Worker v. Employer, 2022 CanLII 33323

APPEALS RESOLUTION OFFICER DECISION

Decision number: 20220036

OBJECTING PARTY: WORKER REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER REPRESENTED by: EMPLOYER REPRESENTATIVE

HEARING: IN WRITING

HEARD by: S. Vagadia, appeals resolution officer

Dated: April 4, 2022

ISSUES

The worker objects to the following decisions rendered by a Case Manager (CM):

1. A March 1, 2021 decision that found the employer did not breach its cooperation obligation.
2. A March 15, 2021 decision that denied entitlement to loss of earnings (LOE) benefits from April 21, 2014. This was because the employer continued to be able to provide accommodated duties and the reason for the wage loss was the termination decision.

BACKGROUND

Entitlement was granted to a neck and back strain resulting from an August 27, 2013 accident. The worker experienced pain while carrying a mirror. He reported a recurrence on January 14, 2014 that was registered and approved as a new claim with a new claim number. The worker was terminated on April 21, 2014.

An August 21, 2015 Appeals Resolution Officer (ARO) decision denied an extension in the time limit to appeal a January 30, 2014 decision. That decision found the worker recovered from his injury.

A January 24, 2017 ARO decision found the January 14, 2014 accident was not a recurrence.

A February 15, 2018 decision from the Workplace Safety and Insurance Appeals Tribunal (WSIAT) granted an extension in the time limit to appeal the January 30, 2014 decision.

A January 18, 2019 ARO decision found the worker recovered from the August 27, 2013 accident with no residual impairment.

A May 12, 2020 WSIAT decision noted and found the following:

• The January 14, 2014 incident was neither a new accident nor a recurrence. There was no significant deterioration. Claim XXXXXXXX was to be amalgamated with this claim.
• The worker continued to be treated for the August 27, 2013 accident until March 20, 2014. He achieved MMR at that time with evidence of an ongoing impairment.
• The worker presented new arguments suggesting his injuries were the result of his general job duties over many years rather than the specific accident accepted in this claim. The tribunal found they did not have jurisdiction to rule on the matter.
• The worker did not have entitlement to treatment from July 8, 2014, as it was not related to the accident and injury accepted in this claim.

A December 23, 2020 decision from the CM referred the claim for a non-economic loss (NEL) review. The worker had permanent neck and back restrictions. He received a 14% NEL award on January 4, 2021.

A January 7, 2021 decision from the CM found the re-employment threshold criterion of “unable to work” was not met. Therefore, the employer did not have a re-employment obligation. However, the claim was to be reviewed under the cooperation obligation policy.

A March 1, 2021 decision from the CM found the employer did not breach its cooperation obligation.

Lastly, a March 15, 2021 decision from the CM denied entitlement to LOE benefits from April 21, 2014. This was because the employer continued to be able to provide accommodated duties and the reason for the wage loss was the termination.

AUTHORITY

Operational Policy Manual

Published

15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-08 RTW Co-operation Obligations

April 9, 2021 April 9, 2021 November 30, 2020

ANALYSIS

1. The cooperation decision

Worker representative submission:

• The employer grew frustrated in attempting to meet its obligation.
• They confirmed they were unable to continue to provide suitable work on an ongoing basis. The modified work was running out.
• The employer’s termination decision was due to the worker’s injury and their inability to continue to accommodate him.
• The information provided by the employer was false and misleading. There was no evidence to support their statements.
• Concerns about punctuality were only raised after the injury. There was no evidence of discipline in this regard. The worker worked full-time and stayed late if needed while attending physiotherapy treatment.
• The worker disputed the employer’s claim that he was initially terminated in August of 2013 (prior to the day of accident). He never received a termination letter or Record of Employment (ROE).
• The September 4, 2014 ROE confirmed there was no break in employment from May 27, 2013 (when the worker resumed work after a parental leave) to August 21, 2014. This further supported there was no termination in August of 2013.
• The 3-day suspension in September of 2013 was due to the worker having concerns about signing paperwork.
• The second 3-day suspension was based on incorrect information. The “complainant”, P refuted the employer’s allegations. She stated the employer twisted her words. She described the worker as patient, kind and thorough. They had a disagreement on December 5, 2013, but it did not warrant discipline.
• The employer did not provide copies of the text messages to support their claim that the worker was stealing jobs to do on his own. He did not have a company phone when he resumed work following his childcare leave. The employer’s claims could not be accepted at face value.
• The countertops were given to the worker by the employer in 2011 for the extra work he did. They was not stolen. The employer had no proof to support their allegation. Correspondence dated November 22, 2011 confirmed the countertops were given to the worker. He was terminated three years later.
• A May 31, 2013 letter from the supervisor described the worker as loyal and competent.
• The timing of the termination was suspect. The WSIB indicated a full recovery was expected by the end of March 2014. However, the worker still required a Return to Work Specialist (RTWS) intervention at that time due to ongoing concerns. A meeting took place on April 8, 2014 and the worker was terminated two weeks later.
• No weight should be placed on the employer’s statements. They were not credible.

Employer representative submission:

• The worker breached the employer’s policies.
• The employer provided suitable work until the termination. It was a “no lost time” claim.
• The employer did not complain to the WSIB about its ability to provide suitable work. Rather, they contacted the WSIB to make sure the duties offered were suitable.
• The employer could have and would have provided permanently modified duties if required. An example was work in project management. The worker had extensive experience, education, and there was a family relationship.
• The termination decision was not related to the WSIB claim. There were minimal claims costs.
• The employer was forced to terminate the worker despite him being family. He was given every chance / opportunity to comply with their policies but he did not. Examples included:
  • The theft of granite countertops. The worker signed a termination agreement confirming they were taken without permission. They were not given to him as he claimed.
  • The attempt at side jobs. This was confirmed in the termination notes.
• Little weight should be given to the new letter provided by P (who was also later terminated). Her statement was years after the fact and not in line with the evidence from that period.

Analysis

I find the employer did not breach its cooperation obligation. I note the following in arriving at my decision.

Policy 19-02-08 states injury employers are obliged to co-operate by:

• initiating early contact with the worker
• maintaining appropriate communication with the worker throughout their recovery
• attempting to provide suitable work that is available and consistent with the worker’s functional abilities (when an available job is identified as suitable for the worker, the injury employer is obliged to offer the worker the job), and
• giving the WSIB all relevant information concerning the worker’s RTW.

The policy also in-part states co-operation obligations apply to the workplace parties from the date of injury until there is no longer an employment relationship between the workplace parties because either the worker voluntarily quits, or the injury employer terminates the employment for reasons unrelated to either the work-related injury/disease or the worker’s claim for benefits

In the case before me, I find the termination decision was for reasons unrelated to the compensable injury or claim for benefits. The cooperation obligation therefore ended on April 21, 2014. I note the following in arriving at my decision.

The employer referenced various policies that they stated the worker breached, leading to the decision to terminate his employment. This included policies on “employee relations”, “health and safety” and “early and safe return to work”. They submitted that since he was a member of the family, they gave him every opportunity to change / succeed but instead he continued to be disruptive, aggressive, and disregarded their authority, rules, and regulations.

I find the employer intended to terminate the worker on August 14, 2013 because of their view that he was non-compliant and aggressive (this was two weeks before the workplace accident). I accept that the employer decided to implement a 3-day suspension (instead of a termination) when another family member intervened on the worker’s behalf. The employer stated they decided to give the worker one final chance because of that intervention.

I note the 3-day suspension in August of 2013 was about three months after a May 31, 2013 email from the worker’s supervisor that described him as loyal, competent, and a great trainer. I am satisfied the employer had concerns in August of 2013 despite the glowing review in May of 2013. Part of the concern surrounded the worker’s “actions and behaviour” regarding the employer’s request to sign an “Employee Handbook Acknowledgement Form”. The worker signed the form “under duress” on August 14, 2013.

The workplace parties then had back and forth correspondence speaking to the worker’s future with the company. This included a September 5, 2013 letter from the employer that summarized the results of a meeting with the worker. The employer disagreed with the worker’s assertion that he was harassed to sign the form. It was the employer’s view that he was given plenty of time to review the handbook and confirmed such a review could not be done on company time.

Also noted was a December 5, 2013 incident involving a co-worker named P. The worker was initially given a 1-day suspension with pay pending an investigation. Following the investigation, the worker was given a 3-day suspension without pay for the incident, which the employer stated contravened their workplace harassment policy. The worker was provided a December 10, 2013 letter speaking to the suspension.

Eight years later (in 2021), P provided a letter speaking to what occurred on December 5, 2013. She stated the worker was patient, kind and thorough. They clashed or disagreed a few times but they were always able to figure out their differences. The December 5, 2013 disagreement escalated because of a co-worker who went to Human Resources (HR). A simple disagreement unnecessarily became a huge issue. The worker was not aggressive and they had already worked things out before HR’s involvement. P indicated the employer asked her to sign a document stating the worker was aggressive. When she refused, she was suspended for three days. She was later terminated because she raised concerns about a job she was asked to perform (it required three instead of two people).

I place little weight on P’s 2021 written account. I find the evidence that was available at the time of the incident does not support it. I note for example the following:

• P was also disciplined for the December 5, 2013 incident. She received a 1-day suspension without pay due to her conduct / behaviour. Of interest, the worker had filed the complaint against her.
• P was terminated on January 20, 2014. The employer indicated this had to do with her continuing to smoke during work hours (despite warnings not to do so) and her aggressive behaviour (included swearing).

There were back and forth letters between the worker and employer from January to April of 2014. They spoke to the workplace accident, disagreements about the suspension etc.

The worker was terminated in person on April 21, 2014. The employer submitted that in addition to concerns about the worker’s behaviour, they learned that he stole from the company. This involved both a physical theft (granite countertops) and trying to steal their business (it was alleged text messages supported this view). The worker rejected these assertions.

A handwritten note from November of 2011 was referenced. It highlighted a meeting with the worker and employer. The worker wrote that the employer offered him $3000 worth of granite for his house. It appears the worker doubted the value of the offer and spoke of his ability to get scraps of granite. I am unable to place weight on this evidence from 2011 as it relates to the employer’s allegation in 2014. I prefer the legal document the worker signed on April 29, 2014. On page 2 of that document, the employer confirmed the worker owed $573.72 for employee purchases and $2118.75 for granite that he took from the company. The worker’s signature, in my view, supports the employer’s claim. The document also confirmed the employer would forgive the money upon the conclusion of a satisfactory agreement.

To be clear, the WSIB does not get involved in “just cause” determinations. In addition, the issue of reemployment is not before me. Policy 19-02-08 explains that an employer’s co-operation obligation ends when a worker is terminated for reasons unrelated to a workplace injury or claim for benefits. I find the April 21, 2014 termination was for reasons unrelated to this claim. The cooperation obligation therefore ended at that time. The evidence before me confirms the employer fully cooperated with their obligation to the time it expired.

2. Entitlement to LOE benefits from April 21, 2014.

Worker representative submission:

• The employer did not provide suitable work.
• The evidence did not support it was “highly probable” the employer would have continued to be able to provide suitable work.
• The termination was of no relevance to the LOE decision.
• The employer could not provide suitable work on a permanent basis.
• The employer voiced concerns / frustration about its ability to continue to provide suitable work just a few months after the accident.
  • The worker was their highest paid installer.
  • They had to pair him with another employee. This had a financial impact.
  • They felt the worker was taking advantage of the situation.
• In a December 6, 2013 memo (meeting with the RTWS), the employer indicated they were moving into their slow period and noted it was going to be difficult to continue to accommodate the worker if a lifting restriction remained.
• In an April 8, 2014 meeting with the RTWS, the employer voiced additional concerns about the worker not completing jobs within expected timeframes. This was because of his injury. The employer stated their expectation was that he would resume work at his pre-injury pace. He was fired a few weeks later.
• The worker had significant permanent restrictions as noted in a March 2021 specialty clinic assessment. It was reasonable to conclude the employer would not have been able to accommodate him on a permanent basis. He was therefore entitled to full LOE benefits and work transition assistance.

Employer representative submission:

• The worker breached the employer’s policies.
• He was therefore not entitled to LOE benefits.
• The employer would have continued to offer suitable work on a permanent basis if required.
• One example was project management work. The worker had extensive experience and education. He was also a member of the family. If not for his actions leading to his termination, the employer would have continued to accommodate him.

Analysis

I find the worker is not entitled to LOE benefits. I note the following in arriving at my decision.

Policy 18-03-02 states a worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. Benefits continue 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.

It is noteworthy that the worker did not have a loss of earnings in this claim following his injury, while employed with the accident employer. It was a “no lost time” claim. By all accounts, the worker was able to perform the accommodated duties offered by the employer. I note for example the following:

• A December 6, 2013 meeting with the RTWS. The worker confirmed he was performing his pre-injury duties (accommodated). The employer noted they were moving towards their slow period. They were concerned about their ability to continue to accommodate the worker.
• A January 12, 2014 letter written by the worker. He voiced concerns about “tension and discontent” from the employer but agreed he was able to do most of his pre-injury job. The only restriction was lifting over 40 pounds. The worker raised the concern about the employer’s ability to continue to accommodate him. I note that despite this concern, the employer continued to accommodate the worker at no wage loss for another three months, until he was terminated in April of 2014.
• The employer responded to the worker in a letter dated February 23, 2014. They took exception to some of his statements and noted that although it was their slow period, they continued to accommodate him fully.
• In an April 8, 2014 letter, the worker stated that most days he was able to do 90% of his pre-injury job.
• The RTWS met with the workplace parties again on April 8, 2014. The worker confirmed he was performing 90% or more of his essential duties. He was sore at times but able to manage. This in part was due to adjusting how he performed some tasks. The employer raised timeliness concerns. The RTWS indicated timeliness would improve as the worker developed / got comfortable with his new methods (they became part of his regular routine).

Any opinion in 2022 on whether the worker would or would not have continued to work for the employer in an accommodated capacity if not for his termination in 2014 is speculative. However, the employer demonstrated that they accommodated the worker from August 27, 2013 to April 21, 2014, a period of eight months. This included slow periods.

I also note the worker subsequently secured employment as an architectural project manager with a different employer. This supports he had the skills and ability to do other work for the accident employer, if he was found to be no longer able to perform the essential duties of his pre-injury job with accommodation.

With the above in mind, it is difficult for me to conclude the employer would not have been able to provide other suitable work if required. I also note policy 15-06-08. It speaks to a post-accident, non-work-related change in circumstance. It explains that a worker’s status may change in ways that may not be related to the work-related injury/disease. Given my view that the termination was unrelated to the compensable injury or WSIB claim, I find it meets the policy’s definition of a post-accident non-work-related change in circumstance.

Policy 15-06-08 states if an ongoing work-related impairment exists that prevents a worker from returning to pre-injury employment but the worker is either unable or unavailable to accept an offer of suitable and available employment at no loss of earnings due to a post-accident, non-work-related change in circumstance, no benefits are payable. I note the termination rendered the worker unable to continue to perform the suitable work available at no wage loss.

In summary, given my view that:

• the worker was performing suitable work (his essential duties with accommodation) at no wage loss when he was terminated for reasons unrelated to his injury or claim
• the worker had the skills and ability to perform other work for the accident employer if his condition precluded him from continuing to perform his essential duties with accommodation,

I find the worker did not have a loss of earnings resulting from his work-related injury. I am therefore unable to grant LOE benefits.

CONCLUSION

As outlined in the above decision I conclude:

1. The employer did not breach its cooperation obligation.
2. The worker is not entitled to LOE benefits subsequent to his April 21, 2014 termination.

The worker’s objection is denied.

DATED April 4, 2022

S. Vagadia Appeals Resolution Officer Appeals Services Division