APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240012
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer (not participating)
REPRESENTED by: self
HEARING: VIDEOCONFERENCE – february 26, 2024
HEARD by: l. mansueti, appeals resolution officer
ISSUE
The worker objects to the Case Manager (CM) decision dated January 21, 2022, communicating the closure of loss of earnings (LOE) benefits effective January 21, 2022, on the basis the employer offered suitable modified work within his restrictions.
BACKGROUND
On June 18, 2021, the worker lifted an uninterruptible power supply (UPS) unit weighing approximately 70lbs, when he felt a pull in his lower back. The worker was working as a computer technician at the time of injury, and he had worked with the employer for approximately 8 years.
Initial entitlement was granted for a low back strain for health care benefits. The worker continued working with the employer, performing self-modified duties. The worker began losing time from work effective October 4, 2021. The operating area granted entitlement to LOE benefits from October 4, 2021 onward.
In December 2021, a Return-to-Work (RTW) Specialist met with the parties to discuss RTW opportunities. A graduated RTW plan was developed wherein the worker would perform their pre-injury duties with accommodations, starting on January 17, 2022, working reduced hours. The worker returned to work on or about January 17, 2022 as per the graduated RTW plan; however, he stopped working on January 21, 2022. The worker requested a Record of Employment (ROE) on January 21, 2022, and the employer determined the worker had resigned.
The decision letter dated January 21, 2022, communicated the modified work offered by the employer was suitable and within the worker’s functional abilities. As such, the worker’s entitlement to LOE benefits ceased effective January 21, 2022.
In February 2023, the worker representative requested entitlement to a low back (PI). In July 2023, the operating area determined the worker reached maximum medical recovery (MMR) for their low back injury on November 24, 2022, with evidence of a PI. The worker received a 24 per cent non-economic loss (NEL) benefit for his low back PI. The accepted diagnoses included L5-S1 disc protrusion, and sprain/strain with exacerbation of degenerative changes.
The worker objected to the January 21, 2022 decision. The reconsideration letter dated December 29, 2023, upheld the decision dated January 21, 2022. The worker continued to object to the January 21, 2022 decision, and this is now the issue before the Appeals Services Division (ASD).
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
19-02-09 Re-employment Obligations
19-02-10 RTW Assessments and Plans
Administrative Practice Document: Weighing of Medical Evidence
September 1, 2021
April 9, 2021
November 30, 2020
November 30, 2020
February 2024
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 a determined suitable occupation (SO), effective February 9, 2022. The worker is entitled to RTW services as well as full LOE benefits effective the date of this decision, while he participates and cooperates in the RTW process.
Review of the Evidence
The record indicates the worker had a prior work-related low back injury dating back to 2014. The worker testified he received conservative treatment and he achieved a reasonable recovery after several months. He stated he continued to experience back pain from time to time; however, it did not affect his ability to perform his regular job duties. The worker reported he did not lose time from work, and he did not require any restrictions or accommodations as a result of that injury. He testified he was not symptomatic at the time of the June 18, 2021 workplace accident.
Following the June 18, 2021 work accident, the worker was initially diagnosed with a low back strain. An x-ray of the low back was completed on July 27, 2021, which showed evidence of interval progression of degenerative disc and facet joint disease. The worker was medically advised to return to modified work within his functional abilities. The worker had restrictions for bending, twisting, climbing, kneeling, lifting, operating heavy equipment, pushing, pulling, and prolonged standing, sitting and walking. The worker continued working with the employer.
The worker testified he continued working post-accident, and he continued to experience back pain. He stated he thought he had a minor back injury, and he was of the view that it would resolve with some medication and physiotherapy; however, his back pain persisted. The worker testified he continued working until October 2021. He stopped working because his back pain had become too much for him to tolerate. The worker indicated he did not believe he was performing his job duties to the standard required, citing he could not concentrate and he could not lift. The worker explained that despite the fact the employer did not comment on his job performance during this period, he did not feel that he was performing his job duties very well.
On October 1, 2021, Dr. B. Di Paolo, the worker’s primary care physician at the time, completed a Functional Abilities Form (FAF). Dr. Di Paolo indicated the worker was physically unable to return to work.
The record indicated worker stopped working on October 4, 2021. The worker advised the operating area he was unable to continue working due to difficulties concentrating because of persistent back pain. He indicated he could not sit for long periods of time, and some calls would take a long time. The worker indicated he was questioned by the employer as to why he was taking so long to complete tasks.
The worker underwent a Program of Care (POC) assessment on October 12, 2021, completed by M. Bennett, Physiotherapist. The worker’s symptoms included decreased function, decreased mobility, low back pain, and use of standard cane. The working diagnosis was low back strain/sprain; however, it was noted further investigations were pending. The worker was recommended to remain off work. The POC outcome summary dated December 7, 2021, indicated the worker was unable to return to work. M. Bennett indicated the worker was awaiting a magnetic resonance imaging (MRI) scan, scheduled for January 2022. The worker achieved minimal improvement with treatment.
A RTW Specialist met with the parties virtually on December 9, 2021, for RTW planning. As detailed in memorandum A, the RTW plan indicated the worker’s pre-injury job was discussed in detail, including physical demands and job tasks. The employer indicated their business was impacted by the COVID-19 pandemic, thus the typical assignment of 80 per cent remote work had increased to 90 to 95 per cent remote work. It was noted that on rare occasions, technicians would be dispatched to customer locations to provide onsite assistance. The employer indicated they were able to accommodate the worker with remote work, and reassign any onsite work to another employee. The employer indicated they could accommodate the worker with their pre-injury job with accommodations. They indicated they could provide the worker with a sit/stand desk, headset, allowance of micro breaks, freedom of movement, and exclusive remote work. The RTW plan was noted to be graduated, in that the worker would commence working 4 hours per day, and increase their hours of work each week. The parties discussed January 17, 2022 as the tentative RTW date. It was documented the worker would review the RTW plan with their doctor on December 10, 2021. The parties scheduled a follow-up meeting on January 13, 2022, to discuss the worker’s functional abilities and confirm the viability of returning to work on January 17, 2022.
The worker testified the RTW Specialist dictated what was going to happen, and the worker did not feel his issues and concerns were heard. The worker expressed concerns about starting a RTW plan when his MRI results were outstanding. He indicated he was concerned that he may cause further damage to his back if he pushed himself too hard. Secondly, the worker indicated he was experiencing a great deal of pain, which affected his concentration and his ability to work for a long period of time. He explained that he was willing to try the graduated RTW plan, wherein he would work 4 hours per day; however, he could not commit to working 4 continuous hours. He indicated he may need a longer break after 1 or 2 hours of work, and then continue working later on to achieve 4 hours; however, the employer was reportedly not in agreement with this. The worker indicated the employer wanted to establish set hours of work; however, the worker explained he needed more flexibility in his schedule to accommodate his pain, need for rest, and drowsiness caused by medication.
Dr. Di Paolo completed an FAF dated December 10, 2021, indicating the worker was physically unable to return to work at this time. Dr. Di Paolo did not provide any comments on the RTW plan.
The worker was referred to Healthcare Centre WSIB Back and Neck Specialty Program for a comprehensive assessment. On December 23, 2021, Dr. B. Drew, Orthopaedic Surgeon, and J. Lau, Chiropractor assessed the worker. The worker presented with constant pain over the lumbar region referred to the posterolateral thighs. He reported his back pain was worse since the initial injury. The worker indicated his back pain affected his sleep, citing he was only able to sleep 2 hours at a time, and he would wake up due to back pain and positional discomfort. The worker advised he had difficulty accessing his home and the community due to his injury. He reported he began using a single point cane around September or October 2021 to assist with balance and ambulation. The worker reported having difficulty climbing stairs, completing household chores, preparing food, and engaging in home maintenance tasks. He indicated he was independent with self-care tasks; however, he required assistance from his spouse with showering and dressing due to his back pain.
The Specialty Clinic report detailed the worker’s pre-injury job duties, which involved trouble shooting computer issues, and computer installation at customer locations. The job involved occasional lifting and carrying of computer equipment, frequent computer work (prolonged sitting), and occasional standing, walking, bending, twisting at low-levels, and overhead work onsite on a rare basis. The Speciality Clinic report stated, in part:
The worker reported that he is unable to tolerate the prolonged static postures due to his back pain. He also reported that the pain has affected him cognitively and he is “not able to concentrate” due to his back pain, as such he is unable to complete his job tasks.
Upon examination, the worker exhibited signs of pain-focused and self-limiting behaviours including significant pain with dermal palpation, vocalization of pain, and facial grimacing. The worker demonstrated nonanatomic pain behaviours such as with pseudo rotation and simulated axial loading, as well as pain with very light palpation. The report indicated there were inconsistencies noted on quality of movement between casual observation and formal examination. The worker’s occupational diagnoses included lumbar spine strain/sprain versus lower lumbar spine disc protrusion and annular tear (pending MRI results), exacerbation of pre-existing degenerative changes in the lumbar spine, and nonanatomic pain behaviours. The worker was expected to achieve a partial functional recovery. The worker was recommended to engage in active treatment to promote further recovery. The report states, in part:
This worker is finding any type of exercise difficult and he is not performing many despite the attempts by the treatment staff at the clinic which he is attending are recommending. The worker is very fixated on having an MRI scan to help determine the source of his pain and to rule out serious pathology. I am hoping after reviewing the MRI with him he will be more convinced that it is safe to engage in an exercise based program. We are recommending he continue with community treatment until the MRI is reviewed and then additional management plans will be made at that time.
The worker was recommended to return to work with restrictions. The barriers to return to work included:
Reports of high pain intensity (not consistent with injury)
Fear avoidant behaviour
High perceived disability
Belief of poor outcome (treatment/return to work)
High psychological distress
Decreased participation in normal activities
Poor sleep (since injury)
Perception that work is too difficult/job too stressful
The worker’s functional abilities were as follows:
Walking up to 100 metres
Standing up to 15 minutes
Sitting up to 30 minutes
Stair climbing 5-10 steps, self-paced with hand rail
Occasional lifting up to 5kg
Limited pushing and pulling up to 5kg
No ladder climbing
Allow for self-pacing, frequent changes in position, and 5 minute micro breaks every 30 to 45 minutes as needed
Limit repetitive flexion/extension/rotation of the lumbar spine to a rare to occasional basis
The report indicated the worker had questions about the RTW recommendations. The report, states, in part:
The worker inquired whether our recommendation for MRI indicated that he “would not RTW until the MRI.” The assessment team indicated that this was not the case, and that we have placed restrictions/limitations on him and it would [be] at the discretion of WSIB and his employer to find a role that is suitable within those restrictions.
It is noted a copy of the Specialty Clinic report was sent to Dr. Di Paolo.
As documented in memorandum B, dated January 12, 2022, the RTW Specialist contacted the worker to remind him of the RTW meeting scheduled for January 13, 2022. The worker confirmed he was aware of the meeting; however, he did confirm he would be participating in the meeting, nor did he confirm whether he would be returning to work on January 17, 2022. The worker informed the RTW Specialist he was told by the WSIB Specialty Clinic assessment team that he was to remain off work until the results of the MRI were received. As documented in memorandum C, J. Lau advised the RTW Specialist the worker was not advised to remain off work until the MRI results were received.
The RTW Specialist held a virtual RTW meeting on January 13, 2022. The employer attended the meeting; however, the worker did not attend. The employer confirmed the worker’s pre-injury job with accommodations was available to the worker, and January 17, 2022 was confirmed to be the start date. As documented in memorandum D, the RTW Specialist subsequently spoke with the worker to advise him of the RTW plan. The worker confirmed he would contact the employer to arrange for equipment to be supplied in the event he returns to work. The worker contacted the RTW Specialist on January 14, 2022, to confirm he would be returning to work on January 17, 2022, as scheduled. The worker confirmed he was in touch with the employer regarding the necessary equipment.
A lumbar spine MRI was completed on January 16, 2022. There was evidence of L5-S1 level central and left paracentral disc protrusion causing moderate stenosis of the left subarticular recess with likely impingement of the descending S1 nerve root. There was also evidence of mild degenerative changes with no evidence of foraminal or spinal canal stenosis.
The worker returned to work on or about January 17, 2022, as per the graduated RTW plan. The worker testified the employer delivered a sit/stand workstation to his home; however, the workstation had to be assembled. He indicated he was unable to assemble the workstation, thus he did not use it. The worker indicated he had access to a laptop, telephone and a mini-server, which were provided by the employer. The worker indicated he had difficulty adhering to the RTW plan because of his inability to concentrate due to his back pain. He indicated he was unable to work 2 hours straight, and this was a problem for the employer, who placed an expectation on him to work according to a set schedule. As documented in memorandum E dated January 20, 2022, the employer confirmed with the CM they were in agreement with the worker working in 2-hour increments. The worker testified he was unable to take breaks when he needed to. He explained the nature of his work involved responding to customer calls, which at times may be lengthy, and he could not reasonably take a break in the middle of assisting a customer. The worker indicated he made an effort to perform the modified work as per the graduated RTW plan, and he tried his best; however, he could not manage it any longer. He indicated the relationship with the employer become unpleasant at this point, citing the employer was not understanding of his back injury or his needs.
The record contains a script note from Dr. Di Paolo dated January 21, 2022, indicating the worker had radiculopathy from MRI, and he was unable to return to work. The worker indicated Dr. Di Paolo was of the position the worker required rest and he needed to take it easy.
The record contains an email exchange between the worker and the employer. On January 21, 2022, the worker emailed the employer seeking a ROE so that he could apply for Employment Insurance (EI) sick benefits. The employer proceeded to ask questions about the worker’s hours of work. The worker replied that effective immediately, his primary care physician recommended he stay off work until further notice. The worker stopped working on January 21, 2022.
As documented in memorandum F dated January 21, 2022, the worker advised the CM his primary care physician recommended he remain off work effective immediately. The worker indicated he was unable to continue working as his pain was affecting his concentration. As documented in memorandum G dated January 21, 2022, the employer contacted the RTW Specialist to advise the worker resigned from his employment. The RTW Specialist then contacted the worker on January 21, 2022, wherein the worker’s “decision to resign was confirmed/discussed.” The record contains a ROE dated February 1, 2022, indicating the worker’s last day worked was January 21, 2022. The reason for issuing the ROE was “quit/health reasons,” with no expected recall date.
As documented in memorandum H dated February 9, 2022, the worker advised the CM he had talked to the employer and returned all the equipment. The worker denied resigning from his employment. He informed the CM the employer was not responding to his attempt to resolve the issue. The worker indicated his request for an ROE was not a resignation. As documented in memorandum J dated February 9, 2022, the CM contacted the employer to discuss the worker’s employment status. The employer indicated the worker had advised he was done with work and he wanted his ROE because he could not work. The employer conceded the worker did not technically resign; however, they were of the view the worker abandoned his job. The employer indicated they were not interested in having the worker return to work with them.
The worker testified he did not resign from his employment at any time. He stated he asked for a ROE so that he could apply for EI sick benefits. The worker indicated he did not submit a letter of resignation to the employer, and he did not intend to sever his employment relationship. The worker testified he is uncertain if he was terminated from his employment. He indicated he asked the employer if he was terminated; however, he did not receive any response. The worker testified he did not receive his vacation pay, severance package, or letter of termination. He indicated he no longer had access to work email and he no longer had coverage under his employer’s extended health care benefit plan. The worker submitted that while he was unsure if he was terminated or not, he understood that work with the employer was no longer available. The worker testified that the CM informed him that the employer was not interested in having him return to work, citing he was told, “they didn’t want me back.”
Dr. Drew and Dr. Lau reassessed the worker on February 10, 2022 at the WSIB Back and Neck Specialty Program. The worker reported his back pain worsened since his last assessment. He indicated he experienced poor concentration since the injury, and his pain has affected concentration greatly. The report indicated the worker was very agitated during the assessment, especially when discussing his employment status and current financial situation. The worker reported his employer “cuff him off,” and he was very stressed and frustrated. The worker indicated he had been asked to work 4 hours per day performing modified duties; however, he reported he was unable to tolerate more than 1 hour. It was noted the worker’s attempt to return to work between January 19 and 22, 2022, was unsuccessful. The report, states, in part:
As noted above, the worker had an unsuccessful attempt at RTW. He reported that he could not tolerate his job duties for “more than one hour.” He reported that his pain is so severe that he was unable to concentrate and “almost made a huge mistake.” He reported that he has talked to the RTWS about his abilities but the RTWS was reportedly “uncooperative.” He reported that his employer “lied” to WSIB and said the worker had resigned, which is reportedly untrue. It is unclear whether his employment has been terminated.
Upon examination, the worker continued to ambulate with a single-point cane, and he reported ongoing difficulties with climbing stairs. The worker ambulated independently with the assistance of a cane. His movements were slow and guarded, and he vocalized pain with all movements. The assessment team indicated, “It should be noted that there were inconsistences noted on quality of movement between casual observation and formal examination. He was able to remove his jacket independently.” The worker exhibited signs of pain-focused and self-limiting behaviours including significant pain with light dermal palpation, vocalization of pain, and facial grimacing. The worker’s MRI results were reviewed. The report indicated that while the MRI shows evidence of an L5-S1 disc protrusion contacting the left S1 nerve root, the worker’s symptoms were not entirely in keeping with this finding. The assessment team recommended the worker engage in a home exercise program, a referral for an electromyography (EMG) to determine if an S1 radiculopathy is present, and a pain management consultation.
The Specialty Clinic report indicated the worker was able to return to work with restrictions, and a full recovery was not anticipated. The report, states, in part:
The worker was concerned that the assessment team had indicated that he would be able to return to work with restrictions. He indicated that he did not feel we understood the severity of pain is in in. He indicated that he is unable to tolerate “more than one hour” of work and his concentration is affected that would cause him to make mistakes. After the worker left the assessment, he called the clinic back disagreeing with the worker’s summary. He indicated that the box was checked for “none” in the restriction section. The undersigned HCP indicated that he does not have any medical restrictions related to his low back, but he we have indicated that his abilities are limited in relation to bending and twisting of the lumbar spine. After lengthy explanation, the worker seemed to understand and the phone call ended mutually.
The worker underwent an EMG on March 22, 2022. The report indicated the examination was limited due to technical difficulties arising from significantly reduced activation of muscles throughout the entire examination, as well as ankle swelling and atrophy. Nevertheless, there was no clear evidence of chronic denervation in the left L2-S1 myotomal distribution despite variable patterns of activation of muscles during the needle exam. There was also no evidence of active denervation present within the L2-S1 myotomal distribution in the left side. The worker’s peroneal nerve motor response, tibial nerve motor response and sural sensory response were normal.
On March 24, 2022, the worker returned to the WSIB Back and Neck Specialty Program for a follow-up assessment. The worker presented with worsening back pain since the last assessment. He presented with the use of single-point cane, and he reported ongoing difficulties with walking and climbing stairs. The worker’s movements were slow and guarded. He was able to transition from the seated to standing position using support from the arm rests of the chair. The worker vocalized pain with all movements. The worker demonstrated an ability to sit through the entire duration of the interview portion of the exam. The assessment team indicated there were inconsistencies noted on quality of movement between casual observation and formal examination. The worker was recommended to undergo a pain consultation to determine if there are any interventional procedures that would assist with pain control and function. The assessment team indicated the worker had functional restrictions; however, the worker questioned why they were recommending return to work with restrictions when they had no job to return to. The assessment team advised the worker the purpose of the Specialty Clinic assessment is to identify functional abilities based on clinical presentation and medical evidence. The report indicated the worker continued to maintain he was not able to return to work in any capacity given his high levels of pain.
On May 9, 2022, Dr. M. Forero, Pain Management Physician, assessed the worker at the WSIB Back and Neck Specialty Program for a pain management consultation. The report indicated the worker arrived at the appointment with the use of a single-point cane, and he walked slowly due to pain. The worker was determined to be suffering from bilateral lumbosacral mechanical back pain likely related to facet joint pain syndrome. Dr. Forero indicated the worker was expected to achieve a partial functional recovery. The worker was determined to be a candidate for diagnostic interventional pain procedures, specifically bilateral L3-L4-L5 lumbar medial branch blocks under fluoroscopy. The worker agreed to proceed with this procedure.
The worker returned to the WSIB Back and Neck Specialty Program on May 26, 2022. The worker continued to present with significant low back. The examination was very limited and there was suggestion of pain-focused behaviours. The worker’s level of pain and disability was noted to be discordant with what would be expected at this point in his recovery. It was noted the worker’s medial branch blocks were approved by the WSIB.
On July 19, 2022, the worker underwent diagnostic blocks of L3-L4-L5 bilateral lumbar medial branch under fluoroscopy. Dr. Forero completed a pain management reassessment of the worker on August 15, 2022 for a post-procedure follow-up. The worker reported they experienced an 80 per cent improvement in pain symptoms for 4 hours following the procedure. Dr. Forero indicated the worker was a candidate for radiofrequency ablation. The worker indicated he wished to discuss this treatment recommendation with his primary care physician, Dr. G. Mazengia.
The worker returned to the Back and Neck Specialty Clinic on September 1, 2022, wherein the worker’s presentation was mostly unchanged from his previous assessment. The worker continued to be significantly limited with range of motion (ROM) and strength due to pain. The report indicated that should the worker agree to proceed with a radiofrequency ablation and it is successful, it was recommended he reengage in physiotherapy to help build some functional strength and endurance. Should the worker not proceed with the procedure, he will be discharged from the assessment program with permanent restrictions.
Dr. Forero reassessed the worker on November 21, 2022. The worker’s diagnosis was confirmed to be bilateral lumbosacral mechanical back pain syndrome related to facet pain. The report indicated the worker was reluctant to proceed with radiofrequency ablation. No further follow-up appointments were scheduled. The worker was assessed at the WSIB Back and Neck Specialty Program on November 24, 2022. The worker’s examination was largely unchanged from his previous assessment, and he continued to be significantly limited with ROM and strength due to pain. The worker was determined to have reached MMR on November 24, 2022, and he was discharged from the Specialty Clinic. The worker achieved a partial functional recovery, and he was noted to have permanent functional restrictions.
Dr. G. Mazengia, the worker’s current primary care physician, submitted a report dated January 16, 2023, responding to questions posed by the worker representative. The report indicated the worker continued to experience constant, aching and intense low back pain. Dr. Mazengia surmised the worker was functionally disabled and he was unable to function safely in a workplace environment due to his low back impairment. The worker testified Dr. Mazengia became his primary care physician sometime at the end of 2022/early 2023. He stated he was a patient of Dr. Di Paolo for 42 years, and while Dr. Di Paolo was a great doctor, he found wait times for appointments were too long and their office was not physically accessible.
The worker testified he did not return to work in any capacity since he stopped working in January 2022. He explained he did not look for work; however, if he were offered the opportunity to participate in RTW services, he would be willing to try. At the oral hearing, the worker demonstrated a sitting tolerance of approximately 45 minutes before requiring a break to stand up and stretch.
Assessment of the Evidence
In order to render a decision in this claim, a review of the worker’s level of impairment is required to determine whether he was partially or totally disabled as a result of their compensable back injury, and whether he could have reasonably returned to work in some capacity. The first issue to be determined is the extent of the worker’s level of impairment at the time he stopped working on January 21, 2022.
Operational policy 18-03-02 states, in part:
Full LOE
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 review of the evidence in the record, there appears to be conflicting medical opinions regarding the worker’s level of impairment during this timeframe. The WSIB Back and Neck Specialty Clinic Program report dated December 23, 2021 and subsequent follow-up reports, indicated the worker was determined to be partially disabled and capable of performing modified duties within his restrictions, whereas Dr. Di Paolo submitted the worker was totally disabled and unable to work, as per the script note dated January 21, 2022. In addition, the record contains a report from Dr. Mazengia dated January 16, 2023, indicating the worker was functionally disabled.
The Administrative Practice Document, Weighing of Medical Evidence, states in part, “Where decision-making is impeded by a lack of pertinent medical information, or by varied opinions from treating health care professionals, the decision-maker may consider a referral to the programs and services offered through the WSIB.” The Administrative Practice Document further states, in part, “Evidence of opinions that are not accepted or are given less weight are identified and the reasons for the decision-maker’s assessment of their relative weight is explained.”
I have not placed significant weight on the medical opinion provided by Dr. Mazengia on the basis they were not the worker’s primary care physician in January 2022. Rather, I have placed more significant weight on the contemporaneous medical reports submitted to the case file. While I appreciate Dr. Di Paolo’s January 21, 2022 script note is timely, I have not placed significant weight on their medical opinion because the medical note does not provide any supportive medical findings or rationale to support their recommendation. I have placed significant weight on the medical opinion provided by the WSIB Back and Neck Specialty Program, as the medical assessors had access to all relevant medical reports, they assessed the worker at regular intervals, and the medical reporting contains examination notes, supportive medical findings, and rationale to support their opinion. Based on the foregoing, I accept the worker was partially disabled and capable of returning to work in some capacity as confirmed by the WSIB Back and Neck Specialty Program reports. As such, I do not accept the nature or seriousness of the worker’s compensable back injury completely prevented him from returning to any type of work.
The next issue to be determined is whether the modified work offered by the employer was suitable work. Operational Policy 19-02-07 states, in part:
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.
The policy indicates that in addition to work being suitable, the suitable work must be available with the injury employer.
The worker representative submitted the modified work offered by the employer was not suitable. The worker representative indicated that when restrictions are developed, they are drafted in the abstract, not in the workplace. In order for the suitability of the work to be determined, the worker’s ability to perform the modified work within those restrictions are then tested in the workplace. The worker representative indicated the essential nature of the worker’s employment is troubleshooting computer-related issues, thus the worker did not have the ability to take breaks as needed when they were addressing customer needs. The worker representative also pointed to the fact that the worker’s job was as much a physical job as it was a mental job. The worker required physical and mental rest at frequent intervals. Despite the worker’s best efforts to perform the modified work offered to him, he was unable to sustain these duties because the work was not suitable and it exceeded his restrictions, namely he was unable to work for 4 continuous hours, and he needed longer rest breaks in between. The worker representative pointed out the worker was motivated to work; however, he could not meet the employer’s expectations.
Before delving into the rationale for the suitability and availability of work, it is important to address whether the employer has a re-employment obligation, as there is a discrepancy as to whether the worker was terminated or resigned from his employment. The evidence supports the employment relationship ceased on or about January 21, 2022, when a ROE was issued to the worker as per his request.
As indicated in operational policy 19-02-09, injury employers have an obligation to re-employ their workers if the following three conditions hare satisfied:
The worker has been “unable to work” as a result of the work-related injury/disease
The worker was continuously employed with the injury employer for at least one year before the date of injury, and
The injury employer regularly employs 20 or more workers.
In review of the facts of this case, the first 2 criteria have been met. In review of the Employer’s Report of Injury (Form 7) and the Worker’s Report of Injury (Form 6), the employer does not employ 20 or more workers. As such, it appears the employer does not have a re-employment obligation in this case.
In review of the facts of this case, I find the worker did not resign from his employment with the employer. The evidence supports the worker requested a ROE for the purpose of applying for EI sick benefits, which in my view does not equate to a resignation or an intent to sever the employment relationship. The worker’s testimony that he did not resign at any time from his employment is corroborated with the evidence in the record, namely the worker’s email to the employer dated January 21, 2022, wherein the worker clearly stated, “Can you please get my Record of Employment done so I can apply for my UI benefits.” At no time is there any indication the worker resigned from his employment. While I am unable to confirm the worker was terminated from his employment, there is evidence in the record to support suitable modified work was no longer available, as evidenced by memorandum J dated February 9, 2022, wherein the CM documented, “There is no intention to take this worker back.” The lack of availability of work with the employer is further supported by the worker’s uncontradicted testimony wherein he confirmed he no longer had access to his work email and he no longer had coverage for health care benefits through his employer’s extended health care plan.
With respect to the suitability of work, I find the modified work offered by the employer appears to be suitable. I agree with the worker representative in that when restrictions are being established, they are developed in the abstract and are then tested in the workplace. In this case, the worker experienced some challenges with the RTW plan, most notably, with the hours of continuous work and inability to take breaks as needed. The worker expressed he was able to work 1 hour at a time before needing a break, at which time he reported he could continue working after a period of rest; however, this was reportedly not acceptable for the employer. In addition, the nature of the worker’s troubleshooting duties did not allow him to take breaks when he needed, as he unable to end a customer call in the middle of helping them to take a break. Lastly, the worker was experiencing a great deal of pain, which he reported affected his ability to concentrate. While I appreciate the worker experienced some challenges with the RTW plan, I do not find these issues render the work offered by the employer to be unsuitable. While it remains unclear whether the worker was actually terminated from his employment, I accept modified work was no longer available with the employer effective February 9, 2022. In the absence of the availability of suitable modified work, I find the worker is entitled to partial LOE benefits.
As enumerated in operational policy 18-03-02:
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.
Based on the evidence before me, I find the worker was partially disabled and he was capable of returning to some form of suitable work. As such, I find the worker is entitled to partial LOE benefits based on SO-determined earnings effective February 9, 2022, when suitable modified work was confirmed to no longer be available with the employer. As per operational policy 19-02-10, “If there is no RTW opportunity with the injury employer, the WSIB reviews RTW opportunities in the labour market.” A RTW plan (with training) may then be developed that outlines the assistance and services a worker requires to enable their return to work. The evidence supports the worker has a low back PI and permanent restrictions and it has been confirmed there are no RTW opportunities with the employer. The worker testified at the oral hearing that he is motivated and willing to cooperate in RTW services if he was offered the opportunity. Based on the foregoing, I find the worker is entitled to RTW services as well as full LOE benefits effective the date of this decision.
CONCLUSION
The worker is entitled to partial LOE benefits based on a direct-entry determined SO, from February 9, 2022 to February 27, 2024 inclusive. The SO earnings shall be determined by a RTW consultation.
The worker is entitled to RTW services as well as full LOE benefits effective the date of this decision, while he participates and cooperates in the RTW process. The level and duration of benefits, once RTW contract has been made, shall be determined by the operating area.
The worker’s objection is allowed in part.
DATED February 28, 2024
L. Mansueti
Appeals Resolution Officer
Appeals Services Division