Worker v. Employer, 2024 CanLII 44876

DECISION NUMBER: 20240031

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOt participating)

HEARING: VIDEOCONFERENCE

HEARD by: K. Gordon, appeals resolution officer DATED: APRIL 10, 2024

ISSUE

The worker, through their representative is objecting to the Eligibility Adjudicator’s (EA) decision dated June 24, 2021. Specifically, the EA’s decision that denied initial entitlement to the worker’s left finger injury.

REASON FOR AMENDMENT

This is an amendment of my decision dated March 22, 2024, as I incorrectly reversed the representative’s names on the first page of my decision. I incorrectly listed XXX as the worker representative, and YYY as the employer’s representative. I have corrected the representatives in this amended decision. No other changes have been made to the decision.

PRELIMINARY ISSUE

During the hearing, the worker representative asked that should initial entitlement be accepted in this appeal, they are requesting this Appeal Resolution Officer (ARO) provide a finding on entitlement to loss of earning (LOE) benefits, the finger amputation surgery, and a permanent impairment.

BACKGROUND

This logistics associate is claiming that while moving very dirty boxes on April 19, 2021, something from the boxes got under their left index fingernail. A dark mark appeared under their nail, and as the days passed the finger became more painful, and the mark under the nail grew. The worker continued to work, and they did not report the injury or seek medical attention immediately as they did not think it was serious.

The worker first sought medical attention on April 27, 2021, and the worker lost time from work starting April 28, 2021. The worker reported the injury to their employer on May 6, 2021, and the worker underwent left finger surgery the same day. Dr. Olsen, the worker’s family doctor completed a Health Professional’s Report of Injury, Form 8 on May 25, 2021. The diagnosis provided on this form was left finger osteomyelitis. A second Form 8 completed by an Occupational Therapist (OT) also dated May 25, 2021, provided a diagnosis of a left D2 tip amputation.

After considering the evidence, the EA determined that due to the delay in reporting the injury, and the delay in seeking medical attention, they could not establish proof of accident. The EA also stated that based on the medical evidence, they could not establish proof of a personal work-related injury. Therefore, in their decision dated June 24, 2021, the EA denied entitlement to the left finger injury.

The worker submitted more medical information to file, and although the EA considered the information submitted, they upheld their decision that denied left finger entitlement in their reconsideration decisions dated August 4, 2021, September 26, 2023, and November 30, 2023. In the decision dated November 6, 2023, the EA changed the date of injury from the date medical attention was first sought to April 19, 2021, as the worker reported this was the date of accident.

The worker representative submitted the Appeal Readiness Form (ARF) dated October 20, 2023, confirming the worker’s objection to the denial of initial entitlement to their left finger injury.

The worker’s objection to the denial of initial entitlement to their left finger injury forms the basis of this appeal.

AUTHORITY

Section 13(1) (2) of the Workplace Safety and Insurance Act, 1997 (the Act)

Operational Policy Manual	Published
11-01-01 Adjudicative Process	November 3, 2008
15-02-01 Definition of an Accident	October 12, 2004
15-02-02 Accident in the Course of Employment	October 12, 2004
15-05-01 Resulting from Work-Related Disability/Impairment	April 9, 2021
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)	April 9, 2021
11-01-05 Determining Permanent Impairment	November 3, 2014

ANALYSIS

For the reasons that follow, I find the worker does have initial entitlement to the left finger injury. I also find the worker has secondary entitlement to the fingertip amputation, and a permanent left finger impairment. While I have also considered LOE benefits, I find there is insufficient information on file for me to render a decision on LOE benefits. In reaching these decisions, I have carefully considered all of the available information on file, the worker’s testimony, and the relevant operational policies.

The employer did not participate in the appeal hearing, and no submissions were provided for my review.

The worker’s testimony

During the hearing, the worker testified that they worked in shipping and receiving for the employer. The worker worked part-time, and their hours varied depending on the shipments that came in. The worker testified that when they were busy, they worked overtime. There were three to seven shippers that worked with the worker depending on how busy they were, and how many shipments came in. The worker advised that their last day of work with the employer was on April 28, 2021, and although the worker resigned, the worker did not remember what day they resigned.

The worker testified that their job duties involved picking up pallets of skids that were delivered to the front of the store. Using a lift, they moved the pallets to different areas of the store, and they unwrapped the palettes. The number of boxes on the pallets varied, and they ranged in size from small to large.

The worker removed the boxes from the skids, and they opened the boxes using a knife. The worker testified they also had to rip the boxes and the tape with their hands to further open them. They took out the packaging and the items from inside the boxes, then flattened the empty boxes, and put them in a bin. The worker’s regular job duties also involved cleaning the store and moving items and racks to different areas of the store. The worker is right hand dominant, and they confirmed they did not wear gloves while working.

The worker testified that although they did not know where the boxes specifically came from, they knew the boxes came from overseas. The worker stated the boxes were very dirty, and damaged, and sometimes the boxes had oil and grit on them. The worker stated that after moving and opening the boxes, their hands were black from touching the dirty boxes.

The worker testified that they did have training, and that training involved showing them how to open boxes, where to put the boxes, and how to sort them. The worker advised that training also included watching safety videos. The worker stated that they watched one safety video in which they were advised to wear gloves while handling the boxes. However, after watching the video, the worker asked their supervisor about the gloves, and the supervisor told them they had never seen the safety gloves in the store. The worker advised that they have never worn gloves while working, and their employer never provided them with gloves. The worker stated that none of the shipping/receiving workers wear gloves, and that their hands were black after moving the very dirty boxes after almost every shift.

The worker testified that during the morning on April 19, 2021, they were opening boxes using a knife. They were also ripping the boxes open with their hands. While doing this, the worker felt a pinch at the top of their index finger. The worker stopped and looked at their finger, and they noticed a black dot. However, they kept working as they did not think much of it. Throughout their shift, and later that night at home, their finger progressively got more painful, and they noticed discolouration in the area around the nail. The worker testified that they think something got under their nail when they felt the pinch.

The worker stated that they did not report the injury, nor did they seek immediate medical attention as they thought whatever got under their nail would make its way out. The worker testified that there were no witnesses to the injury, or to their complaints of finger pain after the injury.

The worker contacted Dr. Olsen, their family doctor on April 22, 2021, but they could not immediately see the doctor due to COVID. Dr. Olsen conducted a virtual assessment of the worker on April 25, 2021.

Dr. Olsen first thought there was something underneath the fingernail and told the worker it would hopefully work its way out. The worker was given Tylenol 3 for the pain.

As the worker continued to experience severe pain that kept them up at night, they went to the hospital. The hospital emergency doctor took an x-ray that did not show an infection. The doctor cut open their fingertip and drained it. Their finger was bandaged, and they were told to come back if it got worse. The worker went back to the hospital a second time, and their finger was drained again.

The worker testified that they did not report the injury to their supervisor until April 30, 2021. The worker stated that at first, they did not think the injury was serious, and they thought it would heal on its own. When it did not, the worker was so pain focused that they did not think to report the injury.

The worker saw Dr. Alolabi on May 6, 2021, and Dr. Alolabi advised the worker that their finger was infected, and that the infection had moved to the bone. Dr. Alolabi performed surgery the same day. The surgery involved amputating the tip of the left index finger from the first knuckle.

Following the amputation, the worker attended hand therapy to help desensitize the finger. The worker testified they are no longer in treatment. Due to the amputation, the worker stated they are limited with what they can do with their finger. Specifically, they have issues with typing, and they are no longer able to knit or make crafts.

In terms of lost time from work, the worker testified they have been off work since April 28, 2021, and they never returned. The worker advised that although they resigned, they did not remember the date they resigned.

Medical evidence on file

I have reviewed the medical evidence on file, and note Dr. Olsen, the worker’s family doctor submitted clinical notes for the worker’s visits regarding their left finger injury. As per the pre-accident notes dated December 4, 2019, and December 16, 2019, the worker was seen for a left index finger injury. Dr. Olsen related this injury to a varicose vein. However, there is no evidence the worker was seen for ongoing left finger complaints from December 16, 2019 to April 26, 2021.

In the clinical note dated April 26, 2021, Dr. Olsen states the worker was seen virtually for excruciating finger pain that started the week before. Dr. Olsen notes that although it is the same finger as the worker’s prior varicose vein, it is in a different area. In the note dated April 27, 2021, Dr. Olsen states they examined the worker’s finger, and found no evidence of an infection, minimal redness, and no discharge or oozing. The finger was tender to palpation, and it looked like blood under the nail. Dr. Olsen questioned hematoma under the nail, and states there is bruising surrounding the nail. The worker followed up with Dr. Olsen virtually on April 28, 2021. During this assessment, the worker reported that although they took the prescribed Tylenol 3, it only helped for a few hours, and that the pain is still severe. Dr. Olsen states the finger discolouration had gotten worse, redder, and seemed more swollen than last seen. Dr. Olsen questioned whether the finger was infected/cellulitis.

The worker was seen at Joseph Brant Hospital on April 29, 2021. The worker underwent a left-hand x-ray that showed a nodular area of soft tissue thickening without any internal calcification on the left index finger. Attached to the Employer’s Report of Injury, the employer included a medical note from Joseph Brant Hospital dated April 29, 2021, that states the worker will not be able to use their left hand for a minimum of two weeks, and they will be reassessed by a hand specialist. On May 2, 2021, the worker was seen back at Joseph Brant Hospital, and their left index finger was cut open and drained.

Dr. Alolabi, plastic surgeon at Oakville Trafalgar Memorial Hospital (OTMH), submitted a report dated May 9, 2021, confirming the worker was seen on May 6, 2021. Dr. Alolabi states the worker developed left index pain two and a half weeks earlier. The worker was trying to see their family doctor, but Dr. Alolabi states there were delays. As such, on April 30, 2021, the worker went to the hospital emergency department. At that time, the hospital emergency doctor thought the worker had an infection, but it was not significant, and it did not require treatment. The finger worsened over the next two days, and the worker went back to the hospital emergency department. An incision and drainage procedure were done, and the worker was put on Amoxicillin Clavulanate antibiotics. The worker was then referred to Dr. Alolabi for follow up. On physical examination, Dr. Alolabi noted there was certainly evidence of infection at the index fingertip of the left hand. Dr. Alolabi advised the worker that unfortunately, the incision and drainage procedure was not sufficient, and a further incision and drainage procedure was required. Dr. Alolabi performed the incision and drainage the same day.

The worker followed up with Dr. Olsen on May 7, 2021. The worker advised Dr. Olsen that they were seen at Joseph Brant Hospital twice, their finger was drained, and they saw a plastic surgeon at OTMH. The plastic surgeon amputated their finger as the infection had started to go into the bone. The worker advised Dr. Olsen that they were still in considerable pain.

Dr. Alolabi, plastic surgeon submitted a report dated May 14, 2021. Dr. Alolabi states they have been following the worker for their finger injury that required surgery on May 6, 2021. Dr. Alolabi states the worker will require a minimum of one month off work to recover from the operation, and they will follow up with the worker regarding their progress.

The worker followed up with Dr. Olsen on May 25, 2021. In the clinical note for this visit, Dr. Olsen notes the worker saw a hand therapist the same day, and that the worker would be following up with Dr. Alolabi later that week. The worker advised Dr. Olsen that they think the finger injury is work-related, and they described their work that involves handling dirty boxes. The worker reported that their finger started to hurt while at work. Dr. Olsen submitted the Health Professional’s Report of Injury, Form 8 also dated May 25, 2021. On this form, Dr. Olsen states the worker breaks boxes daily at work, and they believe dirt, or something got under the nail of their left index finger causing the infection. The diagnosis provided is osteomyelitis.

An Occupational Therapist (OT) from Halton Health completed the second Health Professional’s Report of Injury, Form 8 dated May 25, 2021. The OT states the worker had a possible skin laceration/puncture while working, and the OT provides a diagnosis of left D2 tip amputation.

The worker was seen at the Acute Hand Therapy Program (ACTP) on May 12, 2021. The report for this visit is on file, and confirms the worker underwent a LD2 tip amputation. The worker was referred to the program for desensitization, and range of motion (ROM) treatment.

Dr. Alolabi submitted a report dated July 21, 2021. I find it important to note that Dr. Alolabi refers to the worker’s description of the accident, and states in part the following:

“The time it took from the initial workplace injury until surgery is very typical and normal for the development of osteomyelitis in the digit. These infections could potentially occur from any foreign body or debris that could potentially get stuck under the nailplate, infecting the nailbed and eventually the bone underneath.”

Dr. Olsen submitted a report dated July 30, 2021, in which they provide the following summary of the worker’s contact with their office since the date of injury.

April 19 injury at work
April 22 the worker called Dr. Olsen’s office
April 23 the worker was provided instructions from Dr. Olsen’s office
April 25 the worker had a phone appointment with Dr. Olsen
April 27 the worker phoned the office after hours while on call
April 28 the worker called Dr. Olsen’s office
April 29 the worker was seen at Joseph Brant Emergency Room
May 2 the worker was seen at Joseph Brant Emergency Room
May 5 the worker saw a plastic surgeon at OTMH

In the same report noted above, Dr. Olsen states the following:

“(They) injured (themselves)at work on April 19th, 2021, although didn't report it at the time, because it didn't seem to be a big deal then. (Their) first call to my office was on April 22 and (they) had multiple virtual and in office appointments with myself, as well as trips to the Emergency Department after that. The amputation of (their) finger occurred on May 6. There was absolutely no delay in treatment by this patient, and it is well documented in my notes that (they) had consistent follow up and care. The time from injury to amputation is reasonable, given all the appointments between. It is also reasonable to have received this injury in the workplace, given the dirty boxes (they) was working with, in addition to the lack of gloves provided to (them).”

I note the worker representative also submitted a medical report completed by Dr. Pysklywec, Medical Consultant at the Occupational Health Clinics for Ontario Worker’s (OHCOW). Dr. Pysklywec refers to the accident description provided, and the medical evidence on file, and states the worker developed osteomyelitis in their left index finger that required amputation. Dr. Pysklywec provides the opinion that the clinical history would insinuate such a mechanism.

Initial entitlement

In reviewing entitlement in this claim, I refer to Policy 15-02-01, “Definition of an Accident”, that states an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable, unintended event, which causes an injury. The definition of disablement includes a condition that gradually emerges over time, or an unexpected result of work duties. In this case, the worker reported that while moving dirty boxes at work, something went under their left fingernail, and this foreign object caused an infection that worsened. Noting this accident description, I find the worker is claiming a disablement type accident.

As per WSIA section 13 (1) (2), the presumption clause does not apply when determining entitlement in disablement cases. Consequently, the onus is on the worker to demonstrate the injury occurred during the course of the employment and arose out of the employment. It is not sufficient to establish a possible relationship with the workplace activities. The evidence must support, on the balance of probabilities, that the work duties made a significant contribution to the development of the injury.

Policy 11-01-01 states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of an accident, and compatibility of the diagnosis to the accident or disablement injury. For the reasons that follow, I find all criteria in Policy 11-01-01 have been met.

Worker and Employer

In my review of the Employer’s Report of Injury, and the Worker’s Report of Injury, I note that neither the employer, nor the worker object to the determination that there is a worker and an employer in this claim. As such, I find the criteria under Policy 11-01-01 regarding a worker and an employer have been met.

Policy 15-02-02 states that a personal injury by accident occurs in the course of employment if the place, time, and activity indicate that the accident is work-related. The importance of the three (3) criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker.

In this case, the worker is claiming they were performing their regular job duties, during their scheduled morning shift on April 19, 2021. At the time, the worker was moving dirty boxes, and they were not wearing gloves. The worker felt a pinch in their left index finger, and they believe something dirty from the boxes went under their left fingernail.

I have considered the employer representative’s argument in their submission attached to the Form 7. However, I note the representative does not provide any evidence to indicate the worker was not performing their regular job duties, during their assigned shift on April 19, 2021. The employer has also provided no evidence that argues against the worker’s description of the duties they performed on April 19, 2021. Specifically, that the worker’s regular job duties involve opening very dirty boxes, and that the worker was not wearing gloves while opening the boxes on April 19, 2021.

Based on the information on file, I find that the place, time, and activity criteria as outlined in Policy 15-02-02 has been met. Therefore, I accept the evidence supports the injury occurred in the course of the worker’s employment.

While I accept the injury occurred in the course of employment, the evidence must also support the accident arose out of the employment. The requirement for an accident to arise out of employment refers to the need to show a causal connection between the injury and the employment. Therefore, proof of accident and compatibility must be established.

Proof of accident

Policy 11-01-01 allows decision-makers to consider the following when examining proof of accident:

Does a disablement situation exist?
Are there any witnesses?
Are there any discrepancies in the date of accident/disablement and the start of lost time?
Was there any delay in the onset of symptoms or in seeking medical attention?

While I accept there was a significant delay in reporting the left finger injury, and a delay in seeking medical attention for the finger injury, I find it important to note that the injury initially started as very minor, and one would not expect this type of injury would be significant enough to require medical attention. Specifically, on April 19, 2021, the worker felt a pinch on their left index fingertip while they were opening boxes at work. It was not until the left finger injury worsened, and the nail started to turn black that the worker realized the injury would not heal on its own.

I have also taken into consideration that as per Dr. Olsen’s June 30, 2021 report, the worker called the doctor’s office on April 22, 2021, requesting to be seen for their left finger injury. As this was only three days after the accident, I do not find this to be a significant delay in seeking medical attention.

In terms of reporting the accident to the employer, I have taken into consideration that although on the Employer’s Report of Injury, the employer states the worker did not report the injury until May 6, 2021, the worker testified that they reported the injury to their supervisor on April 30, 2021. I note that attached to the Employer’s Report of Injury, they included a medical note dated April 29, 2021, that states the worker is unable to use their left hand for a minimum of two weeks. Although I do not question the evidence does support a delay in reporting the accident, I find this delay reasonable noting the injury started as very insignificant and continued to worsen to the point that the finger became infected and required amputation within two and a half weeks from the accident date. For the reasons provided above, I find proof of accident has been established.

Compatibility

Having considered all of the evidence, I find compatibility between the mechanism of injury described and the left finger infection has been established.

The worker is claiming that while opening dirty boxes at work on April 19, 2021, some foreign body became stuck under the worker’s left index fingernail. The worker was not wearing gloves.

In my review of the medical evidence, I note that as per Dr. Olsen’s clinical notes, Dr. Olsen diagnosed the worker with an infection under the left index fingernail. Dr. Olsen relates this infection to a foreign body under the worker’s fingernail.

Dr. Alolabi has submitted a report dated July 21, 2021, in which they provide the opinion that the worker’s left index finger infection is a result of a foreign body that entered under the fingernail.

Dr. Pysklywec reviewed the evidence on file, and in their report dated August 16, 2023, Dr. Pysklywec relates the worker’s left finger infection to a material that got under the worker’s nailplate.

As there are no medical opinions on file that question the worker sustained a left index finger infection from a foreign body that entered under the fingernail, I accept the medical opinions on file that support a foreign body under the worker’s fingernail is compatible with the resulting left finger infection. Therefore, I find compatibility has been established.

In summary, I find the evidence does support that on a balance of probability, the worker’s left finger infection arose out of and in the course of their employment. I find all criteria to allow entitlement under Policy 11-01-01, have been met. Therefore, I find the worker does have initial entitlement to the left index finger infection.

As I find the worker does have initial entitlement to the left finger infection, I have considered the following benefits flowing from this decision.

Entitlement to the left index finger surgery (amputation)

For the reasons that follow, I find the worker does have secondary entitlement to the May 6, 2021, surgery that involved the amputation of the left index fingertip.

Policy 15-05-01 states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.

As per the evidence on file, the worker underwent left finger surgery on May 6, 2021. Dr. Alolabi, the plastic surgeon who performed the surgery submitted a report dated July 21, 2021. Dr. Alolabi refers to the mechanism of injury claimed, and the worker’s hospital treatment for a left finger infection. In this report, Dr. Alolabi states in part the following:

“The infection became worse despite the antibiotics, and (they) presented a second time to Joseph Brant ER on May 2 and was eventually referred to myself and the patient was seen on May 6. At this time, it was obvious that there was significant abscess formation, and an x-ray was done showing signs of osteomyelitis. The decision was made to amputate the fingertip to control the infection.”

In the same report, Dr. Alolabi goes on to state:

Based on my review of the medical evidence, I find the diagnosis of osteomyelitis is causally linked to the work-related injury. As such, I find the worker does have entitlement to osteomyelitis as a secondary condition in this claim. I find the evidence also supports the osteomyelitis led to the left fingertip amputation, and therefore, the worker also has entitlement to the amputation. In making this determination, I have placed significant weight on the medical evidence leading up to the May 6, 2021 surgery. I find this evidence supports the worker’s left finger infection continuously worsened. I have also placed significant weight on the findings provided by Dr. Alolabi. Dr. Alolabi is not only a specialist in this field, but they assessed the worker multiple times, and they performed the May 6, 2021 surgery. As noted above, in the report dated July 21, 2021, Dr. Alolabi relates the foreign body under the left index fingernail to the infection, which led to the diagnosed osteomyelitis, which led to the left index fingertip amputation.

In summary, I find the worker does have secondary entitlement to the diagnosed osteomyelitis and the resulting left fingertip amputation. I find these conditions are causally linked to the initial workplace injury.

Permanent Impairment for the left fingertip amputation

For the reasons that follow, I find the worker does have entitlement to a permanent left finger impairment.

Policy 11-01-05 states that a work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.

As previously noted, I find the worker does have entitlement to a left fingertip amputation. As such, I find the worker does have a permanent impairment, and they are entitled to a Non-Economic Loss (NEL) assessment for their left finger.

While I note the worker attended hand therapy following the left fingertip amputation, the medical information on file does not include a discharge report from the hand therapy. Therefore, I am unable to determine the date the worker reached MMR. As such, I will refer the claim back to the operating area in order to obtain further medical information to determine when the worker reached MMR prior to a referral for the NEL assessment.

Loss of earning benefits

For the reasons that follow, I find further information is required prior to rendering a decision on the worker’s entitlement to LOE benefits.

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. This is providing the worker co-operates in health care measures and all aspects of the return-to-work process.

Lost time from work from April 28, 2021, to May 6, 2021

As per the Employer’s Report of Injury dated June 7, 2021, the worker’s first day of lost time from work was April 28, 2021. Attached to the Employer’s Report of Injury is a medical note from Joseph Brant Hospital dated April 29, 2021. This medical note states the worker is unable to use their left hand for a minimum of two weeks, and that the worker would then be reassessed by a hand specialist.

While I note the worker went off work on April 28, 2021, and that the medical evidence supports the worker was unable to perform their regular job duties, I find the medical evidence does not support the worker was unable to return to any type of work. Instead, the medical evidence supports that as of April 29, 2021, the worker could perform one handed work. However, there is insufficient evidence on file to indicate whether the employer offered the worker modified duties that accommodated them with one-handed work. Without this information, I am unable to provide a finding on entitlement to LOE benefits from April 28, 2021 to May 6, 2021. As such, I will refer the claim back to the operating area to obtain further information regarding any offer of modified work. Once this information is obtained, I ask that the operating area determine the worker’s entitlement to LOE benefits for this period.

Lost time from work as of May 6, 2021

As per the evidence on file, the worker underwent surgery on May 6, 2021. The surgery involved amputation to the left index fingertip. I note Dr. Alolabi submitted a report dated May 14, 2021, stating the following:

“I have been following the worker with regards to (their) finger which required surgery on May 6, 2021. Because of the operation, I believe that (they) will require a minimum of one month off work. I will continue to follow up with (them) and will update you on (their) progress or any changes as required.”

As per the worker’s testimony, the worker stated that they never returned to work, and that although they resigned from the employer, they did not remember the date they resigned.

While I find the worker does have entitlement to LOE benefits while they recovered from surgery, I find there is insufficient information on file for me to determine entitlement to LOE benefits for this period. Again, I note there is no information on file to indicate whether the employer offered the worker modified duties, and further information is required to confirm the date the worker resigned. As such, I will refer the claim back to the operating area to determine the duration of LOE benefits following surgery. I ask that the operating area obtain information in terms of any modified work offer, and the date of the worker’s resignation prior to determining the duration of LOE benefits following surgery.

CONCLUSION

I find the worker does have initial entitlement to a left fingertip infection. I also find the worker has entitlement to the secondary diagnosis of osteomyelitis, and a permanent impairment for the resulting left fingertip amputation.

I find there is insufficient information on file for me to provide a finding on the MMR date for the left finger amputation. As such, I ask that the operating area obtain the hand therapy discharge report, and once received, provided a finding on the MMR date. I then ask that the claim be referred for a NEL assessment for the left finger amputation.

In terms of LOE benefits from April 28, 2021 to May 6, 2021, and again from the May 6, 2021 surgery date, I ask the operating area to obtain further information regarding any offer of suitable modified work.

I also ask the operating area to confirm the date of the worker’s resignation. Once this information is received, I ask that the operating area determine the worker’s entitlement to LOE benefits.

The worker’s objection is allowed.

DATED April 10, 2024

Kelly Gordon Appeals Resolution Officer Appeals Services Division