Worker v. Employer, 2022 CanLII 132545

decision number:

20230016

REPRESENTED by:

HEARD by:

STEPHEN CRISOSTOMO, appeals resolution officer

DATED: DECEMBER 8, 2022

ISSUE

The worker objects to the Case Manager’s decision dated July 18, 2022, which denied entitlement to Loss of Earnings (LOE) benefits related to the July 23, 2021 work disruption.

BACKGROUND

On June 17, 2021, the worker, a Trackman Journeyman injured their left knee, while pushing a wheelbarrow that began to tip. Entitlement was reviewed and allowed for a left knee sprain/strain.

The worker returned to work on June 18, 2021 and performed sedentary modified duties in the office. The worker was granted entitlement to LOE benefits for attending a medical appointment on June 25, 2021.

The worker continued to perform the modified duties, which were deemed safe and suitable for them until July 23, 2021, when the employer laid them off work, citing a shortage of work. On June 16, 2022, the employer confirmed the worker was never recalled back to work following their July 23, 2021 layoff.

In July of 2022, entitlement to LOE benefits was reviewed in relation to the July 23, 2021 work disruption. Based on the review, the Case Manager denied entitlement to LOE benefits effective July 23, 2021, related to the July 23, 2021 work disruption. This decision was communicated on July 18, 2022.

The worker objected to the July 18, 2022 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker Representative’s Position

The worker’s representative submits:

At the time of the July 2021 layoff, the worker continued to require work accommodations for stair climbing, lifting, prolonged standing and walking, related to their work-related knee injury.
At the time of the July 2021 work disruption the worker was performing modified duties.
The worker’s work-related knee injury prevented them from obtaining alternative employment at the time of the layoff.
The worker was involved in a WSIB approved active physiotherapy program at the time of the July 2021 layoff, which required frequent absences.
The accommodated duties and/or similar work that the worker was performing at the time of layoff does not exist with other union construction employers, as the worker was performing tasks at a lower productivity rate than non-injured workers and required special accommodations for absences related to health care for their workplace injury.
LOE benefits should be granted from July 23, 2021, in relation to the July 23, 2021 work disruption.

AUTHORITY

Operational Policy Manual:

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

15-06-03 Entitlement Following Permanent Work Disruptions

April 9, 2021

ANALYSIS

I have carefully considered all of the available information and relevant operational policies in reaching this decision.

I find the worker is entitled to full LOE benefits from July 23, 2021 related to July 23, 2021 work disruption. The reasons for my decision follow.

Operational Policy 18-03-02 related to entitlement to LOE benefits states in part:

A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits.

While Operational Policy 15-06-03 states in part:

The WSIB may provide additional benefits following a permanent work disruption if the worker experiences an additional loss of earnings during this period due to their work-related injury/disease.

Permanent work disruptions include:

layoffs resulting from changes in the availability of work that are due to economic factors and are permanent or expected to last three months or longer (e.g., plant closure, employer has ceased business, corporate reorganization), and
temporary work disruptions that extend beyond three months or beyond the start of the next season for seasonal layoffs.

A review of the file reveals:

On July 27, 2021, the employer advised the Case Manager that the worker was laid off on July 23, 2021, due to a shortage of work.
On February 11, 2022, the employer advised that 63 people from the worker’s union were subject to the layoff.
The employer’s letter dated February 16, 2022, stated that there were 16 “Track C” employees laid off as work progressed in 2021.
On June 13, 2022, the worker’s representative advised that the worker was the only person laid off in their group and the only person that was not recalled back to work.
On June 16, 2022, the employer confirmed the worker was never recalled following their July 23, 2021 work disruption.

Based on the evidence in the file, I am satisfied that the worker’s work disruption on July 23, 2021 was a permanent work disruption, as the evidence shows that the worker’s layoff resulted from changes in the availability of work that was due to economic factors and that the layoff lasted well beyond three months. In addition, the evidence shows that as of June 16, 2022, the worker was not recalled back to work.

The question that remains, with respect to the July 23, 2021 permanent work disruption is whether the worker experienced any additional LOE during the work disruption that resulted from their work-related left knee injury.

I note that it has been accepted in the claim that at the time of the July 23, 2021 work-disruption, the worker had left knee restrictions. The evidence also shows that at the time of the July 23, 2021 work-disruption, the worker was performing sedentary modified duties and participating in active treatment for their left knee injury.

I recognize that Operational Policy 15-06-03 states, “The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a permanent work disruption”. However, in this particular case, the evidence shows that at the time of the July 23, 2021 permanent work disruption, the worker had significant ongoing left knee symptoms, for which they required accommodated work duties and active medical treatment. I am also satisfied that the worker’s accepted left knee restrictions at the time of the July 23, 2021 work-disruption precluded them from performing their pre-injury job duties as a Trackman Journeyman. As such, I find the worker’s employability was clearly affected by their work-related left knee impairment at the time of the July 23, 2021 work disruption and that the worker would likely not have been able to perform any alternate Trackman employment through the union hiring hall as a result of their left knee impairment. In addition to the above, based on the worker’s ongoing left knee impairment, I find it would be unreasonable for them to seek non-union work outside of their hiring hall, given their union worker status. Moreover, I am satisfied that had the worker even attempted to seek work outside their union, their left knee impairment and need for ongoing active treatment, would have affected their employability to the extent that it would have been highly unlikely that they would have secured any form of alternative work with a new employer.

As such, and in accordance with Operational Policies 18-03-02 and 15-06-03, I am satisfied that following the July 23, 2021 permanent work disruption, the worker experienced additional LOE related to their accepted work-related left knee impairment. Thus, I find the worker’s LOE from July 23, 2021 was a result of their work-related left knee injury and that the worker is entitled to full LOE benefits from July 23, 2021.

CONCLUSION

Based on the evidence outlined in this decision, I conclude the worker is entitled to full LOE benefits from July 23, 2021 related to the July 23, 2021 permanent work disruption.

The duration of the worker’s entitlement to LOE benefits is left to the discretion of the Operating Area.

The worker’s objection is allowed.

DATED December 8, 2022

S. Crisostomo

Appeals Resolution Officer

Appeals Services Division