APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250034
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESNTATIVE
RESPONDENT PARTY:
employer (not participating)
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
L. Mansueti, appeals resolution officer
December 16, 2024
ISSUE
The worker objects to the Case Manager (CM) decision dated August 1, 2024, communicating they are capable of performing suitable modified work at full-time hours, effective July 29, 2024.
The worker seeks entitlement to partial loss of earnings (LOE) benefits based on their ability to work 20 hours per week.
BACKGROUND
On July 27, 2022, the worker was lifting a commercial mop bucket full of water in an effort to drain the water into a sink, when they experienced intense pain in their back and legs. The worker estimated the bucket weighed approximately 50lbs. They were working as a Cleaner at the time of injury. The worker was hired on a permanent part-time basis; however, at the time of injury they were working full-time hours on a temporary basis.
Entitlement was accepted for lower back sprain/strain with sciatica for health care and LOE benefits. A graduated return-to-work plan was established in September 2022, wherein the worker would return to work (RTW) performing suitable with accommodations with the employer starting at 2 hours per shift on September 8, 2022, and gradually increase to 4 hours per shift, earning their pre-injury wages. As of October 10, 2022, the worker was working 20 hours per week, performing accommodated duties as per the graduated RTW plan. At the time of accident, the worker was working 8 hour per shift, 40 hours per week; however, their assigned permanent shift was 4 hours per shift, 20 hours per week. It was noted the temporary full-time shift was no longer available. Following a long-term recalculation of the worker’s LOE benefits, the operating area determined the worker was entitled to partial LOE benefits from October 10, 2022, as they were experiencing a wage loss.
In August 2023, entitlement was expanded to include annular tears at L4-5 and L5-S1 and a small L3-4 disc herniation without nerve compression. The worker was determined to have a low back permanent impairment (PI); thus they were referred for a non-economic loss (NEL) assessment. In October 2023, the worker received a 14 per cent NEL benefit for lumbar strain, annular tears at L4-5, and L5-S1 and a small herniation at L3-4 without nerve compression. The worker was determined to have permanent low back restrictions.
In September 2023, The employer offered the worker a permanent cleaning position with accommodations at an alternate location, working 5 days per week, working 4 hours per shift – 10am to 2pm. The worker accepted the employer’s RTW offer. The worker continued to receive partial LOE benefits as they continued to experience a wage loss.
On or about July 29, 2024, the employer offered the worker a permanent cleaning position working 40 hours per week at their pre-accident rate of pay. The worker declined the offer of work on the basis they were unable to work 40 hours per week, and could only work 4 hours per shift, 20 hours per week.
The decision letter dated August 1, 2024, communicated the permanent offer of work was suitable and within the worker’s permanent restrictions. The operating area confirmed the worker was capable of working 40 hours per week. As such, there was a further adjustment in the worker’s partial LOE benefit entitlement effective July 29, 2024.
The worker objected to the decision dated August 1, 2024. It is the position of the worker they are not capable of working more than 20 hours per week, and this is now the issue before the Appeals Services Division.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-07 RTW Overview and Key Concepts
19-02-10 RTW Assessments and Plans
September 1, 2021
April 9, 2021
November 30, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the worker is entitled to partial LOE benefits based on their actual earnings of $19.35 per hour, 20 hours per week.
It should be noted my review and assessment does not include an all-inclusive summary of all the evidence submitted to the record, and there has been no attempt to reference every document in the claim file. I have included a summary of the pertinent evidence submitted to the record in relation to the issue in dispute.
Review of the Evidence
Following the workplace accident, the worker received conservative treatment and participated in a Low Back Program of Care. The worker was determined to be partially impaired, and a RTW plan was developed to commence September 2022. The worker returned to work performing pre-injury job duties within accommodations on a graduated RTW plan. At the time of accident, the worker was working 5 days per week, 4pm to 12am (8 hours); however, their assigned permanent shift was 5 days per week, 9am to 1pm (4 hours). It was noted the temporary full-time shift was no longer available.
The worker was seen at the Occupational Health Assessment Program in January and April 2023. They were diagnosed with lumbar strain with ongoing mechanical back pain and referred bilateral leg pain. The report indicated the worker was seeing a Rheumatologist in the community for their previous inflammatory arthritis. It was recommended the worker participate in the Enhanced Functional Treatment (EFT) program for 12 weeks. The worker declined the EFT program, and instead they continued with a treatment program in the community. The record indicated the worker stopped working as of March 17, 2023, because they found travelling to work was difficult.
They worker was referred to the Back and Neck Specialty Program, and they underwent a comprehensive assessment on May 5, 2023, completed by Dr. S. Harris, Orthopaedic Spine Surgeon, and K. Iwasaki, Physiotherapist. The worker’s occupational diagnoses included unresolved lumbar strain with neuropathic lower extremity radicular symptoms without nerve root compression. This finding was based on the worker’s mechanism of injury, which was a heavy lifting twisting injury causing a sudden onset of back pain and bilateral lower extremity symptoms including the magnetic resonance imaging (MRI) scan which showed annular tears and a small L3-4 disc herniation without nerve compression. The report indicated the MRI findings could represent pre-existing degenerative changes or acute injuries. The worker was noted to have pre-existing inflammatory arthritis with minor right sacroiliac joint sclerotic changes, as per the MRI scan. The worker’s pre-existing inflammatory arthritis was noted to be a barrier for RTW. The assessor indicated the worker would benefit from a multidisciplinary program. The worker was determined to be partially impaired, and capable of working with a limited Physical Demand Classification (PDC) level within their restrictions.
The worker returned to the Back and Neck Specialty Program for a follow-up assessment on September 1, 2023. The report indicated the worker reached a plateau in their recovery. It was noted the worker was previously recommended to attend a multidisciplinary program; however, they were unable to attend the program and instead continued treatment with a local community provider. The report indicated the worker was capable of returning to work within their restrictions. It was noted there were several barriers which may impact the worker’s ability to RTW including:
History of inflammatory arthritis
Poor sleep may have an impact on symptom management and productivity/safety at work
Fear/avoidance of activities
Fear of re-injury
Tearfulness, worry or distress
Heavy physical demand level of work
The worker’s permanent restrictions were as follows:
Walking up to 30 minutes on an occasional basis
Standing up to 30 minutes on an occasional basis
Sitting 30 minutest to 1 hour
Stair climbing 5 to 10 steps
Lifting up to 5kg
Pushing/pulling up to 5kg
No ladder climbing
Able to drive car, able to use public transit
No bending/twisting repetitive movement of the lower back
Avoid any low-level work, such as squatting, kneeling, and crouching activities
The worker was determined to be functional within a PDC level. It was recommended the worker refrain from bending and twisting of the lumbar spine and limit lifting, pushing, and pushing activities. They were recommended to take a 2 to 3 microbreak every 30 minutes. The report indicated the worker did not have any questions about their permanent restrictions or RTW recommendations.
The parties participated in a RTW meeting on September 14, 2023, to determine whether permanent modified work opportunities existed with the employer. The employer indicated they were able to accommodate the worker with suitable modified work at an alternate location. The worker expressed concerns with the duties as well as the hours of work being offered (9am to 1pm). The employer indicated they could accommodate the worker with work hours of 10am to 2pm. A referral for a Functional Capacity Assessment was completed to review the job demands of the accommodated Cleaner position.
A Functional Capacity Assessment was completed on September 19, 2023, to determine the suitability of the modified Cleaner position. The assessor determined the modified Cleaner position was suitable provided the implementation of the following accommodations/strategies are observed:
The worker should be exempt from cleaning tasks that require stooping, crouching, squatting, or kneeling. These tasks included cleaning of urinals, toilet bowls and staff refrigerator.
The worker can dust and clean surfaces that are between their standing mid-thigh to crown level (i.e. tables, countertops, door/locker handles, staff microwaves, and washroom sink areas)
The worker should implement the following strategies to reduce physical demands while working:
o Carry only necessary tools for the tasks
o Keep arms and body close to the task at hand
o Take microbreaks (~1-2 minutes) for every 20 to 30 minutes of work
o The worker should use the facility elevator instead of the stairs. The worker should inform the supervisor if the elevator is not working.
o The worker should inform the supervisor when a task cannot be completed or if additional cleaning support is required (i.e. clogged toilet, heavy spill etc.)
- The employer should provide the worker with telescopic tools (i.e. dusters and microfibre tools) to limit reaching postures when cleaning
The record indicated the worker returned to work with the employer performing permanent modified duties. In January 2024, the worker inquired about entitlement to partial LOE benefits. The worker informed the operating area they were working part-time hours, and they inquired about partial LOE benefit entitlement. They indicated the employer had not offered them full-time work.
A long-term earnings recalculation was completed, which confirmed the worker’s pre-accident long-term average earnings were higher than their short-term average earnings. The effective date of the long-term recalculation was noted to be October 20, 2022 – 12 weeks for the date of accident. The worker received retroactive partial LOE benefits from October 20, 2022, based on part-time hours of 20 hours per week.
The record contains a written offer dated July 9, 2024, wherein the employer offered the worker a full-time accommodated position as a Cleaner, earning $19.35 per hour, 40 hours per week. The record indicated the offer was presented to the worker on July 29, 2024. The worker declined the full-time position on the basis they were incapable of working full-time hours.
Dr. N. Dhillon, Rheumatologist, submitted a medical report dated July 16, 2024, indicating the worker was being followed regularly in the rheumatology clinic. Dr. Dhillon indicated that due to their rheumatologic condition, the worker was recommended to work restricted hours, a maximum of 4 hours per day.
Dr. A. Wong, the worker’s primary care physician, submitted a report dated October 7, 2024, responding to questions posed by the worker representative. Dr. Wong indicated the worker suffered from inflammatory arthritis over the last several years, and they also have ongoing severe shoulder and hip pain, decreased stamina, and difficulty bending. Dr. Wong indicated the worker was capable of performing the suitable modified work offered by the employer at 20 hours per week, working 10am to 2pm. Dr. Wong indicated the worker was not capable of working 40 hours per week, as this would exceed their tolerance level. Dr. Wong indicated the worker would not be capable of working 7am to 3pm due to their medical condition, noting a commute during rush hour would be too difficult for the worker. Dr. Wong indicated the worker ought to remain working 20 hours per week performing their current permanent modified duties.
Assessment of the Evidence
As documented in operational policy 19-02-07:
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.
There is no dispute regarding the suitability of the permanent modified work as there are no concerns regarding the safety, productivity, or question about whether the job duties are consistent with the worker’s functional abilities. The operating area determined the worker was capable of working full-time hours, and they received partial LOE benefits based their ability to earn $19.35 per hour, 40 hours per week. It is the position of the worker they are only capable of working 20 hours per week; thus they are seeking partial LOE benefits based on their part-time work capacity.
As enumerated in operational policy 19-02-10:
Part-time employment
If a worker was working part-time hours, they are not expected to either significantly increase the number of work hours or obtain full-time work in the SO. However, if they are interested in pursuing full-time work, they may be supported in doing so, provided it is within their functional abilities.
In review of the facts of this case, the worker was hired and worked as a part-time worker. At the time of the accident, the worker was filling a temporary position working full-time hours. The worker returned to work on a part-time basis post-accident, and in July 2024, the employer offered them a full-time position. The worker declined this offer, citing they were physically incapable of working 40 hours per week. As per the aforementioned policy, I find the worker is not expected to significantly increase the number of hours or work or RTW on a full-time basis considering they were working part-time hours pre-accident (save for the temporary full-time assignment). Regardless of the reasons why the worker is not able to increase their hours to 40 hours per week, I do not find this expectation should be placed upon the worker.
Operational policy 18-03-02 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.
Based on the foregoing, I find the worker is entitled to partial LOE benefits based on their actual earnings of $19.35 per hour, 20 hours per week.
CONCLUSION
I conclude the worker is entitled to partial LOE benefits based on their actual earnings of $19.35 per hour, 20 hours per week, effective July 29, 2024.
The worker’s objection is allowed.
DATED December 16, 2024
L. Mansueti
Appeals Resolution Officer
Appeals Services Division