APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20210019
OBJECTING PARTY:
WORKER
REPRESENTED by:
Worker representative
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
C. DA CUNHA, appeals resolution officer
DATED:
SEPTEMBER 24, 2021
ISSUE
Entitlement to loss of earnings (LOE) benefits during the work disruption from January 1, 2021 to March 15, 2021.
BACKGROUND
On July 24, 2020, the worker suffered multiple injuries when struck across the back by a mooring cable on a ship. They had worked with the employer as an Ordinary Seaman for two weeks at the time, on a temporary seasonal contract to replace a vacationing permanent worker.
The WSIB granted entitlement to the following injuries:
A closed head injury, forehead contusion, and right periorbital hematoma
Fractures to the right 11th, and left 9th, 10th, and 11th ribs
A traumatic dislocation of the right hip
Lumbar spine fractures to the right L1 and bilateral L2 vertebral bodies
A thoracic spine fracture to the T11 vertebral body
The WSIB determined that the worker reached maximum medical recovery for the head and facial injuries on October 5, 2020, with no permanent impairment evident. It is currently considering entitlement to a psychotraumatic disability.
On December 31, 2020, the employer docked the ship at port and laid off the ship workers for the winter.
Date of the Case Managers’ (CM) Decisions: December 23, 2020 and July 29, 2021.
The CMs’ Decisions: The CM found that the layoff was, for WSIB purposes, a temporary work disruption (TWD). Furthermore, the worker did not work during the annual winter layoff, choosing to receive Employment Insurance (EI) benefits. As the worker was partially disabled, and capable of performing suitable work, the CM determined that the wage loss from January 1, 2021 was caused by an employment situation and not the work-related injuries. Therefore, the CM denied entitlement to LOE benefits from that date.
Another CM reconsidered the original decision on July 29, 2021. The CM found that the TWD ended effective March 15, 2021, the date the employer recalled the docked ship. The employer did not recall the worker. The CM determined that the work-related injuries caused the worker’s wage loss as of March 15, 2021, granting entitlement to full LOE benefits from that date. The CM upheld the denial of LOE benefits from January 1, 2021 to March 15, 2021, for the previous CM’s reasons.
The Worker’s Position: The worker’s representative argues that the medical evidence confirms that the worker was competitively unemployable from January 1, 2021 because of the work-related injuries. Therefore, full LOE benefits from January 1, 2021 are in order.
The Employer’s Position: The employer representative contends that the worker had recovered sufficiently to be found only partially impaired, not totally impaired. As such, they would not be entitled to full LOE benefits on a medical basis.
Furthermore, the layoff was, for WSIB purposes, a TWD. As per the TWD policy, in order for additional LOE benefits to be paid during a temporary layoff, the following two criteria must be met:
The worker would seek new employment in the general labour market to attempt to restore their LOE during the TWD (i.e. if they were not injured), and,
The work-related injury/disease impacts the worker’s ability to earn income through new employment.
The evidence shows that, during the annual layoff, the worker applied for and received EI benefits. They did not seek other employment in the general labour market. The worker’s competitive employability is not germane within the context of this policy. As both of the required criteria are not evident, entitlement to LOE benefits during the TWD is not in order.
AUTHORITY
Section 43 of the Workplace Safety and Insurance Act, 1997 (WSIA)
Operational Policy Manual
Published
15-06-02: Entitlement Following TWD
15-06-03: Entitlement Following Permanent Work Disruptions (PWD)
22-01-03: Worker’s Co-operation Obligations
November 3, 2014
November 3, 2014
February 15, 2013
ANALYSIS
I have carefully considered all of the available information, relevant legislation, and appropriate operational policies in reaching this decision. Having done so, I find that entitlement to full LOE benefits from January 1, 2021 to March 15, 2021 is in order.
In order to resolve this appeal, the question that must first be determined is whether the January 1, 2021 to March 15, 2021 layoff was, for WSIB purposes, a TWD or a PWD.
Operational policy 15-06-02, Entitlement Following TWD, defines a TWD in the following way:
Temporary work disruptions are generally expected to last less than 3 months and include:
layoffs resulting from temporary changes in the availability of work due to economic factors (e.g., plant retooling, holiday shutdown)
partial reduction in hours or wages due to business circumstances that affects all employees in company, plant, department, or shift (i.e., all employees continue to work)
strikes or lockouts, and
seasonal layoffs (regardless of the length of the off-season).
Layoffs with specific or expected recall dates beyond three months continue to be treated as temporary work disruptions if there is a strong degree of certainty that the recall will occur (e.g., written notice of recall date, employer’s past practices, relationship between employer and employees, unique circumstances).
Operational policy 15-06-03, Entitlement Following PWD, defines a PWD in the following way:
Permanent work disruptions include:
layoffs resulting from changes in the availability of work that are due to economic factors and are permanent or expected to last three months or longer (e.g., plant closure, employer has ceased business, corporate reorganization), and
temporary work disruptions that extend beyond three months or beyond the start of the next season for seasonal layoffs.
Any LOE benefits that become payable when a temporary work disruption becomes permanent are paid prospectively from the date the WSIB determines the work disruption has become permanent.
Layoffs with specific or expected recall dates beyond three months continue to be treated as temporary work disruptions if there is a strong degree of certainty that the recall will occur (e.g., written notice of recall date, employer’s past practices, relationship between employer and employees, unique circumstances).
The evidence on record shows that, following a December 10, 2020 conversation with the employer, the Operating Area decision-makers determined that the layoff was a TWD because the employer stated that it docked the ship every winter and laid off the workers for the season. However, the WSIB did not ask the employer if, and when, the worker, specifically, would be recalled. It assumed that they would be, turning the layoff into a TWD. However, the information provided by the employer in the summer of 2021 confirms that it never intended to recall the worker.
On July 22, 2021, the employer informed with the CM that the worker lost their recall rights when they had to be replaced because of the workplace injury. The workplace injury occurred on July 24, 2020, more than five months before the date of layoff. While the employer stated that the temporary layoff “became” a permanent layoff, this is not the case because the employer knew well before the layoff that the worker would not be recalled. Furthermore, the employer confirmed that they would not have recalled the worker even if they had been cleared to return to work on March 15, 2021.
On July 29, 2021, the employer reiterated the same position. They had to replace the worker when they injured themselves. Since they had to be replaced, they lost their recall rights. Therefore, the employer knew shortly after the date of injury that the worker would not be recalled when the annual winter layoff occurred on January 1, 2021.
This information confirms that, from day one, the layoff that started on January 1, 2021 was, for the worker, a PWD.
The WSIB granted the worker full LOE benefits up to January 1, 2021, the first day of the layoff. In situations like this, operational policy 15-06-03, PWD, directs the following:
The WSIB generally maintains the LOE benefits the worker was receiving at the start of a permanent work disruption.
The WSIB reviews entitlement to additional LOE benefits and return-to-work (RTW) services if a worker is partially impaired and fit for suitable and available work at, or subsequent to, the start of a permanent work disruption.
To determine if the worker’s additional loss of earnings results from their work-related injury/disease, the WSIB identifies a suitable occupation (SO) for the worker and determines if the worker requires WSIB assistance to re-enter the labour market in that SO.
Furthermore, operational policy 22-01-03, Workers’ Co-operation Obligations, confirms that a worker who is receiving benefits under the insurance plan, or who is entitled to do so, is required to co-operate in health care measures the WSIB considers appropriate. Failure to do so may result in a reduction or suspension of their benefits.
From January 1, 2021 to March 15, 2021, the worker fully participated in, and co-operated with, their medical recovery program. They attended at their Chiropractor and with the Lower Extremity Specialty Program (LESP).
On June 9, 2021, the LESP discharged the worker, with permanent medical restrictions. The WSIB then commenced the RTW process. As the employer could not permanently accommodate the worker with suitable work, on August 19, 2021, the WSIB activated the work transition (WT) process.
The evidence in the case file demonstrates that, from the start of the PWD, the WSIB should have considered and/or commenced the RTW and/or WT processes for the worker. It did not do so because it incorrectly determined the layoff to be a TWD. The worker was in receipt of full LOE benefits at the time of the layoff, and continued to co-operate with their health care measures throughout. It was not until six months after the layoff that the WSIB commenced the RTW and WT processes. The worker should not be penalized for these determinations and delays.
Section 43 of the WSIA prescribes that a worker who has a LOE because of the injury is entitled to payments beginning when the LOE begins. The facts and circumstances on record lead me to find that the worker’s work-related injuries caused their wage loss from January 1, 2021 to March 15, 2021, in full. Therefore, entitlement to full LOE benefits for the period is in order.
CONCLUSION
I find that entitlement to full loss of earnings benefits from January 1, 2021 to March 15, 2021 is in order.
The worker’s objection is, therefore, allowed.
DATED September 24, 2021.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division