APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20260005
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT PARTY:
EMPLOYER
REPRESENTED by:
SELF REPRESENTED
HEARING:
HEARING IN WRITING
HEARD by:
BRIAN SMITH, APPEALS RESOLUTION OFFICER
DATED:
AUGUST 15, 2025
ISSUE
The worker objects to the Case Manager’s October 9, 2024 decision that denied entitlement to loss of earnings benefits from September 30, 2024, ongoing.
BACKGROUND
On September 27, 2024, this painter reported to their employer that while moving paint boxes, they felt a tingling in the lower back. The worker sought medical attention on September 30, 2024 and a functional abilities form (FAF) of the same date was provided to the employer.
The worker did not return to work for their next scheduled shift and remained off work until November 25, 2024.
On October 2, 2024, the claim was electronically adjudicated and entitlement to healthcare benefits was granted.
On October 9, 2024, a Case Manager determined that the modified duties offered by the employer on September 27th, 2024, were within the general restrictions and limitations of a lower back sprain/strain type injury and within the worker’s reported abilities. Consequently, entitlement to loss of earnings benefits from September 30, 2024 was denied.
The worker has objected to the October 9, 2024 decision. The decision was reconsidered and remained unchanged. As a result, the claim has been referred to the Appeals Services Division for review.
AUTHORITY
Operational Policy Manual
Published
11-02-02 Lost Time Claims
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
April 9, 2021
September 1, 2021
ANALYSIS
I have carefully considered all the available information, legislation and relevant operational policies in reaching this decision. I find the worker is entitled to full loss of earnings benefits from
September 30, 2024 to November 25, 2024. My reason and analysis follow.
The worker, through their representative, contends that the available medical supports the worker was unable to return to work and they ought to be entitled to full loss of earnings benefits from
September 30, 2024 to November 25, 2024.
The employer, while participating, has made no submission for my review.
Policy 11-02-02 Lost Time Claims says a worker may be entitled to benefits/services if they suffer a work- related injury/disease and lose time from work, have a loss of wages/earnings, or have a
permanent disability/impairment.
The policy goes on to say clinical evidence on file must show that the inability to work is due to the work- related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid and that the WSIB determines, through the review of clinical information, when a worker is fit to go back to their pre-injury work, or suitable and available work.
Policy 18-03-02 says that a worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins.
Benefits continue until the earliest of:
the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.
Further, 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.
In my view, the question before me is whether the worker was totally or partially disabled, and if they were partially disabled, was the offered modified work suitable.
I find that the worker was totally disabled. The worker sought medical attention on the date of the accident. The family doctor provided an FAF indicating that the worker was unable to return to work. Of significance, the opinion remains unrebutted.
I note that the Case Manager indicated that there was no objective medical information to support disability. However, on October 9, 2024, Dr. Zaidi provided a narrative report indicating that the worker was unable to drive a car, cannot sit or stand for more than 15 minutes due to their back pain and is unable to work even modified hours.
The case record also contains an October 10, 2024 Musculoskeletal Program of Care Initial Assessment report. The report notes that the worker has an antalgic gait, lumbar active range of motion is severely limited in all planes. The worker has 25% flexion, rotation and cannot extend. Consequently, I disagree with the Case Manager’s conclusion that there is no objective medical information supporting disability.
In my review of the available medical information, I cannot ignore that both the family doctor and the physiotherapist have concluded that the worker is not capable of a return to work to modified duty. I am satisfied that the family doctor is aware that modified duties have been offered as it was noted in the email correspondence between the employer and the worker. I also note that there was no communication between the WSIB and any of the treating practitioners to discuss or review the worker’s ability to return to work.
While I recognize that the determination of return to work falls in the Case Manager’s expertise, I find that the available medical opinions ought to be given weight and they support that the worker was significantly limited in their abilities, and they were not fit to return to work.
I also recognize that the objective medical information is not confirmed until October 10, 2024. However, in my view it stands to reason that if the worker was unfit to work two weeks after the accident, that it is more likely than not that they were unable to work during those two weeks as well.
Having placed weight on the assessments and opinions of the treating physician, which remain unrebutted, I find that the worker had clinical authorization to remain off work and the nature or seriousness of the injury completely prevented the worker from returning to any type of work. I am therefore led to conclude that the worker is entitled to loss of earnings benefits from September 30, 2024 to November 25, 2024.
CONCLUSION
The worker’s objection is allowed.
The worker is entitled to full loss of earnings benefits from September 30, 2024 to November 25, 2024.
DATED AUGUST 15, 2025
Brian Smith
Appeals Resolution Officer Appeals Services Division