WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190113
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative (Participating via Teleconference)
HEARING: Oral Hearing
HEARD by: S. Crisostomo, Appeals Resolution Officer
DATED: July 15, 2019
ISSUES
The worker is requesting:
The employer be found in non-compliance with their co-operation obligations.
The job offer of Highway Driver by the employer be deemed not suitable and entitlement to partial Loss of Earnings (LOE) benefits from November 4, 2018 be granted based on his actual earnings as a Truck Driver with his new employer.
BACKGROUND
On April 23, 2016, the worker, a then 59 year old, Long Haul Truck Driver injured his right shoulder when he tripped over a broken cord and fell into a truck trailer.
Entitlement was reviewed and allowed for a right rotator cuff tear and related surgery.
In July of 2017, the worker received a 10% Non-economic Loss (NEL) benefit for the residual impairment in his right shoulder. It was recognized that the worker had permanent restrictions of working with his arms at waist level, with no repetitive activity, no lifting over 5 pounds and that the worker should avoid tasks such as mixing and sweeping.
In July of 2017, the employer offered the worker alternative work, which included Freight Sales, In Cab Evaluations and Seasonal Warehouse Administration, which the worker accepted. The start date of the alternative work duties was July 24, 2017.
On August 8, 2017, entitlement was allowed for the worker’s left shoulder as a secondary condition resulting from his work-related right shoulder injury and on October of 2017, the worker underwent left shoulder surgery.
The worker was off work following his left shoulder surgery and granted entitlement to full LOE benefits. On July 5, 2018, the employer terminated the worker’s employment after conducting video surveillance and determining the worker misrepresented himself.
The worker was provided with Work Transition (WT) services, which included Job Search Training and Training on the Job. On September 14, 2018, the worker secured work as a Truck Driver with a new employer. The worker was granted partial LOE benefits from September 14, 2018 based on his actual earnings as a Truck Driver with the new employer.
On September 25, 2018, the re-employment Case Manager determined the employer was in non-compliance of their co-operation obligations after determining it could not be determined the worker’s termination was unrelated to his workplace injuries.
On October 26, 2018, the employer offered the worker employment as a Highway Driver, which he declined on November 1, 2018.
In February of 2019, the worker received a 9% non-economic Loss benefit (reduced to 8% when combined with his existing NEL benefit) for the residual impairment in his left shoulder.
Decisions
On November 2, 2018, the Case Manager determined the employer was no longer in non-compliance of their co-operation obligations after determining the employer offered the worker suitable employment.
On November 20, 2018, the Case Manager denied entitlement to LOE benefits as of November 4, 2018 after determining the worker declined returning to suitable work with the employer.
Worker Representative’s Position
The worker’s representative submits:
The employer and worker relationship has been irrevocably breached following the worker’s termination and claim that the worker misrepresented himself. It is impossible for the worker to return to work for the employer.
The job offered by the employer was solely made in response to the determination that they were in non-compliance of their obligation to co-operate and that a fine would be levied.
The job offer by the employer is vague and does not mention the worker’s work-related impairment or how he could perform the job duties with his injuries.
The job offer by the employer is not suitable for the worker as it does not guarantee the requisite number of work hours and the job may involve lifting (hand bombing) up 75 pounds as indicated in the job description, which is well over the worker’s restrictions. The employer made no guarantees through the job offer and/or contract that guarantees the worker would be able to work within his restrictions. Of concern is the wording of the contract and that it states it supersedes any and all representations made.
Employer’s Position
The employer submits:
The job of Highway Driver offered to the worker is suitable and it was mentioned in the email attached to the job offer that the worker would work within his own abilities and exercise precaution for his shoulders.
It was the worker’s decision not to accept the job offer. He voluntarily did not accept the position.
The worker’s LOE is not due to his injuries.
AUTHORITY
Operational Policies:
19-02-02 Responsibilities of the Workplace Parties in Work Reintegration
19-02-01 Work Reintegration Principles, Concepts, and Definitions
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
I have carefully considered all of the available information, the worker’s testimony and the relevant operational policies in reaching this decision.
1. Employer’s Compliance with Co-operation Obligations
I find that following the job offer of October 26, 2018 to the worker, the employer was in compliance of their co-operation obligations. The reasons for my decision follow.
Operational Policy 19-02-02 states in part:
The workplace parties must co-operate with each other and the WSIB in the RTW process by
initiating early contact
maintaining appropriate communication throughout the worker's recovery
identifying and securing WR opportunities for the worker
giving the WSIB all relevant information concerning the worker's Work Re-integration (WR), and
notifying the WSIB of any dispute or disagreement concerning the worker's WR.
Disputes over job suitability are not acts of non-co-operation.
I recognize that it was determined the employer was in non-compliance of their co-operation obligations after the employer terminated the worker’s employment and it could not be determined the worker’s termination was unrelated to his workplace injuries. I also recognize that after this determination, the employer offered the worker a job as a Highway Driver noting that the worker would work within his own abilities and exercise precaution for his shoulders. I acknowledge that there is a dispute over the suitability of that job offer and that Operational Policy 19-02-02 states that disputes over job suitability are not acts of non-co-operation.
Based on the job offer made by the employer to the worker on October 26, 2018, I am satisfied the employer met their co-operation obligations and were in compliance of their co-operation obligation. As such, I find that as of October 26, 2018 the employer came into compliance with their co-operation obligations.
2. Suitability of the employer’s job offer of Highway Driver and LOE entitlement
I find the job of Highway Driver offered by the employer is not suitable employment for the worker and that he is entitled to partial LOE benefits from November 4, 2018 to the date of this decision based on his actual earnings as a Truck Driver with his new employer. The reasons for my decision follow.
The worker testified at the oral hearing and stated his job duties with the employer involved driving a truck, and picking up and delivering loads. Part of the job duties involved hand bombing material from the truck which would take place anywhere from one to three times per month. Hand bombing involves lifting crates and boxes weighing between 5 and 100 pounds, the task is usually performed alone. The worker advised that he did understand the email and job offer from the employer. He had concerns about the job offer as he would have to go on probation again. He stated he does not trust the employer and that he was happy with his current employment.
On questioning, the worker explained that if hand bombing was required for a specific delivery, it needed to be done and he would be forced to do it, as there would be no one else available to hand bomb the material. The worker explained the employer could only provide verbal assurance that he would not have to hand bomb; however, there is no actual assurance that it would not happen.
The worker advised he is currently driving a tanker truck for a new employer. He works 30 to 40 hours per week. His job involves solely driving and the job is suitable for work-related conditions. He has an excellent relationship with his new employer and co-workers.
Operational Policy 19-02-01 states in part:
Suitable work means post-injury work (including the worker’s pre-injury job) that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.
Based on the worker’s bilateral shoulder impairments it has been accepted that the worker has permanent restrictions, which include no repetitive activities and no lifting over 5 pounds.
In reviewing the job offered by the employer, I note the attached email to the worker dated October 26, 2018 stated that “if you are interested in joining Company xxx again, we want both to agree that you are responsible for your own health and will exercise precaution for your shoulders. You will work within your own abilities.”
However, the attached job description (Schedule A) for Highway Driver states the worker would require physical effort that included hand bombing up to 75 lbs and the offer of employment to the worker specifically stated in part:
The Employee will have the responsibilities and authority set out in Schedule A, attached to this agreement.
The parties to this Agreement agree and understand that all the terms of the Employee’s employment are contained in this Agreement and that this Agreement supersedes any and all other representations made, whether verbally or in writing (my emphasis added).
Based on my review of the Employment Contract (the Agreement), I am satisfied that by signing the Agreement, it is accepted that the terms of the employment are all contained in the Agreement and that the Agreement would supersede any other agreement and/or representation. As such, the attached email to the agreement dated October 26, 2018 would have no weight and/or bearing in light of signing the Agreement, as it would be superseded by the Agreement. In reviewing the Agreement, I find no mention of the worker’s work-related bilateral shoulder impairments and/or how the job duties of Highway Driver would be modified to make sure the worker works within his functional abilities noting a component of the job includes the possibility of hand bomb up to 75 pounds, which exceeds his permanent shoulder restrictions. Based on the wording of the Employment Contract, I am not satisfied that the job offer of Highway Driver constitutes suitable work, as I find there is no certainty that the job offer by the employer is consistent with the worker’s functional abilities. As such, I find the job offer of Highway Driver by the employer on October 26, 2018 is not suitable work for the worker.
With respect to the worker’s LOE entitlement, Operational Policy 18-03-02 states that in part:
A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of
the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.
In this case, the worker testified that he is currently performing suitable work as a Truck Driver that involves strictly driving (“pin to pin”) with no physically demanding requirements. Based on the worker’s testimony, I accept the worker is performing suitable work as a Truck Driver, as I find no evidence that the job duties he performs exceed his functional abilities with respect to his bilateral shoulder impairments.
Noting that the worker is currently performing suitable work as a Truck Driver which he acquired through Work Transition services and that he does have a loss of earnings (as his actual earnings are less than his pre-injury earnings), I am satisfied that the worker’s LOE is due to his work-related bilateral shoulder injuries. Therefore, the worker is entitled to loss of earnings benefits.
Noting the worker is working in suitable employment that ranges from 30 to 40 hours per week (with some possible load cancellation), I find it appropriate to base the worker’s LOE benefits on his actual earnings as a Truck Driver with his new employer from November 4, 2018 to and including the date of this decision.
Entitlement to LOE benefits beyond the date of this decision is left to the discretion of the Operating Area.
CONCLUSION
Based on the evidence outlined in this decision, I conclude:
As of October 26, 2018, the employer came into compliance with their co-operation obligations.
The job offer by the employer as a Highway Driver is not suitable work for the worker. The worker is entitled to partial Loss of Earnings benefits from November 4, 2018 to and including the date of this decision based on his actual earnings as a Truck Driver with his new employer.
Entitlement to Loss of Earnings benefits beyond the date of this decision is left to the discretion of the Operating Area.
The worker’s objection is allowed in part.
DATED: July 15, 2019
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division