Worker v. Employer, 2022 CanLII 89431

20220095

REPRESENTED by:

HEARD by:

DATED:

JUNE 3, 2022

ISSUES

The worker is objecting to the following decisions, made by the Case Manager (CM):

The determination that the worker achieved maximum medical recovery (MMR) from the compensable low back injury by May 14, 2018 with no ongoing or permanent impairment, dated January 6, 2022.
The denial of entitlement to loss of earnings (LOE) benefits following a work disruption that commenced on March 20, 2020, dated November 24, 2021.

BACKGROUND

On June 24, 2016, this lift truck driver tripped, striking their chest and right lower leg on an object. The worker was determined to have a permanent impairment as a result of the compensable right high ankle sprain. They were assessed with a two percent Non-economic Loss (NEL).

The worker was accommodated with the accident employer. They were placed in a permanent modified position with their employer. No LOE benefits have been paid in this claim.

The worker was laid off from the employer on March 20, 2020. The employer reported that their business essentially stopped due to government restrictions related to the pandemic. The work disruption was temporary, but extended for many months.

The worker requested LOE benefits after they had been laid off for a period. They claimed that they could not be recalled to work due to their right ankle impairment.

As explained in correspondence dated November 24, 2021, the CM determined that the worker was not entitled to LOE benefits following the work disruption. This decision was reconsidered and upheld on December 7, 2021.

On January 6, 2022, the CM determined that the worker had achieved MMR for the compensable low back injury by May 14, 2018 with no ongoing or permanent impairment.

Worker’s Position

The worker representative argues in part that the worker was granted entitlement to benefits for the low back injury on the basis of having a limp for an extended period of time. They state that the duration and permanency of the right ankle impairment would lead to a permanent low back impairment. The work disruption became permanent and the worker’s compensable impairment would have affected their ability to secure new employment.

AUTHORITY

Operational Policies

Published

11-01-05 Determining Permanent Impairment

15-06-02 Entitlement Following Temporary Work Disruptions 15-06-03 Entitlement Following Permanent Work Disruptions

November 3, 2014

April 9, 2021

ANALYSIS

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

Permanent Impairment for Low Back

The medical evidence does not support that the worker has a permanent impairment as a result of the compensable low back injury.

The worker originally injured their right lower leg in a workplace accident that occurred on June 24, 2016. They have a recognized permanent impairment as a result of their compensable injury and were assessed with a two percent Non-economic Loss (NEL) award.

In a decision dated November 16, 2021, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) granted the worker entitlement to benefits for a low back injury as a secondary condition. The worker was noted to have a longstanding limp as a result of the right lower leg injury. In early 2018, they complained of low back pain. The WSIAT determined that the limp led to the low back pain. The WSIAT did not specify the accepted diagnosis for the compensable low back condition.

The WSIAT denied entitlement to benefits for right upper thigh and hip injuries.

WSIB Operational Policy 11-01-05 Determining Permanent Impairment states in part:

A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached.

A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.

The policy provides the following definitions:

Impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

Maximum medical recovery (MMR) means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.

Permanent impairment means impairment that continues to exist after the worker reaches MMR.

Significant improvement means a marked degree of improvement in the work-related injury/disease that is demonstrated by a measurable change in clinical findings.

The worker representative argues in part that as the worker had a limp for an extended period, and this was accepted as having caused their low back pain, the worker’s low back condition would be permanent. The worker sought treatment for low back symptoms again in 2021.

The worker participated in several sessions of physiotherapy treatment for their low back pain beginning in March 2018. In the May 14, 2018 chart note, the physiotherapist documented that the worker had pain and stiffness in their low back and right hip. There was palpable tension over the lumbar paraspinal muscles. No other clinical findings were provided. The worker had decreased pain and improved mobility after the treatment session.

The March 21, 2018 treatment note speaks more to the worker’s non-compensable right hip condition.

There is a significant gap in the subsequent medical record in terms of the worker’s low back complaints. The family doctor’s (FD) chart notes are on file. The worker saw their FD for several unrelated medical issues after May 2018. The low back is not mentioned in the chart notes from these visits. This supports that the worker’s low back injury resolved after they completed physiotherapy treatment in May 2018.

The worker returned to the physiotherapist for treatment for low back pain in 2021. While the first chart note on file is dated June 12, 2021, the notes state that the injury date for this low back injury was January 28, 2021 and that the worker was referred and assessed on January 30, 2021. The worker reported having experienced low back pain as a result of performing yard work. In terms of the history of their low back pain, they said that they injured their low back in a motor vehicle accident (MVA) in 2016. The worker denied this at the WSIAT hearing. The worker also said that their low back pain is aggravated by their work duties. Note that the worker had been off work for ten months by this point following a work disruption.

The medical evidence supports that the worker achieved maximum medical recovery (MMR) from their compensable low back injury by May 2018 when they stopped attending treatment. The clinical findings from that time do not support that there was an ongoing impairment. There is a significant gap in the subsequent medical record in terms of low back complaints.

Note that the issue of whether the worker had a recurrence of their compensable low back pain in January 2021 is not before me.

As MMR was achieved in May 2018 with no ongoing or permanent impairment, the worker is not entitled to a NEL assessment for a low back impairment under this claim.

LOE Benefits Following Work Disruption

The worker is not entitled to loss of earnings (LOE) benefits following the work disruption of March 20, 2020.

This worker was injured in a workplace accident on June 24, 2016. They were working as a lift truck operator at the time. No LOE benefits have been paid in this claim. The employer was able to accommodate the worker’s limitations.

Due to their permanent impairment, the worker was unable to return to their pre-injury work. The employer accommodated the worker in a permanent position, working in their food services area. The worker was still working as a driver/vehicle operator, but they did not have to climb up onto the vehicle, as they would have with a lift truck.

The worker continued working with their impairment until March 20, 2020 when they were laid off by the employer. The employer serves the travel industry. With the pandemic, this industry was essentially shutdown in March 2020. The employer reported that the vast majority of their staff were affected by the layoff.

Policy 15-06-02 Entitlement Following Temporary Work Disruptions defines a “temporary work disruption” as follows:

Temporary work disruptions are generally expected to last less than 3 months and include:

layoffs resulting from temporary changes in the availability of work due to economic factors (e.g., plant retooling, holiday shutdown)
partial reduction in hours or wages due to business circumstances that affects all employees in company, plant, department, or shift (i.e., all employees continue to work)
strikes or lockouts, and
seasonal layoffs (regardless of the length of the off-season).

Layoffs with specific or expected recall dates beyond three months continue to be treated as temporary work disruptions if there is a strong degree of certainty that the recall will occur (e.g., written notice of recall date, employer’s past practices, relationship between employer and employees, unique circumstances).

This work disruption ultimately extended well beyond three months. However, that this would be the case was not known at the time. Not all of the communication between the employer and the worker following the work disruption may be on file. The available evidence supports that there was an expected recall date beyond three months. The employer wrote to the worker on July 15, 2020 requesting that the worker provide them with an updated medical report in preparation for a return to work. This implies that a recall in the near future was anticipated.

The worker’s union reportedly filed grievances from June to September 2020 alleging that the employer was not recalling employees in a manner consistent with the collective agreement. Whether this was the case is not necessarily relevant to this claim, but it is relevant in that it supports that the employer was restarting some of their business, or anticipating changes in the government restrictions on travel that would allow them to do so. On August 28, 2020, the employer told the Case Manager (CM) that many employees had been recalled, but not yet for the worker’s position. There was a strong degree of certainty that the recall of more staff would occur at some time. The question was when the

government-imposed restrictions on travel due to the pandemic would allow for this.

The worker representative argues in part that additional LOE benefits should be paid following the work disruption as the worker did not accept a severance package and their compensable impairment would affect their ability to secure new employment.

The worker representative submitted a copy of an arbitration decision. This document states that the worker originally requested a severance package from the employer, on or around March 5, 2021. This meant that they were giving up their recall rights. The worker subsequently changed their mind and wanted to pursue a grievance regarding their not yet having been recalled to work.

The arbitrator found that the worker had indeed opted to receive a severance package, thus abandoning their recall rights. The employer was ordered to make the appropriate statutory payments to the worker. The means that worker effectively requested a severance approximately one year following the work disruption.

I note that the employer told the CM that the government extended the time during which an employer is required to offer severance following a work disruption to March 2022. They said that when severance packages were offered in July 2021, the worker did not take one. The arbitrator’s decision is dated January 12, 2022.

The representative submitted a document from a private insurance carrier regarding the termination of the worker’s membership in a retirement savings program, effective February 7, 2022. This would be consistent with the arbitrator’s decision dated January 12, 2022 directing the employer to close off the worker’s employment. This document states that the worker was eligible for early retirement as of September 1, 2020.

Policy 15-06-02 also states:

The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a temporary work disruption.

Workers are entitled to additional LOE benefits when evidence indicates:

the worker would seek new employment in the general labour market to attempt to restore their loss of earnings during the temporary work disruption (i.e., if they were not injured), and
the work-related injury/disease impacts the worker’s ability to earn income through new employment.

As noted above, the worker was not receiving LOE benefits at the time of the work disruption. No LOE benefits had been paid in this claim.

In order for additional LOE benefits to be payable, there must be evidence that the worker would seek new employment in the labour market and that their compensable impairment prevented them from doing so to some degree.

There is no evidence in the claim file to support that the worker attempted to seek alternative employment following the work disruption. They received benefits through other government programs. They pursued various grievances against the employer through their union. At one point, they requested a severance package. There is no evidence to support that the worker worked alternative employment during any previous work disruptions with this employer.

The worker representative states that the work-related impairment would have affected the worker’s ability to find new employment. The degree of impairment as reflected by the two percent NEL award is not significant. The worker demonstrated the ability to work with the injury for nearly four years. The

worker or their representative provided no evidence to support that the worker actually tried to find alternative work after they were laid off. As the worker would not have sought new employment following the work disruption, additional LOE benefits are not in order.

The worker representative also argues that the work disruption had become permanent. Policy 15-06-03

Entitlement Following Permanent Work Disruptions defines a “permanent work disruption” as follows:

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.

Any LOE benefits that become payable when a temporary work disruption becomes permanent are paid prospectively from the date the WSIB determines the work disruption has become permanent.

In my opinion, while the layoff became extended, the nature of this work disruption continued to be consistent with a temporary one as defined under the policies, rather than a permanent one. There continued to be a very strong likelihood of recall even as the work disruption extended beyond three months of duration. The employment relationship was maintained until the worker requested a severance package, ultimately confirmed by the arbitrator. The provisions of policy 15-06-02 are best applied to this case.

Therefore, for the reasons I have outlined, the worker is not entitled to LOE benefits following the work disruption of March 20, 2020.

CONCLUSION

The worker does not have a permanent impairment related to the compensable low back injury under this claim.
The worker is not entitled to LOE benefits following the work disruption of March 20, 2020.

The objection is denied.

DATED June 3, 2022

C. Marr

Appeals Resolution Officer Appeals Services Division