APPEALS RESOLUTION OFFICER DECISION
Decision number: 20220081
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer
REPRESENTED by: self (not participating)
HEARING: HEARING IN WRITING
HEARD by: c. da cunha, appeals resolution officer
DATED: JUNE 16, 2022
ISSUE
The worker objects to the January 20, 2022 decision of the Case Manager (CM). This decision denied entitlement to full loss of earnings (LOE) benefits following right shoulder surgeries of August 21, 2018, June 13, 2019, November 23, 2020, and October 26, 2021.
The worker seeks entitlement to full LOE benefits for the recovery period following each surgery.
BACKGROUND
The Appeals Resolution Officers’ (ARO) decisions of November 22, 2019, June 18, 2020, September 2, 2021, and February 4, 2022, provide a thorough history of the case file. Therefore, I will not repeat it all here.
The worker injured their right shoulder in a workplace accident on August 27, 2012. They had worked with the employer as a Sprinkler Fitter for over seven years at the time.
They underwent surgery on November 12, 2013. The WSIB determined that they reached maximum medical recovery on November 5, 2014, with a right shoulder permanent impairment (PI) evident. The worker is in receipt of a 6% non-economic loss award in recognition of the PI.
The employer was not able to permanently accommodate the worker with suitable work, and the WSIB provided them with a return-to-work (RTW) plan. The worker underwent further surgery on January 28, 2016, and the WSIB paused their RTW plan.
On November 7, 2017, the CM granted secondary entitlement to an adjustment disorder, with depressed mood. The WSIB continues to fund mental health treatment for the worker, and has not yet determined that they have reached maximum psychological recovery.
The worker completed the RTW plan on June 1, 2018. The WSIB determined that they had acquired all the skills necessary to re-employ themselves as a Construction Project Manager (CPM), national occupation code (NOC) 0711. The worker remained unemployed at that time. Consequently, the WSIB adjusted their full LOE benefits to partial LOE benefits, effective June 4, 2018, based on determined earnings within NOC 0711, CPM.
On August 3, 2018, the WSIB granted secondary entitlement to a Propionibacterium acnes infection, which caused degeneration in the right shoulder. The worker then had further right shoulder surgery on August 21, 2018, to which the WSIB granted entitlement under the claim.
The WSIB conducted the final LOE benefit review, effective August 27, 2018. The worker remained unemployed, and the WSIB locked in their partial LOE benefits to age 65.
The worker remained unemployed and underwent further right shoulder surgery on June 13, 2019, November 23, 2020, January 18, 2021 and October 26, 2021. The WSIB granted entitlement to all these surgeries under the claim.
In the February 4, 2022 decision, the ARO denied entitlement to full LOE benefits following the January 18, 2021 surgery.
The CM’s Decision: On January 20, 2022, the CM retroactively considered the worker’s entitlement to full LOE benefits following the August 21, 2018, June 13, 2019, November 23, 2020, and October 26, 2021 surgeries. The CM denied entitlement to the same, finding that the worker did not have an actual wage loss at the time of each of these recurrences.
The Worker’s Position: In the January 21, 2022 Appeal Readiness Form, the worker representative states that the worker is entitled to full LOE benefits for the recovery period following each of the surgeries.
AUTHORITY
Section 43 of the Workplace Safety and Insurance Act, 1997 (WSIA)
Operational Policy Manual
Published
15-02-05: Recurrences
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, relevant legislation, and appropriate operational policy in reaching this decision. Having done so, I find that there is no entitlement to full LOE benefits following the August 21, 2018, June 13, 2019, November 23, 2020, and October 26, 2021 surgeries.
Section 43 of the WSIA is the determinative authority in relation to this appeal and it states, in part:
- A worker who has a LOE as a result of the injury is entitled to payments under this section beginning when the LOE begins. The payments continue until the earliest of,
(a) the day on which the worker’s LOE ceases;
(b) 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;
(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
(d) the day on which the worker is no longer impaired as a result of the injury.
- Subject to subsections (2.1), (2.2), (3) and (4), the amount of the payments is 85 per cent of the difference between,
(a) the worker’s net average earnings (NAE) before the injury; and
(b) the NAE that the worker earns or is able to earn in suitable and available employment or business after the injury.
Operational policy 15-02-05, Recurrences, further clarifies the matter before me. It states, in part:
Generally, a worker who experiences an actual LOE due to a recurrence is entitled to LOE benefits.
A worker who does not experience an actual LOE 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 RTW 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.
Based on these authorities, in order for the worker to receive full LOE benefits for the recovery periods following each surgery (i.e. the periods they claim they were totally disabled and not able to work), the evidence must show that their full wage loss during these periods was caused by their work-related right shoulder PI.
In this specific case, while the worker completed a RTW plan on June 1, 2018, and the WSIB determined that they had obtained all the skills necessary to work as a CPM and were able to do so, the worker clearly expressed their intention to not RTW until they felt ready to do so. This is evidenced by the worker’s statements to the CMs on June 4, 2018, June 5, 2018, June 20, 2018 and June 22, 2018.
In other words, from June 1, 2018 onward, the worker’s earnings capacity was eliminated by their self-perceived total disability and decision not to engage in any job search activities going forward. Therefore, the worker’s inability to earn in a SO was caused by non-work-related factors (i.e. their self-perceived total disability and decision not to engage in any job search activities from June 1, 2018), and not the work-related right shoulder injury.
Four years later, the worker has not provided any documentary evidence showing that they, at any time after June 1, 2018, altered their position with respect to a RTW, and engaged in job search activities. Therefore, even if the worker was not able to earn during the August 21, 2018, June 13, 2019, November 23, 2020, and October 26, 2021 post-surgical recovery periods, their non-work-related inability to earn during each of these periods remained unchanged from June 1, 2018.
The facts and circumstances on record lead me to find that, since June 1, 2018, the worker has removed themselves from the workforce. For this reason, at the time of each surgery, the worker did not have an earnings capacity. This circumstance was not changed by any of the surgeries. Therefore, their full wage loss subsequent to the surgeries was not caused by their work-related right shoulder injury, and they are not entitled to full LOE benefits for the period of recovery following each of the surgeries.
CONCLUSION
I find that there is no entitlement to full loss of earnings benefits for the recovery periods following the August 21, 2018, June 13, 2019, November 23, 2020, and October 26, 2021 surgeries.
The worker’s objection is, therefore, denied.
DATED June 16, 2022.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division