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Doctor’s note not necessarily final word with WSIB

Source: WSIB

Source: WSIB

Employers should deploy a number of strategies to minimize their workers’ compensation-related costs. One such strategy is to ensure you have instituted effective Early and Safe Return to Work (RTW) practices and procedures, including making an offer of suitable modified work for those employees who require modified duties a standard procedure.

We often hear from new clients that modified work was not offered to an injured employee because all they received in terms of documentation was a frustratingly standard (and useless) doctor’s note that simply stated “off for two weeks.”  Many employers believe that a medical professional’s word is law when it comes to WSIB claims, so when they are provided with such a note they assume doctor’s orders must be followed.  However, what many employers fail to understand is that the difference between a lost time and no lost time claim often lies in the suitability of modified work, despite the existence of a “two weeks off” doctor’s note.

Interesting case study

We recently consulted on a claim where a worker lost the tip of his middle finger after accidentally crushing it in a machine.  The worker immediately sought medical attention and provided his employer with a surgeon’s note that stated the worker should remain off duties until he could be reassessed by the surgeon a week later.  The employer was not provided with limitations or restrictions for the worker (typically found in a Functional Abilities Form) and because of the severity of the accident, assumed that they were looking at a costly lost time claim. However, we instructed the employer to immediately offer the worker suitable modified work at modified hours, despite the surgeon’s note.

What counts as suitable modified work?

WSIB policy is clear when it states that suitable work means “post-injury work that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.”

If I wasn’t provided with a FAF form,  how can I offer work when I don’t know what the worker can do?

This is a little trickier to answer, but sometimes the answer lies in common sense.  If a worker lost the tip of his finger he likely will not be able to use that hand and will likely have stitches.  Standard restrictions for an injury such as this suggests that the worker should refrain from repetitive movement or use of the hand and should remain in a clean environment until the stitches are removed to avoid infection.

What did the client do?

Our client therefore offered the worker modified work at reduced hours both verbally and in writing in the form of a RTW Plan.  The worker however rejected the modified work and stated he wished to follow his surgeon’s recommendations.

If a worker rejects modified duties, what do you do?

We submitted an objection letter along with the Form 7 and stated that loss of earnings should not be allowed in the claim as the employer offered modified work to the Employee and requested that it be reviewed for suitability.  The Eligibility Adjudicator reviewed the information and allowed the claim for health care benefits only and stated she was unable to support loss of earnings as the worker was offered modified duties.  She transferred the claim to a case manager however to rule on the suitability of modified work.  The case manager requested the surgeon’s report in order to obtain more fulsome information about the worker’s functional abilities and restrictions.  As one can imagine, this information takes time to obtain.

What do I do while WSIB is reviewing the information and the worker remains off work?

We recommended that the employer remain in regular contact with the worker and to encourage him to participate in RTW planning in order to mitigate his/her potential financial loss. The worker did eventually participate in the RTW planning and the employer, worker and union agreed on a suitable RTW schedule.

What was the WSIB decision?

The case manager eventually ruled that the description of the original modified work listed in the RTW Plan was consistent with the functional abilities provided by the surgeon’s report.  She further stated that the loss of earnings the worker experienced when he remained off work based on the surgeon’s recommendations were therefore not in order.

Bringing it all together

  1. Early and Safe Return to Work practices will often save you from unnecessary lost time in claims.
  2. Employers should always offer written suitable modified work to employees.
  3. If an injured worker has declined modified work, do not be afraid to discuss your concerns with WSIB.
  4. Finally, remember that “two weeks off” does not always translate to suggest that the worker is totally disabled and is therefore incapable of completing suitable modified work.
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Clear Path Employer Services

Certified HR consultants and medical professionals at Clear Path Employer Services
Clear Path Employer Services is a team of certified HR consultants and medical professionals dedicated to resolving the human resources and claims management challenges facing businesses across Ontario. The company was founded in 2003 by Anna Aceto-Guerin, a Certified Human Resources Professional (CHRP) specializing in WSIB claims management and NEER cost containment, with a focus on return-to-work programs and acquiring SIEF cost relief for employers. Read more
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