Worker v. Employer, 2024 CanLII 44861

20240028

REPRESENTED by:

HEARD by:

DATED:

MARCH 8, 2024

ISSUE

The worker is objecting to the Case Manager’s (CM) decision dated July 6, 2023 in which entitlement to loss of earnings (LOE) benefits after July 7, 2023 was denied as the employer had suitable work available to the worker.

BACKGROUND

On September 10, 2021, this worker sustained multiple soft tissue injuries when the car under which they were working was struck by another. This caused them to have to move suddenly, straining the worker’s neck and low back.

The worker has essentially not worked at all since the date of injury.

In a decision dated January 4, 2023, the Appeals Resolution Officer (ARO) determined that the worker’s compensable neck and low back strains had not resolved by February 18, 2022. Operations was directed to send the worker for a further medical assessment. LOE benefits from February 18, 2022 onward were allowed, subject to the results of further medical evaluations.

Following several assessments at the Back and Neck Specialty Program, restrictions for the worker’s injuries were outlined. The employer expressed that they would accommodate the worker. A return to work (RTW) meeting was arranged and a graduated RTW plan was developed.

The worker attended the workplace for approximately one hour on June 12, 2023, and then stopped working, claiming to be unable to continue due to pain. They have not attempted to work since.

As explained in correspondence dated July 6, 2023, the CM determined that the worker was not totally disabled as a result of their compensable injuries, and that the employer had suitable work available to them. LOE benefits for the period beyond July 7, 2023 were denied.

It was determined that the worker achieved maximum medical recovery (MMR) from their work-related strain injuries by August 1, 2023 and that they have a permanent impairment. They were assessed with an eight percent Non-economic Loss (NEL) benefit.

On October 5, 2023, the worker was granted entitlement to benefits for a psychotraumatic disability.

The decision to deny entitlement to LOE benefits after July 7, 2023 was reconsidered and upheld on October 27, 2023.

Worker’s Position

The worker representative did not make any arguments or submissions for my consideration. They did not explain why they believe the CM’s decision was incorrect or should be changed.

AUTHORITY

Operational Policies

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-07 RTW Overview and Key Concepts

September 1, 2021

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. The worker is not entitled to loss of earnings (LOE) benefits after July 7, 2023.

They were not totally disabled as a result of their compensable conditions and the employer had suitable work available to them.

WSIB Operational Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers who experience a wage loss due to the work-related impairment are entitled to LOE benefits. Regarding the payment of full LOE benefits, the policy states:

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.

The worker has entitlement to benefits for low back and neck strains under this claim. They were reassessed at the Back and Neck Specialty Program on May 23, 2023. They presented with significant pain behaviours. The worker self-reported that they could only sit for fifteen to 20 minutes, stand or walk for five minutes, could drive for 30 minutes and could not lift more than five pounds. The team at the Program accept these limitations. The worker was said to be functioning at the sedentary physical demands level. It was recommended that they return to work with restrictions on avoiding repetitive neck movements, and bending and twisting of the low back. They should avoid sustained awkward positioning of their neck and back. They should change positions and take micro-breaks as needed. The report from this assessment states that the worker was informed of the importance of initiating a graduated return to work (RTW) program.

I note that prior to this assessment, the worker was participating in counselling sessions with a psychotherapist. The notes from these sessions for the period beginning in approximately April 2022 through to 2023 indicate that the worker regularly reported actively walking a lot, including in a mall. They were socially active with friends and family. They had travelled to South America in 2022 and had started

a relationship with someone they met there. In November 2022, the counsellor encouraged the worker to search second career or retraining options. The counsellor and worker discussed RTW planning with the accident employer on May 16, 2023 and June 6, 2023. The worker reported that a RTW meeting was planned for June 7, 2023 and that they were going to be presented with an offer to perform office work. They said that they could not do this type of work as it causes them headaches. It is unclear as to how the worker could know this as they had not worked at all since the date of injury. The counsellor encouraged the worker to consider returning to such work if the employer was willing to accommodate them with light duties.

The worker telling their counsellor they walk regularly, and their ability to travel to South America supports that they could function at a higher level than what they told the Specialty Program. These activities require an ability to walk or stand greater than five minutes or to sit greater than fifteen to 20 minutes.

The WSIB Return to Work Specialist (RTWS) had difficulty contacting the worker to book a RTW meeting. The employer had reported that they did not hear from the worker after they went off work in September 2021. The Specialty Program also stated that they had challenges reaching the worker to book appointments at times.

At the June 7, 2023 RTW meeting, the employer offered the worker a sedentary administrative position. The worker was asked to match inventory of parts to invoices. They could change positions and take breaks as needed. A graduated RTW plan was formulated that had the worker working partial shifts, three days per week for four weeks. The plan would be reviewed as it progressed.

The worker worked for approximately one hour on June 12, 2023 and then left. They have not returned to work since, claiming to be in too much pain to do so. The Case Manager (CM) did not close the worker’s LOE benefits until July 7, 2023.

The RTWS again had difficulty reaching the worker to discuss any issues or concerns with the RTW attempt. It took a couple of weeks for them to connect. I would presume that an individual claiming to be unable to work at all due to pain would be more available to speak to the RTWS. When they did speak on June 27, 2023, the worker just said that they had too much pain and could not work. They submitted a medical note dated June 12, 2023 that simply states, “Patient is not cleared to resume [their] job duties.” This note does not provide any explanation as to why this may be the case. In addition, the worker was not asked to resume their job duties, but a light, sedentary position at reduced hours.

Some of the family doctor’s (FD) chart notes are on file. The medical record submitted is incomplete.

However, the June 12, 2023 chart note states that the worker chose a muscle relaxant and anti-inflammatory for pain. They were awaiting a test for an unrelated medical condition. The

June 30, 2023 chart note provides the same information. There is no clinical evidence to support that the FD even evaluated the worker’s injuries on these dates.

Dr. Light, psychologist, assessed the worker through video on July 25, 2023. Dr. Light’s report contains minimal information. A clinical or personal history is not documented. The worker was not observed to have any cognitive limitations or signs of neglect. They maintained good eye contact. Their speech was clear and they had no issues generating their thoughts. The worker reported having lost consciousness following the workplace accident, which is inaccurate. The worker said that they had some anxiety, depression and disturbed sleep. The results of tests administered were all within the “average” range. The worker was diagnosed with an adjustment disorder with mixed anxiety and depressed mood and a pain disorder. Dr. Light expressed that due to their pain and mental stress, the worker could not work.

I do not accept Dr. Light’s opinion on the worker’s fitness to work. In terms of the worker’s pain, the neurosurgeon and physiotherapist who assessed the worker’s physical injuries at the Specialty Program multiple times indicated that the worker was fit to work within their restrictions. The psychotherapist who

saw the worker for an extended period encouraged them to return to work. Dr. Light did not provide clinical findings to support that the worker was too psychologically impaired to participate in the RTW program.

The worker was reassessed at the Specialty Program on August 1, 2023. They reported having the same subjective limitations as they had previously. The said that there were no modified duties available with the accident employer, which was inaccurate. They said that they were told by the WSIB to simply return to work and see how it went, but that they could not continue due to pain. Based on the report, the worker failed to mention that the employer had offered them sedentary work performing administrative tasks at their own pace and on graduated hours. The worker again demonstrated pain behaviours and presented as though they could hardly move. The same restrictions that were outlined on May 23, 2023 were recommended to be permanent.

The medical evidence does not support that the worker is totally disabled and unable to work as they have claimed. The team at the Specialty Program stated that the worker was fit to work within the extensive restrictions provided. The eight percent Non-economic Loss (NEL) rating for the worker’s organic impairment is not consistent with total disability. As I have outlined above, the clinical evidence does not support that the worker is too psychologically impaired to perform suitable work duties.

Policy 19-02-07 RTW Overview and Key Concepts states in part that the RTW process requires the integration of effort and the cooperation of the workplace parties. The worker’s ability to return to work is determined by reviewing their functional abilities and limitations and comparing them to the demands of a job. “Suitable work” is described under the policy as follows:

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 sedentary position offered by the employer on June 7, 2023 was suitable and consistent with the worker’s functional abilities. They could change positions and take breaks as required. They were not expected to perform any heavy lifting. The tasks were not overly complex and did not require sustained concentration and executive functioning.

As noted above, the worker was not an active participant in the RTW process. They did not make a concerted effort to try the modified work. I do not find their claim that after one hour of work they were in too much pain to ever try to attend again as genuine. The medical evidence supports that they can function to a greater degree than they presented.

The worker frustrated the RTW process by not fully participating and not committing to trying the modified work. As they were not totally disabled and did not cooperate in the RTW process, they are not entitled to further LOE benefits. They ultimately would not have experienced a wage loss due to the compensable impairment had they progressed through the RTW program.

CONCLUSION

The worker is not entitled to LOE benefits beyond July 7, 2023. The objection is denied.

DATED March 8, 2024

C. Marr

Appeals Resolution Officer Appeals Services Division