WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100045
OBJECTION BY: Worker
EMPLOYER: Participating
ISSUE
The worker defined the issue as an objection to the denial of Loss of Earnings (LOE) benefits June, 1, 2009 to July 7, 2009.
HOW THE ISSUE ARISES
The claim was established for this then production miner (DOB March 19, 1965) who developed an onset of right wrist discomfort related to the nature of his work activities. An accident date of December 3, 2008 has been established. Medical reporting provided a diagnosis of right carpal tunnel syndrome. The worker underwent decompression July 7, 2009.
The Eligibility Adjudicator, following review, as delineated in the correspondence dated June 30, 2009 although accepting entitlement and payment of LOE benefits as of July 7, 2009, denied benefits from June 1, 2009 as the loss of earnings was as a result of an employment situation (shutdown). This is the issue for determination.
RESOLUTION METHOD & PROCESS
Decision based on the information contained in the claim record.
AUTHORITY REFERENCE AND ASSESSMENT OF EVIDENCE
The appeals resolution officer has considered the information on record.
Operational Policy Document 18-03-02 speaks to the subject of "Payment of Loss of Earnings (LOE) Benefits." The policy indicates a worker who experiences a LOE as a result of a work-related injury is entitled to LOE.
The guidelines attached to the policy indicate "if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker's LOE benefits."
The general rule for entitlement following work disruptions is addressed under Operational Policy document 15-06-02. Generally, workers involved in a short-term layoff that affects the entire workforce should have their benefit status maintained, i.e.
- if the worker is not in receipt of LOE, FEL, or permanent disability (PD) benefits at the time of the work disruption, additional benefits/services should probably not be allowed
- if the worker is in receipt of partial LOE/FEL/PD benefits at the time of the work disruption, the partial benefits should probably continue, or
- if the worker is in receipt of full LOE/FEL/TT minus PD/TT benefits at the time of the work disruption, the full benefits should probably continue.
Similar guidelines are in place for strikes and lockouts and can be found in Operational Policy Document 15-06-05.
In this case, the worker despite the right carpal tunnel syndrome, prior to the shutdown was able to carry on with his regular work activities (remote control scoop tram operator) and was not an obstacle, with no accommodations or restrictions required. The worker's absence from work is considered an employment situation unrelated to the work accident.
In fact, by the worker's own account, he did not consult the surgeon until June 24, 2009 and therefore was not authorized off work. It is also noted, the worker for the week ending May 31, 2009 worked 48 hours and thus reasonable to conclude the carpal tunnel syndrome did not impact on his abilities to carry out his regular work.
The worker at the time of the shutdown was not in receipt of benefits nor accommodated. The Functional Abilities Form dated March 5, 2009 despite the diagnosis clearly documents the worker was capable of his regular work activities.
CONCLUSION
In the judgement of the appeals resolution officer, the worker is not entitled to LOE benefits from June 1, 2009 to July 7, 2009 as there is no medical authorization for lost time, nor is the compensable condition viewed as the proximal cause of the loss in wages, but rather, the shutdown/strike was the reason.
The worker's objection is therefore denied.
DATED January 13, 2010 at Toronto, Ontario
M. De Marco
Appeals Resolution Officer
Appeals Branch