WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20210013
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
HEARING:
HEARING IN WRITING
HEARD by:
D. GOWANLOCK, appeals resolution officer
DATED:
JUNE 14, 2021
ISSUE
The worker is objecting to the Case Manager decision dated May 15, 2020 confirming the payment of a partial loss of earnings benefit based on 40 hours a week and $21.50 per hour.
BACKGROUND
According to the Employer’s Report of Injury – Form 7, the worker was hired by the employer and employed as a Police Constable. On September 6, 2017 the worker reported contributing events including an accidental discharge of his firearm during a foot pursuit on September 22, 2016, followed by the second reported contributor, the worker’s involvement in an undercover operation as part of a homicide investigation for approximately seven months.
Under memo #A0003, the Case Manager documents that the worker was involved in a high risk arrest of a suspect when during the struggle, he accidentally discharged his service weapon. He was unable to forget/remove the feeling of his stress around this event and sought treatment and through his employee assistance program and his doctor. His physician recommended that he see a psychologist to address symptoms of post-traumatic stress disorder (PTSD). He was advised by the employer’s Human Resources department to file a claim for PTSD. He stopped working on August 28, 2017.
On November 15, 2017, initial entitlement was accepted for traumatic mental stress.
The worker continued to participate in treatment until August of 2018 at which time arrangements were made for the worker to participate in return to work activities. In October of 2018, the worker’s treating psychologist recommended that the worker not return to work to police work in any capacity on a permanent basis.
In December of 2018, a Work Transition Interim Plan was put into place. The worker was provided with the opportunity to secure his Z license for Air Brakes. In January of 2019 he was able to find a temporary job driving a truck. In February he worked two part time jobs, one driving and a second job working at a beef feed lot.
In March of 2019, the worker was awarded a 15% Non-Economic Loss (NEL) benefit for Adjustment Disorder with Anxiety and Depressed Mood.
The Work Transition Plan Proposal dated July 26, 2019 notes that the worker expressed and demonstrated a high level of motivation in regard to a career in agriculture NOC 8252 - Farm Supervisor, or NOC 0821 Farm Manager. He independently researched the SO and networked extensively within his community, successfully securing employment. After researching the options, the Work Transition Specialist (WTS) recommended consideration for the SO of Farm Manager NOC 0821, the SO in which the worker was now employed. On July 29, 2019 the WTS Plan was closed.
In a letter dated May 15, 2020, the Case Manager wrote to the worker advising that after a review of his pay statements and noting that he was consistently working less than 40 hours per week, his partial loss of earnings benefit was adjusted based on the determined wage for the suitable occupation of Farm Manager based on 40 hours a week and $21.50 per hour. The Case Manager determined that the worker was under-employing himself and therefore, his partial loss of earnings benefit should be calculated based on his ability to work full time, 40 hours a week.
The worker representative objected to the May 15, 2020 decision and provided a written submission dated December 18, 2020. The decision was reconsidered, upheld, and communicated to the workplace parties in writing on January 19, 2021.
The worker objects to the May 15, 2020 decision.
AUTHORITY
Operational Policy Manual Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) January 2, 2018
ANALYSIS
In my review I have had regard for the case file documentation, relevant policy, legislation and the submissions put forth by the worker representative and the employer representative with respect to the issue. I have considered all the evidence and the following is a summary of my decision.
Worker Representative Submission
Subsequent to the May 15, 2020 decision, the worker representative provided a written submission arguing that the loss of earnings should be paid based on the worker’s actual earnings, rather than $21.50 per hour for a 40-hour work week.
The worker reported that he is actually earning $22.00 per hour, which is higher than the designed SO rate, however he is not capable of a full-time work week of 40 hours. Since starting this employment, he has been averaging approximately 25 hours per week, and the representative submits that this is due to the extent of his PTSD and related symptoms. He puts in full effort into his workdays but is only able to manage a part time work week due to his issues with sleep, and PTSD symptoms. He has made attempts to work full time hours, and even over time hours during the past fall season due to a short harvest window, and found that as a result, he experienced an increase in his symptoms, and had to take a week of work at the end of November to recover. His employer is aware of his condition and is understanding and flexible with the worker’s schedule.
The worker has been permanently restricted from returning to full-time employment “because it is not psychologically or emotionally safe to do so” as documented in Dr. Switaj’s March 20, 2020 Progress Report. She further elaborated that the worker’s recovery continues to fluctuate when triggered, and this does affect his practical ability to take on full-time employment.
It is the position of the worker representative that the worker has mitigated his wage loss as best as possible, given the extent of his ongoing PTSD symptoms, and therefore submits that it is reasonable to pay his benefits based on his actual reported earnings, rather than a full-time work week.
In a further written submission dated June 1, 2021, the worker representative references policy 18-03-02 and actual employment earnings and provides two Affidavits, one from the worker and one from his wife in order to address the employer’s submission.
Employer Representative Submission
The employer is participating in the appeals process and provided a Respondent Form dated April 28, 2021 including a written submission. The worker would, in the ordinary course, have been capable of working forty (40) hours per week in the SO given there is no evidence of a limited job market and given there is no current medical evidence of an inability on the part of the worker to engage in work as a Farm Manager.
According to the employer representative, the worker has chosen to work less than forty (40) hours per week in the SO because he owns and operates a full time farming business and is voluntarily under-employed for the purposes of determining his loss of earnings benefits.
In terms of evidence, the employer representative provided a chronology of events in terms of the worker’s personal business and argues that the worker would be hard to work forty (40) hours per week for a third party all the while working at his own full time beef farming operation. Copies of the worker’s “tweets” from his Twitter social media account for the business from April 13, 2018 through to February 20, 2021 were included.
Issue: The calculation of the partial loss of earnings benefit as of May 2020
I find that the partial loss of earnings benefit is to be calculated based on an average of 25 weekly hours of employment. I arrived at this decision based on the following:
Policy
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part 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. Examples include but are not limited to
workers who return to work at reduced hours or wages, and
workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
Determined earnings are the earnings associated with the identified SO, and are based on current labour market wage information. The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker
will not be provided with WR services
remains unemployed at the completion or closure of the WT plan
is underemployed in a job not identified in the SO, or
is voluntarily underemployed in the identified SO.
A worker is considered to be underemployed when employed in a way that does not make full use of the worker’s abilities, skills, and training in mitigating the loss of earnings resulting from the work-related injury/disease (e.g., employed in the identified SO at reduced hours, employed in a lesser paying job not identified in the SO). In cases where a worker is employed in the identified SO but at reduced hours or lower wages than what was projected, the WSIB examines why the earnings and/or hours have been reduced to determine whether the worker is voluntarily underemployed. Factors that indicate the underemployment may not be voluntary include
unforeseen aspects arising from the type of employment
probationary period, and/or
changing work requirements or demands.
Case Details and Findings
In May of 2020, the Case Manager decided to adjust the worker’s partial loss of earnings benefit based on the determination that the worker was under-employing himself and that he was capable of working full time, 40 hours a week. The issue was reconsidered in January of 2021 and the Case Manager notes that there is simply no objective medical findings to support the fact that the worker can only work partial hours.
In determining whether the worker’s partial loss of earnings benefit should be based on full time 40 hours week or the worker’s actual average weekly hours of 25, I am persuaded that the partial loss of earnings benefit should be based on 25 hours per week on average. In arriving at this decision, I relied on the following:
In reviewing the worker’s paystubs from January of 2019 through to June of 2020, the worker worked initially for two employers and then solely for the new employer for a total of 1997.97 hours over 18 months. The worker’s was able to work first as a truck driver and then as a Farm Manager for an average 25 hours per week.
Although the employer representative argues that the worker has chosen to work less than forty (40) hours per week in the SO because he owns and operates a full time farming business and is voluntarily under-employed for the purposes of determining his loss of earnings benefits, I am unable to agree with this position for the following reasons:
In her March 20, 2020 report, Dr. Switaj notes the following:
The current level of functional abilities to work in any capacity, including functional status:
Activities of Daily Living (ADL): No significant current limitation
Social functioning: Limited function – situational dependent and specific.
Concentration, Persistence, and Pace: Episodically limited function. However, he continues to report episodic severe functional impairment when triggered by specific situational events.
Adaptation to stress: Limited capacity, episodically triggered by specific situational events.
On page 2, under section 6 states Dr. Switaj notes:
the worker is permanently restricted from returning to police work in any capacity for the reason that it is not psychologically or emotionally safe or secure for him to do so.
The worker is permanently restricted from returning to full-time employment because it is not psychologically or emotionally safe for him to do so.
There is no other medical reporting on the case record after March of 2020 that addresses the worker’s psychological health. Based on the PTSD diagnosis and the worker’s level of psychological impairment, Dr. Switaj confirms that the worker is permanently restricted from returning to full-time employment because it is not psychologically or emotionally safe for him to do so.
Contrary to the positions of the Case Manager and the employer representative, there is medical reporting in support of the worker’s inability to work full time, as confirmed by Dr. Switaj. There is no medical reporting on the case record to indicate that the worker can return to work full time.
Further, according to the worker representative in her more recent submission, the employer representative provided only selected posts from the worker’s social media account. In reviewing the “tweets” provided, I did not find that they confirm one way or the other, the worker’s ability to work full time or part time and therefore, I did not afford any weight to this evidence.
I also relied on the Affidavits provided by the worker and his wife. I found their written statements compelling and supportive of the worker’s position. For example, the worker, under section 13 notes:
That I truly enjoy working on the farm with the animals and being outside. I get along well with my employer and have gotten two raises since starting work there. Since my time working there, I have had days and weeks where I feel anxious and depressed. Sometimes it is from triggers I experience or sometimes I have no idea why I feel the way I do. I have shared with my boss my diagnosis of PTSD. He has accommodated me with allowing me to attend my various doctor’s appointments that I have every month. I develop migraine headaches at times and have had to call in sick.
Last fall (Dec 2020), I became depressed and could not function enough to work. He allowed me to take the time I needed off to feel better. I also became anxious and depressed in the spring due to triggers related to Policing. I then took 2 weeks off with my boss telling me to take the time I need to get better.
I spoke to my medical doctor and Psychologist at this time. I have appointments every two weeks now with my Psychologist. I constantly battle with my mental health. I am not able to function properly at a 40 hour a week position consistently. I am able to get through planting and harvesting seasons. I do love the work but also know that the hours will be reduced after these seasons. I become wore out easily since developing PTSD. This causes anxiety, headaches, depression, insomnia, nightmares and other issues.
The worker’s wife in her Affidavit in section 10 states:
The farm work takes approximately 20 minutes per day to check on them and then about 1 to 2 hours a week for feeding. We hay a couple of times a year which is a couple of days work which is done on weekends or using vacation days. Our 18 year old son and 17 year old daughter help out as well. This is something that our family does together. We are proud of our farm even though it is a hobby operation and like to post about it on Twitter. My husband often posts on Twitter not only about our farm but also his work at his employer’s.
Under section 10, the worker’s wife goes on to state:
Our hobby farm has absolutely no correlation with him working reduced hours at the farm. The work spent on our farm would be manageable with a full time position if he was working on the police force or any other full time position. We ran a hobby farm with him working full time and not living at home and newborn children before. We would be able to run it now working full time and with our grown
children.
Therefore, I am persuaded that the worker’s partial loss of earnings benefit should be based on an average of 25 hours a week, having regard for the medical reporting provided by Dr. Switaj confirming the worker’s ability to only work in part time employment in response to his ongoing PTSD symptoms, and the written statements provided by the worker and his wife. Based on policy 18-03-02, I am satisfied that the worker is not under-employing himself.
Policy 18-03-02 also states that in terms of actual employment earnings, the circumstances in which the WSIB bases post-injury earnings on actual employment earnings include those where a worker is employed in the identified SO with the injury employer or a new employer, even if the earnings are not consistent with current labour market wage information.
As a result of my analysis, I find that the worker’s ongoing partial loss of earnings, as of May of 2020, is to be based on the worker’s actual average weekly hours of 25, subject to yearly reviews and hourly wage increases.
CONCLUSION
I conclude:
The worker’s ongoing partial loss of earnings, as of May of 2020, is to be based on the worker’s actual average weekly hours of 25, subject to yearly reviews and hourly wage increases.
The worker’s objection is allowed.
DATED June 14, 2021
D. Gowanlock
D. Gowanlock
Appeals Resolution Officer
Appeals Services Division