APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240055
OBJECTING PARTY:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
K. MACMILLAN, APPEALS RESOLUTION OFFICER
JULY 24, 2024
ISSUES
The employer, through their representative, is objecting to the following:
The Workplace Safety and Insurance Board (WSIB) decision of October 13, 2023 authorizing initial entitlement to health care benefits for a lower back strain/sprain injury; and,
The Case Manager’s decision dated November 16, 2023 allowing entitlement to full loss of earnings (LOE) benefits for the non-inclusive period of October 12, 2023 to November 6, 2023.
BACKGROUND
On October 5, 2023, the worker was in a three-to-four-foot trench that was 80 feet long performing the duties of a General Labourer. The worker was raking up the sides of the trench and raking stones into small piles. As the worker was shovelling out the stones with a small-handled shovel, they twisted their back and experienced an onset of low back pain. The worker accepted the employer’s immediate offer of modified duties and completed the shift. The worker returned to the job site on October 6, 2023 and continued to perform the modified duties offered by the employer.
After the long weekend, the worker returned on their next shift on October 10, 2023 to modified duties. At approximately 3:00 pm the worker left to attend a doctor’s appointment and subsequently provided the employer with a medical report. Another written offer of modified duties was provided by the employer which the worker accepted. The worker continued to perform modified duties on October 11, 2023 but left early. The worker provided a new Functional Abilities Form (FAF) the same day at approximately
5:00 pm. The employer provided an updated offer of modified duties for remote work reviewing documents on October 12, 2023.
The employer continued to offer modified duties from October 13, 2023 to October 27, 2023. On November 1, 2023, the employer representative indicated that they would confirm with the employer if the worker could come in to pick up the printed work and bring to home to complete as they did not have home internet services. On November 6, 2023, the Case Manager informed the worker that the employer representative confirmed that the worker would be able to pick up the printed manuals and complete them at home starting on November 6, 2023. The written offer of modified work dated November 8, 2023 confirmed that effective November 6, 2023 the worker was to come into the office to pick up their modified work assignments each morning at 8:30 am to review at home each day.
The decision letter of November 16, 2023 authorized full LOE benefits from October 12, 2023 to November 6, 2023 (non-inclusive) on the basis that the worker had been unable to perform the available duties given their physical limitations and restrictions. A separate decision letter from the Case Manager dated February 23, 2024 determined that the work-related injury fully recovered with no ongoing impairment as of February 22, 2024. The Case Manager’s reconsideration letter of April 25, 2024 confirmed both decisions dated October 13, 2023 and November 16, 2023. On May 2, 2024, the employer representative confirmed that they wished to object to both decisions dated October 13, 2023 and November 16, 2023. Both representatives have requested that the employer’s objections be resolved by a hearing in writing. The issues of initial entitlement and LOE benefits from October 12, 2023 to November 6, 2023 are now before me.
AUTHORITY
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
15-02-03
Pre-existing Conditions
November 3, 2014
18-03-02
Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
19-02-07
RTW Overview and Key Concepts
April 9, 2021
ANALYSIS
I find that both initial entitlement and full LOE benefits from October 12, 2023 to November 6, 2023 (non-inclusive) are in order. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Employer representative’s position and remedy sought
The employer representative is seeking the rescinding of LOE benefits from October 12, 2023 to November 6, 2023. With respect to initial entitlement, correspondence dated October 19, 2023 states that the worker informed the employer on October 5, 2023 that they had a history of back sprains.
It is the employer representative’s position that the worker’s loss of earnings is not related to, or caused by, the workplace injury of October 5, 2023. The written submission of March 28, 2024 argues that the employer had been able to accommodate the worker with sedentary duties at no wage loss. The employer representative maintains that the injury did not prevent the worker from being able to drive to pick up the documents, or from reading the documents to complete the available modified duties at full wages. Briefly, the submission is made that the worker declined modified duties one week after the date
of injury and that they had many options which the employer was willing and able to accommodate. In the view of the employer representative, the lack of access to internet services is not a reasonable reason for the worker to remain completely off work since they were capable of driving to pick up printed copies.
If the employer’s appeal is successful, the employer representative is requesting consideration of the worker’s prior back history and a determination that the wage loss from October 12, 2023 to their return to work on November 6, 2023 is not work-related.
Worker representative’s position
The worker representative requests the confirmation of entitlement to LOE benefits granted within the decision letter of November 16, 2023.
The written submission of June 20, 2024 argues that the medical information within the case record contradicts the employer representative’s arguments. In the view of the worker representative, the worker did their best to cooperate with all return-to-work (RTW) requests from the employer. The argument is presented that the worker was justified in adhering to the treating chiropractor’s medical advice which in turn mitigated any further damage to the injured area. The worker representative suggests that this approach was an integral part of getting the worker back to their pre-injury duties.
- Initial entitlement to health care benefits
I accept that initial entitlement is appropriate for a low back (lumbar) strain/sprain injury. As mentioned above, the employer representative indicates that the worker informed the employer on October 5, 2023 that they had a history of back sprains.
Policy 15-02-03, Pre-existing Conditions, states that entitlement for a work-related injury will not be denied due to the existence of a pre-existing condition. I am aware that pre-accident clinical chart notes dated May 6, 2022 document back pain, leg pain, and aches in the upper/lower back and legs. I observe that the possible diagnosis is identified as inflammatory arthritis.
Regardless, Policy 15-02-03 outlines that decision-makers are to first determine entitlement by applying Policy 11-01-01, Adjudicative Process. I am aware that Policy 11-01-01 requires clinical compatibility of diagnosis with disablement history to establish that the diagnosis was caused by the job duties. I must also consider that Policy 15-02-03 outlines the possibility that the clinical evidence may demonstrate that a pre-existing condition has been aggravated as a result of a work-related injury. In these cases, benefits are to continue until the worker recovers from the aggravation of the pre-existing condition.
With respect to the situation before me, I find that the clinical chart notes of May 6, 2022 do not identify any strain/strain injury or provide clinical findings suggesting such a diagnosis. Further, I find that there is no evidence of any documented strain/sprain injury leading up to the incident date of October 5, 2023.
Rather, I find that the pre-existing diagnosis of possible inflammatory arthritis is not identified as an ongoing contributing factor from the date of injury until the worker’s ultimate return to work on November 6, 2023. In addition, the chiropractor’s report of October 17, 2023 verifies that there are no factors that may delay recovery or RTW. Therefore, I am not persuaded that initial entitlement is to be limited based on a pre-existing lower back condition.
Policy 11-01-01, Adjudicative Process, sets out a five-point check system of which all factors must be present to allow a claim. The listed criteria are as follows:
Is there an employer?
Is there a worker?
Was there a personal work-related injury?
Is there proof of accident?
Is there compatibility of diagnosis to accident history?
There is general agreement that the first two criteria are established. Policy 15-02-02, Accident in the Course of Employment, sets out the criteria for confirming that an accident occurred in the course of employment to establish that there is a personal work-related injury as required under Policy 11-01-01. Policy 15-02-02 directs decision-makers to consider the criteria of place, time, and activity when determining whether a personal injury by accident occurred in the course of employment.
Policy 15-02-01, Definition of an Accident, outlines that the term accident includes both a chance event and a disablement. Policy defines disablements as including both a condition that emerges gradually over time and an unexpected result of working duties. In either case, Policy 15-02-01 requires the disablement to arise out of and in the course of employment. With respect to the situation before me, I find that the worker is claiming a disablement as a result of twisting while using the short-handled shovel in the trench. Accordingly, I accept that the third criterion is satisfied as there is no evidence contesting the factors of time, place, or activity.
The next two factors listed under Policy 11-01-01 must be reviewed to determine if the disablement injury arose out of the worker’s employment as required under Policy 15-02-01. With respect to proof of accident, Policy 11-01-01 provides the authority for decision-makers to consider factors that may be relevant to establishing proof of accident including if a disablement situation exists and if there was any delay in the onset of symptoms. I note that the worker had only been in the job role of General Labourer for two months. Further, there is no dispute that the worker immediately reported the injury to the employer resulting in the initial offer of modified duties on October 5, 2023. Given these factors, I accept that proof of accident is met for the reported disablement situation.
Finally, Policy 11-01-01 requires clinical compatibility of diagnosis with disablement history. To put it another way, the medical diagnosis must be shown to have resulted from, or been caused by, the worker’s job duties. Once more, the accident details involve raking and shoveling inside of a trench, with the worker twisting to shovel out the stones with a small-handled shovel. The case record indicates that the trench was three-to-four feet. I observe that the clinical chart notes of May 6, 2022 list the worker’s weight as being 341 pounds. As a result, I accept that the worker was shoveling and twisting in an awkward space at the time that they experienced the onset of lower back pain. Consequently, I am satisfied that the policy criterion of clinical compatibility is established as I find that the October 10, 2023 diagnosis of a low back strain arose out of the job duties performed. On account of this determination, I accept that initial entitlement for health care benefits is in order for a lower back (lumbar) strain injury as I find that all of the necessary factors listed under Policy 11-01-01 are met.
- Entitlement to full loss of earnings benefits from October 12, 2023 to November 6, 2023
I am not persuaded that entitlement to LOE benefits are to be rescinded for the non-inclusive period of October 12, 2023 to November 6, 2023. There is general agreement that the remote modified duties involve reviewing necessary safety training documents and providing the employer with a summary of several points to confirm that they have reviewed the material.
The employer representative notes that the employer provided lighter duties on October 5, 2023 even though the worker had not sought any medical attention. The employer representative highlights that the physician’s report of October 10, 2023 provides restrictions for modified duties including limited walking and standing, as well as not sitting for prolonged periods. There is general agreement that the worker continued to earn full wages while performing modified duties up to October 11, 2023 at which point they
left early to seek further medical attention. The employer representative submits that the resulting FAF dated October 11, 2023 does not provide any objective reasons for changing the worker’s abilities from the previous day’s assessment. Regardless, the argument is presented that another FAF dated October 17, 2023 states that the worker has the ability to drive a car and use public transit which would
allow them to pick up the printed material to review at home. In contrast, the worker representative points out that the chiropractor’s initial assessment report of October 17, 2023 lists a disability score of 77.8%, or within the range of “crippled”.
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states that full LOE benefits may be paid if the work-related injury prevents the worker from performing any type of work or if suitable work is not available. Policy 19-02-07, RTW Overview and Key Concepts, defines suitable work in part as duties that are within the worker’s functional abilities. The RTW opportunity must take into account any required accommodations with adjustments as required throughout the worker’s recovery. Policy 19-02-07 explains that accommodation is an individualized process and fact dependent, with consideration of the nature of the work.
In reviewing the evidence, I note that the physician’s report of October 10, 2023 confirms the ability to start modified duties and drive. However, the report indicates that the worker is unable to sit for prolonged periods and is not able to use public transit. The physician provides a prescription of Diazepam for two days. Clinical chart notes from the same date clarify that muscular spasm is evident and that Diazepam is being prescribed for the spasm. While I appreciate the employer representative’s arguments, I note that the same physician’s FAF of October 11, 2023 does not indicate the ability to drive a car and clearly states that the worker is now unable to perform any work. In fact, the associated clinical chart note indicates that the worker attended a meeting for work and is really struggling, even with driving and sitting. Therefore, I accept on a balance of probabilities that the on-site modified duties performed by the worker from October 6, 2023 to October 11, 2023 led to an increase in low back symptoms with a corresponding decrease in functional abilities.
I note that the updated offer of modified duties dated October 12, 2023 consisting of remote work are emailed to the worker at approximately 6:45 pm in the evening. On October 13, 2023, the worker contacts the employer at approximately 7:00 am to inform them that they had not seen the email but will complete the remote modified duties that day. The worker’s verbal statement of October 17, 2023 expresses concern with the modified duties as they do not have a computer or internet services. The worker states that they have been doing the remote work on their cell phone and are running out of data. The worker indicates that they were unable to open the attachments that were sent to them the day before and that the employer had not responded to them.
I have paid particular attention to the chiropractor’s Musculoskeletal Program of Care initial assessment report of October 17, 2023 as it is quite detailed and provides confirmation of clinical findings. The report outlines that due to spasms, any initiation of movement (active or passive) leads to increased pain. The chiropractor states that the worker is unable to perform any supine or prone test due to severe pain and immobility. As highlighted by the worker representative, the report documents an Oswestry Low Back Pain Disability Questionnaire (ODI 2.1a version) score of 77.8%.
Specifically, the chiropractor recommends a return to modified duties at the end of phase one of treatment. In the opinion of the chiropractor, a premature return to any type of modified duties would be detrimental. The chiropractor suggests that RTW can be discussed once the worker is able to hold a posture/position for more than 30 seconds without spasming. The report indicates the inability to maintain any stationary position (seated or standing) or perform any movements without severe spasms of the lumbar and thoracic spine. Based on these detailed physical findings, I accept that the indication of an ability to drive or use public transit is inconsistent with the totality of the report’s recommendations.
I must further consider that the employer’s verbal statement of October 19, 2023 outlines that the worker did not work on October 12, 2023 as they did not check their email. The employer confirms that they will not be paying the worker on October 13, 2023 since the worker states they did not have the required data to download the material to perform the remote modified duties. The worker’s verbal statement dated October 20, 2023 states that they have been off work since October 11, 2023 and that they did not receive the remote work on October 12, 2023 until after their regular working hours. The worker confirms that they do not have home internet services. The chiropractor’s FAF completed on October 27, 2023 confirms the inability to work and that the worker cannot maintain any position for longer than one to two minutes. I observe that the chiropractor does not indicate the ability to drive or take public transit.
As mentioned above, the Case Manager informs the employer representative on November 1, 2023 that the modified remote work would be suitable if the worker could come pick up the material and bring it home to complete in order to rectify the lack of internet services. The Case Manager informs the worker on November 6, 2023 that the employer representative has verified that they can pick up the printed materials starting on November 6, 2023. The updated written offer of modified duties from the employer dated November 8, 2023 directs the worker to come to the office each morning at 8:30 am for printed copies of the required material to be reviewed at home each day. The chiropractor’s report dated November 10, 2023 confirms that the worker can now sit for longer than 30 to 60 seconds. Still, the chiropractor indicates that the remote duties seem to be aggravating the worker’s symptoms which have regressed that week.
To summarize, Policy 18-03-02 provides the authority to pay full LOE benefits if the work-related injury prevents a return to any type of work, or if suitable duties are not available. Policy 19-02-07 explains that further accommodations may be required to adapt to any changes as they arise. In this case, the worker was unable to continue to receive the material electronically to complete their review at home. I find that the worker did not have the functional abilities to safely drive to the employer’s office to pick up the printed material between October 12, 2023 and November 6, 2023 (non-inclusive), Further, I find that necessary documents were not sent to the worker within a reasonable timeframe on October 12, 2023 in order for the worker to not lose wages on that date. As discussed above, the employer indicates that the worker informed them that they did not have sufficient data to download the materials required for the remote modified duties on October 13, 2023.
Overall, I accept that the worker initially had the functional abilities to perform the available on-site modified duties effective October 5, 2023. However, I find that the work-related condition deteriorated to the point where the worker was unable to continue any on-site duties or safely drive to pick up printed material to review at home. Therefore, it is my view that there is a work-related wage loss for the
non-inclusive period of October 12, 2023 to November 6, 2023 as I am not persuaded that suitable duties were available even if the employer was willing to pay full regular wages for partial hours. As a result, I find that full LOE benefits are in order from October 12, 2023 to November 6, 2023 (non-inclusive).
CONCLUSION
I conclude the following:
Initial entitlement to health care benefits for a lower back strain/sprain injury is confirmed.
The worker did not have the functional abilities to perform the available modified duties from October 12, 2023 until November 6, 2023.
Entitlement is in order to full loss of earnings (LOE) benefits for the non-inclusive period of October 12, 2023 to November 6, 2023.
The request to rescind entitlement to LOE benefits from October 12, 2023 to November 6, 2023 (non-inclusive), is denied.
The employer’s objection is denied.
DATED July 24, 2024
K. MacMillan
Appeals Resolution Officer Appeals Services Division