Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | January 2018 | News Following doctor's orders after a workplace injury Worker denied loss-of-earnings benefits for refusing modified work, but following doctor's orders for bed rest wasn't a failure to co-operate in return-to-work efforts BY JEFFREY R. SMITH AN ONTARIO worker who was initially denied loss-of-earnings benefits after refusing modified duties has won an appeal for those benefits. The 52-year-old worker was employed as a seat assembler for an industrial employer in Toronto. On June 11, 2013, the worker pulled down on a lift as- sist mechanism and injured his neck. He went to the emergency department of a nearby hospital and was diagnosed with neck pain. The next day, the worker un- derwent diagnostic imaging that revealed some degenera- tive changes in his neck but no fracture or abnormal soft tissue swelling. He received a Percocet prescription for his pain and was sent home. A doctor who treated the worker completed a report indicating the worker had a cer- vical strain and should be off work for a week. The employer called the work- er and offered him modified du- ties, but the worker refused and stayed off work. The worker said he wasn't given any details on the modified duties and he was fol- lowing his doctor's instructions that he needed bed rest, as his injury was "debilitating." Also, since he was taking Percocet for his pain, he wasn't able to drive to and from work. The worker provided a note from his family physician dated June 13, 2013, that stated the worker had a neck injury and should be off work for six weeks. The worker was still taking Per- cocet for his neck pain. One month later, the worker's doctor provided a second note that ad- vised the worker had a cervical strain and would not be able to return to work until the end of July. The worker filed a claim for workers' compensation, but the Workplace Safety and Insurance Board (WSIB) eligibility adjudi- cator denied initial entitlement because there was no medical diagnosis on file. However, after the worker's physician provided a diagnosis of cervical strain, the decision was overturned. On Aug. 28, a WSIB case man- ager denied loss-of-earnings benefits for the worker because the worker was capable of per- forming modified duties that the employer had available. The worker appealed the decision and a WSIB appeals resolution officer found the worker was totally impaired only during the week of his injury and had enti- tlement to loss-of-earnings ben- efits for that week only — July 11 to 17. The worker appealed the de- cision, seeking loss-of-earnings benefits until he returned to work on July 29, 2013. He ar- gued that the Ontario Work- place Safety and Insurance Act, 1997 (WSIA) provided for loss- of-earnings benefits where a worker loses earnings because of a compensable injury until the worker's safe return to work. The tribunal noted that the WSIA required the employer to maintain communication with the injured employee through- out the worker's recovery and impairment, while trying to provide suitable modified du- ties "consistent with the worker's functional abilities" and could pay the worker what he was earning prior to his injury. The act also required the worker to co-operate in efforts to return him to work as early and safely as possible by keeping in touch, helping to identify suitable em- ployment, and providing appro- priate information on his recov- ery. The tribunal also noted that a causal relationship between the injury and wage loss was necessary for the payment of loss-of-earnings benefits. While workers were entitled to refuse suitable work — and such refus- als wouldn't necessarily mean the worker wasn't co-operating with return-to-work efforts — it could mean the worker's loss of earnings were because of the re- fusal rather than the injury itself, the tribunal said. In addition, the tribunal pointed out that the WSIB op- erational policy manual states that loss-of-earnings benefits are payable if the worker co-op- erates in health care measures, but not if the worker doesn't co- operate. The tribunal found that the worker sought immediate medi- cal attention for his injury and kept his employer up to date on his condition, particularly when his expected time off work changed — after his initial hos- pital visit — from one week to six weeks. His second doctor's note in July 2013 confirmed that time frame. All evidence to this point indicated the worker co-operat- ed fully. The tribunal also found the worker's refusal of the modified duties was reasonable, as he was entitled to follow his physician's advice and stay in bed for a while. The pain medication he was tak- ing also supported the worker's decision to stay home, along with the fact he wasn't given spe- cifics on the modified duties he would be expected to perform, said the tribunal. The tribunal determined that the worker acted reasonably in following his treatment plan and didn't fail to co-operate in his health care and return-to-work plan, noting that the worker was able to return to work suc- cessfully on the date initially in- dicated by his family physician following six weeks of recovery. The worker's appeal was granted and the WSIB was ordered to pay the worker full loss-of-earn- ings benefits from his injury un- til his return date of July 29, 2013, minus the week for which he had already received benefits. For more information see: • Decision No. 2617/17, 2017 CarswellOnt 14712 (Ont. Workplace Safety & Insurance Appeals Trib.). Credit: Shutterstock/milliondollar

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