medical attention, and their doctor advised them to stay off work and to rest.
The worker testified that their safety manager contacted them at home, and they advised them to come into work for one hour a day. The manager advised the worker that the employer would pay them their full hours. The employer also provided the worker with a taxi to and from work.
The worker confirmed they were off work on July 11, 2022, and they returned to work for one hour a day from July 12, 2022 to July 29, 2022. However, the worker advised they were in too much pain to do anything. The worker stayed in the office and alternated between standing and sitting for one hour. The employer provided them with a chair and a cushion, and after an hour, a taxi picked them up and they went home. While at work for the one hour, the worker testified that with the exception of a couple of days when they reviewed brochures and laminated some documents, they did not perform any other work. The worker stated a lead hand assistant helped them walk to and from the office to the taxi each day.
The worker stated that after going to work for one hour a day for two weeks, they were advised that their WSIB claim was denied. When their claim was denied, the employer told them that they would no longer pay them their full wages. Instead, the employer advised the worker they would only pay for the one hour a day that they were at work. The worker testified that when the employer told them this, they stopped working. The worker advised that they were not doing anything at work for the one hour anyway, they were in a lot of pain, and their doctor advised them to stay off work and rest. The worker went off work completely on August 1, 2022.
The worker testified that although they signed a modified job offer on the day of accident, they were not in the right state of mind, and did not realize what they were signing. The worker also testified that they have never performed any of the modified duties outlined in the written offer of modified work. Specifically, they have not performed, nor are they aware of the physical requirements for packaging, inventory counting, sorting parts, shipping documentation preparation, filing or data entry. In terms of data entry, the worker advised they do not know how to use a computer, and their employer did not show them how to use a computer. The worker confirmed the employer never explained what was involved in the modified duties outlined in the July 8, 2022, offer. Instead, the employer told the worker that if they came in for an hour a day, they would be paid for their full shift.
The worker was asked about the emails the employer submitted to file. Specifically, the emails dated July 12, 2022, and July 19, 2022, in which the employer talks about modified work. The worker testified these emails were sent to their daughter’s email address, and the worker never saw them.
The worker testified they remained off work from August 1, 2022 to August 30, 2022. Although the worker returned to their regular job and regular hours on August 30, 2022, they told their lead hand they were still in physiotherapy treatment, and they had not fully recovered. The lead hand advised the worker to perform what duties they can, and the lead hand assigned a co-worker to assist the worker with any duties they could not perform. The worker testified they were only assigned the small windows (not large and small as required in their regular job), and a co-worker pushed the buggy of parts to the worker each day. In addition, the worker was able to walk around when they needed to stretch and relieve their hip pain. The worker took washroom breaks so they could sit and rest their hip. The worker also testified that while working, they wore a belt that their physiotherapist gave them. The belt was worn on their lower back/hip area to assist with pain relief while working. The worker has remained at work working full time hours since August 30, 2022.
The employer did not participate in this appeal, and no submissions have been provided for my review.
Prior to determining whether the modified job offered by the employer is suitable, or the worker’s entitlement to LOE benefits, the worker’s level of impairment must first be determined.
Level of Impairment
For the reasons that follow, I find the worker is partially impaired and fit for suitable work.
Dr. Elahi, the worker’s family doctor completed a Health Professional’s Report of Injury, Form 8 dated July 8, 2022. On this form, Dr. Elahi provides a diagnosis of left hip strain and left hand contusions. Although Dr. Elahi states the worker is not able to return to work, they provide no objective findings to support the worker’s inability to work. No restrictions for return to work are included.
Dr. Elahi submitted their clinical notes for the worker’s visits related to the workplace injuries. In the note dated July 8, 2022, Dr. Elahi states the worker was seen with left hip and left hand pain due to an incident at work the same day. The worker reported they were pushed by a team lead, and they fell onto their left hip and left hand. The worker appeared anxious and tearful. There was tenderness and swelling about the left hip, range of motion was decreased to 50%, and bruises and a contusion was seen on the worker’s left palm. Decreased grip is also reported. The diagnoses provided is left hip strain and left hand contusions. The worker was prescribed Naproxen and Tylenol with Codeine.
The worker followed up with Dr. Elahi on July 10, 2022. The worker reported ongoing pain and discomfort, worse in the morning. Dr. Elahi states the worker has tenderness and swelling about the left hip and left hand palm area. The worker was advised to continue icing their injuries.
The worker underwent left hand and left hip x-rays on July 11, 2022. The results showed no evidence of fractures or dislocation. When seen on July 21, 2022, the worker reported ongoing left hip and left hand pain. The worker was attending physiotherapy three times per week. Dr. Elahi notes the worker has tenderness about their lower back, left hip, and left palm area. The diagnoses includes left hip, back and left hand strains. The worker was prescribed Naproxin, Tylenol with Codeine, and Lyrica.
On July 21, 2022, Dr. Elahi completed a Functional Ability Form (FAF), and they include restrictions for return to work. Dr. Elahi notes the worker is attending therapy, and they will reassess the worker in a month.
On August 14, 2022, the worker reported ongoing left hip and left hand pain, poor sleep, and anxiety related to the July 8, 2022, workplace incident. The worker also reported increasing right thumb pain. The worker was advised to continue therapy, supportive counselling, and motivational interviewing. In addition to a referral for a right hand ultrasound, the worker was referred to a psychologist.
In the clinical note dated August 24, 2022, Dr. Elahi states the right hand ultrasound was normal. The worker was still anxious and upset, and they reported poor sleep as well as a feeling of being violated at work. The worker has financial issues and responsibilities, and therefore they plan to return to work. However, the worker is afraid of seeing their abusive supervisor. The worker had not yet seen a psychologist, but they continue physiotherapy weekly. The worker’s medication includes Cymbalta, Lyrica, Tylenol with Codeine, and Naproxen.
Based on my assessment of the evidence, I find that as of July 8, 2022, the worker is partially impaired and fit for suitable work. In making this decision, I have placed significant weight on Dr. Elahi’s medical reports. While I do not question the worker suffered injuries that require return to work accommodations, I find no objective evidence to support the worker was unable to perform any type of work in the days immediately following the workplace accident.
Suitability of modified duties
For the reasons that follow, I find the employer did not provide the worker with suitable modified work.
In reviewing this issue, I refer to Policy 19-02-07 that states a worker's ability to return to work (RTW) can be determined based on the workplace parties’ exchange of relevant information regarding the worker’s functional abilities, or through a decision by the WSIB, either on its own initiative or by request of either workplace party. In some cases, the workplace parties are unsure or unable to agree on whether the worker can return to some form of work. Either party can contact the WSIB, and the WSIB will:
- assist them to reach consensus on the issue, or
- make a determination as to the worker’s ability to return to work, and
- promptly give the workplace parties written notice of the determination.
To determine whether the worker can RTW, the worker’s functional abilities and limitations are compared to the demands of the job. Since the nature of the worker's impairment can change over time, the workplace parties and the WSIB monitor the worker's functional abilities to ensure that appropriate RTW activities occur at appropriate times.
Policy 19-02-07 goes on to state that suitable work means post-injury 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.
In this case, the employer submitted a copy of the written modified job offer signed by the worker on July 8, 2022. The employer states they provided the worker with a FAF, and they requested the worker have their doctor complete it as soon as possible. While waiting for the FAF, the employer states modified duties are available, and the duties offered will accommodate standard medical restrictions for the worker’s injuries. The duties include, but are not limited to packaging, inventory, counting, sorting parts, filing, data entry, and shipping documentation preparation. The employer also states the duties are available for modified hours.
In addition to the July 8, 2022, written modified job offer, the employer submitted copies of text messages and emails sent to and received from the worker. In the email dated July 28, 2022, the employer confirms they advised the worker that their WSIB claim has been denied. The employer confirms that although they will continue to provide modified duties, they will only be paying the worker for their hours worked. As their doctor confirmed the worker can drive and take public transit, they will no longer be providing the worker with a taxi to and from work. The worker advised the employer that it is not worth their while to come into work for an hour if they are only going to be paid for the hour worked. Therefore, the worker advised they would be taking their doctor’s advise, and they will rest at home before returning to work.
As confirmed in the employer’s email dated August 30, 2022, the worker submitted a doctor’s note clearing them to return to full regular duties.
Based on my review of the evidence, I find the worker was not offered safe and suitable modified duties. In making this determination, I have placed significant weight on the modified job offer as provided by the employer as well as the worker’s testimony. While I do not question the employer did provide the worker with a written offer of modified duties, the worker testified that these duties were never discussed with them. During the appeal hearing, the worker confirmed they had never performed any of the duties outlined in the modified job offer, and they are unaware of the physical requirements involved in the duties offered. As the employer has provided no information to indicate what is physically involved in the modified jobs offered, I am unable to determine if the jobs outlined in their offer are suitable. In addition, the worker confirmed that when they did return to modified duties on July 12, 2022, they were assigned to an office, provided a chair and a cushion, and told to review brochures and laminate some documents. With the exception of approximately two days when they performed work that involved laminating and reviewing brochures, the worker was not provided with any other work. Therefore, I find the evidence supports that although the worker was provided a written offer of modified duties, when the worker returned to work, they were not provided the duties as outlined in the offer. The employer did not participate in this appeal, nor did they provide any submissions that outline the physical demands in the modified duties offered to the worker. I also note that following the July 8, 2022 written modified job offer, the employer has not submitted any evidence to indicate any additional or alternate duties were offered to the worker while they were off work from August 1, 2022 to August 30, 2022. Therefore, having considered all the evidence, I find I am unable to establish that worker was offered safe and suitable work.
Entitlement to LOE benefits
I find the worker does have entitlement to full LOE benefits for their lost time from work from August 1, 2022 to August 30, 2022.
Policy 18-03-02 states 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.
In my review of the medical evidence, I find that for the period from August 1, 2022 to August 30, 2022, the worker continues to receive physiotherapy, and they attended follow up visits with Dr. Elahi. I accept the medical evidence supports that for the month of August 2022, the worker was not fit to perform their regular job duties. Instead, I accept the worker had restrictions that had to be accommodated with suitable modified work.
As previously noted, I do not find the evidence supports the worker was offered safe and suitable modified work. Therefore, I find the worker does have entitlement to full LOE benefits from August 1, 2022 to August 30, 2022.
CONCLUSION
I find the worker does have entitlement to full LOE benefits from August 1, 2022 to August 30, 2022.
The objection is allowed.
DATED October 22, 2024
Kelly Gordon Appeals Resolution Officer Appeals Services Division