[1]                                         The worker sustained a compensable low back and left ankle/foot injury on March 1, 2016. She now appeals the decision of the Appeals Resolution Officer (ARO) dated April 26, 2018. In this decision the ARO concluded that the worker was not entitled to full Loss of Earnings (LOE) benefits from July 10, 2017 to September 8, 2017. The ARO also determined that the worker did not have a permanent impairment of the left ankle and was not entitled to a Non-economic Loss (NEL) award for the left ankle.

[2]                                         Prior to the start of the hearing the parties came to a settlement. The worker’s representative advised that his client was prepared to withdraw her objection to the denial of a NEL determination for the left ankle. If an appeal on this issue were to return to the Tribunal it would be subject to the time limits under a. 125 of the WSIA. The employer in turn agreed that the worker should be granted entitlement to full LOE benefits less wages earned from July 10, 2017 to September 8, 2017. Both representatives supported the settlement offer with detailed submissions drawn from the medical reports contained in the Case Record. After considering the submissions of the representatives I advised the parties that I was in agreement with their submissions.

[3]                                         The following are the basic facts.

[4]                                         On March 1, 2016 the then 47-year-old machine operator injured her low back and left foot/ankle while performing her regular duties. The Board granted entitlement to these injuries.

[5]                                         The worker returned to modified duties; however, on February 27, 2017 the worker was referred for treatment through the Board’s Function and Pain Program (FPP) and the Board began paying full LOE benefits to the worker. On July 10, 2017 the Board began paying partial LOE benefits to the worker on the basis that the worker was determined by the FPP to be capable of participating in a graduated return to work program offered by the employer. The worker returned to modified duties but missed sporadic days from work. On August 23, 2017 the worker stopped working.

[6]                                         On September 13, 2017 the Board wrote to the worker and advised that she had a permanent impairment of the low back and that she would be referred for a NEL determination. The letter also advised that she was not entitled to LOE benefits.

[7]                                         On October 31, 2017 the Case Manager wrote to the worker and advised that she was entitled to psychotraumatic disability benefits. The letter also advised that she was considered to be capable of performing suitable work from July 10, 2017 to September 8, 2017 and therefore she was not entitled to further LOE benefits during this period. The letter also advised that the worker was entitled to full LOE benefits from September 8, 2017 as a result of her psychological impairment.

[8]                                         On November 21, 2017 the worker was advised that she had been granted a 15% NEL award for a low back strain.

[9]                                         On April 26, 2018 the ARO determined that the worker was not entitled to a left ankle NEL award and that she was not entitled to further LOE benefits and in particular the worker was not entitled to full LOE benefits for the period from July 10 to September 8, 2017, less wages earned during this period.

[10]                                      Since the worker was injured in 2016, the Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal.  All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

[11]                                      Section 43 of the WSIA govern the worker’s entitlement in this case. Section 43 of the WSIA provides in part:

[12]                                      As noted above, the issue before the Tribunal is the worker’s entitlement to LOE benefits. Under section 43(1) a worker who has a loss of earnings as a result of a compensable injury is entitled to LOE benefits. Decision No. 2474/00 held that under section 43(1) a causal relationship between the injury and wage loss is a condition precedent to the payment of LOE benefits.  A refusal of suitable work is not necessarily an act of non-cooperation, but it may lead to a conclusion that the worker’s loss of earnings does not result from the injury.  Section 43(2) operates to reduce a worker’s benefits where the worker refuses suitable employment. Thus, a worker who refuses suitable employment at no wage loss is not entitled to LOE benefits because the loss of earnings is not caused by the injury, but caused by the refusal of the suitable employment. 

[13]                                      Tribunal jurisprudence applies the test of significant contribution to questions of causation.  A significant contributing factor is one of considerable effect or importance.  It need not be the sole contributing factor.  See, for example, Decision No. 280.

[14]                                      The standard of proof in workers’ compensation proceedings is the balance of probabilities.  Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight.  

[15]                                      Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: #212, #224, #235, #300 and #302. I have considered these policies as necessary in deciding the issues in this appeal.

[16]                                      The worker’s representative and the employer’s representative submitted that the worker should be paid full LOE benefits from July 10, 2017 to September 8, 2017 less wages earned during this period as a result of the combined effect of the worker’s permanent low back strain and her psychological impairment.

[17]                                      I note that from July 10, 2017 to September 8, 2017 the worker was paid pre-accident wages by the accident employer for hours worked and partial LOE benefits by the Board according to a graduated return to work schedule developed by the Function and Pain Program (FPP). As a result, the issue remaining is the worker’s entitlement to additional LOE benefits for time lost due to pain when she was unable to perform modified work during the period of July 10, 2017 to September 8, 2017.

[18]                                      I find I have jurisdiction to consider the submissions of the representatives regarding further LOE benefit entitlement for time lost due pain from July 10, 2017 to September 8, 2017. I note that the ARO decision under appeal denied “additional loss of earnings benefits from July 10, 2017 to September 8, 2017 for time lost due to pain” and, in particular, the ARO decision considered the worker’s entitlement to full LOE benefits for the period in question less wages earned.

[19]                                      In considering the joint submission of the representatives I have considered the following relevant medical and documentary evidence contained in the Case Record:

[20]                                      OPM Document No. 18-03-02 “Payment and Reviewing LOE Benefits (Prior to Final LOE Review),” explains the circumstances in which “Treatment with No Return to Work” is appropriate:

[21]                                      As a result of the foregoing medical and documentary evidence I find that worker’s psychological impairment deteriorated while she attempted to perform modified work according to the graduated plan developed by the FPP. I also find that this deterioration entitles her to further LOE benefits for time lost due to her pain and psychological impairment.

[22]                                      In making this finding I place significant weight on the September 10, 2017 report of Dr. Kakar. In this report Dr. Kakar clearly advised that the worker should stop working because it was “aggravating her symptoms of mental anguish, physical pain, making her not responding to her medications…”. While I note that Dr. Kakar’s report recommending that the worker stop working was not written until September 10, it reflected the extent of the worker's psychological condition since she began these modified duties in July 2017. I am supported in this finding by the clinical findings of Dr. Kakar on July 1 and July 31, 2017 (which determined that the worker’s pain levels were “severe” and that her depression was significant) as well as by the fact that the worker’s medication changed subsequent to her return to modified duties. Prior to the graduated return to work program she was prescribed 10 mg. of Cipralex for depression. However, Dr. Kakar’s September 10, 2017 letter advised that the worker’s medications were changed subsequent to the return to work and involved Wellbutrin 150 mg. in the morning. This was gradually increased to 300 mg. every morning over the course of the 9 weeks. The worker was also prescribed 150 mg. of Wellbutrin in the afternoon. I find that this medication change and the increased dosage is indicative of the worker’s worsening psychological impairment in response to the pain experienced while performing modified work.

[23]                                      I also find that the worker’s psychological condition was further exacerbated by not being provided with adequate counselling as recommended by the FPP. I again note that the FPP recommended that the worker receive six sessions with a psychologist during the graduated return to work program because she was likely to feel fragile and anxious. The Case Record reflects that the worker received only two psychological counselling sessions (July 31 and September 10, 2017) during the period in which the worker was attempting to increase her hours according to the graduated return to work program. As a result, I find that the worker did not receive the recommended psychological support during the graduated return to work program and, and was unable to successfully complete the graduated return to work program. As such she is entitled to full LOE benefits during this period less wages earned.

[24]                                      Finally, I note that Dr. Jairath completed medical notes in August 2017 advising that the worker was unable to perform any work on July 14, July 17, August 9, 2017 and August 23, 2017 as a result of her compensable psychological impairment.

[25]                                      I find that the worker is entitled to full LOE benefits for time lost due to pain from July 10, 2017 to September 8, 2017 less wages earned during this period. I find that the worker was unable to perform any work during these days as a result of her deteriorating psychological impairment as well as the pain related to her organic permanent low back impairment. I place significant weight on the medical opinions of Dr. Jairath and Dr. Kakar.

[26]                                      The worker’s appeal on this issue is allowed.

[27]                                      The appeal is allowed as follows: