WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20210022
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: F. Amorim, Appeals Resolution Officer
DATED: April 23, 2021
ISSUES
The worker objects to:
The case manager (CM) decision dated April 28, 2020, which denied entitlement to a permanent impairment (PI) for the lumbar strain.
The CM decision dated May 14, 2020, which concluded the worker attained maximum medical recovery (MMR) on March 13, 2016 with no evidence of a PI for the lower back impairment.
The re-employment CM decision dated August 14, 2020, which concluded the employer did not breach their re-employment obligation.
BACKGROUND
On December 20, 2015, this now 52-year-old meat cutter lifted minced meat and injured his lower back. He returned to modified work on December 26, 2015 and sought health care for the injury on December 30, 2015.
Entitlement was granted for a low back strain and loss of earnings (LOE) benefits were approved for lost time. On January 3, 2016 the worker claimed he was unable to work due to his low back impairment.
In a decision dated January 8, 2016, an Eligibility Adjudicator (EA) granted entitlement for a low back sprain and LOE benefits to December 25, 2015. The EA also determined there was no entitlement to degenerative disc disease (DDD) or entitlement to LOE benefits effective January 3, 2016.
In a decision dated December 22, 2016, an Appeals Resolution Officer (ARO) concluded there was no entitlement to DDD and entitlement to LOE benefits beyond January 3, 2016.
In March 2016, the worker returned to modified work with the assistance of a WSIB return to work specialist. On September 17, 2016 the worker was terminated for violating company policy.
In February 2018, the operating area allowed entitlement for decompression and fusion surgery. The worker underwent surgery on October 5, 2018 and revision surgery on November 3, 2018.
On November 29, 2018, the ARO denied the worker representative’s request for a reconsideration of the December 22, 2016 decision.
In a decision letter dated April 28, 2020, the CM communicated that following the December 2016 ARO decision, entitlement for surgery should not have been granted. The CM determined there was no evidence of a PI for the lumbar strain.
In a subsequent decision dated May 14, 2020 the CM determined the worker attained MMR on March 13, 2016 and denied entitlement to a PI for the low back.
In a decision dated August 14, 2020, the re-employment CM concluded there was no re-employment breach when the worker was terminated in September 2016.
The worker disagrees with the above noted decisions and has brought the case forward to the Appeals Services Division for further consideration. The worker representative completed an Appeal Readiness Forms (ARF) dated December 3, 2020 requesting that the appeal be considered by way of a Hearing in Writing.
AUTHORITY
Section 41, Workplace Safety and Insurance Act (WSIA)
Operational Policy Manual Documents:
11-01-05 – Determining Permanent Impairment
19-02-02 – Responsibilities of the Workplace Parties in Work Reintegration
ANALYSIS
For the reasons set out below, the worker’s appeal is dismissed. In arriving at my decision, I had regard for all the information contained in the file, the ARF dated December 3, 2020 as well as the written submissions from the employer representative dated February 17, 2021.
The worker representative (WR) submits entitlement should be accepted for the surgery and the recognition of a PI for the low back impairment. The WR did not present a position on the employer’s re-employment obligation.
In the February 2021 submission, the employer representative (ER) agreed with the CM’s conclusion that the worker attained MMR on March 13, 2016 noting entitlement was accepted for a low back strain. The ER maintains the worker’s termination is related to violating the Violence and Harassment policy. The ER notes the worker was disciplined in June 2013 for a prior employment issue. The representative submits the worker’s termination in September 2016 was not related to the work-related injury or claim for benefits.
Issue 1 – MMR and Permanent Impairment
Policy 11-01-05, Determining Permanent Impairment, states a recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery (MMR) is reached. The policy defines a permanent impairment as an impairment that continues to exist after the worker reaches MMR.
The policy goes on to state that once MMR has been determined, decision-makers consider whether there is an ongoing impairment based on the clinical evidence.
The WSIB considers
a physical abnormality to be a change to or damage to a body part or organ system
a physical loss to be a loss of some or all of a body part or organ system
a functional abnormality to be a malfunction of a body part or organ system
a functional loss to be a loss of some or all of the functioning of a body part or organ system
a disfigurement to be an altered or abnormal appearance such as an alteration of color, shape, structure, or a combination of these, and
psychological damage to be the loss of or abnormal psychological functioning.
The CM concluded the worker achieved MMR on March 13, 2016. This determination was not based on any medical contained in the case file. This conclusion was based on the usual healing times for soft tissue injuries which are guidelines and not evidence.
When I assess all of the information on file, I find the worker attained MMR on or about May 24, 2016 with no evidence of a PI. In reaching this conclusion I have considered the worker’s entitlement is limited to a low back strain and there is no entitlement to DDD as outlined in the December 2016 ARO decision.
The worker attended physiotherapy and was prescribed anti-inflammatories. On May 24, 2016, the worker was assessed at the Neck and Low Back Specialty Clinic (SC). Dr. Rampersaud, orthopaedic surgeon recommended further investigations to determine the extent of any possible secondary instability of the spine. In a follow up report dated July 11, 2016 Dr. Rampersaud recommended a right L5 nerve block.
In my view, the worker had recovered from the lumbar strain by about May 24, 2016 noting that the investigations and treatment completed after this assessment were for the pre-existing condition and not the soft tissue injury. As noted in the May 2016 SC report, an MRI is not used to diagnose a soft tissue injury and the pre-existing condition was contributing to the worker’s overall presentation. Any ongoing treatment from that point forward was not related to the low back strain and was recommended for the pre-existing condition.
The worker’s representative argued a PI, however, I was not referred to any medical evidence of significance would support that a PI is evident in relation to the strain injury. Therefore, entitlement to a PI is denied.
Issue 2 – Re-employment Breach
When addressing the issue of a possible re-employment breach, it must be established that the employer does in fact have an obligation to re-employ the worker. Policy 19-02-02 states in part that non-construction employers have an obligation to re-employ their injured workers if the following three conditions are satisfied:
the worker has been “unable to work” as a result of the work-related injury/disease
the worker was continuously employed with the injury employer for at least one year before the date of injury, and
the employer regularly employs 20 or more workers.
In this case, it has been established this claim meets all of the necessary criteria and therefore the employer does in fact have a re-employment obligation. This fact is not in dispute.
Having established that the re-employment threshold has been met, it is then important to determine the duration of the re-employment obligation. A non-construction industry employer is obligated to re-employ until the earliest of;
the second anniversary of the date of injury
one year after the worker is medically able to perform the essential duties of his or her pre-injury employment, or
the date on which the worker reaches 65 years of age.
The CM determined that the worker was considered fit to perform the essential duties of his pre-injury employment as of March 13, 2016. It was determined that a re-employment obligation existed from March 13, 2016 until March 13, 2017 as the worker was deemed medically able to perform the essential duties of his pre-injury employment.
The employer provided a copy of their Workplace Violence and Harassment policy dated January 2019. The policy defines the workplace violence and harassment. The policy clearly states that if an investigation substantiates that violations of the policy have occurred, the employer will initiate a decisive and appropriate response. The response may include, but is not limited to, suspension and/or cancellation of any business relationship, reassignment of job duties, suspension or discharge from employment.
The employer maintains the reason for the workers termination is that he had violated the Violence/Harassment policy and the Minutes of Settlement. The employer’s evidence confirms the worker was suspended in June 2013 without compensation. The Minutes of Settlement between the Union, the worker and the employer outlined a number of conditions that the worker was required to adhere to during the term of the agreement:
carry out duties in a professional and businesslike manner and exhibit work performance which meets the employer’s standards. Must exhibit a positive work attitude;
treat fellow employees, management, customers and other business associates with dignity, respect and in a professional manner;
must adhere to all company policies and/or procedures;
maintain regular attendance and punctuality, based on store average
The worker was disciplined in March 2016. A copy of a signed Discipline Report Form dated March13, 2016 notes the reason for discipline as unbusiness like and unprofessional conduct and negative attitude towards fellow employees and the employer, violent behaviour including breaking and smashing company equipment. The worker was suspended for one week and demoted to part-time. The report also noted that further incidents will result in progressive discipline including termination. The employer also provided a statement from a co-worker who saw the incident for which the worker was suspended. The information has not been disputed.
The worker breached company policy again between August 25, 2016 to August 27, 2016. According to the Discipline Report Form dated September 9, 2016, he was suspended and the length of the suspension was under review. The report notes the worker had been warned verbally and in writing for this same reason prior to the incident. The reason for the discipline was noted as a breach of company policy and the violation of the Minutes of Settlement. The worker was terminated on September 17, 2016 and was not eligible to be rehired.
In this case, the employer’s evidence clearly establishes the worker was disciplined in 2013 for similar behaviour and he agreed to adhere to company policies. He violated company policy in March 2016 and August 2016 which lead to further discipline and these incidents has not been disputed. I note the worker was not in receipt of LOE benefits that at the time of each incident and there is no evidence to suggest the worker’s termination was due to his injury. As per policy 19-02-02, the weight of the evidence supports the conclusion that the employer did not breach its re-employment obligation.
CONCLUSION
The worker attained MMR on or about May 24, 2016. Entitlement for the recognition of a PI for the low back impairment is denied.
The employer did not breach its re-employment obligations.
The objection is allowed in part.
DATED April 23, 2021
F. Amorim
Appeals Resolution Offficer
Appeals Services