APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20250050
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT PARTY: EMPLOYER (NOT PARTICIPATING)
HEARING: HEARING IN WRITING
HEARD by: N. CLARK, APPEALS RESOLUTION OFFICER DATED: MARCH 31, 2025
ISSUES
The worker, through their representative, objects to the following:
The Eligibility Adjudicator’s September 6, 2019 decision, which denied entitlement to loss of earnings benefits. In a subsequent reconsideration decision, dated February 13, 2025, the period of the worker’s loss of earnings was confirmed as July 11, 2019 to October 2, 2019.
The Case Manager’s January 8, 2020, which denied entitlement to loss of earnings benefits for November 8, 2019.
BACKGROUND
On July 10, 2019, the worker was sitting on a raised chair at a countertop when their chair broke and they fell to the floor. On July 30, 2019, the worker’s claim was allowed for a head injury, lower back injury, right shoulder injury, and neck injury. The worker also began to lose time from work following the injury.
In their decision dated September 6, 2019, the Eligibility Adjudicator determined that the worker was not entitled to loss of earnings benefits, as the medical information did not support that the worker was unable to return to work. This decision was reconsidered on February 13, 2025, and upheld.
The employer later attempted to arrange modified duties for the worker. On November 4, 2019, the Case Manager found that the worker was entitled to loss of earnings benefits from October 3, 2019 to October 16, 2019, as the location of the modified work was more than one hour from the worker’s home, which was not in their normal pattern of commuting. However, the Case Manager determined that they were unable to allow loss of earnings benefits from October 17, 2019, until the worker’s return to work on November 1, 2019, as suitable modified duties at the worker’s regular location were available.
In their decision dated November 29, 2019, the Case Manager confirmed that, in regards to the worker’s functional abilities, they remained unable to use an elevated chair during their return to modified work.
On January 8, 2020, the Case Manager found that the worker was not entitled to loss of earnings benefits for November 8, 2019. While the employer identified that the worker was attending a medical appointment that day, the Case Manager stated that there was no evidence of this.
The worker, through their representative, objected to the decisions, which denied loss of earnings benefits from July 11, 2019 to October 2, 2019, and November 8, 2019. These issues form the basis of the appeal before me.
AUTHORITY
Operational Policy Manual
Published
18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) January 2, 2018
17-01-05, Wage Loss for Health Care Appointment February 20, 2006
ANALYSIS
I have carefully considered all of the available information, legislation, and relevant operational policies in reaching this decision. I find that:
The worker is entitled to full loss of earnings benefits from July 11, 2019 to September 30, 2019.
I find that the worker is not entitled to loss of earnings benefits for November 8, 2019.
Worker’s Position
The worker, through their representative, states that they should be entitled to full loss of earnings benefits from July 11, 2019, until the date that they were medically cleared to return to safe and suitable modified work. Within their submission, they provide a background of their injury, their relevant medical attention, and the applicable policy.
The worker states that their healthcare providers consistently recommended that they not return to work and that any modified work arrangement would have been inconsistent with their abilities. In addition, the worker states that their compensable injury impacted their pre-existing conditions, which would have made return to work impossible.
Employer’s Position
A Participant Form was sent to the employer on August 31, 2020, but was not returned. No information was submitted for my consideration.
Assessment of Entitlement
Issue #1- Entitlement to loss of earnings benefits from July 11, 2019, until the worker’s return to work.
Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) 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 Workplace Safety and Insurance Board determines no suitable work is available, the worker is generally entitled to full loss of earnings benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.
In considering if the nature or seriousness of the injury completely prevented the worker from returning to any type of work, I reviewed the available medical information. In summary, a Health Professional’s Report of Injury, dated July 10, 2019, stated that the worker could resume regular duties on July 18, 2019. Subsequently, a Low Back Injuries Program of Care Initial Assessment report, dated July 18, 2019, stated that the worker had limitations concerning their lifting, kneeling, and bending. In addition, the report confirmed that the worker could not sit and stand for more than 15 minutes at a time. The physiotherapist recommended that the worker resume modified duties on July 29, 2019.
On July 19, 2019, the worker underwent an assessment with their family doctor. At that time, no return to work was recommended and a follow-up appointment was arranged for the following week. A Musculoskeletal Program of Care Initial Assessment Report, dated August 1, 2019, stated that the worker could resume modified duties and hours as of August 13, 2019; however, the following day, the worker’s therapist completed a Functional Abilities Form, which identified that the worker was not able to return to work. Beyond this period, a medical note from the worker’s family doctor, dated August 14, 2019, stated that the worker was to remain off work and would be reassessed on August 28, 2019.
During an assessment on September 16, 2019, the worker’s family doctor completed a Functional Abilities Form, which noted that the worker could still not return to work, but would be reassessed on September 30, 2019. At the worker’s next appointment on September 30, 2019, the worker’s family doctor provided a new Functional Abilities Form, which outlined the worker’s return-to-work restrictions and recommended a return to modified duties. According to the available information, the worker then returned to work on October 1, 2019.
When reviewing the above medical information, it is relevant that both the worker’s doctor and physiotherapist consistently identified that the worker was not able to return to work. Given their primary role in the worker’s treatment providers, I accept their opinions that the worker was not yet able to resume modified duties until after September 30, 2019. In addition, there is no other medical evidence that contradicts their findings. Once the worker’s doctor provided functional limitations, the worker then returned to work, as per their doctor’s advice.
In addition, it should be noted that even if the worker was partially impaired rather than unable to return to any work, the information on file confirms that modified duties were not offered until October 2019 when the Return-to-Work Specialist became involved and the worker provided information concerning their abilities. While I acknowledge the employer initially had concerns that medical updates were not being shared in a timely manner, the available correspondence confirms that the worker was in regular communication with their employer concerning their ongoing medical appointments and return-to-work abilities. During this period, the employer noted that accommodations could be explored; however, I am unable to identify that any specific modified jobs or tasks were offered to the worker prior to October 1, 2019.
During the above period, the worker was actively participating in treatment and later engaged in return-to-work services. As a result, I also accept that the worker co-operated in health care measures and all aspects of the return-to-work process, as per Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review).
In consideration of all of the above, I find that from July 11, 2019, the nature or seriousness of the injury completely prevented the worker from returning to any type of work and that if the worker had been able to return to some form of above, no suitable work was available. Therefore, they are entitled to full loss of earnings benefits from July 11, 2019, as per Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review).
When reviewing the duration of the loss of earnings benefits, the reconsideration decision of February 13, 2025, identified that the worker lost time from July 11, 2019 to October 2, 2019. However, the email correspondence between the worker and the employer clearly establishes that the worker returned to modified duties on October 1, 2019. The worker was then off work again from October 3, 2019 to November 1, 2019, but this was addressed within a November 4, 2019 decision, which is not properly before me as part of this appeal. Given that the available information supports that the worker did return to modified duties on October 1, 2019, I find that they are entitled to full loss of earnings benefits from July 11, 2019 to September 30, 2019.
Issue #2- Entitlement to loss of earnings benefits for November 8, 2019.
Operational Policy 17-01-05, Wage Loss for Health Care Appointment, confirms that the Workplace Safety and Insurance Boards pays temporary total disability/loss of earnings benefits to workers who incur a wage loss due to absence from work for health care reasons.
The policy states that "Absence from work" means time off from the worker's normally scheduled working hours. The policy adds that "Health care reasons" means consultation with, examination by, or treatment from a health care practitioner, relating to a work-related injury or disease, and includes instances when a worker
is requested by the WSIB to report to a WSIB office, or any practitioner, specialist, or clinic for interview, examination, or to complete a WSIB form
arranges an appointment with a practitioner, providing that the appointment is medically justified and does not constitute an unauthorized change in health professionals and is solely for purposes of examination, with appropriate reports submitted
is supplied by the WSIB with an artificial appliance and is required to lose time from work for the purpose of repairs, refitting, or the replacement of the artificial appliance, or
undergoes a practitioner's treatment requiring the worker's absence from work provided that the appropriate reports are submitted.
The worker’s wage loss on November 8, 2019, was identified by the employer as being related to a health care appointment. Beyond this, no additional information has been provided concerning the worker’s absence on this date.
In my review of the available evidence, I am unable to identify a corresponding medical report with a date of November 8, 2019. In the absence of this information or a request from the Workplace Safety and Insurance Board that the worker attend an appointment on this date, I am unable to determine that the worker’s absence for a health care appointment was medically justified, as per Operational Policy 17-01-05, Wage Loss for Health Care Appointment. Given that I cannot confirm that the worker’s absence on November 8, 2019, was for health care reasons, I am unable to pay loss of earnings benefits for this date.
Alternatively, if the worker did not attend their shift on this date due to their compensable injury, I find that there is no medical evidence that the worker was unable to return to any type of work on that particular date, as per Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), or that the duties that the worker had been performing were not suitable on November 8, 2019.
Noting the above, I find that the worker is not entitled to loss of earnings benefits for November 8, 2019.
CONCLUSION
I find that:
The worker is entitled to full loss of earnings benefits from July 11, 2019 to September 30, 2019.
I find that the worker is not entitled to loss of earnings benefits for November 8, 2019.
The worker’s objection is allowed-in-part.
DATED MARCH 31, 2025
N. Clark Appeals Resolution Officer Appeals Services Division