WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2003 ONWSIAT 2835 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1781/03 [1] This appeal was heard in Toronto on September 26, 2003 by Tribunal Vice-Chair A.V.G. Silipo. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer Mr. P. Puhl (the ARO), dated November 18, That decision concluded that the worker was not entitled to loss of earnings (LOE) benefits as a result of a compensable injury to his back that he sustained on July 31, [3] The worker attended and was represented by Mr. Eric DePoe of his union. The accident employer was represented by Ms. Sara Masotti of Corporate Management Consulting. THE RECORD [4] I considered the following materials: Exhibit #1: Case Record; Exhibit #2: Addendum No. 1; Exhibit #3: Addendum No. 2; Exhibit #4: Hearing Ready Letter. [5] I also considered the worker s testimony and the submissions from Mr. DePoe and Ms. Masotti. THE ISSUES [6] I have to determine whether as a result of a compensable injury to his back that he sustained on July 31, 2001 the worker is entitled to loss of earnings benefits. THE REASONS (i) Background [7] The worker was employed as a roofer with the accident employer since April He testified that he worked 50 to 60 hours per week, six days per week. [8] On July 31, 2001 the worker was pushing a wheelbarrow on a ramp that had been constructed between two flat roofs. Apparently, the ramp collapsed and he fell and injured his back.

2 Page: 2 Decision No. 1781/03 [9] The worker testified that prior to that injury he had no back problems and was capable of doing his work as a roofer with no difficulty. In cross-questioning he was asked about a prior claim in 1991 in which he reported a left lower back spasm as a result of which he was off work for 16 shifts. He indicated that he did not recall that injury. He was asked about another claim in June 1985 in which he fell backwards and injured his right side on the back of the rib cage. He did not recall that incident. He acknowledged that he did not discuss either of these prior problems with his doctor. [10] The worker sought medical attention from Dr. Michael Zahavi on August 3, He completed the Health Practitioner s First Report on the same date indicating a diagnosis of lumbar strain. He noted that the worker would not be absent from work because of the injury. He prescribed medication and referred the worker for physiotherapy. [11] The worker testified that he faxed a note to the accident employer from Dr. Zahavi that indicated that he could not work. [12] On August 8, 2001 the physiotherapist completed an assessment report indicating that she expected the worker to make complete recovery in about twelve weeks. [13] On August 16, 2001 the Adjudicator noted that a manager with the accident employer was objecting to the payment of LOE benefits noting that he had suitable modified work for the worker but did not feel that the worker or his doctor were cooperating since a Functional Abilities Evaluation which he had sent by courier on August 8, 2001 had not yet been completed. [14] On August 16, 2001 Dr. Zahavi completed a Functional Abilities Evaluation indicating that the worker was unable to return to work at that time and he would reassess for modified duties on the subsequent visit. In a Progress Report of the same date Dr. Zahavi reported a diagnosis of lumbar strain, reiterated that the worker could not return to work and also reported that he expected the worker to improve in four to six weeks and make a complete recovery in eight weeks. [15] In a handwritten note dated August 24, 2001 Dr. Zahavi indicated: Please note [worker] is unable to attend work for 2 weeks. [16] On August 26, 2001 the worker sought medical attention at the emergency department of Lakeridge Health Oshawa. The patient s chart noted that pt arrived to triage on hands and knees unable to stand or sit. Severe pain since coughing this a.m. Pain radiates in back. Orthopaedic surgeon Dr. M. G. Martin assessed the worker and reported: He first injured his back three weeks ago at work. He was pushing a loaded wheelbarrow across a wooden ramp. The ramp cracked, pulling the load off balance suddenly and straining his back. He has been off work since that time. He has seen Dr. Zahavi who placed him on Tylenol #3 and a muscle relaxer. He has also been seeing a chiropractor, whose name he does not know, on a daily basis. The chiropractor has been treating him with electric current and ultrasound. The chiropractor also suggested some exercises, but [the worker] felt these were aggravating his pain. No radiographs have been done to date.

3 Page: 3 Decision No. 1781/03 [The worker] sneezed last night, his pain became more intense, he was unable to stand or weight bear. He got a neighbour to drive him to the hospital and has been on a stretcher since that time. He complains of pain across the lower back, spreading towards the sacroiliac area, particularly on the right side. He has no radicular pain. No neurological symptoms and no sphincter disturbance. Examination showed him to be lying on a stretcher in no obvious discomfort. He says he does however have some pain at rest. He would not sit or stand. When he turned to his side, he did so without undue effort and there is no spasm or deformity to his back. I could not localize a specific area of tenderness over the lower back. I don t think this man has any serious pathology in his spine such as a tumour, infection, etc. I suspect he either has an early disc lesion or a muscle tear and that his sneeze has precipitated his acute symptoms. As discussed, I think he probably requires admission for pain control. As soon as he is mobile he could be discharged home [17] The worker remained in the hospital until August 29, In the Discharge report Dr. Zahavi noted: [The worker] did quite well in the hospital, his pain became more under control and he was discharged home with an outpatient booking for a CAT scan on August 29 th. [18] On August 30, 2001 Dr. Zahavi reported that the worker was unable to work. [19] On August 31, 2001 the worker had a CT scan which showed bilateral L5 spondylolysis and a central disc protrusion at L5-S1 with impingement on the sac but with no definitive root nerve impingement. [20] In September 2001 the Adjudicator noted that the worker had discontinued his physiotherapy treatment. [21] The employer questioned the worker s entitlement. On September 13, 2001 the Adjudicator noted that the employer s manager advised her that the worker had been involved in a bar fight and wondered if his injuries arose from that event rather than from the work accident. [22] On September 14, 2001 the Board s Nurse Care Manager (NCM) spoke with Dr. Zahavi and noted: Dr. Zahavi states that initially [the worker] was not able to rtw on light duties b/c of the amount of pain he was experiencing to his back, however Dr. Zahavi feels that [the worker] may be ready to rtw soon. Dr. Zahavi does not recall asking [the worker] to [discontinue] physio, but states he may have [due to] the pain [the worker] was having. [23] On September 17, 2001 the NCM noted: NCM rec d call from Dr. Zahavi who stated he assessed [the worker] today and [the worker is still having a lot of discomfort in lower back. [The worker] has limited ROM and can sit for less than 15 min at a time. Dr. Zahavi stated that he does not feel that [the worker] can rtw at this time and will be sending him for physio and reassess in 3 weeks.

4 Page: 4 Decision No. 1781/03 [24] The worker testified that from July to September 2001 he did not contact the employer regarding possible modified work since he did not feel capable of doing any modified work. [25] From September 21, 2001 to February 1, 2002 the worker was in jail. The worker explained that this was as a result of driving while intoxicated. He testified that he continued to have back problems while he was in jail. He also stated that nothing happened while he was in jail to aggravate his back pain. [26] A Health Care Record from the Ministry of Correctional Services dated September 21, 2001 noted the worker s low back problem and recommended no work and treatment with medication. Subsequent Ministry Records dated November 26, 2001 and December 18 and 21, 2001 indicated that the worker received medication for back pain. [27] The worker testified that when his incarceration was over he went back to see Dr. Zahavi. He stated that he did not contact the accident employer since he found a separation slip in his mail from the employer indicating that he had quit his employment. [28] On February 7, 2002 Dr. Zahavi reassessed the worker and completed a Physician s Progress Report indicating a diagnosis of lumbar strain and recommended physiotherapy. He noted that it was unknown if the worker would make a complete recovery and listed restrictions that the worker should observe if he returned to work as light duties, no heavy lifting, no repetitive bending. [29] On May 6, 2002 an Adjudicator advised the worker that the Board had approved the proposed physiotherapy treatment for eight weeks from March 27, 2002 to May 21, 2002 and reinstated LOE benefits during that time. The decision also indicated: It should be noted that the back strain occurred nine months ago and the usual healing time for such an injury is approximately three months. Therefore, following the physiotherapy treatment, it is expected that you will have recovered from this back strain and there will be no further entitlement to LOE benefits beyond May 21, [30] On May 14, 2002 the physiotherapist reported: On examination he has good lumbar range of motion with some pain at the end of all movements We do not seem to be helping [the worker] and I do not think that continuing with his treatment will be of benefit to him. He does not feel capable of returning to his regular job as a roofer although he should be capable of modified work. [31] On June 20, 2002 orthopaedic surgeon Dr. Gregory Soon-Shiong assessed the worker and reported to Dr. Zahavi: Thank you for this referral. [The worker] is a 38 year old gentleman who works as a roofer and presents with a long-standing history of chronic low back pain. His symptoms are present consistently on a daily basis and radiate into his left leg, all the way down to his calf and foot with associated paraesthesia and numbness. Physical examination reveals a healthy looking gentleman who walks with a normal gait. He had no structural deformity of his thoracolumbar spine and no cutaneous stigmata of dysraphism. He demonstrated good active range of motion to the lumbar spine, self

5 Page: 5 Decision No. 1781/03 limited with complaints of pain. His neurological examination is negative for any evidence of conduction deficit. Straight leg raising is negative. His radiographs included a CT scan, which revealed spondylolysis at L5 bilaterally and a central disc protrusion, but no significant neurogenic compression, and no evidence of any spondylolisthesis. I have advised [the worker] of his pathology and options of management. I do not think that he would be a good candidate for surgery. He is a chronic smoker and any attempt at fusion will have a high risk of pseudoarthrosis and failure. He was advised that an active rehab program to strengthen the secondary stabilizers of the lumbar spine is a recommended form of management and that if he failed to respond to this referral to a pain management service would be the next option. I have given him a referral to a rehab program [32] On December 26, 2002 Dr. Zahavi responded to an inquiry from the worker s representative: 1. [The worker] has attended my clinic since February 04, I am not sure at what time he considered me his family doctor as he attended sporadically for various issues. I first attended for his back injury on August 3, He was treated both as an outpatient and hospital inpatient to September 17, He was incarcerated for a period of time and returned to see me on February 7, 2002 and has been treated to date. 2. There is no history in my chart of low back pain predating July 31, [The worker] was unable to attend work after his accident. My Form M640 completed on August 3, 2001 and revised on August 21, 2001 indicates patient unable to return to work the next day. [The worker] was admitted to hospital due to the severity of his pain from August 26, 2001 to August 29, During this period there was no way [the worker] would have been able to do light duties or any work at all. [The worker] was still unable to attend work when I last saw him on September 17, 2001 prior to his incarceration. I next attended the worker on February 7, At this visit I did advise for the first time return to work on light duties. This is further recorded on M643 sent on February 7, 2002 "light duties, no repetitive lifting, no repetitive bending", and again on June 5, 2002 "light duties, lifting less than 30 lbs., no repetitive bending". In Dr. Soon-Shiong s letter of June 30, 2002, he refers to "longstanding history of chronic low back pain". I feel that he is referring to the pain, which had been present since his injury on July 31, I made the referral for [the worker] and I do not have nor did I send any information indicating a problem preceding this date. I do not think that Dr. Soon-Shiong is privy to any other history from this patient. I do not know why WSIB feels that the back injury was longstanding prior to [the worker s] accident. I have provided no information to substantiate this determination. Further, the worker was only advised to return to light duties on February 07, 2002, after his incarceration. [The worker] advised me on February 22, 2002 that there were no modified duties available. [The worker] also suffered greatly from his inability to attend an active treatment program. His incarceration prevented him from completing his program at King West Rehab, which he did start on August 8, [The worker] did try to attend the program at Active Rehab in May of 2002, but was discharged [due] to lack of progress by the physiotherapist. He was referred again after his appointment with Dr. Soon-Shiong as

6 Page: 6 Decision No. 1781/03 per his recommendations, but has not been able to attend due to the fact that he was cut off by WSIB and has not had the funds to afford even bus fare to an OHIP covered facility. [33] On January 22, 2003 Dr. Roland Wong, Occupational Health Physician at the Occupational Health Clinic for Ontario Workers Inc. reviewed the medical information and assessed the worker at the request of his representative. Dr. Wong reviewed the worker s history and reported: He has no previous work related accidents to his lumbar spine. In answer to your specific questions his diagnosis is one of disc protrusion at L5-S1. There is compression of L1 vertebrae from his plain X-rays. There is also spondylolysis. Clinical findings indicate possible the involvement of the L5 nerve root with sensation changes to his big toes and weak power in his toe extensor. His ability to perform straight leg raising in a sitting position without significant sciatica indicates that this condition is of a mild to moderate nature. There is no need for surgery from his clinical findings. In answer to your second question as to whether or not his present back condition is caused by his accident of July 31, I have evaluated his previous back injury history and I find that there was no previous injuries as well as no chronic back pain. The incident on July 31, 2001 involved a significant torque to his lumbar spine, which can cause a disc herniation together with the observation of vertebral damage. The spondylolysis is a condition in which there is breakage of the bones within the vertebrae and is also consistent with such type of severe torque injury. In answer to your third question as to the prognosis of his condition. He has a permanent impairment, which will make it difficult for him to do any heavy pushing, pulling and lifting as well as repetitive flexion of his lumbar spine. The restrictions are on a permanent basis. Although there is no significant sciatica at this time any added trauma such as heavy lifting may cause recurrence of sciatica into his legs. Further improvement in his lumbar spine condition will have to come from his own efforts in terms of an exercise program with walking and swimming. He needs some form of modified work and if his roofing job requires heavy lifting, which I understand from his job description he will not be able to perform in that capacity. [34] The worker testified that if the accident employer had offered him modified work when he was released from jail he would have tried to do it. [35] The worker testified that he has a permanent impairment but that since three or four months prior to the hearing he felt capable of doing some sort of work and wants to work. He stated that he feels that he is only capable of doing light work and has made no efforts to find work since he does not think that anyone will hire him as an injured worker. (ii) The Law and Policy [36] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect and applies in this appeal. Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. The Board has identified certain policies applicable to this appeal and I have considered these policies as necessary in deciding this appeal.

7 Page: 7 Decision No. 1781/03 [37] The WSIA sets out two distinct sets of measures aimed at assisting an injured worker to return to work. During the first phase, the objective is to return the injured worker to suitable employment with the accident employer. This is known as the early and safe return to work phase or ESRTW. The WSIA places an onus on the accident employer and the worker to collaborate in attempting to return the worker to the workplace as soon as possible after an injury. When that is not possible, the WSIA sets out a process aimed at assisting an injured worker to find alternate suitable employment. This is known as the labour market re-entry phase or LMR. [38] A worker s entitlement to LOE benefits is in part based on his cooperation in these two phases. Subsection 43(3) of the WSIA states: 43(3) The amount of the payment is 85 per cent of the difference between his or her net average earnings before the injury and any net average earnings the worker earns after the injury, if the worker is co-operating in health care measures and, (a) his or her early and safe return to work; or (b) all aspects of a labour market re-entry assessment or plan. [39] The Board may reduce or suspend a worker s LOE benefits if he does not cooperate in those measures, pursuant to subsection 43(7) of the Act which states: 43 (7) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating, (a) (b) (c) in health care measures; in his or her early and safe return to work; or in all aspects of a labour market re-entry assessment or plan provided to the worker. [40] The Act does not provide any further guidance on how the Board should exercise its discretion to "reduce or suspend" a worker s LOE benefits. However, with respect to return to ESRTW, section 40 of the WSIA imposes obligations on employers and workers to co-operate in returning employees to suitable work. The Board has developed policy that essentially reiterates the provisions of the legislation. With respect to the worker s obligations, if the Board determines that a worker is not co-operating, Board Operational Policy Manual Document No , entitled Workplace Party Co-operation, provides for the Board to give a worker notice of its finding of non-co-operation. That notice is given verbally (if possible) and confirmed in writing. If, after giving that notice, a worker fails to demonstrate co-operation and does not have a legitimate reason for not co-operating, the Board may reduce or suspend his/her benefits. Benefits may also be reduced or suspended if the employer and the Board are not able to identify suitable and available employment because of a worker s non-co-operation. [41] If the ESRTW is not successful then, pursuant to s. 42(1) of the WSIA, an injured worker is entitled to a labour market re-entry (LMR) assessment. That subsection states: 42. (1) The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist: 1. If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury.

8 Page: 8 Decision No. 1781/03 2. If the worker s employer has been unable to arrange work for the worker that is consistent with the worker s functional abilities and that restores the worker s pre-injury earnings. 3. If the worker s employer is not co-operating in the early and safe return to work of the worker. (2) Based on the results of the assessment, the Board shall decide if a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury. (iii) The Vice-Chair s Reasoning [42] The worker s representative argues that the worker suffered a serious injury. He submits that the accident employer did not make a proper offer of modified work; that there is no indication that the letter outlining the various modified jobs available was actually sent to the worker; and that in any event, the fact that the accident employer has a modified work program does not satisfy its obligation to offer the worker suitable modified work. Mr. DePoe argues that the employer subsequently severed the employment relationship and thereby withdrew any offers that it may have made previously. [43] The accident employer s representative argues that the ARO s decision should be upheld on the basis that the worker suffered only a minor injury on July 31, 2001 and that he was capable of returning to modified work that the employer made available. Ms. Masotti submits that it is more likely that the worker had a pre-existing condition. [44] The Board s operating level accepted that the worker had entitlement for a low back injury and granted him LOE benefits from August 1, 2001 to October 10, 2001 and then again from February 1, 2002 to May 21, The ARO rescinded the entitlement to LOE benefits, finding that the worker only had initial entitlement on a no lost time basis. The ARO indicated that benefits should not have paid from August 1, 2001 to October 10, 2001 on the basis that the worker was not cooperating in his medical and vocational rehabilitation and that the worker suffered a back strain that should have resolved by October 31, 2001 by which time he should have been able to return to his pre-accident level. [45] In my assessment of the evidence, I find, as did the Board Adjudicators and the ARO, that on July 31, 2001 the worker sustained an injury to his back. I accept in part the argument from the employer s representative that the worker had a pre-existing condition. In the two prior accidents the worker did injure his back to some extent. However, the evidence does not suggest that the worker had any problems performing his job as a roofer prior to the July 31, 2001 injury. Nor is there any evidence that the worker suffered any subsequent back injuries. There is no sound medical evidence to suggest, as the worker s representative has argued, that the worker s July 31, 2001 injury actually caused his spondylosis. Rather, the evidence suggests that the worker s spondylosis pre-existed the injury and was asymptomatic and that the July 31, 2001 work injury aggravated that pre-existing condition and rendered it symptomatic.

9 Page: 9 Decision No. 1781/03 [46] The worker s back problems have continued since the date of injury and have persisted to date. Therefore, I am satisfied that the compensable injury aggravated the worker s underlying and previously asymptomatic spondylosis on a permanent basis. As a result, he is entitled to a NEL assessment to determine the extent of that permanent impairment. It appears that the worker reached maximum medical recovery when he concluded physiotherapy on May 22, 2002 and he has permanent restrictions as set by Dr. Wong which will make it difficult for him to do any heavy pushing, pulling and lifting as well as repetitive flexion of his lumbar spine. [47] The ARO placed a lot of emphasis on Dr. Zahavi s indication in his first report that the worker could have returned to work and appears to have disregarded Dr. Zahavi s subsequent reports in which he indicated that the worker was not capable of working. One cannot come to proper conclusions in situations such as this by relying on selected pieces of information. When one considers all of Dr. Zahavi s reports, that indication in first report is indeed an anomaly, as the worker s representative has argued. Dr. Zahavi pointed out its inaccuracy in his December 2001 letter to Mr. DePoe although I note that there is no revised report from him dated August 21, In any event, the picture that emerges both from Dr. Zahavi s second and subsequent reports, as well as from a reading of his reports in total, is that the worker s back injury required him to be off work until September 21, 2001 when he was incarcerated. Based on Dr. Martin s report of August 2001 the ARO concluded that the worker was exaggerating his symptoms when he sought treatment at the hospital. I also come to that conclusion, but that does not necessarily mean that the worker did not have an ongoing back problem, as the balance of the medical reporting, including the CT scan, confirmed. [48] I accept and rely on the medical information that establishes that during that period of time the worker would not have been capable of working even in a modified job. Therefore, he is entitled to full LOE benefits from July 31, 2001 to September 21, He is not entitled to LOE benefits from September 22, 2002 to October 10, 2001, as the Board initially granted, since he was in jail and cannot be considered to have been cooperating in his ESRTW. [49] The worker s representative raised some interesting arguments regarding the manner in which the accident employer offered the worker modified work in August and September 2001, arguing that it did not meet the Board s standards as set out in a March 19, 2002 Memorandum from the Board s Claims Quality Loop entitled Adjudicative Advice Retrospective RTW situations. In light of my findings I do not have to consider whether the modified job offer was appropriate. I accept that the accident employer was serious in its intent to offer the worker modified work during that time even though there is some doubt about the specific jobs that were offered. However, the employer should take note of the procedures set out in that memorandum. [50] The worker s period of incarceration interrupted his treatment. According to the medical information from Dr. Zahavi, the worker was capable of returning to modified work as of February 7, 2002 when he was released from jail. The Board s operating level agreed to grant him further benefits from February 2002 to May 2002 on the basis that the worker had not completed his physiotherapy treatment prior to his incarceration. Unlike the ARO, I find that under the circumstances, that was an appropriate course of action. Consequently, I find that the worker is entitled to full LOE benefits from February 7, 2002 to May 22, 2002.

10 Page: 10 Decision No. 1781/03 [51] The Adjudicator then determined that at the end of that physiotherapy the worker would be fit to return to his pre-accident job. The Adjudicator reached that conclusion before the worker had completed the physiotherapy. I can see no basis for reaching that conclusion in any of the medical reporting submitted to the Board either in May 2000 or subsequently from the family doctor, the physiotherapist or the specialist. Rather, the only conclusion that can be drawn from their reporting is that when the Board cut off the worker s benefits in May 2002 the worker was not capable of returning to his pre-accident job as a roofer but was capable of doing modified work. [52] Given the Board s conclusion it did not, of course, pursue the question of whether in May 2002 the accident employer could have offered the worker suitable modified work or whether other alternate support should have been provided to the worker through an LMR assessment. The employer s position is that it offered the worker suitable modified work from the outset and therefore would have continued to do so. The worker s position appears to be that since the Board did not offer him any further support he was not capable of finding any other work. The worker s representative also argues that the employer had severed its employment relationship with the worker and that, as a result, the worker was eligible for an LMR assessment. [53] The status of the employment relationship between the accident employer and the worker as of May 22, 2002 is important in determining the worker s entitlement to benefits at that time. If the accident employer was no longer offering the worker suitable work at that time then the worker would indeed have been entitled to an LMR assessment. As various Tribunal decisions have noted, (see for example, Decision No. 261/0), pursuant to s. 42(1) the Board is required to offer such an LMR assessment where a return to work with the accident employer has not been possible and that obligation cannot be dispensed with on the basis of a worker s prior actions. [54] In my assessment of the evidence, it is unclear whether the employment relationship had been severed, and more significantly, whether the ESRTW phase had ended as of May 22, Certainly, the accident employer did not offer the worker modified work in May That could be explained by its belief that the worker had quit his employment by that time. I note that neither the employer nor the Board were aware that the worker was in jail until his release. Even if that were not the case, it would have been unreasonable to expect that the accident employer should have made a formal offer of modified work in May 2002, since the Board had concluded that the worker was capable of returning to his pre-accident job. The worker testified that if the employer had offered him suitable work at that time he would have tried to do it. And yet, he did not take any steps to clarify with the accident employer that he had not left its employment, and to indicate that he was, therefore, interested in suitable modified work there. Nor did he take any steps to seek suitable work elsewhere. Despite the medical reporting to the contrary, it appears that in May 2002 he was still maintaining that he was incapable of working. He testified that it was not until a few months prior to the hearing before me that he could have attempted to do modified work. Again, the medical information does not support that conclusion. [55] As a result, for the period from May 22, 2002 to September 26, 2003, the worker is not entitled to full LOE benefits. However, since he had not recovered from the effects of his compensable injury, he is entitled to partial LOE benefits.

11 Page: 11 Decision No. 1781/03 [56] The question arises as to how to determine the quantum of those LOE benefits since that that determination has to be made retroactively. I note that the Board s Appeals Branch has developed Practice Guidelines dated July 20, 2000, to deal with these situations. They have been considered in various Tribunal decisions and, while they are not Board policy, have been found to be reasonable. Those guidelines describe how to determine LOE benefits in both the ESRTW phase and in the LMR phase. Pursuant to those guidelines, and on the basis of my findings, for the period from May 22, 2002 to September 26, 2003, the date of the hearing before me, the worker would be entitled to either 50% LOE benefits, if he were still considered to be in the ESRTW phase, or to LOE benefits based on the SEB identified through an LMR assessment as achievable without training, if he were considered to be in the LMR phase. [57] In light of the circumstances of this case, the accident employer should still be given the opportunity to provide modified work suitable to the worker s restrictions. Therefore, the Board shall first determine whether the accident employer can provide suitable modified work and if not, shall then offer the worker an LMR assessment. The Board shall calculate the worker s LOE benefits for the period from May 22, 2002 to the date of the hearing either as 50% LOE benefits, if the employer is in a position to offer suitable modified work or, if it is not, LOE benefits shall be based on the SEB identified through an LMR assessment as achievable without training. [58] Since the worker has now requested LMR services, and has thereby indicated an interest in cooperating in return to work activities, he would be entitled to full LOE benefits from the date of the hearing before me, on September 26, 2003, if he indeed cooperates in efforts to return to suitable modified work with the accident employer or cooperates in an LMR assessment. However, as I cannot make findings regarding facts occurring after the hearing, which could not be in evidence before me, I make no determination on the level of the worker s LOE benefits after the hearing. Any determination of that by the Board is, of course, subject to the parties usual rights of appeal. THE DECISION [59] The appeal is allowed in part. [60] The worker s compensable injury aggravated the worker s underlying and previously asymptomatic spondylosis on a permanent basis. He is entitled to a NEL assessment to determine the extent of that permanent impairment. [61] The worker is entitled to full LOE benefits from July 31, 2001 to September 21, [62] The worker is not entitled to LOE benefits from September 22, 2001 to October 1, [63] The worker is entitled to full LOE benefits from February 7, 2002 to May 22, [64] The worker is entitled to partial LOE benefits from May 22, 2002 to September 26, 2003, the date of the hearing before me.

12 Page: 12 Decision No. 1781/03 [65] The Board shall determine whether the accident employer can provide suitable modified work and if not, shall offer the worker an LMR assessment. The Board shall then calculate the worker s LOE benefits for the period from May 22, 2002 to September 26, 2003, the date of the hearing before me, according to its July 20, 2000 Practice Guidelines as indicated more specifically in paragraph 57 above. DATED: December 22, 2003 SIGNED: A.V.G. Silipo