WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150061
DECISION DATE:
April 30, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer
REPRESENTED by:
Employer Representative
HEARING:
April 2, 2015, Toronto, Ontario
HEARD by:
Mrs. J. Morin, Appeals Resolution Officer
ADDITIONAL ATTENDEES:
Witness
ISSUE
The worker objects to the decision of February 12, 2014 regarding the denial of entitlement to loss of earnings benefits from December 23, 2013 to March 23, 2014 resulting from an employment layoff.
BACKGROUND
On November 28, 2008 this now 43 year old employed as a construction labourer-foreman was walking on a platform as he went to cross to the other side of another platform he struck his left knee against a 2x4.
The worker had returned to modified duties until December 17, 2008 when he was laid off with a recall date. As the worker was awaiting surgery he was considered unable to look for work; therefore, he was granted full loss of earnings benefits from December 21, 2008 to his return to modified work on January 20, 2009.
Entitlement was accepted for the diagnosis of a complete tear of the left medial meniscus. On September 22, 2009 surgery was performed. The worker also received physiotherapy treatment. The worker was granted full loss of earnings benefits from September 22, 2009 to his return to modified work as of January 28, 2010 with the injury employer.
The Appeals Resolution Officer’s (ARO) decision of January 18, 2010 addressed the employer’s objection to the denial of cost relief under the Second Injury and Enhancement Fund. The ARO concluded there was no evidence of the worker having prior knee problems; seeking medical attention in the past for his knee or losing any time from work due to the knee problems prior to the workplace accident; therefore, the employer’s objection was denied.
In April 2010 the worker was assessed at a speciality clinic. The worker’s condition was diagnosed as major depressive disorder.
On December 2, 2010 the worker underwent further surgery to his left knee as he had re-ruptured his medial meniscus.
The worker was granted full loss of earnings benefits commencing December 2, 2010 to February 26, 2012. As of February 26, 2012 to April 8, 2012 the worker received partial loss of earnings benefits to compensate for the wage loss due to modified work at reduced hours.
A permanent impairment was accepted for the left knee injury and as expressed in the decision of January 19, 2012 the worker was granted a 4 per cent non-economic loss award.
The worker’s representative’s letter of January 20, 2014 requested reinstatement of full loss of earnings benefits as the worker was laid off from work on December 21, 2013 and had not been recalled back to work.
The Case Manager’s decision of February 12, 2014 denied the worker’s request for loss of earnings benefits. It was concluded the worker was not in the early phase of recovery and was not in WSIB approved active health care treatment on a frequent basis. In addition, the worker no longer was in a graduated return to work program and that he required accommodation of his position as a Construction Form Labourer. Furthermore, the worker’s impairment did not present an obstacle to finding alternate employment as a Construction Labourer. The Case Manager concluded the layoff was a result of an employment situation. Noting the worker was not totally impaired from all forms of employment there was no entitlement to loss of earnings benefits.
The worker was granted entitlement to full loss of earnings benefits as of March 23, 2014 as the worker was not recalled back to work and suitable work with the injury employer was no longer available. As of April 9, 2014 the worker was referred for work transition services.
The worker was granted entitlement to 50 percent loss of earnings benefits from November 3, 2014 to November 14, 2014 due to non-co-operation. Full loss of earnings benefits were restored as of November 14, 2014.
The worker’s claim was referred to the Appeals Services Division in order to address the worker’s objection to the decision of February 12, 2014 regarding the denial of loss of earnings benefits from December 23, 2013 to March 23, 2014 resulting from the employment layoff.
AUTHORITY
Operational Policy
15-06-01 – Entitlement Following Work Disruptions - General
15-06-02 – Entitlement Following Work Disruptions Short-Term and Long-term Layoffs
19-02-02 – Responsibilities of Workplace Parties in Work Re-integration
ANALYSIS
Worker’s Testimony:
The worker testified under oath that prior to his lay off in December 2013 his duties with the injury employer entailed the sweeping of the shop, doing veneers 8 by 29 inches, cleaning (scrapping cement out of cages) and painting the cages for the advance forms and picking up nails in the yard. He was also painting truck rims and truck boxes. He cleaning and washing trucks. His work was performed in the shop. He performed these duties from approximately 2012 to his lay off in December 2013. He stated the forms have changed for a long time and it was just not in 2014.
He was laid off from work in December 2013. The worker testified that following his lay off in December 2013 he did contact his injury employer in regards to work.
Reference was made to the letter dated March 28, 2014 from his union that lists the potential employers the worker had contacted in order to look for work from January to March 2014. The worker confirmed he had contacted his injury employer on January 10, 14 and 18, 2014. He called and spoke to his boss Mr. F. He advised he contacted Mr. F on those days as when he spoke to Mr. F on December 20, 2013 he was instructed to contact him in the New Year for work. He called Mr. F on January 10, 2014 to enquire if work was available for him to return to. He was informed by Mr. F that there was no work as it was slow and the weather was bad so no work was available.
The worker testified that on January 6, 2014 he spoke to some of his friends that were employed by the employer and some of the foremen (not all) were called back to work.
He recalled his conversation with Mr. F again on January 14, 2014. Mr. F advised work was slow but they were expecting a, “big job to opening up soon” and would be called back to work and was told to give a couple of days and call back. On January 18,