Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20190103
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer (not participating)
Hearing: Hearing in writing
Heard by: C. Marr, Appeals Resolution Officer
Dated: May 22, 2019
ISSUE
The worker is objecting to the Case Manager’s (CM) decision dated August 3, 2018 in which entitlement to loss of earnings (LOE) benefits for the summer school break of 2018 was denied.
BACKGROUND
On June 20, 2018, this special needs assistant in a school tripped and fell, injuring her left ankle. The employer was unable to provide suitable modified work to the worker. Loss of earnings (LOE) benefits were approved.
The worker was not scheduled to work during the summer break period. As explained in correspondence dated August 3, 2018, the CM determined that the worker was partially disabled as a result of her injury and fit for suitable work. Her wage loss during the summer break was due to the employment situation and not her injury. LOE benefits from June 30, 2018 to the start of the following school year on September 4, 2018 were denied.
Worker’s Position
The worker representative argues in part that the worker was significantly impaired due to her injury during the period in question and was not yet fit for suitable work. The representative also argues that the relevant policy states that the worker’s LOE benefits that were being paid prior to the start of the work disruption should have continued. The representative attached a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision to her submission for my consideration.
AUTHORITY
Operational Policies
15-06-02 Entitlement Following Temporary Work Disruptions
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
I find that the worker is not entitled to loss of earnings (LOE) benefits for the period of the school summer break, June 30 to September 4, 2018. She did not have a wage loss during this period due to her compensable injury.
The worker representative argues in part that the worker was significantly impaired during the summer break of 2018 because of her injury and was unfit to work.
On June 20, 2018, this special needs assistant in a school tripped and fell, injuring her left ankle. She was initially diagnosed with a left ankle sprain. She was later found to have ligament tears. She was medically cleared to perform modified work beginning the day after she was injured. The treating chiropractor confirmed that the worker was partially disabled and fit for suitable work in early July 2018, but was off work at the time due to “summer vacation”.
The worker was assessed by a specialist in sports medicine on July 26, 2018. She was noted to have ligament tears in her ankle. She complained of pain. She was wearing an air-cast boot but was no longer using crutches to ambulate. The worker was encouraged to keep the foot elevated to help with swelling. A surgical consultation was recommended. The physician did not specifically comment on her fitness to work.
On August 30, 2018, near the end of the summer break, the worker was assessed by an orthopaedic surgeon at the Lower Extremity Program. She reported that she was using crutches again. Active rehabilitation was recommended. In terms of her restrictions, she was to avoid lifting and carrying due to her using crutches, limit walking and standing to a rare basis, and not climb stairs. She had full sitting capabilities, though she was advised to elevate the ankle as needed for swelling management.
The medical evidence supports that the worker was partially disabled and fit to perform sedentary seated work in the post-accident period.
The employer was unable to provide suitable modified work to the worker at the time. The employer said that the worker had to be able to ambulate fully in order to be placed in a classroom setting as she works with students with special needs. Sedentary or administrative work was not available to her. The worker was granted full LOE benefits following the date of injury as she was unable to perform her pre-injury work duties and no suitable work was available to her. Her wage loss at this time was determined to be due to her compensable injury.
The worker was not scheduled to work from June 30 to September 4, 2018. This was the period of the summer school break. This is a known period of layoff in the worker’s employment pattern. She reported to the Case Manager (CM) that in previous years she did not work during this period, but received employment insurance (EI) benefits. She also reportedly received EI benefits for the summer break of 2018. She did not have alternative employment secured for the summer of 2018. There is no evidence to support that she intended to work during the summer break.
The worker representative argues that the worker’s LOE benefits that were paid leading into the summer break should have continued as per WSIB Operational Policy 15-06-02 Entitlement Following Temporary Work Disruptions. This policy states in part:
The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a temporary work disruption.
Workers are entitled to additional LOE benefits when evidence indicates
the worker would seek new employment in the general labour market to attempt to restore his/her loss of earnings during the temporary work disruption (i.e., if he/she was not injured), and
the work-related injury/disease impacts the worker’s ability to earn income through new employment.
The representative submitted Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision 123/18 for my consideration. In this decision, the WSIAT found that the term “additional” LOE benefits under policy 15-06-02 refers to benefits over and above those that were being paid in the period prior to the short-term work disruption, not further or continuing LOE benefits.
The representative argues that the worker’s full LOE benefits that were paid from June 21, 2018 — as the employer did not have suitable work available to her — should have been maintained throughout the seasonal layoff as per policy 15-06-02.
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers who incur a wage loss due to the work-related injury are entitled to LOE benefits.
In considering the issue before me, I also reviewed WSIAT decision 887/11. The worker in this case was also an educational worker who only worked ten months of the year. Each summer this worker was impacted by a seasonal layoff that affected all employees. This worker collected EI benefits during the summer layoffs, including the one in which the issue of entitlement to full LOE benefits was before the WSIAT.
The worker in WSIAT decision 887/11 was receiving partial LOE benefits at the time of the summer break. Due to her injuries, she was only fit to work part-time. The employer was accommodating her restrictions.
The WSIAT found that the worker was not entitled to full LOE benefits during the seasonal summer shutdown as the worker’s wage loss during this period was due to the employment pattern and not the worker’s injury. As the wage loss was not due to the injury, full LOE benefits were not in order. The panel stated that the worker should not be placed in a better position than she would have been had she not been injured by receiving full LOE benefits during the summer shutdown.
I find that the same rationale applies in this case. In the pre-accident period, the worker did not work during the annual summer breaks. She received EI benefits, as she did in 2018. There is no evidence to support that she intended to work in the summer of 2018 and was unable to do so due to her compensable left ankle injury. Paying her LOE benefits for this period would place her in a better position than she would have been had she not been injured, which is not the intent of the legislation as noted by the WSIAT in decision 887/11.
I do note that while the worker in decision 887/11 was denied full LOE benefits for the summer shutdown, her partial LOE benefits were maintained. This is the argument of the worker representative in the case before me: that the worker’s full LOE benefits that were paid for the approximately one week prior to the summer shutdown should have been maintained during the seasonal layoff as per policy 15-06-02.
There is a critical difference between the two cases. In the WSIAT case 887/11 the worker was only fit to work partial hours due to the nature of her injuries. The panel found that this wage loss should have continued throughout the summer break, which does seem inconsistent with the panel’s own argument that the worker should not be paid LOE benefits if the wage loss is due to the employment pattern. The worker in the case before me was fit to perform suitable work at full hours as of the day after she was injured. The employer was unable to provide any suitable alternative work to her.
The employer’s inability to accommodate the worker’s restrictions between June 21 and June 30, 2018 should not entitle the worker to full LOE benefits for the entire summer shutdown period.
I am not bound by the findings from previous WSIAT decisions, but by the relevant legislation and policies. Each case is unique and must be considered on its own merits.
As stated above, policy 15-06-02 stipulates “The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a temporary work disruption (italics are mine).” The policy does not state that the WSIB always maintains the LOE benefits paid prior to the work disruption. The term generally implies that there are cases where LOE benefits should not continue.
In my opinion, this is one of those cases. This worker has an employment pattern that involves a seasonal shutdown every summer for all similar employees. In the pre-accident period, she did not seek employment during the summer break but received EI benefits, as she did during the summer period in question. LOE benefits are intended to compensate an injured worker for a wage loss due to the work-related injury. The worker should not be placed in a better position than she would have had she not been injured by being paid LOE benefits during a seasonal layoff where she was not expected or intending to work.
The worker’s wage loss from June 30, 2018 to September 4, 2018 was due to the employment situation, and would have occurred regardless of her spraining her ankle in the workplace the previous week. Therefore, she is not entitled to LOE benefits under policy 18-03-02 as the wage loss was not due to her injury.
CONCLUSION
The worker is not entitled to LOE benefits during the annual summer break between June 30, 2018 and September 4, 2018.
The objection is denied.
DATED: May 22, 2019
C. Marr
Appeals Resolution Officer
Appeals Services Division