Decision No. 20250051, 2025 CanLII 111677

20250051

REPRESENTED by:

HEARD by:

DATED:

APRIL 17, 2025

ISSUES

The worker is objecting to the Case Manager’s decision of May 24, 2024 denying entitlement to loss of earnings (LOE) benefits from April 10, 2024 to May 6, 2024 (non-inclusive).
The employer is objecting to the same decision letter with respect to the Case Manager’s allowance of entitlement to LOE benefits for the inclusive dates of April 8, 2024 and April 9, 2024.

BACKGROUND

On March 26, 2024, this now 23-year-old construction/demolition labourer was assisting a colleague with moving a metal door which had a loose bolt at the top of the frame. Upon moving the frame, the bolt came off, causing the frame to fall onto the worker’s right fifth finger, pinching it between the bottom and top of the frame. The worker signed a written offer of modified duties on March 27, 2024. A WSIB decision letter also dated March 27, 2024 authorized initial entitlement to health care benefits for an injury to the right hand.

A Case Manager’s decision letter dated April 24, 2024 allowed entitlement to lacerations of the right finger and subsequent surgery of April 8, 2024. The Case Manager allowed entitlement to LOE benefits from April 8, 2024 to April 11, 2024 (inclusive) based on the determination that the worker was totally disabled during this time. The Case Manager denied entitlement to LOE benefits from April 15, 2024 onwards after determining that the worker had the ability to perform the available modified duties.

The worker resumed modified duties on May 6, 2024. The letter dated May 24, 2024 allowed entitlement to LOE benefits for the two dates of April 8, 2024 and April 9, 2024 due to the worker being totally

impaired as a result of surgery. Entitlement to LOE benefits was denied from April 10, 2024 up to the return-to-work (RTW) date of May 6, 2024 as suitable modified duties were available. The denial of entitlement to LOE benefits for the non-inclusive period of April 10, 2024 to May 6, 2024 was upheld in a reconsideration letter dated June 18, 2024. A second reconsideration letter dated October 10, 2024 confirmed the previous decision letter of May 24, 2024. A separate Case Manager reconsideration letter dated October 25, 2024 overturned a prior decision dated June 14, 2024 and determined that maximum medical recovery was not reached by July 8, 2024.

The administrative decision of October 28, 2024 determined that the worker’s objection to the denial of LOE benefits from April 10, 2024 to May 6, 2024 (non-inclusive) would be addressed as a hearing in writing. On January 27, 2025, a Case Manager authorized tendon repair surgery scheduled to be performed on February 4, 2025, as well as full LOE benefits from the date of the procedure. A second administrative decision dated March 5, 2025 determined that the employer’s objection to the allowance of LOE benefits for the two dates of April 8, 2024 and April 9, 2024 would be included with the worker’s objection to the same decision letter of May 24, 2024 as a hearing in writing. The issues are now before me.

AUTHORITY

Operational Policy Manual

Published

11-02-02 Lost Time Claims

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

April 9, 2021

September 1, 2021

April 9, 2021

ANALYSIS

I find that there is no entitlement to loss of earnings (LOE) benefits from April 10, 2024 to May 6, 2024 (non-inclusive), or for the date of April 8, 2024. My reasons for these determinations are set out below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position and remedy sought

The worker representative is seeking a determination that the worker was following the advice of their physician by remaining off work post-surgery.

The Appeal Readiness Form signed October 2, 2024, encloses the orthopaedic surgeon’s written reply to the questions posed by the worker representative in their correspondence dated September 9, 2024. The case record also contains the worker representative’s concerns with the amount of dust and debris within the construction site which would lead to harm post-surgery. The worker’s verbal statement to the Case Manager on May 17, 2024 argues that significant amounts of dust could infect the wound.

If the worker’s appeal is successful, the worker representative requests entitlement to full LOE benefits from April 10, 2024 until the worker’s return to modified duties on May 6, 2024.

Employer representative’s position and remedy sought

The employer representative is seeking the rescinding of entitlement to LOE benefits for both dates of April 8, 2024 and April 9, 2024. The employer representative submits that suitable duties were available to the worker both before and after the surgery of April 8, 2024.

The written submission dated January 9, 2025 argues that the worker attended a few hours of work on April 8, 2024 and left once they received a call advising that surgery would be that evening. The employer representative presents that the surgery was minor and only involved regional anesthesia, with no overnight stay. The written submission argues that the worker was not authorized off on April 9, 2024 and that the worker indicates only being prescribed over-the-counter pain medications post-surgery.

If the employer’s appeal is successful, the employer representative requests that the Case Manager’s denial of entitlement to LOE benefits from April 10, 2024 to May 6, 2024 be upheld. The employer representative further requests that the allowance of entitlement to LOE benefits for April 8, 2024 and April 9, 2024 be overturned.

Entitlement to loss of earnings (LOE) benefits from April 10, 2024 to May 6, 2024 (non-inclusive)

I am not persuaded that LOE benefits are in order for the non-inclusive period of April 10, 2024 until the worker’s return to modified duties on May 6, 2024.

The worker representative relies on the medical recommendations for the worker not to return to work. The employer representative suggests that the suitable duties were available within the worker’s functional abilities.

Policy 11-02-02, Lost Time Claims, outlines that a worker may be entitled to LOE benefits if there is lost time from work due to the work-related injury. Policy 11-02-02 requires decision-makers to determine if there is suitable and available work. If the worker is only able to do work that is available at a partial loss of earnings, the worker may be entitled to a partial loss of earnings benefit. 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. Policy requires the

return-to-work (RTW) opportunity selected for the worker to take into account any required accommodation. Policy 19-02-07, RTW Overview and Key Concepts, confirms that the ability to work is determined by comparing the worker’s functional abilities and limitations to the demands of the particular job.

I observe that the written offer of modified duties signed by the worker on March 27, 2024 identify on-line health and safety courses, as well as Ministry of Labour and Infrastructure Health and Safety Association (IHSA) courses. The RTW plan signed by the worker on that date confirms that they will only be paid for hours worked. The plan verifies that the there would be no use of the right hand to complete the light duties which includes spotting other employees, performing safety audits/walks, and cleaning the lunch room with the left hand.

The orthopaedic surgeon’s report of April 5, 2024 explains that the accident injury to the right hand does not involve significant penetration. There is a very small laceration over the palmar and dorsal aspect of the right fifth finger, which did not appear to be deep. Small, well-healed lacerations are identified over both the radial palmar aspect of the small finger and dorsally. There is no laceration centrally. I appreciate that the Functional Abilities Form (FAF) dated April 15, 2024 states that the worker is physically unable to work. However, the FAF also specifies that the worker cannot use the right hand for any lifting, pushing/pulling, or repetitive activities. The employer’s letter to the worker dated April 16, 2024

confirms that the available duties can accommodate no use of the right hand and that transportation can be provided if required. The letter reinforces that the employer will only pay for hours worked.

I am aware that the worker’s verbal statement of April 24, 2024 indicates that some of the tasks require them taking items from colleagues with both hands. Nevertheless, the worker describes having a full cast from the tips of their fingers to the elbow and that they were discharged the same day as the surgery.

The worker explains that over-the-counter medication was recommended and that they are keeping the injury fully covered at night. A medical note dated April 24, 2024 states that the worker is unable to use the right hand for at least another three weeks. On April 29, 2024, the worker confirms having no issues with either the audits (which are sedentary in nature) or walking around for the checks. While the worker expresses concern with being required to mop and sweep the lunchroom, the Case Manager confirms that these two tasks can be removed.

The employer’s letter to the worker dated April 30, 2024 outlines that modified duties continue to be available requiring no use of the right hand. The Case Manager explains to the worker on May 3, 2024 that the employer indicates they have never been asked to sweep or mop the breakroom and will not be required to do so. The Case Manager informs the worker that “spotting” is a visual task assisting people who are operating or transporting large machinery to make sure that there are no obstructions or collision risks. If any are identified, the worker is expected to call for assistance.

The orthopaedic surgeon’s report of May 3, 2024 describes there being a very small opening, but no obvious laceration in the hand. Although the worker is doing very well post-operative, the surgeon states that the worker has been unable to work for the last six weeks since the injury, and certainly not since the surgery of four weeks ago. The report recommends not using the hand for much over the next two to three months for the type of work that the worker performs, which is identified as manual in nature for the most part.

Once the worker returns to modified duties on May 6, 2024, they verbally inform the Case Manager on May 10, 2024 that they are wearing a brace/cast. On May 17, 2024, the worker informs the Case Manager that they did not find the modified duties difficult but were following their doctor’s recommendation to be off work and keep the surgical site clean. The worker states that the incision is from the fifth finger into the palm of the hand. That being said, I must consider that the employer’s internal emails of May 21, 2024 and May 22, 2024 confirm that the worker would not have to be exposed to dust/debris when spotting or completing safety walk audits. In fact, the health and safety manager indicates that the worker was inside a building with their hand covered the last time they saw them.

The worker representative’s letter to the orthopaedic surgeon dated September 9, 2024 requests an opinion on the suitability of the modified duties available from April 10, 2024 to May 6, 2024. While I acknowledge the orthopaedic surgeon’s reply of September 23, 2024, I find that it does not support there being any restrictions beyond no use of the right hand. In other words, I find that there are insufficient objective findings that the available duties cannot be safely performed with only the left hand. For example, the orthopaedic surgeon states that the worker should not be performing any manual work with the right arm for approximately three months post-surgery, or any demolition labour/similar duties for at least that amount of time. Importantly, I find it material that the report indicates the understanding that the worker was forced back to work with full duties.

In summary, I accept that the work-related functional limitations relate to the inability to use the right hand. I further find that the available modified duties both before and after the work-related surgery were safe, suitable, and within the worker’s functional abilities. It is my view that the available duties would not expose the worker to potential infection from dust/debris given that the worker describes a full cast up to the elbow and the employer has confirmed that there would not be exposure when spotting or completing

safety audits/walks. Further, I note that some of the available duties did not require the worker to be outside, such as cleaning the lunchroom with only the left hand. While I appreciate the orthopaedic surgeon’s response to the worker representative dated September 23, 2024, I find that there is insufficient evidence of the worker being forced back to full duties. Again, the worker’s verbal statement of April 29, 2024 verifies that they had no issues with audits/safety walks, while their verbal statement of May 17, 2024 confirms that they did not find the modified duties to be difficult.

Policy 19-02-07 defines suitable work as post-injury work that is safe, productive, and consistent with the worker’s functional abilities. With respect to the case before me, I accept that the modified duties available from April 10, 2024 until the worker’s return to modified duties on May 6, 2024 were within the worker’s capabilities to safely perform. Therefore, I find that there is no work-related wage loss as required by both Policies 11-02-02 and 18-03-02. Accordingly, it is my view that entitlement to LOE benefits from April 10, 2024 until the worker’s return to modified duties on May 6, 2024 is not in order.

Entitlement to LOE benefits for the inclusive dates of April 8, 2024 and April 9, 2024

I find that entitlement to LOE benefits is appropriate for April 9, 2024 but not for April 8, 2024.

The employer representative maintains that the employer paid wages for the few hours the worker worked on April 8, 2024 before to leaving early as the surgery was performed that evening. The employer representative suggests that there is no medical authorization for lost time on April 9, 2024, and that the available modified duties included the option of transportation to and from the worksite.

Still, I observe that the actual surgical report lists a procedure date of April 9, 2024, not April 8, 2024. Further, I note that the report does not list the time of surgery. Even so, the report confirms that regional (not general) anesthetic was administered, and that the worker was placed in a well-padded ulnar gutter splint, including the ulnar three digits. I additionally observe that the orthopaedic surgeon’s written reply to the worker representative dated September 23, 2024 confirms that the worker required surgical repair of the flexor tendon on April 9, 2024.

Briefly, I acknowledge that there is no medical authorization to be off work on April 9, 2024. However, as I accept that the surgery took place on April 9, 2024 (regardless of what time it occurred on that date), I find that the worker would not have the functional abilities to return to modified duties (even with transportation being provided by the employer) until April 10, 2024. Therefore, as the surgical report is dated April 9, 2024, I find that there is insufficient evidence to establish that the worker did not have the functional abilities to perform modified duties for the full shift of April 8, 2024 or was required to be at the hospital prior to the end of their normal working day. Consequently, it is my view that LOE benefits are not in order under Policy 18-03-02 for the date of April 8, 2024 as I accept that the worker had the ability to perform the available modified duties at no wage loss.

CONCLUSION

I conclude the following:

There is no entitlement to loss of earnings (LOE) benefits from April 10, 2024 to May 6, 2024 (non-inclusive).

The worker’s request for entitlement to LOE benefits during this period is denied.

Entitlement to LOE benefits is not in order for April 8, 2024 as the surgical report states that the procedure took place on April 9, 2024.

Entitlement to LOE benefits for the actual surgical date of April 9, 2024 is confirmed.

The employer’s request to rescind entitlement to LOE benefits for both dates is allowed in part.

The worker’s objection is denied.

The employer’s objection is allowed-in-part.

DATED APRIL 17, 2025

K. MacMillan

Appeals Resolution Officer Appeals Services Division