Estate of Worker v. Employer, 2022 CanLII 68188

decision NUMBER:

20220073

REPRESENTED by:

in writing

HEARD by:

DATED:

S. Vagadia, appeals resolution officer

JUNE 17, 2022

ISSUES

The estate of the worker objects to the following decisions:

A July 11, 2016 decision from a Case Manager (CM) that denied entitlement to loss of earnings (LOE) benefits from December of 2014 to April of 2016.
The July 11, 2016 decision also denied entitlement to LOE benefits following a compensable left knee surgery on April 11, 2016.
A March 28, 2017 decision from the CM that found the employer did not have a re-employment obligation. This was because the threshold criterion of “unable to work” was not met.
A July 4, 2018 decision from a non-economic loss (NEL) Clinical Specialist that granted a 4% NEL award.

BACKGROUND

On May 14, 2014, the seasonally employed worker (a machine operator) slipped off a machine injuring their left knee. Entitlement was granted to a left knee strain, a scrape to the right leg, and a bruise to the left hip. The worker performed their pre-injury duties with accommodation following the accident.

The worker performed these duties until their seasonal layoff in December of 2014. The employer indicated the worker was recalled in April of 2015 but they declined the position as they secured employment elsewhere. The worker indicated they were not recalled and forced to seek alternate employment.

In October of 2015, the worker reported a recurrence to the WSIB. They advised that they required to have left knee surgery (the date was to be determined). An October 2015 letter from the CM indicated additional information was required to render a decision.

A July 11, 2016 decision from the CM noted the worker had left knee surgery on April 11, 2016. The CM found the following:

Entitlement to missed time from work from December of 2015 was denied. This was because the worker remained capable of performing their job duties and the medical evidence did not support they were totally impaired.
The April 2016 surgery was approved as were related healthcare expenses. However, LOE benefits from the surgery date were denied. This was because the worker was not employed prior to their surgery.

The CM reconsidered and confirmed the decisions on September 16 and November 28, 2016.

A March 28, 2017 decision from the CM indicated the worker performed their pre-injury duties with accommodation following the accident. Consequently, the re-employment threshold criterion of “unable to work” was not met. The employer did not have a re-employment obligation. The CM reconsidered and confirmed the decision on May 26, 2017.

A February 20, 2018 decision from the CM found the worker achieved maximum medical recovery (MMR) and was entitled to a NEL review. The worker received a 4% NEL award for their left knee on July 4, 2018. The decision recognized a measurable pre-existing condition, which was offset.

AUTHORITY

Operational Policy Manual

Published

15-02-05 Recurrences

15-06-03 Entitlement Following Permanent Work Disruptions

18-05-03 Determining the Degree of Permanent Impairment

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

Duration and Specific Employer Requirements

November 3, 2014

January 2, 2013

ANALYSIS

1. Entitlement to LOE benefits from December of 2015 to April of 2016

Worker representative submission

The worker never returned to their regular duties. They always required accommodation.
They were on Employment Insurance (EI) from December of 2014 to May of 2015.
The employer did not recall the worker in the spring of 2015. They did not have another job at that time.
In June of 2015, they began working for a new company sporadically.
In July of 2015, the worker contacted the accident employer for a letter. It was needed due to their housing situation.
The accident employer’s August 10, 2015 letter stated the worker was employed with them. The representative questioned why the employer stated this if the worker declined returning to work in April of 2015 as they claimed.
The worker would not have declined returning to the unionized job with the accident employer. It paid more and accommodated their injury. They were forced to find a lower paying non-union job without accommodation due to the accident employer not recalling them in April of 2015.
The worker stopped working on August 17, 2015 due to their ongoing left leg pain. They sought medical attention and was advised to rest. Their pain did not subside and they were referred for an x-ray and MRI.
They attempted to resume work in early 2016 but was unsuccessful.
The worker stopped working in December of 2014 due to their pain. Given their condition, they were unable to register on the Union’s Hiring Hall to get work in the spring of 2015.

Employer submission

The worker was cleared to resume their regular duties with no restrictions on June 20, 2014 as per a Functional Abilities Form (FAF) they received. The employer never received further medical information to suggest an ongoing injury.
The worker performed their regular duties without accommodation or complaint until the end of the season in December of 2014.
They were recalled in April of 2015 but the worker declined. They stated they secured work elsewhere (with a friend).

I find the worker is entitled to a review of their LOE benefits from May 1, 2015 to April 11, 2016. I note the following in arriving at my decision.

I will first speak to whether the worker is entitled to LOE benefits from December of 2014 to April of 2015 inclusive. I find they are not. The worker’s employment pattern was seasonal. The Record of Employment (ROE) issued by the employer for 2014 confirmed this. Their first day of work was May 8, 2014 and their last day of work was December 13, 2014. The reason provided was “end of season”.

I find the worker did not work during the off-season. They confirmed this in an October 14, 2015 memo. I note a June 30, 2016 memo where the worker provided different information. They now stated that during the winter months he normally did snow removal for a company called XXX. The worker was asked to provide evidence supporting this employment but I note such evidence was not submitted. I find the worker was seasonally employed and they did not work during the off-season.

I next turn to whether the worker was entitled to LOE benefits from May of 2015. There are conflicting statements from the worker and employer on this issue. Specifically, the employer submitted the worker was recalled in April of 2015 (to begin work in May of 2015) but they declined. According to the employer, the worker stated he secured a new job with a friend.

The worker did not contact the WSIB to raise any concerns during this time. The first contact was approximately six months later, in October of 2015. The October 5, 2015 memo was in response to a medical report suggesting they required knee surgery. The worker wanted to re-open their claim. They did not raise concerns about the accident employer not recalling them. He noted trying to work for another company in 2015 and being unable to do so.

The worker wrote a letter stating he was employed with YYYY for the following periods:

June 27 to July 15, 2015
July 25 to August 7, 2015
December 19, 2015 to January 1, 2016

The only correspondence provided by YYYY stated the worker was employed as a Machine Operator since June of 2015 earning $xx per hour.

Of note is an August 10, 2015 letter written by the accident employer. It indicated the worker was employed and began their employment as an operator in 2009. He earned $xx per hour. There was no mention of them no longer being an employee. This leads me to question the employer’s claim that they offered to recall the worker in the spring of 2015 and they declined. I find the evidence supports the worker was not recalled by the employer. It is the only reasonable explanation in my view for why they subsequently sought employment elsewhere and secured a job with a new company in June of 2015.

Policy 15-06-03 provides guidance on the issue. It explains that the LOE benefits a worker received prior to a permanent work disruption are generally maintained. I note that in this case the worker received zero benefits from the WSIB, as there was no wage loss prior to the permanent work disruption. However, the policy also states:

If the worker’s SO has not previously identified, the WSIB determines whether the suitable work (if any) the worker was doing at the time of the work disruption is the worker’s SO.
A SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the extent possible.

The issue before me is whether the work performed for the accident employer following the injury is the worker’s SO.

The employer stated the worker performed the full demands of their pre-injury duties as a machine operator, without issue, to the date of their seasonal layoff in December of 2014. The worker stated they worked using crutches and obtained help from co-workers. They also stated he attempted similar work with a new employer in 2015 but could not physically handle the requirements of the job. I note the reason(s) why the worker stopped working for the new employer are not clear. The WSIB received no correspondence from the new employer to corroborate the worker’s statement.

The accident employer completed a form on May 31, 2016 speaking to the physical demands of the worker’s pre-injury job duties. It indicated the following:

The position was Machine Operator.
The job involved operating various machines (requiring the use of pedals).
Physically it required sitting, standing, and walking.

The worker representative provided a document dated August 2005 titled “The Physical Demands of Operator Maintenance Duties”. It indicated the following:

It spoke about operating heavy equipment and cleaning the “tracks”.
How climbing up and down on equipment could be awkward.
Potential challenges such as checking the coolant level, greasing parts or cleaning windows.

To assist me in determining whether the job the worker performed for the accident employer after their injury was the SO, I note the medical evidence on file:

There is one page of a June 20, 2014 FAF. It stated the worker could resume work without restrictions.
A June 24, 2014 clinical note indicated the worker was performing their regular work duties. This involved driving a forklift. They continued to have left knee and leg pain that was healing.
Clinical notes from July to December of 2014 noted the worker continued to have knee/leg pain.
The left knee pain continued into 2015, resulting in an April 14, 2015 MRI. Findings included a tear to the ACL and medial meniscus.
The worker had a left knee ultrasound on August 25, 2015.
Clinical notes from September of 2015 noted the worker was not working due to left knee pain. They were unable to climb into the machine and wished to reopen their claim.
An October 1, 2015 referral to an orthopaedic surgeon indicated the worker had problems with their left knee since the May 2014 accident. They used crutches and a cane for a period. It was suggested they required surgery.
An orthopaedic surgeon’s November 26, 2015 report stated the worker worked intermittently since the accident. They were referred for a new MRI.
The new MRI was on February 10, 2016. It noted the tear to the medial meniscus and a partial tear or cyst to the ACL.
A March 3, 2016 orthopaedic surgeon’s report noted some old ligament injuries and evidence of a medial meniscal tear. The worker was quite symptomatic and surgery was required.

An April 5, 2016 Medical Consultant (MC) review indicated the accident resulted in valgus-varus (twisting) movement to the knee. This was consistent with an acute ACL tear, mild sprain to the MCL, and medial meniscal injury. The surgery was compensable.

I note the initial medical interventions and conclusions from the family doctor were based on the view that the worker had a soft tissue injury to their left knee. Under this assumption, the worker continued to perform their job duties to the best of their ability. Given the regular medical appointments (and findings) with the family doctor from May to December of 2014, it is unclear why a June 2014 FAF suggested the worker had no restrictions related to their left knee. It is an incomplete document and I place no weight on it. The preponderance of medical evidence supports a clear ongoing impairment.

It is also clear the worker had more than a knee strain. This was confirmed by the April 2015 MRI and the need for surgery in April of 2016. The April 5, 2016 MC review found the surgery was work-related and this opinion was accepted by the operating area. The operating area also found the injury resulted in a permanent impairment.

This leads me to raise concerns about the worker’s ability to perform their pre-injury duties without accommodation. I find the position of machine operator, without accommodation, did not meet the requirement of “safe” and “consistent with the worker’s functional abilities”. It therefore cannot be considered the worker’s SO. Policy 15-06-03 supports this view. It asks whether the work exists in the general labour market. This in part means whether the tasks and work processes were specifically accommodated for the worker’s impairment to the extent they were not likely to exist with or be provided by another employer. I find that to be the case here. In my view, it is unlikely a new employer in the general labour market would accommodate the position to the extent it would be suitable for a worker with a permanent knee impairment and related restrictions.

In such circumstances, policy 15-06-03 states a SO needs to be determined. The operating area is instructed to determine a SO “available without training”. The worker would be entitled to partial LOE benefits from May 1, 2015 to April 11, 2016 (the surgery date) based on the entry-level wage in the SO. We require confirmation of the worker’s earnings and any other sources of income (such as social services) for the period in question. In addition, given the worker was seasonally employed; a long-term recalculation of the LOE benefit rate is required.

In summary, the worker is entitled to a review of their LOE benefits from May 1, 2015 to April 11, 2016. This review is to be based on the determination of a SO (if any) the worker had the skills and ability to perform given their permanent left knee restrictions.

2. Entitlement to LOE benefits following the April 11, 2016 surgery

Worker representative submission

The worker was entitled to full LOE benefits following their surgery. This was because they were totally impaired.
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) supported this view. They indicated employment status at the time of a surgery was not determinative when ruling on entitlement to LOE benefits.
The worker tried to work in June and December of 2015 but was unable to continue due to their injury.
Had the employer recalled the worker in the spring of 2015, they would have remained employed at the time of their surgery the following year. Instead, they were forced to find alternate unsuitable employment that he could not maintain. This was the reason they was not working prior to the surgery.

The employer did not provide a submission.

I find the worker is entitled to full LOE benefits from April 11, 2016 while they were totally impaired following their surgery. They are also entitled to partial LOE benefits from the date they were partially impaired and capable of suitable employment. I note the following in arriving at my decision.

Policy 15-02-05 states a worker may be entitled to benefits for a recurrence of a work-related injury/disease if the worker experiences a significant deterioration that does not result from a significant new incident/exposure, and is clinically compatible with the original injury/disease. I note the operating area granted the recurrence.

The policy also states generally, a worker who experiences an actual loss of earnings due to a recurrence is entitled to LOE benefits. A worker who does not experience an actual loss of earnings due to a recurrence may be entitled to LOE benefits if, at the time of the recurrence, he/she was expected to have actual earnings in the near future. To determine whether a worker was expected to have actual earnings in the near future, the WSIB may consider whether the worker:

was expected to return to an existing job
was scheduled to start a new job
was actively engaged in formal job search activities, or
recently completed a return-to-work plan.

A worker who had permanently exited the workforce or was not actively engaged in the workforce at the time of the recurrence would not be expected to have actual earnings in the near future.

I find no evidence to suggest the worker was not engaged in or exited the workforce. I note the worker had sporadic employment in 2015. The details surrounding why they were unable to continue to work with the new employer YYYY is not clear. The worker stated it was due to their injury, which I find progressively deteriorated to the point they required surgical intervention just four months after they were last employed (according to the worker they were employed to January 1, 2016).

I do not agree with the CM’s interpretation of the policy. It appears the CM’s view was that a worker was disqualified from consideration to LOE benefits if they were not actively employed immediately prior to a surgical intervention. The policy in my view provides broad discretion based on the circumstances of a case. It also appears the CM accepted the accident employer’s account of events, which I rejected as outlined earlier in this decision. I also found the pre-injury duties without accommodation were unsuitable.

The worker is entitled to full LOE benefits from April 11, 2016, while he remained totally impaired due to the surgery. The duration of benefits is to be reviewed by the operating area. The worker is also entitled to a review of partial LOE benefits from the date he was considered partially impaired and capable of suitable employment.

3. The re-employment threshold criterion

Worker representative submission

The worker took two days off after the accident before returning to work.
They performed modified work with crutches. It was highly accommodated and not their full essential duties.
Co-workers had to start their machine, check the oil, grease the machine, clean the tracks, and provide a ramp for them to get into the machine.
The job the worker performed was not a job that normally paid their regular wages. Although they operated the excavator, he was unable to complete the other required duties as outlined above.
No employer would hire a worker given the extreme accommodation required. Therefore, no employer would pay a worker the same salary given they were unable to perform all of the essential duties of the job.
Therefore, the unable to work criterion was met

Employer submission

It was a no lost time claim. The worker never missed work as they confirmed in writing in a letter dated June 6, 2014.
Therefore, the unable to work criterion was not met.

I find the employer did not have a re-employment obligation. I note the following in arriving at my decision.

Policy 19-05-02 explains that employers only have a re-employment obligation if a worker was unable to work as a result of a work-related injury. A worker is considered unable to work if, because of the work-related injury/disease, they:

are absent from work
work less than regular hours, and/or
require accommodated/modified work that pays, or normally pays, less than their regular pay,

regardless of whether the employer reimburses the worker for an actual loss of earnings or not. Thus, an employer’s decision to pay advances in these circumstances is not relevant to whether a worker has been "unable to work."

"Unable to work" does not include a worker who loses time/earnings from work because they must attend a health care appointment.

The worker initially advised the WSIB that they did not miss time from work due to their injury. They went to the extent of confirming this in writing on June 6, 2014. They also stated there was no lost time on numerous subsequent occasions. In 2017, the worker provided a different account. They now stated they missed the first two days from work. I place more weight on the worker’s initial written account then their claim more than two years after-the-fact. I find they did not lose time from work due to their injury. They were not absent from work nor did they work less than their regular hours.

The final point in the policy speaks to performing work that normally pays less than a worker’s regular pay. I note performing accommodated or modified duties does not fulfil the requirement of the policy. The key is whether the work performed pays less than the worker’s pre-injury pay. In this case, the worker continued to perform the job purpose. By this, I mean they continued to operate the machine. The fact that they required assistance with some ancillary mandatory tasks or modifications (such as a ramp) does not negate this view. I also note no evidence was provided to suggest such accommodation or modification warranted lesser pay. An injured worker requiring accommodation to perform their essential duties does not meet the unable to work threshold. This could include an accommodation that a new employer in the general labour market may be unwilling to provide.

Given the circumstances of this case, I find the work the worker performed following their injury (their pre-injury duties with accommodation) paid their regular pay. Therefore, the re-employment threshold was not met. The employer has no-reemployment obligation.

4. The NEL decision

Worker representative submission

The worker had no issue with their left knee prior to the date of accident. They had an asymptomatic pre-existing condition.
There should have been no offset to the NEL quantum.

The employer did not provide a submission.

I find the NEL quantum was properly offset. I note the following in arriving at my decision.

Policy 18-05-03 states that when determining the degree of work-related permanent impairment for workers who have a pre-existing condition or a prior work-related permanent impairment, the decision-maker:

rates the area of the body affected by the work-related permanent impairment
disregards any pre-existing conditions affecting other areas of the body, and
factors out pre-existing conditions and prior-work-related permanent impairments affecting the same area of the body.

The fact that the worker had a pre-existing condition is not in dispute. This was confirmed by the specialty clinic. For example, a November 10, 2016 report noted a non-occupational diagnosis of arthritis in the medical compartment of the left knee. Similarly, a January 27, 2017 report noted medial compartment tibio-femoral osteoarthritis.

The policy states that to factor out a pre-existing condition, it must be established that it is contributing to the degree of impairment to the same area of the body as the work-related permanent impairment. To establish this, the evidence must show that the pre-existing condition, on its own, would result in an impairment rating. The pre-existing condition does not need to have produced periods of impairment or disease requiring health care, or have caused a disruption in employment, in order to factor out its rating from the total impairment rating.

The key is whether the pre-existing condition, on its own, would result in an impairment rating under the AMA Guides. In this regard, I note knee impairments are rather unique. As outlined in Table 40, arthritis due to any etiology results in an impairment rating. In this case, the worker had pre-existing arthritis in their knee. By definition, it is a pre-existing condition contributing to the degree of impairment that on its own would result in an impairment rating. In other words, given the criteria and language in Table 40 of the Guides, pre-existing asymptomatic arthritis in the knee is a rateable pre-existing condition. It therefore must be recognised when conducting a NEL review and offset as per policy 18-05-03.

I note that prior to any adjustment, the worker had an 8% “whole person” quantum for their left knee. The pre-existing condition equalled a 4% “whole person” rating. I find it was correctly reduced from the worker’s NEL award, resulting in the 4% quantum. The NEL decision is confirmed accordingly.

CONCLUSION

As outlined in the above decision I conclude:

The worker is entitled to a review of their LOE benefits from May 1, 2015 to April 11, 2016. This review is to be based on the determination of a SO (if any) the worker had the skills and ability to perform given their permanent left knee restrictions.
The worker is entitled to full LOE benefits from April 11, 2016. The duration (period he remained totally impaired) is to be determined by the operating area. He is also entitled to a review of partial LOE benefits from the date he was considered partially impaired and capable of suitable employment.
The employer did not have a re-employment obligation. The threshold criterion of “unable to work” was not met.
The 4% NEL award is confirmed.

The objection is allowed in part.

DATED June 17, 2022

S. Vagadia

Appeals Resolution Officer

Appeals Services Division