Worker v. Employer, 2021 CanLII 76573

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20210010

OBJECTING PARTY: WORKER

REPRESENTED BY: Worker Representative

RESPONDENT: EMPLOYER

REPRESENTED BY: Employer Representative

HEARING: Video Conference Oral Hearing held on April 28, 2021

HEARD BY: Corrado Cirinna, Appeals Resolution Officer

DATED: May 28, 2021

ISSUES

1. The worker objects to the case manager decision dated September 5, 2019. This decision denies loss of earnings (LOE) benefits from May 6 to May 14, 2019.

2. The worker objects to the case manager decision dated January 9, 2020. This decision finds the employer did not breach its reemployment obligation.

3. The worker objects to the case manager decision dated January 21, 2020, which finds the worker was not entitled to any LOE benefits subsequent to his termination on October 1, 2019.

BACKGROUND

The worker was employed as a sheet metal installer and had worked with this employer since 2017. In May 2019, the worker reported an onset of pain in his neck, upper back, right shoulder and arm area that he attributed to installing an HRV unit.

Entitlement in this claim was allowed for healthcare benefits. No loss of earnings benefits were initially paid as the worker was apparently able to continue working in modified duties offered by the employer.

It later became apparent that at the outset of the injury, the worker had missed some time from work between May 6, 2019 and May 14, 2019 that he attributed to the work injury. In a decision dated September 5, 2019, the case manager denied LOE benefits for this timeframe as the employer had offered suitable work that the worker declined.

On October 1, 2019, the worker was terminated for what the employer characterized as “just cause”. When the worker contacted the WSIB to enquire about LOE benefit eligibility, the file was referred to a re-employment case manager to determine if the employer had breached its re-employment obligation. In a decision dated January 9, 2020, the case manager determined the employer did not breach its re-employment obligation.

In a further decision dated January 21, 2020, the case manager denied LOE benefits from the date of termination based on the finding that until the termination, the worker had been performing suitable work with the employer. Since the termination was not considered to be in any way related to the work injury, the case manager found the worker’s loss of income starting on October 1, 2019 was not related to the workplace injury.

In December 2020, the worker received an 11% non-economic loss (NEL) award for the permanent impairment resulting from this injury.

AUTHORITY

18-03-02 Payment and Review of LOE Benefits

19-05-02 Re-employment Obligation in the Construction Industry

19-05-03 Compliance with the Re-employment Obligation-Construction Industry

19-05-04 Re-employment Penalties and Payments

ANALYSIS

In arriving at my decision, I had regard for all the information contained in the file and the applicable policies. I also considered all the information gathered during the course of the oral hearing including the testimony of the worker and the employer witnesses.

Synopsis of Worker Testimony

• The worker provided a brief employment history, which spans more than 20 years working as a gas fitter as well as a residential and commercial HVAC mechanic. He indicates that he was hired by this employer in October 2017, immediately after his first meeting the company owner.
• The worker indicates that his work with this employer involved HVAC work including the installation of sheet metal and duct systems.
• The worker indicates that he had never had any disciplinary issues with any employer he worked with, and that early on in his relationship with this employer there were no issues. He also noted that he received a $5000 bonus after his first year for playing an integral role in the early completion of a townhouse project.
• The worker indicates that his first informal disciplinary notice came in December 2018, when he pulled his crew from a job due to some safety concerns. He indicates the builder was not happy about this and called the management of this company to complain about what he had done.
• The worker testified there was subsequently a further issue/disagreement with the employer due to a payroll issue.
• The worker made reference to the fact that in one of his performance reviews someone added a hand written comment after the fact which stated, “anger issues major problem”. He indicates this comment was added after the fact, was never discussed with him, and only came to his attention subsequent to his termination
• In terms of the brief absence from work starting on May 6, 2019, the worker indicates that he injured himself the previous Thursday but he came in to work on Friday, although he was in severe pain the entire shift. He then decided to take a couple of off starting on May 6, 2019 due to ongoing neck and shoulder symptoms, but he indicates the employer threatened to fire him if he did not report for work.
• He testified that when he did return to modified duties this consisted of shredding paper, cleaning dishes and cleaning windows. He indicates the employer also wanted him to cut the grass on the premises using a tractor, but he did not feel physically capable of doing so. He indicates that he performed these job duties for a couple months before returning to the essential duties of his pre-injury job.
• He indicates that by the end of August 2019, he was essentially performing his pre injury job duties but often had trouble lifting and doing any overhead work, so he was provided with a helper.
• The worker readily acknowledges that there was a conflict with one of the new hires (C) that was assigned to work with him as an assistant. The worker indicates that he had issues with C’s work ethic and he had a hard time taking direction. The worker indicates that he spoke to his immediate supervisor and told him that he did not want to work with C again. He indicates the employer consented to this request and he was then given high school co-op students to work as his assistants.
• The worker testified that the journeyman that C was assigned to also did not want to work with him either and found him difficult. He indicates that when the other journeyman did not report for work on September 30, 2019, C was assigned to him again. He indicates that on the way to the job site, C proceeded to question him about his injury, and why it was taking so long for him to recover. The worker indicates that he told C that he did not want to discuss his injury with him. He indicates that C continued to speak with him in a confrontational manner, and this was upsetting to him. He therefore turned the work van around and went back to the employer’s premises to drop C off at the shop as he was refusing to work with him. This occurred at approximately 7:30 AM. He indicates that when he returned to the employer’s premises, C refused to get out of the truck and was yelling at him.
• The worker indicates that he went to the office to advise them of what was happening and told them that he was refusing to work with C. He then took C’s tools out of the truck and placed them on the driveway, when C refused to do so on his own. The worker indicates that no one ever spoke to him about the incident in order to get his side of the story, or what led up to the confrontation.
• The worker indicates that he was scheduled to have a return to work meeting with the employer and the WSIB on October 1, 2019. He testified that he received a text message at 5 PM on September 30, asking him to come to work approximately 30 minutes before the scheduled meeting. When he attended as asked, he was notified by the employer that he was fired for cause as a result of this incident with C. The worker indicates that he was not asked to provide his version of events at any point during the employer’s investigation of the incident.
• The worker indicates that he did not receive any severance or any other benefits from the employer. Following his termination he received Ontario Works benefits and later Employment Insurance benefits until October 2020. The worker indicates that he is still unable to return to his pre-injury work, but would like to be retrained in new career path.
• The employer representative questioned the worker about the extent of the job duties that he was performing when he did return to HVAC installations. The worker acknowledged that he would sometimes do more than he was physically capable of doing, because it was his nature to do so, but he struggled and was often in pain.

Testimony from KF

• KF testified that he is employed as an HVAC scheduler and helps with the company modified work program. He testified that the employer would have provided modified duties from the outset if it was aware of the worker’s injury. He also testified that he did not and would not have threatened the worker with termination if he did not come in to complete the paperwork regarding the injury.
• He indicated that it was his understanding the worker would make a full recovery from his injuries and that the modified accommodations given to the worker were a temporary measure.
• He indicates the worker always pushed himself and admitted he could not slow down due to his work ethic. Mr. KF indicates that he only assigned the worker job duties that were within his restrictions.
• When asked about the incident with the coworker on September 30, 2019 that led to the worker’s termination, Mr. KF indicates that he did not witness anything and was not present when this altercation occurred. He did acknowledge that the worker emphatically told him he did not want to work with the other worker involved in the altercation. He agreed that he had told the worker that he would not have to work with that individual. However, they had made an exception on September 30, 2019, when another employee was absent.

Testimony from DM

• Mr. DM testified that he works as a purchasing agent with the employer and is generally in the warehouse in the mornings. He indicates that on the morning of the incident involving the worker and coworker, he noticed the worker was yelling and stating that his helper was useless, lazy, and would soon not have a job.
• He testified that he had to come between both of them in order to avoid a physical confrontation. He indicates he was surprised this disagreement reached that level, and noted that the helper involved in the altercation quit his job after this incident.
• It was his view that the worker was a “problem” and was the aggressor in this altercation. He testified that the worker threw the helpers tools out of the truck and they had to be picked up as they were scattered throughout the ground.
• He did acknowledge that although the worker was a large imposing figure and had seen him get loud, he had never seen him be this upset.

Testimony from Mr. CL

• He testified that he has worked with this employer for 15 years and is currently employed as the HVAC manager. He indicates that he has done the HVAC job before, had a license and is fully ticketed.
• Mr. CL acknowledged that individuals who are fully licensed are difficult to find, and that was one of the reasons they hired this worker quickly when they met him. He described the worker as outspoken, passionate about what he did, meticulous and cared about his work.
• He indicated however, that the worker was noted to have a bad temper and had difficulty letting things go. He described an incident where a co-worker had played a practical joke on the worker and he reacted by kicking to co-worker in the rear end. He acknowledged that this incident was never documented in any way and no disciplinary action taken.
• Mr. CL went on to describe different incidents involving the worker and his temper and referred to incidents where the worker apparently threatened violence although he acknowledged that virtually none of these incidents are documented in the way. He testified that some of these incidents were overlooked because of the worker’s dedication and workmanship to his job.
• He acknowledges that the worker was terminated primarily based on version of events reported by Mr. DM. He did not contest the fact that no in person or telephone statement was obtained from the worker about the incident in question.

LOE Benefits from May 6 to May 14, 2019

Policy 18-03-02 states in part that if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.

Decision

I find the worker is entitled to full LOE benefits for the time missed from work between May 6, 2019 until May 14, 2019, when he returned to modified duties with the employer.

Reasons for the Decision

• At issue is whether the worker was able to return to work in any capacity on Monday May 6, 2019. The employer maintains the worker did not initially report his neck and shoulder symptoms as being work related. Otherwise, they would have been offered the worker suitable work from the outset.
• When reviewing the text exchanges between the worker and the employer, I note the worker contacted the employer on May 6, 2019 and indicated he would not report for work due to neck pain. Another text the following day indicates he needed another day off work because he had pulled a muscle in his neck the previous Thursday or Friday. The employer asked whether it was work related and the worker responded that he was uncertain. The employer notified the worker that if he was claiming his injury was work related, he was to come in at 8:00 AM that morning (May 7) to complete paper work and begin modified duties.
• Based on a text from the worker to the employer late in the day on May 7, 2019, it appears he preferred to not file a WSIB claim or do modified duties, and thought the pain pills he was prescribed would be sufficient. The worker does not state in any of his text exchanges with the employer that his injury was not work related. He indicated he would be in the next day and did in fact return to work performing his regular job duties.
• On May 9, 2019, the worker once again sent a text to the employer indicating he was in too much pain to report to work. On that date, he confirmed that the injury occurred while installing an HRV unit the previous week, and the injury was work related.
• The Health Professional’s Report (Form 8) dated May 13, 2019 authorizes the worker to return to modified duties with restrictions.
• The only written offer of modified work on file is dated May 13, 2019. The worker accepted this modified job offer and returned to work the next day.
• While I have no reason to doubt the employer would have attempted to accommodate the worker in what it believed were suitable work accommodations, a worker’s ability to return to work should be based on an assessment of all relevant information, not simply/solely the availability of modified work. There are circumstances where it may not be practical or reasonable to conclude the worker is able to perform any work so soon after a work injury, and it must be recognized there are cases where “rest” is in appropriate form of treatment and required in order to speed the recovery process and facilitate a successful return to work.
• In this case, the worker initially took two days off work and then attempted to return to work on May 8, 2019. However, he experienced increased symptoms and was unable to report to work the following day. Once he sought medical treatment and was given work restrictions, the information was provided to the employer and the worker accepted the employer‘s offer of modified duties on May 13, 2019 and promptly returned to work.
• I accept that during the initial/acute phase of the injury, the worker was unable to return to work in any capacity and required a brief period of time off work in order to recover. The amount of time missed from work (5 days) was not excessive or unreasonable, and under the circumstances, I find the worker is entitled to full LOE benefits during this timeframe.

Re-employment and LOE Benefits from October 1, 2019

Construction employers are required to offer to re-employ their injured construction workers who have been unable to work due to a work-related injury. A construction employer's obligation to re-employ begins when it is notified that an injured construction worker is medically able to perform the essential duties of his or her pre-injury job, suitable construction work, or suitable non-construction work.

In terms of the duration of the re-employment obligation, a construction employer is obligated to re-employ until the earliest of the following circumstances. Two years from the date of injury, one year after the worker is medically able to do the essential duties of the pre-injury job, the date the worker declines an offer of work, or the date the worker reaches age 65.

Policy 19-05-03 states in part that if a construction employer terminates an injured construction worker’s employment within 6 months of having re-employed him or her, the WSIB presumes that a breach of the re-employment obligation has occurred. Employers can rebut the presumption by showing that the termination of the worker’s employment was not caused in any part by the work-related injury, treatment for the work-related injury, or the claim for benefits.

Relevant evidence which may be provided by the employer to rebut the resumption includes but is not limited to; the terms of the collective agreement, pre-existing, written company policy, established company practices, and/or records demonstrating that an escalating discipline regime, culminating in termination, was applied to the worker for reasons unrelated to the work injury.

In this case, the worker initially returned to sedentary duties at the employer’s premises and continued to perform these light duties until late August or early September 2019 when he resumed HVAC duties that mostly involved the essential duties of his pre injury job. However, due to his ongoing restrictions, which included an inability to do any overhead work or heavy lifting, he was given accommodations, which included a helper. Based on the information regarding the timing of the worker’s return to the essential duties of his pre injury job, I find the employer’s re-employment obligation lasts until September 1, 2020, which is one year from the date he resumed some of the essential duties of his pre-injury job.

The worker was terminated on October 1, 2019, which was during the period of time that the employer continued to have a re-employment obligation. Additionally, given the timing of the worker’s termination, which occurred within 6 months of the worker’s return to work, the applicable policy requires that I begin with a presumption that the employer breached its re-employment obligation. Unless the employer can rebut this presumption by illustrating the termination was not in any way related to the work injury or the claim for benefits, then the employer is considered to be in breach of the re-employment obligation.

Policy 18-03-02 states in part that if a worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process. The policy goes on to state that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits.

Decision

I find the employer was in breach of its re-employment obligation and did not rebut the presumption that the worker’s termination within six months of re-employment was in part due to the workplace injury or the claim for benefits.

Based on the timing of my finding that the employer breached the re-employment obligation, the employer has not been given an opportunity to come into compliance, and the obligation period has now expired. Therefore, I find that no re-employment penalty is applicable.

At the time of his termination on October 1, 2019, the work continued to require significant accommodations that would not have been available with other employers. He was also co-operating in a medical rehabilitation program.

The worker is entitled to full LOE benefits from October 1, 2019 until February 12, 2020, which is the date he was discharged from the Upper Extremity Specialty Clinic program.

The worker is entitled to partial LOE benefits from February 12, 2020 until the date of this decision based on his ability to work in an entry level customer service occupation earning $14.00 per hour (Ontario minimum wage).

The worker requires permanent accommodations as a result of the work injury, and his ability to find the necessary accommodations in his pre injury occupation is highly questionable. The worker is to be referred work transition (WT) assistance so that a suitable occupation (SO) can be identified to assist him in his efforts to return to the work force.

The worker is entitled to full LOE benefits from the date of this decision and ongoing while he is co-operative in the WT process.

Reasons for the Decision

• Although the employer has indicated there were progressive disciplinary issues and referenced previous disciplinary action, I note there was only minor disciplinary activity relating to the worker. The employer made reference and allegations of other conduct by the worker that could have resulted in disciplinary action, yet by its own admission none of these alleged incidents were ever documented in the worker’s personnel file and they cannot be verified.
• Based on my review of the events that took place on September 30, 2019, there was clearly a dispute about the actual version of events. I find it to be somewhat troubling that the decision to terminate the worker was made within hours of the incident, and there did not appear to be a complete and comprehensive investigation of the events leading up to the incident at the work place. More importantly, there was no in person or telephone meeting held with the worker to get his version of the events, and the employers findings were never shared with the worker so that he could dispute the contents of any of the information gathered by the employer about the incident.
• In terms of any other conflict between the worker and other individuals in the workplace, there is no evidence or documentation abusive, aggressive, or threatening behavior. The fact is that there is no contemporaneous documentation involving other alleged incidents and they only seem to have been raised well after the fact as a means to justify the worker’s termination. I have absolutely no way of verifying the veracity of these incident, which the worker has denied. In addition, I note that when reviewing the employer’s decision over disciplinary policies, it does not appear it fully adhered to these policies based on the fact the employer proceeded directly to termination.
• The employer’s workplace harassment policy defines workplace harassment as persistent or excessive negative behaviour towards a worker in the workplace, which includes engaging in verbal abuse such as yelling, name-calling, and making threats.
• The employer’s workplace violence and harassment policy defines workplace violence as a statement or behaviour of physical force that causes or could cause physical injury. Examples provided in the policy include physical acts such as hitting, pushing, throwing an object at a worker and any threatening behaviour or action that is interpreted to carry the potential to harm or endanger.
• The employer’s progressive discipline policy makes reference to the different processes that would lead to the termination of employment. Actions such as unnecessary use of profane, abusive or boisterous language on the employer premises are treated with a progressive disciplinary process that includes verbal warnings, written warnings, and suspensions. Threats, fighting, or other physical actions against another individual while on company premises would garner a written warning followed by a suspension on the second violation followed by termination on the third occurrence. The policy does state however that depending on the severity of the action, management reserves the right to advance the progressive discipline to a higher level that fits the violation.
• The worker’s version of events was outlined in his email message indicating that his assistant was essentially questioning his injury, and the fact it was taking so long for him to recover. There seems to be some consistency in that the assistant (B) acknowledged that he did indicate to the worker that he did not realize someone’s shoulder could get hurt that back from doing this type of work. It is at this point that there is considerable dispute and discrepancy about what was said between the worker and B and what would occurred when they return to the employer’s premises.
• During the course of the oral hearing, there was multiple references to the fact that the worker can come across in an aggressive and somewhat threatening manner in his interactions, in part due to the fact that he is a large, physically imposing individual. However, there is no indication that the worker made any threats of physical violence or that the altercation with (B) became physical in any way.
• It is difficult to determine with any degree of certainty what actually occurred in terms of the conflict between the worker and B on September 30, 2019. The difficulty I have is that there are two very divergent versions of what took place. As is typically the case in such matters, the reality of what occurred likely lies somewhere in the middle. Based on the information I have been able to discern, including testimony during the oral hearing, there was clearly a heated conversation between the worker and his assistant B. Both parties raised their voices and likely made regrettable comments. Having said this, I am satisfied there were no physical threats made by either party and there was never an imminent threat of a physical altercation.
• Part of the difficulty I have is that the employer did not conduct a comprehensive and fundamentally fair investigation of the circumstances, which one would reasonably expect before any drastic action such as a termination takes place in a situation such as this.
• I see no indication anywhere in this file that the worker had ever received any written warnings or suspensions regarding any loud, abusive or boisterous language or perceived physical threats. There is also no evidence of an imminent threat of a physical altercation arising from the September 30, 2019 incident. Despite this, it appears that the employer determined that this particular incident was of such a severity that it warranted immediate progression to termination.
• It is my view that the one of the factors that should be considered in this process is whether the employer's response was disproportionate to the alleged offense. If so, what might be some of the possible reasons for such a disproportionate response.
• I have not been provided with any convincing information that would reasonably lead me to conclude that the incident of September 30, 2019 was of such an egregious nature that it was the sole reason that the worker was terminated. Since the only other variable of any significance was the fact that this worker had suffered a workplace injury that continued to require ongoing accommodations, one cannot exclude this is a contributing factor in the employer's decision to terminate the worker.
• Ultimately, I find the employer has not convincingly dispelled the presumption that the work related injury was a contributing factor in the decision to terminate the worker’s employment.
• Policy 19-05-04 states in part that re-employment penalties are not levied unless verbal and written notice of a re-employment breach has been provided to the employer and the employer has been given a reasonable opportunity to comply. In this case, this is the first notice to the employer that it was not compliant with its re-employment obligation. At this point, the obligation has expired and there is no obligation by the employer to come into compliance.
• Aside from the fact that the employer was in breach of its re-employment obligation, it appears there was an expectation that the worker would make a full recovery from his injuries and eventually not require any accommodations. This did not occur as evidenced by the fact the worker has been granted a permanent impairment award. It is not clear if the employer would have been able to provide ongoing suitable work accommodations. Given the fact that this worker is unable to return to his pre-injury job duties without some accommodations, he should be provided WT services to identify a suitable occupation and assist him in his efforts to return to the workforce.
• Following the worker’s termination on October 1, 2019, he continued to co-operate in a medical rehabilitation program to get a better understanding of the extent of his injuries. He attended a comprehensive assessment at the Upper Extremity Specialty Clinic on November 1, 2019. At that time, it was determined that further medical investigations were warranted to better understand the extent of the worker’s injuries and determine possible surgical intervention. The worker attended medical investigations that include an EMG on November 13, 2019 and a MRI of the cervical spine on December 12, 2019. Ultimately, he was discharged from the Specialty Clinic program on February 12, 2020 and at that time it was determined that surgery for his neck was not warranted, however he might benefit from the surgical procedure to the shoulder. I find that during this timeframe the worker was involved in a medical rehabilitation program and should therefore be entitled to full LOE benefits during this timeframe.
• When he was discharged from the Upper Extremity Specialty Clinic, the worker was considered capable of returning to light or sedentary work. Given the extent of the accommodations that he would require, a return to the essential duties of his pre-injury occupation as he had done with the employer would be highly unlikely with any new employer. Given that the worker was capable of pursuing light or sedentary work, I find that he could return to light sedentary work in an entry level customer service clerk position.

CONCLUSIONS

1. The worker is entitled to full LOE benefits for the time missed from work between May 6, 2019 until May 14, 2019.

2. The employer was in breach of its re-employment obligation and did not rebut the presumption that the worker’s termination within six months of re-employment was in part due to the workplace injury or the claim for benefits.

3. Based on the timing of my finding that the employer breached the re-employment obligation, the employer has not been given an opportunity to come into compliance, and the obligation period has now expired. Therefore, I find that no re-employment penalty is applicable.

4. The worker is entitled to full LOE benefits from October 1, 2019 until February 12, 2020, which is the date he was discharged from the Specialty Clinic program.

5. The worker is entitled to partial LOE benefits from February 12, 2020 until the date of this decision based on his ability to work in an entry level customer service occupation earning $14.00 per hour (Ontario minimum wage).

6. The worker requires permanent accommodations as a result of the work injury, and his ability to find the necessary accommodations in his pre injury occupation is highly questionable.

7. The worker is to be referred for work transition (WT) assistance so that a suitable occupation (SO) can be identified to assist him in his efforts to return to the work force.

8. The worker is entitled to full LOE benefits from the date of this decision and ongoing while he is co-operative in the WT process.

The worker’s objection is allowed in part.

DATED May 28, 2021.

Corrado Cirinna Appeals Resolution Officer Appeals Services Division