WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180019
OBJECTING PARTY: Worker
REPRESENTED by: Legal Services
RESPONDENT: Employer
REPRESENTED by: Representative
HEARING: Hearing in writing
HEARD by: C. Marr, Appeals Resolution Officer
DATED May 9, 2018
ISSUES
The worker is objecting to the following decisions, both made by a Case Manager (CM):
The denial of loss of earnings (LOE) benefits following a work disruption dated August 21, 2017.
The denial of LOE benefits following surgery to repair his hernia dated July 10, 2017.
BACKGROUND
On February 10, 2017 this labourer sustained a right inguinal hernia while shovelling snow in the workplace. Entitlement to benefits for this injury was granted under this claim.
The worker was laid off from his employer on February 12, 2017. As explained in correspondence dated August 21, 2017, LOE benefits were denied as the worker’s wage loss was determined to be due to the work disruption and not the work-related injury.
The worker underwent surgery to repair his hernia on July 20, 2017. The surgery was accepted as being the responsibility of this claim. As explained in correspondence dated July 10, 2017, LOE benefits following the surgery were denied as the worker was not employed at the time of the surgery.
AUTHORITY
Operational Policies
15-02-05 Recurrences (dated November 3, 2014)
15-04-08 Hernia
15-06-02 Entitlement Following Temporary Work Disruptions
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) dated July 15, 2011
ANALYSIS
1. LOE Benefits Following Work Disruption
I find that the worker is entitled to loss of earnings (LOE) benefits following the work disruption of February 12, 2017. He was in the acute phase of recovery from his work-related hernia and was unable to perform the essential duties of his pre-injury job. His injury prevented him from being available to work through his union.
This worker sustained a right inguinal hernia after shovelling snow in the workplace on February 10, 2017. He had a history of right-sided groin pain in the pre-accident period but no hernia was identified. He was granted initial entitlement to benefits for the right inguinal hernia under this claim.
The worker sought medical attention at the hospital on the date of injury. It was recommended that he see a surgeon. He was said to be fit to perform suitable work with restrictions on heavy lifting, bending and twisting, pushing and pulling, and operating heavy equipment. Essentially, he was to avoid any strenuous activities.
The worker worked the next day performing administrative tasks such as shredding and sorting papers. He did the same on February 12, 2017.
February 12, 2017 was his last day worked. It was initially reported by the employer that the worker asked to leave the job site, which was in a remote area, to return home so he could see his doctor. He was permitted to leave and given a record of employment.
When further investigations were made by various Case Managers (CM) over the subsequent months, it was determined that the worker was laid off of work by the employer as of February 12, 2017 due to a shortage of work. He had been hired by this employer as a labourer through the union hall on February 6, 2017. The project for which he was hired was only supposed to last for a short period. Other labourers were gradually laid off subsequent to this date.
The worker saw his family doctor on February 14, 2017. A hernia was suspected. He was referred for a surgical consultation. The doctor recommended activity restrictions on bending and twisting, climbing, kneeling and lifting.
WSIB Operational Policy 15-06-02 Entitlement Following Temporary Work Disruptions states in part that workers are entitled to LOE benefits following a work disruption if the evidence indicates that the worker would typically seek new employment in the labour market in an attempt to restore their earnings during a work disruption, and the work-related injury impacts the worker’s ability to earn income through new employment.
The worker was affected by a temporary work disruption with no known recall date. This occurred two days after the date of injury. There is little information on the claim file about his previous employment pattern. He is a unionized labourer hired for jobs through the union hall. He had been hired in this manner by this employer for a period of work from September to November 2016. He received employment insurance (EI) benefits from November 2016 until he started working with this employer again in February 2017.
The worker states that when he was laid off in previous periods he did not seek lower paying work outside of the union. He would place his name on the union list and wait to be recalled for work with an employer.
The worker’s injury prevented him from placing his name back on the union list for hire as a labourer with this or another employer. The job of labourer was not within his functional abilities given his hernia injury. The work-related injury certainly impacted his ability to earn income through new employment. He only would have been fit to work in a sedentary or highly accommodated position. The employer did not have such work available to him after February 12, 2017.
The employer submitted information regarding their hiring and layoff practices around the time of this worker’s employment. Several labourers were reportedly laid off around the same time as the worker or in the following weeks. Some labourers were kept on by the employer until June 2017, though in gradually declining numbers. A layoff date for an individual identified as having been hired three days before the worker was not provided by the employer. The worker reported that this individual worked into at least April 2017.
I do not think it is realistic to expect the worker to have sought employment outside of the union hall following the work disruption. He is a unionized labourer who obtains employment through the union hall. Although his job pattern may have periods of unemployment he was available to be recalled or assigned for work with alternative employers during such periods prior to his injury. His hernia eliminated this option for him. Sedentary work would not likely be available through the union hall. He initially did not know how long it would take to see the surgeon or when the surgery would be booked. He had extensive restrictions that prevented him from performing the manual labour that presumably comprised his previous job experience. It is unrealistic to expect that he should have sought alternative suitable work at the time.
The worker worked less than two days between the date of injury and the date of layoff. Although he was not technically receiving LOE benefits at the time of the work disruption, the period for which he was accommodated by the employer was negligible. The work he performed on these two shifts would not be expected to be available to him in the general labour market.
The nature of the worker’s injury did not require an active rehabilitation program. The hernia had to be repaired surgically. There was a significant wait for this procedure, possibly due to the availability of the service in the worker’s geographic area.
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers are entitled to LOE benefits if the work-related injury prevents them from working and the worker cooperates in his or her health care and work reintegration.
As stated above, the worker was partially disabled and fit for non-strenuous work duties from the date of injury to the date of surgery. He did not require active rehabilitation for his injury but he did attend the assessments and investigations directed by his physician. He saw his doctor on April 7 and May 5, 2017, the latter visit occurring after he was assessed by the surgeon. On May 30, 2017 the doctor completed a Functional Abilities Form (FAF) indicating that the worker continued to have extensive restrictions due to his injury. The employer did not have any suitable work available to the worker during this period.
Therefore, the worker is entitled to full LOE benefits from February 12, 2017 to the date of surgery, July 20, 2017. His wage loss during this period was due primarily to his work-related injury.
2. LOE Benefits Following the Surgery
The worker is entitled to LOE benefits following the surgery performed on July 20, 2017 to repair his work-related hernia. The seriousness and nature of his injury prevented him from performing any work for a period of recovery following this procedure.
I note that the CM referenced policy 15-02-05 Recurrences in determining that the worker was not entitled to LOE benefits following the surgery. This worker had not permanently exited the workforce prior to the surgery. He was off of work in part due to the work disruption, but also due to his compensable impairment. He reasonably was expected to have actual earnings in the future. In fact, he reportedly returned to work approximately seven weeks after the surgery.
The worker underwent laparoscopic repair of his right inguinal hernia on July 20, 2017. An umbilical hernia was also addressed at the time. There are no medical reports subsequent to the date of surgery in the available medical record. There is no indication that there were any complications associated with the surgical procedure.
According to memorandum A0013, an individual who undergoes endoscopic hernia repair is expected to be able to return to heavy manual work in 28 days. Policy 15-04-08 Hernia states that it can take up to eight weeks for a worker to fully recover from an uncomplicated hernia repair.
There is no information on the claim file to indicate exactly when the worker was medically cleared to return to work, or when suitable work became available to the worker. The worker representative states that the worker commenced work following the surgery on September 9, 2017. This falls within the recovery period outlined in the relevant policy. There is no evidence to support that the employer had suitable work available to the worker prior to this date.
The worker is entitled to full LOE benefits from July 20, 2017 to the date he returned to work, reported to be September 9, 2017.
CONCLUSION
The worker is entitled to full LOE benefits from February 12, 2017 to July 20, 2017.
The worker is entitled to full LOE benefits from the date of surgery of July 20, 2017 to when he returned to work, reportedly on September 9, 2017.
The objection is allowed.
DATED May 9, 2018
C. Marr
Appeals Resolution Officer
Appeals Services Division