WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100019
OBJECTION BY: Employer
PARTICIPANT: Employer, Employer Representative,
HEARING DATE: N/A
ISSUE
The employer objects to the June 5, 2007; June 27, 2007; and January 16, 2008 claims adjudicator decisions accepting entitlement to Loss of Earnings (LOE). The employer suggests there is no basis to accept ongoing entitlement.
HOW THE ISSUE ARISES
A claim was established and entitlement accepted for irritant contact dermatitis / allergic contact dermatitis as a result of this now 47 year old worker’s exposure to coolant in February 11, 2006. The worker continued working until he was laid off March 22, 2007 due to a shortage of work.
The worker was assessed at St. Michaels Hospital in May 2007 and in June 2007 a WSIB occupational medical consultant suggested the allergic sensitivities would preclude the worker returning to work as a CNC operator. The worker then returned to work with a new employer in August 2007. As there was a wage loss entitlement to partial LOE benefits was accepted. This employment was terminated January 7, 2008. January 16, 2008 the adjudicator concluded the further loss of earnings was the result of an employment situation and denied additional benefits.
In January 2009 the worker indicated he wished to object to the January 16, 2008 decision and was informed he had not met the appeal time limits.
The employer was provided with 75% SIEF cost relief (minor accident / moderate pre-existing). A 10% Non Economic Loss (NEL) has been assessed.
AUTHORITY
15-06-01 – Entitlement Following Work Disruptions – General
15-06-03 – Entitlement Following Work Disruptions – Permanent Layoffs
19-03-01 - Labour Market Reentry (LMR) - Overview
19-03-10 - Labour Market Reentry (LMR) - Co-operating in LMR
22-01-03 – Worker’s Co-operation Obligations
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
The employer representative notes that following the initial exposure the worker maintained his regular employment with the accident employer (other than a brief period of modified duties) and his employment was terminated March 22, 2007 due to lack of work. The employer notes the worker then returned to similar employment without accommodation until this employment was terminated January 7, 2008 for non-compensable reasons. The representative notes that during the period of subsequent employment the worker did not require medical attention for his condition. The representative suggests if not for the employment circumstances the worker would have continued in regular work.
The representative suggests the WSIB medical advisor opinion effectively suggesting the worker was not capable of regular work was contrary to the reality of the worker’s demonstrated employment capacity.
The representative suggests the evidence does not support the conclusion the worker suffered a loss of earnings as a result of his compensable injury and entitlement to Loss of Earnings (LOE) benefits and Labour Market Re-entry (LMR) services should be denied.
Analysis
In assessing the employer appeal there are three issues to address. The first is the basis of the termination in March 2007. The second is the worker’s fitness for pre-injury work following this layoff. The third is the potential entitlement to LOE benefits beyond March 2007.
- March 22, 2007 Layoff
The employer representative has argued the worker was laid off from regular work for non-compensable reasons and would therefore not be entitled to further WSIB services.
In reviewing the details regarding the layoff I note the May 18, 2007 adjudicator memo (#18) directed to the WSIB Occupational Medicine Consultant (OMC) indicated the March 23, 2007 layoff included the employer laying off an additional 20 employees. The employer representative reported the layoff was with cause (Memo #27 and June 25, 2007 letter) and indicated the employer records confirmed the progressive discipline process. The worker then reported the “cause” was harassment but the charge was fabricated (M#30). The employer provided two Records of Employment (ROE) indicating the layoff was due to lack of work.
I note there are significant discrepancies as to the reason for the layoff. While it is not clear where this information was obtained the adjudicator apparently initially understood the layoff was part of a larger employment related layoff. While the employer reported the layoff was for cause and this was supported by a progressive discipline process the ROE’s on record both indicate lack of work and the employer did not provide copies of the reported supporting documentation. For his part the worker reported the layoff was related to harassment but this charge was fabricated.
Based on the available evidence I am satisfied the subjective evidence suggests the worker was in all probability terminated for what the employer considered “cause”. However, based on the official documentation indicating “lack of work” and the absence of any evidence to confirm the employer had cause to terminate the employment I am satisfied the objective evidence supports the layoff was a result of “lack of work” as this was in fact the official layoff reason the employer elected to provide on the ROE.
- Fitness for Pre-Injury Work Following March 22, 2007
The employer evidence confirmed the March 22, 2007 layoff was permanent in nature and the worker was paid a severance. The June 25, 2007 employer letter argued further benefits were not in order as the worker was performing regular work and there was no loss of earnings. However, this letter also noted the worker had been performing this with whatever accommodation he deemed appropriate (creams, gloves). Based on the employer evidence I am satisfied the worker was in fact performing the essential duties of the pre-injury work “with accommodation”.
I further note the accommodation provided prior to March 2007 was consistent with the subsequent medical recommendations provided by St. Michaels hospital and confirmed by the OMC. Given my conclusion the formal cause of the layoff was a lack of work and the need for continued accommodation in pre-injury work I am satisfied it would not be appropriate to consider the worker fit for the full pre-accident work duties following the March 2007 layoff.
- Entitlement to WSIB Benefits From March 22, 2007
The employer representative expressed concerns with the payment of additional benefits based on the worker continuing to pursue employment in his pre-injury occupation, his ability to obtain (and maintain) such employment without accommodation, and his eventually losing this employment for reasons unrelated to his compensable injury.
On reviewing the evidence I am satisfied the decision to provide additional benefits was appropriate for several reasons. The first is simply based on my previous findings as to the reasons for the initial layoff and continued impairment precluding a return to pre-injury work without accommodation. These conclusions in my view create the threshold by which the worker was entitled to consideration for further benefits.
The second is based on the requirement a worker cooperate in activities designed to assist in a return to work. The evidence confirms the worker agreed to participate in LMR and was prepared to do so. To the worker’s credit he also continued to seek employment of his own accord. The record confirms he in fact found two possible employment opportunities. The worker suggested the first would have met his limitations owing to the nature of the product with which he was to be working. Unfortunately he failed to obtain this position.
The worker continued to participate in the LMR process however prior to commencing a LMR program he once again reported having found employment. While the employer has argued this employment did not impact the worker’s condition I do not consider this view to be supported by the facts. I note the worker attended a NEL assessment during this period of employment (October 26, 2007) and the NEL report confirmed the presence of at least some ongoing symptoms “slight erythema with dryness and scaling on the dorsal aspect of the hands – demonstrates class II impairment”. The worker’s subjective evidence also suggests he experienced further symptoms and he would wear gloves while performing this work while his co-workers did not find this necessary.
From this evidence I am satisfied that to at least January 2008 the worker remained unfit for the essential duties of his pre-injury work (without accommodation), cooperated in the return to work process, and was therefore entitled to LOE benefits.
This decision makes no finding as to any potential worker entitlement issues as while at the time of the appeals referral the worker had indicated an intent to object to the decision denying additional benefits the adjudicator concluded the worker had not met the appropriate time limit to submit an appeal. I do note that in January 7, 2008 the worker reported his new employment involved working with rubber, his hands were once again “a mess”, and he had left this employment following confrontation with a co-worker. January 24, 2008 the worker reported he required surgery for a non-compensable condition and was uncertain if he would be returning to the workforce.
CONCLUSION
The objection is denied.
DATED March 10, 2010
M. Evans
Appeals Resolution Officer
Appeals Branch