Highlights of Noteworthy Decisions

Decision 753 22
14/06/2022
R. Horne
  • Availability for employment (medical authorization)
  • Recurrences (compensable injury) (knee)
  • Loss of earnings {LOE} (eligibility) (impairment)

In this appeal there were eight separate periods of time off work for which the worker sought LOE benefits. The worker maintained that for the days in question, he had an acute flare up in his right knee and was unable to work due to his increased symptomatology.

The appeal was allowed in part.
The Vice-Chair concluded that, of the eight periods of time off work, the worker was temporally clinically below his NEL level of permanent impairment and entitled to LOE benefits for seven of them. There was no clinical authorization for time off work for the December 1, 2017 absence on file, and the worker was found not to be entitled to LOE benefits for this day. The Vice-Chair noted that under OPM Document No. 11-02-02 "Lost Time Claims", in order for wage loss benefits to be paid, there must be "clinical authorization to be off work".
The Vice-Chair noted that OPM Document No. 15-02-05 "Recurrences" requires that there be evidence of significant deterioration for recurrence benefits to be allowed. The Vice-Chair emphasized that the policy does not bar entitlement to benefits for an occasional day only. Therefore, if there is evidence of significant deterioration, either through a marked change in the clinical findings, or by meeting the other indicators of significant deterioration in the policy, then entitlement could flow regardless of the duration of time off work.
Furthermore, to establish whether or not there has been significant deterioration, it was noted that it is often useful to compare the physical or clinical findings at the time of the recurrence, and those recorded at the time of the NEL determination or at the achievement of maximum medical recovery (MMR). In this case, the Vice-Chair observed evidence of a marked change in the worker's clinical findings, as required under OPM Document No. 15-02-05.
In addition, the ARO also accepted that the worker had temporary acute flare-ups of his right knee condition that required occasional use of Percocet and resulted in decreased range of motion, which would return to baseline after a few days. The ARO suggested that these temporary flare-ups were to be expected and were not indicative of a significant deterioration. However, in the Vice-Chair's view, the presence of acute flare-ups and the worker's clinical findings during these flare-ups demonstrated that he was below his NEL base line, and as such, for the periods of time during these flare-ups, he could be seen as having significant deterioration.
It was also noted that OPM document 15-02-05 outlines other factors for consideration, other than a change in clinical findings, that would be indicative of significant deterioration. These include a change in treatment, a change in the ability to perform a job, and a change in functional abilities. The medical evidence indicated that the worker underwent several changes in his job in an effort to limit his flare-ups. In addition, the worker, during the periods of acute flare ups, experienced sleep deprivation and had to use a cane or furniture to assist with ambulation. The Vice-Chair determined that this indicated a demonstrable change in functional abilities. Therefore, there was also found to be non-clinical evidence of significant deterioration in the worker's case.