APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20220140
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER (NOT-PARTICIPATING)
REPRESENTED by: NONE
HEARING: VIDEOCONFERENCE
HEARD by: S. Di Carlo, Appeals Resolution Officer
ADDITIONAL ATTENDANTS: OBSERVER, EMPLOYEE FROM WORKER REPRESENTATIVE OFFICE
ISSUES
The worker through his representative objects to the Case Manager’s (CM) decision dated August 30, 2019, which denied loss of earnings (LOE) benefits following the worker’s April 3, 2019, termination from the accident employer.
The decision was reconsidered on January 17, 2022, and upheld.
PRELIMINARY ISSUE
At the oral hearing, WR1 represented the worker; however, subsequent to the oral hearing correspondence dated November 4, 2022, was received from Worker Representative Office confirming the worker’s representative has changed from WR1 to WR2. As such, this decision has been addressed to the worker’s updated representative.
BACKGROUND
On May 19, 2018, this truck driver sustained a workplace injury when he fell from a truck resulting in a right distal radius fracture. An open reduction internal rotation fixation (ORIF) surgery was performed on May 22, 2018.
Entitlement was accepted for a right distal radius fracture and the worker returned to light duties on June 1, 2018.
The worker continued with conservative post-operative therapy in the community and modified duties with the employer.
On April 3, 2019, the worker’s employment was terminated with the accident employer. At the time of the termination, the worker was performing modified duties.
In a decision dated August 30, 2019, the CM determined that the employer terminated the worker’s employment with cause effective April 3, 2019, and therefore, there was no entitlement to LOE benefits beyond April 3, 2019. The CM determined at the time of the termination there was no wage loss as the worker was performing accommodated work duties and concluded that the worker’s wage loss as of April 3, 2019, was due to the termination of the worker’s employment and unrelated to the workplace injury.
In the same decision, the CM determined that the worker reached maximum medical recovery (MMR) following the assessments at the Specialty Clinic on August 9, 2019 and extended the worker’s entitlement to include right wrist fracture with subsequent scapholunate ligament disruption and post-traumatic right wrist arthritis. The CM determined no further recovery is expected and that the Specialty Clinic assessments provided clinical evidence of an ongoing work-related impairment to for the worker’s right wrist injury. The worker’s accepted permanent functional limitations included:
- No work involving handling loads (lifting, pushing, etc.) above 5lbs on an occasional basis
- No repetitive use of right hand and wrist
In January 2020, the worker was awarded a 7% Non-Economic Loss (NEL) for the right wrist distal radial fracture, scapho-lunate ligament disruption, post-traumatic arthritis impairment.
In a submission dated November 23, 2020, the worker representative requested a reconsideration of the August 30, 2019 denial of LOE benefits post-termination and submitted that the worker was performing highly modified work just prior to his termination and would continue to need such modified work due to his permanent restrictions. The worker representative contended that it is more likely than not that the worker’s termination was related to the worker’s injury and permanent impairment.
The CM conducted a reconsideration on January 17, 2022, and reviewed the worker representative’s submission and upheld the conclusion that the worker’s termination of April 3, 2019 was with cause due to an employment matter and was not related to the May 21, 2018, workplace injury. The CM upheld the denial of LOE benefits from April 3, 2019, onward.
The worker representative’s objection to the denial of LOE benefits following the worker’s termination of employment as of April 3, 2019, now forms the basis of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997.
Operational Policy Manual
| Published | |
|---|---|
| Policy 18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review) | January 2, 2018 |
| Policy 19-02-01 – Work Reintegration Principles, Concepts, and Definitions | December 3, 2012 |
| Policy 19-02-02 – Responsibilities of the Workplace Parties in Work Reintegration | January 2, 2015 |
ANALYSIS
I have carefully considered all of the available information, the worker’s testimony, the worker representative’s submissions, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker and the following is my rationale.
The worker representative positioned that the worker was employed as a truck driver and heavy equipment operator with the accident employer and it is the worker’s position that the decisions rendered in this appeal should be overturned. The representative submits that it is the worker’s position that he was terminated because he could not return to his pre-injury duties. The worker representative stated that in this case the CM determined the worker achieved MMR on August 29, 2019 and referred the worker for a NEL benefit and that the worker’s termination was related to the worker’s injury.
In the alternative, the representative submitted that the worker was cooperating in early and safe return to work (ESRTW) as set out in the Workplace Safety and Insurance Act (WSIA) and the worker’s termination was not an intervening event, and, did not break the chain of causation between the injury and the worker’s subsequent loss of earnings as the worker’s employability was affected by the worker’s residual permanent impairment.
The worker representative stated the issue in this appeal is whether LOE benefits are in order and whether the job duties the worker performed were sustainable or whether the worker broke the chain of causation. The worker representative maintains that the employer had no just cause to terminate the worker as the evidence within the case record does not find that the worker was at fault within two (2) of the four (4) warning letters. The worker representative indicates that one (1) letter suggests progressive disciplinary action yet no policy was provided to the worker and no action was taken aside from the worker being fired.
The worker representative submitted the employer’s main concern further to memo xx was enquiring on the worker’s responsibility to complete Functional Abilities Forms (FAF) every month and at no point during this conversation did the employer notify the WSIB about the possibility of terminating the worker.
The worker representative submits further to memo xx that the modified work provided by the employer was not suitable or sustainable and that while the employer attempted to provide the worker with modified work the worker was expected to work extended hours; however, the CM should have been aware further to the FAF of January 4, 2019, that the worker should have been working reduced hours.
The worker representative is seeking entitlement to full LOE benefits from April 3, 2019 to April 2020 when the worker secured new employment.
The employer is not participating in this appeal.
The worker provided oral testimony at the video conference hearing. The worker stated he is currently in his mid-fifties and his current source of income is WSIB. He indicated he has a prior claim that resulted in a 15% NEL benefit for a shoulder injury. The worker stated he began working for the accident employer in 2017 and had his workplace accident in May 2018. He stated that his regular duties involve various tasks as his former employer were subcontractors for Company A. He indicated they were responsible for moving different machinery, which involved the use a crane to load machinery onto a flatbed, and chaining the machinery down and then driving the equipment from point A to point B to point C. The worker indicated he was responsible for securing loads as the driver and was always moving equipment and items.
The worker stated his pre-injury driving duties were heavy work as they involved the use of chains and that the worker had to abide by the safety loads and getting around corners with wide loads. The worker stated he needed an A-Z license to drive the trucks and that all the trucks were of manual transmission, which required changing the gears with his right hand constantly.
The worker testified following his injury he returned to work with the employer and was performing office duties that consisted of sorting through papers: driver’s logs, shredding paper work, cleaning up the office and general cleaning work. He recalls performing these tasks for the first two (2) to three (3) months and then he indicated the employer needed a spare car jockey which was performed “on the fly” and that this position existed in the company before but was on a part-time basis. He stated he spent no more than 25% of his time upon his return to work driving as a car jockey for the employer. The frequency was maybe two (2) days in a row and then nothing for four (4) or five (5) days as there was no set schedule. The worker stated he was always the main driver. Other duties performed by the worker involved mopping the floor, taking out the garbage and cleaning up the break room.
The worker stated the car jockey driving duties included him driving distances to various cities in Ontario to pick up vehicles.
The worker stated that he was earning $xx an hour with the accident employer (his pre-injury wage) and believes the employer was paying other employees in the car jockey position minimum wage.
The worker stated following his May 2018, workplace injury he could no longer ride his motorcycle, 4-wheel ATV, or snowmobile as a result of his wrist injury and physical limitations.
The worker testified prior to his termination the accident employer was told by the WSIB Specialty Clinic that the worker could not return to his pre-injury job. Then the worker stated that the incidents the employer referenced at the time of his termination; the alleged incidents that led to his termination, that he was not found to be at fault by the police but that his employer found him to be at fault. The worker testified that he did not receive any warning letters by the employer for these incidents. The worker recalls speaking with his safety person at work yet no verbal warnings were provided to him.
During questioning, the worker recalled the February 21, 2018; incident that involved damage to the employer’s worksite and the worker stated that the light on site did not flash and was not working, which he stated was to blame for him causing damage to the building due to poor visibility.
The worker testified that he was not given a warning letter by the employer for any incidents; however, confirmed that he was involved in motor vehicle accidents (MVA) while driving company vehicles. The worker stated that he was not aware of any disciplinary procedures or suspensions; however, during questioning I referred to a letter issued to the worker by the employer dated March 1, 2018, which indicated the worker would be suspended on March 5, 2018, as the employer was following their progressive disciplinary action as the worker received a written accident warning for his most previous accident of January 26, 2018, and that the current letter was in regards to the employer’s concern of the damage the worker caused at gate 11 on February 21, 2018. The worker stated that he did not receive the letter addressed to him on March 1, 2018, even though the mailing address at the time of the letter was the worker’s correct mailing address. The worker did recall verbally being told by his supervisor not to go to work on March 5, 2018, but was unclear why.
The weeks prior to the worker’s termination, the worker stated that he was just cleaning around the office and he stated that he raised the issue with his employer about having to work extra hours with his employer prior to being terminated as he found working extra hours difficult with his wrist injury. I questioned the worker if this was an issue why did he not reach out to his CM at the WSIB, and he stated he did; however, there is no evidence of this in the case record.
The worker maintained that he was not advised of any disciplinary actions by the employer. During questioning, I indicated that the employer submitted the worker’s letter of termination dated April 3, 2019, along with documentation related to the worker’s termination. This package was sent to the WSIB on September 27, 2021, and included four (4) letters that were issued to the worker of incidents that occurred whether it was a motor vehicle accident (MVA) while on the job that he was involved in or a security load violation or damage to a company vehicle. Some of the letters did outline suspension, progressive discipline that could lead to termination; however, the worker maintained that he never received the letters.
During questioning, the worker maintained that none of the incidents the employer detailed were incidents that that worker was at fault. He stated that regarding the MVA’s he was never charged by the police and regarding the gate damage this was due to the light at the worksite was not flashing/working properly and as such was not the worker’s fault. The worker stated the March 20, 2019, MVA, was not his fault and that he was able to stop; however, the vehicle behind him was not able to stop and pushed him forward into the car in front of him. However, during questioning I referred the worker to his written “Driver Statement Form” of March 20, 2019, which he wrote, “car in front of me crashed into car in front of him, and I ran into a collision in front of me.” I questioned the worker on this discrepancy of his oral testimony present at the hearing with his written statement at the time of the accident. The worker stated he is autistic and it is very hard for him to write things down especially when things are stressful and with his autism, he struggles to put things into words. The worker stated that his testimony at the oral hearing (three and half years after the MVA) was the correct recollection of what occurred on March 20, 2019, over the written statement that was provided by the worker on the same day of the MVA accident.
Following the termination in April 2019, the worker testified that he looked for work right away online through www.Indeed.ca. The worker stated that he looked everyday online for work; however, he did not keep a log of his job search efforts. The worker stated that he did not apply for employment insurance (EI) benefits and that he found a job with Company B in April 2020 earning $xx.xx/hour in a full-time position as a driver. As well, the worker stated that he also, secured part-time employment with the Company C in City A, in July 2020 working as a part-time teacher (in-person) teaching individuals how to drive. However, in October 2020, the worker was involved in a MVA on the job while working for Company B, and that he has not returned to work since, and has been in receipt of WSIB benefits.
The worker also testified that in July 2019 he was diagnosed with cancer and underwent surgery in November 2019 and was cleared to return to work within weeks of the surgery; however, the worker is currently also battling cancer and in April of this year, he underwent a significant surgical procedure. The worker stated that he is not an office type worker and that his right wrist injury has impacted his life and he believes his termination was the result of his inability to resume his regular duties.
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of 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.
The issue to be determined is whether the loss of earnings the worker experienced after April 3, 2019, can be said to have resulted from his work-related impairment. In most cases, termination of employment constitutes an intervening event, overwhelming the role of the injury, particularly where the worker’s conduct amounts to a repudiation or fundamental breach of the employment contract, which results in the loss of the employment opportunity. This is similar to other situations in which a worker’s actions are responsible for the unavailability of employment, which would otherwise be available, such as resigning or refusing suitable employment, or being unavailable for suitable employment due to relocation or non‑compensable illness. In these circumstances, there is no entitlement to LOE benefits.
Policy 19-02-02 also states the workplace parties (workers and employers) are required to co-operate in the work reintegration (WR) process. These co-operation obligations apply to the workplace parties from the date of injury until the earlier of the date:
- the worker’s loss of earnings benefits can no longer be reviewed by the WSIB (usually 72 months after the date of injury, see 18-03-06, Final LOE Benefit Review), or
- there is no longer an employment relationship between the workplace parties because either
- the worker voluntarily quits, or
- the employer terminates the employment for reasons unrelated to the work-related injury/disease (and related absences from work), treatment for the work-related injury/disease, or the claim for benefits.
In accordance with Policy 19-02-01, 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.
The worker representative submits that the worker was firstly terminated because of his workplace injury and therefore should be entitled to LOE benefits following the termination of April 3, 2019 until he secured employment with the subsequent employer in April 2020. On the other hand, in the alternative, if I find that the worker’s termination was found not be related to the worker’s workplace injury, the worker representative submits that the work duties performed by the worker were not sustainable modified duties. The representative contends the worker sustained a permanent impairment as a result of the workplace injury and that the termination was not an intervening event and did not break the chain of causation between the injury and the subsequent loss of earnings. The worker representative contends the worker continued to participate in ESRTW for the onset of the claim and continued to work without any cooperation issues until his termination.
In considering the evidence before me, I acknowledge that there were not identified cooperation issues by the worker during the ESRTW process by the CM and the worker continued to work up until his termination; however, I arrive at a different finding then the representative, and firstly, I find that the worker’s termination was not caused by the workplace injury, or was unrelated to the claim.
I am not persuaded by the worker’s statements that prior to his termination the accident employer was told by the WSIB Specialty Clinic that he could not return to his pre-injury job and that may have played a role in the worker’s termination. The file record confirms the worker was first assessed at the Specialty Clinic on July 4, 2019 and then again on August 9, 2019. In my review of the evidence, the employer would not have been in contact with the Specialty Clinic prior to the worker’s termination as the worker was not assessed until four (4) months following his termination and subsequently that is when a permanent impairment was identified and accepted the WSIB. Therefore, the worker’s beliefs remain speculative regarding the employer’s terminating him because of his injury.
Moving along to the letter of termination dated April 3, 2019, which was addressed to the worker. The termination letter outlines that the worker was terminated with cause effective immediately and refers to the following:
“On August 25, 2017, February 14, 2018, and December 3, 2018, you were involved in motor vehicles accidents while on the job. On September 8, 2017, you were involved in a load security violation. On March 1, 2018, you caused damage to a work site. For each of these incidents, you received a written warning and you were warned that continued conducted of this nature could lead to termination. On occasions, you were also suspended with pay. Despite these warnings on March 20, 2019, you were involved in another accident in which you were at fault.”
The employer faxed documentation on September 27, 2021, to the case record that included the following:
- A letter dated September 8, 2017, addressed to the worker on the employer’s company letterhead outlined a security load violation that the worker was involved in on September 7, 2017. The letter outlined, “Our customer has security vehicles on site that watch for these types of infractions. They monitor for speed, load security, rolling stops, unsafe acts, etc. If caught, there are consequences that will follow. We would follow our progressive discipline policy which could lead to termination.”
- A letter dated September 14, 2017, addressed to the worker with the employer’s company letter head was following up further to an accident the worker was involved on August 25, 2017, while the worker was maneuvering his truck to set up for the back up, he made contact with Transporter 032’s mirror. The worker was advised to get out and look prior to any backing and he would be in a better position to see what could be a hazard.
- A letter dated February 14, 2018, on the employer’s company letter head addressed to the worker, with his complete address outlined the worker was involved in a MVA on January 26, 2018. The worker was cautioned not to be “taking over the whole roadway…if you were using your mirrors properly, you would have seen that the other driver was continuing to go straight and could have made more room for the other driver’s error. According to the pictures taken at the scene of the accident it clearly shows you crowding the left lane.”
- A letter dated March 1, 2018 on the employer’s company letterhead addressed to the worker, with his complete address, expressed the employer’s serious concern over damage the worker caused to Gate 11 on February 21, 2018. The letter details surveillance video was viewed and showed the worker stopping after contact was made between the truck he was operating and Gate 11. Minor damage was made to the truck; however, Company A incurred extended down time at Gate 11, along with the expense to have an outside company to come and repair the gate. The letter details, “due to the serious nature of this accident and your recent accident history we will be following our Progressive Disciplinary action. You have recently received a written accident warning for your previous accident of January 26, 2018, even though the other party was charge to be at fault. You will not be scheduled for work on Monday, March 5, 2018. This day will service as your suspension day.”
I note the Operations Manager signed all of the above dated letters addressed to the worker.
While I note during testimony the worker stated that he did not receive any notification in writing by his employer, the worker did confirm that the address at the time of each letter was his correct mailing address. Of significance, further to memo xx, the worker informed the CM that he was given a warning letter for the unsecured load; however, at the hearing he testified to not receiving any written warnings, which in my view contradicts what he advised the CM previously. As well, I note the worker was suspended on March 5, 2018, and he gave testimony to recalling being verbally informed of not going into work on this particular day yet remained vague in his answers regarding his knowledge surrounding the day suspension from work. It would appear reasonable that if a supervisor tells an employee not to go to work on a normally scheduled shift, that the employee would have questions why they are not expected to be at work; however, no answers were provided. On balance, the available evidence suggests the worker had knowledge of his workplace MVA accidents and security load violations and warned by his employer that continued behaviour could result in disciplinary action.
I am persuaded that the employer provided the worker with the above four (4) letters, which included a warning and indicated if actions continued it could result in termination. In my view, the worker recounted some verbal discussion with a supervisor, which could be viewed as a verbal warning. However, I am satisfied that the four (4) letters serve as written warnings which included a one (1) day suspension on March 5, 2018. Therefore, I am not persuaded by the worker representative’s submission that the employer needed to provide progressive disciplinary notification to the worker. I find the worker was provided with notification through the four (4) written letters and the one (1) day suspension. Of significance, further to the worker’s statement to the CM further to memo xx, the worker stated he received a written notice regarding the in load security violation, it is in the September 8, 2017, load security violation letter from the employer that outlines a warning and the employer following progressive discipline policy which could lead to termination which substantiates the worker was aware of the outcome of continued behaviour. Following the March 5, 2018, suspension from work, the worker was involved in a subsequent MVA on March 20, 2019, and the employer then determined the worker would not be responsible for driving company vehicles until further notice.
Both the worker and representative stated that the police laid no charges with the worker and that the worker’s employer still found him to be at fault. Documentation provided by the employer substantiates that vehicles driven at the time by the worker were damaged, and that property was damage by the worker’s actions and further to memo xx, “two (2) vehicles were written off” which resulted in “significant costs to the company.” Given the available information before me, the fact that the worker was not charged by the police does not negate the worker’s responsibility in whether he was liable for the costs to the company due to damage to the vehicles or property. As an employer that employs the worker as a driver, they make business decisions that involve any aspect of liability on the worker’s part.
I note the worker representative submitted further to memo xx, the employer contacted the CM on March 29, 2019, days prior to the termination and did not disclose any information that they were going to terminate the worker. I agree in reviewing memo xx that the employer did not disclose this information; however, it is not a requirement by an employer to inform the Board and I would have to question the individual contacting the CM that day may or may not have been aware of the termination status at that time. No evidence has been submitted to support the worker representative’s position on this issue.
The employer informed the CM that the worker was refusing modified duties unless they consist of driving and unfortunately the worker had two (2) MVA’s and it is “too expensive” for the employer to have the worker perform driving duties while on modified work. A discussion surrounding a Specialty Clinic referral and time frames was outlined further to memo xx.
While I note memo xx outlines a conversation between the CM and employer, and that the CM documented “I asked if there were additional reasons they terminated the worker and he confirmed there were, but he was again not willing to discuss them by phone because “it’s not the best form…” He requested a face-to-face meeting to discuss it, and I explained this isn’t an option following a termination…He then stated he would prefer to first send us the detailed termination letter given to the worker and then discuss it after we’ve reviewed it.” Again, no evidence has been provided by the worker representative to support the employer has terminated the worker due to his workplace injury. I cannot infer what other reasons the employer had given the available evidence before me within the case record.
Further to the worker’s testimony and the documentary record, the worker returned to work on June 1, 2018 performing modified work, that included clerical duties such as filing and data entry. A few month later the worker began performing modified duties of car jockey that included dropping off and picking up other vehicles with another driver. These duties align with the medical opinions and return to work recommendations on file. While the FAF of January 4, 2019, did note modified hours, I note during this time the worker did not contact the WSIB with any concerns and during testimony the worker was asked if the extra hours worked were an issue why did he not contact the WSIB; however, no response was provided. Of significance, while the worker testified to working excessive hours a medical report dated February 20, 2019, outlines the worker was working part-time hours on modified duties which contradicts the worker’s testimony of working excessive hours and the representative’s position that the CM should have been aware noting no paystubs were submitted to the case record, I cannot substantiate the worker’s claim. Moreover, the file record supports once the worker returned to work he never contacted the CM with any issues regarding his modified duties until after his termination.
The subsequent alternate duties the worker was performing between March 20, 2019 and April 3, 2019, included the worker to pick up garbage and retrieve light items for co-workers. These duties were provided to the worker as an alternate, as the employer determined following the worker’s fourth MVA that the worker was not to be driving their vehicles. The worker in memo xx confirmed that at the time of his termination he was performing modified duties.
In my view, there is no evidence before me to support that the employer would not have been able to continue to accommodate the worker’s right wrist injury. From the onset of the index injury, the employer continued to accommodate the worker’s workplace injury up until his termination, which in my view remains unrelated to his workplace injury or claim.
In this case, the worker testified to the fact that he found similar work with another employer in April 2020 after his termination of employment with the accident employer which in my view, supports that the worker's compensable injury did not appear to make a significant contribution to the worker's subsequent loss of earnings after the termination.
Based upon my interpretation of the evidence, the worker’s loss of earnings stems not from his work-related injury, but rather because of his loss of employment, which occurred for reasons that are unrelated to his compensable injury. I have previously determined that the termination was unrelated to the workplace injury or claim.
As well, I am satisfied that the employer offered the worker suitable modified work and continued to have suitable modified work available for the worker had his termination not occurred. In my view, the worker’s termination was un-related to the workplace injury and was an employment decision as part of the employment relationship, which is an intervening event, breaking the chain of causation between the worker’s work injury and his loss of earnings following his termination, rendering the work injury an insignificant factor in relation to the loss of earnings.
The worker through his own actions, which were unrelated to the work accident, caused a cessation of employment and thereby deprived the employer from offering and maintaining suitable work as the worker’s employment was terminated. To put it another way, but for the worker’s own actions that led to his termination, the worker would have remained with the employer performing suitable and available work. I accept that in this case the worker’s action broke the chain of causation to the extent that his work-related wrist injury had no significant impact on his loss of earnings beyond April 3, 2019.
In conclusion, based on the above reasons, I am satisfied on a balance of probabilities that the compensable right wrist injury was not a factor in the decision to terminate the worker, on April 3, 2019.
Taken further, I am satisfied that even though the termination was unrelated to the compensable right wrist injury, I am further satisfied that the compensable injury did not make a significant contribution to the worker's subsequent loss of earnings, particularly in light of the fact that he found employment driving and teaching with two (2) other employers in April and July 2020.
Accordingly, the worker is not entitled to LOE benefits from April 3, 2019, onward.
CONCLUSION
Based on the above, I find the worker does not have entitlement to LOE benefits from April 3, 2019, onward.
The worker’s objection is denied.
November 17, 2022
S. Di Carlo Appeals Resolution Officer Appeals Services Division