WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150035
DECISION DATE: March 31, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Not Participating)
HEARING: Sudbury, Ontario - March 24, 2015
HEARD BY: C. Anzil, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Worker’s spouse
ISSUE
The worker is objecting to the denial of Loss of Earnings (LOE) benefit payments from May 24, 2001.
BACKGROUND
The history of this case is well documented in the Appeals Resolution Officer (ARO) decision dated May 27, 2003 and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated August 30, 2004. The WSIAT decision allowed full LOE benefit payments from April 2, 2000 to May 23, 2001 and entitlement to a Non-Economic Loss (NEL) assessment for the neck and shoulders. The worker was allowed a 26% NEL award for the neck and shoulders in July 2005.
The worker suffered a work-related injury on May 24, 2001 recognized in claim XXXXXXX1 and the WSIAT decision in that claim dated December 20, 2010 allowed full LOE benefits to age 65 because the worker was unemployable. The WSIAT decision dated November 19, 2013 denied the worker’s request to have the earnings basis calculated in claim XXXXXXX1 using the earnings basis from the prior claim XXXXXXX8 and confirmed the Canada Disability Pension offset.
The worker representative submitted a letter to the record dated January 23, 2013 and requested LOE benefit payments in claim XXXXXXX8 from May 24, 2001. The Case Manager considered the evidence and denied LOE benefit payments from May 24, 2001 and communicated this decision to the worker with the letter dated April 24, 2014 and this matter is now before me.
AUTHORITY
Section 43 of the Workplace Safety and Insurance Act
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
I have carefully considered all of the available information, legislation, relevant operational policy and the worker’s testimony in reaching this decision and I have not decided in favour of the worker and I will explain.
The WSIAT decision dated November 19, 2013 – page 8 paragraph 45 – found that there was no jurisdiction to consider the worker’s entitlement to LOE benefits under clam XXXXXXX8 and this allowed the Operating area to render an entitlement decision concerning the worker representative’s request for LOE benefit payments from May 24, 2001.
According to the Employer’s Report of Injury/Disease (Form 7) found in claim XXXXXXX1 the worker was working Monday to Friday full days and a half day on Saturday for a total of 70 hours at $12.00 per hour as a truck driver. The worker confirmed this information with the contents of the Worker’s Report of Injury/Disease (Form 6) in claim XXXXXXX1 dated June 13, 2001. The letter from the worker representative dated January 23, 2013 indicated the worker had returned to work on May 4, 2001; however, the work was part-time and his physical limitations were taken into consideration.
The transcript from the oral hearing that occurred on September 10, 2008 in Sudbury, Ontario was reviewed. According to page 6 of this document the worker explained that he returned to modified work on May 4, 2001 truck driving. It was noted the worker drove a hitch hiker vehicle and this vehicle had a forklift attached at the back to deliver product from the sod farm to customers. The worker worked at a University in a supervisory capacity sporadically in the weeks leading up to the work-related injury of May 24, 2001 recognized in claim XXXXXXX1. He noted that he did not continue to work at the University because they only needed him once and awhile.
The WSIAT decision found in claim XXXXXXX1 dated December 20, 2010, page 4 – the cumulative effect of the worker’s medical conditions, his level of impairment and combined restrictions for both his shoulders and low back, his functional capability, his psycho-social circumstances, the employment market factors, his lack of transferable skills, his personal aptitudes and his job search limitations all contributed to the finding that the worker was unable to obtain or sustain employment and that he was unemployable.
The WSIAT decision dated November 19, 2014, page 7 - paragraph 43 states in part:
“We accept that, in 2001 the prior neck and shoulder injuries were pre-existing conditions that contributed to the worker’s level of disability. However, it was the effect of the second accident that caused him to become unemployable.”
The evidence shows that subsequent to the date of injury in claim XXXXXXX8 the worker was able to work and he was able to find employment within his physical limitations. The worker was allowed partial LOE benefit payments for the period of sporadic employment at the University and the earnings information from the other employer beginning May 4, 2001 showed that the worker was earning a wage that was close to his pre-injury wage. There are no LOE benefit payments in this case from May 4, 2001 to May 24, 2001 because the worker was working and there was no loss of earnings.
The worker was allowed a 26% NEL award for his neck and shoulders and even though this NEL award was determined in 2005, it is representative of the worker’s residual impairment resulting from the date of injury; however, the worker demonstrated that he was able to secure employment to restore his pre-injury wage that was seasonal. It is not known if the worker would have been able to continue to work at this job if the accident of May 24, 2001 had not occurred; however, the worker testified it was his intent to work for the season.
The worker would have physical limitations for the neck and shoulders; however, the evidence shows that it is the second work-related injury in claim XXXXXXX1 that finds the worker is unemployable and I am mindful of the fact that this includes the problems with the neck and the shoulders; however, the worker demonstrated that he was able to work within his physical limitations prior to May 24, 2001. The worker is not incurring a wage loss at the time of the work-related injury of May 24, 2001 recognized in claim XXXXXXX1 and therefore I am unable to conclude the work-related injuries allowed in claim XXXXXXX1 would have resulted in a loss of earnings from May 24, 2001. The doctor indicated that returning to work would aggravate the worker’s condition; however, if the worker had suffered a recurrence because of the neck and or shoulders an entitlement decision would have been rendered by the Case Manager concerning this matter.
The medical evidence provided by the doctor dated November 25, 2002 reported the worker’s neck and shoulder viewed independently continued to be a problem for the worker and in his opinion they would limit his capacity for work in that the worker would be unable to tolerate work with persistent heads up activity and working above shoulder height. This medical evidence does not support the worker is unable to work within these limitations. The evidence available shows the worker was able to secure employment on May 4, 2001. The worker was driving a truck and he was operating a forklift and before finding the truck driving position the worker had obtained sporadic employment with his skill set and his abilities in a supervisory capacity and it is these facts that are considered when determining entitlement to LOE benefit payments.
It is noted that there has never been a long-term rate recalculation in this case and that the short term rate was used to calculate the LOE benefit payments in claim XXXXXXX8 and according to memorandum 1 the worker’s average wage (gross) at the time of the injury was $812.96 per week. The wage information provided for the worker in the subsequent claim at the time of the work-related injury is higher than the worker’s short-term rate in claim XXXXXXX8. The evidence does not show the worker is incurring a wage loss in claim XXXXXXX8 with the current wage information available.
The worker explained in his testimony that the pre-injury work was very physical in nature and the work he accepted on May 4, 2001 was modified work in that he was driving the truck and the fork lift. The WSIAT decision of August 30, 2004 allowed LOE benefit payments for a specific period and a NEL assessment for the neck and shoulders. The worker representative argues the intent of the WSIAT decision established the worker was unable to work; however, the worker demonstrated he was able to work prior to the date of injury in the subsequent claim and that he had essentially restored his pre-injury earnings. The WSIAT decision did not reference the fact that the worker had returned to work May 4, 2001.
Section 43 of the Workplace Safety and Insurance Act states that a worker “who has a loss of earnings as a result of the injury” is entitled to LOE benefit payments until the loss of earnings ceases or the worker is no longer impaired or the worker reaches age 65. The amount of the LOE payments is 85% of the difference between the worker’s pre-injury net average earnings and the net average earnings the worker earns or is able to earn in suitable employment after the date of injury.
The worker may not have been able to return to his pre-injury work. The evidence available shows the worker did report recurrences in this case and there was a 26% NEL award determined for the residual impairment resulting from this work-related injury of January 1999; however, the evidence available does not show the worker was experiencing a loss of earnings from May 24, 2001. It is only after the work-related injury of May 24, 2001 that it was determined the worker was unable to work because of a combination of the work-related injuries accepted in claim XXXXXXX8 and in claim XXXXXXX1 according to the WSIAT decision previously referenced in this decision; however, I am unable to conclude that the intent of the WSIAT decision in this case was to allow Loss of Earnings benefit payments because the worker was unable to work particularly since the worker was able to seek and secure employment at no wage loss before May 24, 2001.
CONCLUSION
I find the denial of LOE benefit payments from May 24, 2001 is confirmed.
The worker’s objection is denied.
DATED March 31, 2015
C. Anzil
C. Anzil
Appeals Resolution Officer
Appeals Services Division