APPEALS RESOLUTION OFFICER DECISION
decision number:
20220087
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
N. Mazza, appeals resolution officer
june 30, 2022
ISSUES
The worker is objecting to the Case Manager’s (CM) decision of December 21, 2021, which determined the worker is not entitled to loss of earnings (LOE) benefits during a temporary work disruption (TWD) starting November 29, 2021.
BACKGROUND
This now, mid-forties year-old automotive assembly worker reports injuring their lower back on March 2, 2021. The claim was allowed for a lower back strain on March 4, 2021. On March 8, 2021, the worker resumed modified work performing visual inspections with the employer at no wage loss. On March 29, 2021, the employer temporarily shutdown, due to a shortage of work. The decision letter dated April 16, 2021 determined that the worker was not eligible for LOE benefits during this TWD, as their loss of income was during this period was related to an employment situation and not the work-related injury.
On June 8, 2021, additional medical information was considered and an ongoing entitlement was extended to include a temporary exacerbation of a pre-existing L3-4 disc herniation. The decision acknowledged that the worker continued to remain off work due to the TWD.
The employer reopened the plant on July 5, 2021 and the company physician assessed the worker. It was determined that the worker was unfit for work. A decision dated July 6, 2021 determined that the worker was entitled to full LOE benefits from July 5, 2021 onward.
While off work, surgery was recommended for a microdiscetomy procedure and was completed on August 3, 2021. The September 1, 2021 decision accepted the surgery as compensable and ongoing LOE benefits were confirmed.
The return to work (RTW) meeting of November 19, 2021 determined suitable work was available for visual inspection duties. A plan was developed, detailing a return to work on graduated hours starting November 29, 2021. However, the start of the plan was interrupted by a plant shutdown.
The decision of December 21, 2021 determined that the worker’s loss of earnings during the TWD period was a result of their employment situation and not a result of the work-related injury. The decision noted that there was no evidence to support that the worker would seek new employment during the TWD to restore their earnings and medical information supported that the worker was fit for suitable work.
The TWD ended and the worker resumed their modified work schedule on December 6, 2021.
On May 5, 2022, it was determined that the worker’s temporary exacerbation of the L3-4 disc herniation ceased. The worker’s ongoing impairment was determined to be related to the pre-existing condition and not the work-related accident. The worker was determined to have fully recovered from their work-related impairment on March 29, 2022.
AUTHORITY
Operational Policy Manual
Published
15-06-02 Entitlement Following Temporary Work Disruptions
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the worker is entitled to full LOE benefits for the period of November 29, 2021 to December 6, 2021.
Worker’s Position
In the March 8, 2022 submission, the worker notes that LOE benefits were denied during the TWD due to their employment pattern and not the injury. It is argued that during the TWD period of November 29, 2021 the worker was not fit for their full regular duties, as a result of their compensable injury. As they continued to be impaired by the work-related injury, the worker questioned the viability of securing alternate work in the open labour market during the TWD.
The worker referenced Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision 123/18 to support their argument that full LOE benefits, for which the worker received prior to the TWD, should have been maintained during the week of November 29, 2021. The worker also references policy 18-03-02 which states that full LOE benefits are paid when the injury prevents the worker from returning to any type of work.
The worker is seeking full LOE benefits for the week November 29, 2021. It is clarified that benefits are not being sought for the period of January 3, 2022 to January 30, 2022.
Review of WSIAT Decision 123/18
WSIAT decision 123/18 identifies a worker who was laid off at the end of the season in October 2015.
Their crew was recalled in April 2016, the worker was not. The worker appealed the decision denying LOE benefits from October 2016 to April 2016. The Vice Chair did not agree and highlighted the following:
If the general rule is that the level of LOE benefits at the start of a temporary work disruption are to be maintained, then the reference to “additional LOE benefits” must be a reference to benefits over and above those that a worker is receiving at the start of a temporary work disruption. Otherwise, there would be no need for the expression of the general rule. OPM Document No. 15-06-02 would simply refer to the two criteria referenced in the “Pay additional LOE benefits” section as determinative of entitlement during a temporary work stoppage.
Given this interpretation, the Vice Chair determined that “pay additional LOE benefits” applies to worker who are partially impaired and fit for work at or subsequent to the start of the temporary work disruption and who wish to claim LOE benefits beyond the level of LOE benefits they were receiving when the temporary work disruption began. As such, the worker was awarded LOE benefits at the same level they were entitled to prior to the start of the TWD.
Employer’s Position
The employer is participating, but has not provided a position in this case.
Review of Evidence
The CM’s memo dated April 15, 2021 documents a conversation with the worker. The worker acknowledged that there have been plant shutdowns in the past, the last major shutdown occurring in 2013 to retool. During this closure period, the worker reports colleting Employment Insurance (EI) benefits. The worker also confirmed, for the most recent shutdown of March 29, 2021, the worker had applied for EI benefits.
The Functional Ability Form (FAF) dated November 18, 2021 notes that the worker was cleared to resume work at 4 hours per shift, ever other day, for one week, then progress to 4 hour shifts 5 days per week, effective November 29, 2021.
The RTW memo dated November 19, 2021 identified that the worker was not fit for pre-accident duties. Suitable alternate work was available in “visual validation” area where the worker would walk around and verify all the fender shield bolts are secured. The RTW plan was to commence on November 29, 2021 at graduated hours, starting at 4 hours shifts, 3 days per week.
The CM’s memo dated December 2, 2021, documents a conversation with the worker. It notes the worker was expected to resume work on November 29, 2021, but was laid off. The worker was expected to resume visual validation work starting at 4 hours, three days per week.
Assessment of Evidence
In this case, the worker is seeking full LOE benefits for the period of November 29, 2021 to December 6, 2021. The worker argues, per WSIB policy 15-06-02, Entitlement Following Temporary Work Disruptions, that their full LOE benefits ought to have been maintained and not denied. The worker notes during this period, they continued to suffer from their work-related impairment and were not able to resume full duties, nor were they fit to seek out alternate work in the open labour market.
I am in agreement with the worker’s position.
To support this conclusion, I have considered WSIB Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions, which states, the WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a temporary work disruption. LOE benefits may be adjusted if the worker’s level of impairment significantly improves or deteriorates during the work disruption.
In this case, the FAF report of November 18, 2021, confirmed the worker was fit to resume modified work on graduated hours starting November 29, 2021. The RTW planning memo dated November 19, 2021, confirms that the employer had suitable work available to accommodate the worker as of November 29, 2021. Prior to this period, I recognize that the worker was off work completely and in receipt of full LOE benefits.
I note that on November 29, 2021, the worker did not resume work according to their RTW plan due to a temporary plant shutdown. The employer reopened on December 6, 2021 and the worker commenced modified work.
While I accept, per the RTW plan, that the employer was able to identify suitable work, ultimately they remained unable to return the worker to available work on November 29, 2021 due to the TWD. I note that the worker’s level of impairment did not improve or deteriorate during this period, but rather, continued to remain stable.
In accordance with policy 15-06-02, the WSIB generally maintains the LOE the worker was receiving at the start of the TWD. As the worker did not resume modified work and was in receipt of full LOE benefits at the start of the TWD, I find that these benefits should be maintained through the TWD period. Therefore, the worker is entitled to full LOE benefits from November 29, 2021 to December 6, 2021.
CONCLUSION
I conclude that the worker is entitled to full LOE benefits from November 29, 2021 to December 6, 2021.
The worker’s objection is allowed.
DATED June 30, 2022
Nancy Mazza
Appeals Resolution Officer
Appeals Services Division