APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230124
OBJECTING PARTY:
Worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
Employer, not participating
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
VIDEOCONFERENCE
HEARD by:
Stephanie Waters, Appeals Resolution Officer
SEPTEMBER 21, 2023
ISSUE
The worker objects to the Case Manager’s (CM’s) June 14, 2022 decision, which denied entitlement to loss of earnings (LOE) benefits for the period of November 15, 2019 to February 8, 2022 non-inclusive.
BACKGROUND
The worker’s date of hire was September 26, 2018. The worker is right hand dominant. The worker reported discomfort in his left wrist, forearm and elbow from performing his job duties of prying and moving rollers as a general labourer. The worker sought medical attention on July 3, 2019 and received the diagnosis of soft tissue/strain injuries. The worker remained at work performing accommodated duties and started physiotherapy. The operating area granted entitlement to healthcare benefits for left wrist, forearm and elbow strains.
The employer submitted a form indicating the worker resumed full regular duties on October 10, 2019. The CM subsequently closed benefits when they concluded the worker’s injuries reached maximum medical recovery (MMR) without a permanent impairment as of October 15, 2019.
A Record of Employment (ROE) shows the worker’s last day of work with the accident employer was October 11, 2019 due to a shortage of work/end of contract. The worker got a job with a new employer as a helper on November 15, 2019 but experienced a left elbow bleed on November 29, 2019. This was established as a new claim. However, the new claim was later closed and entitlement was considered under this original claim when the worker stated a new incident did not occur and he had ongoing elbow issues since July 2019.
The worker stated he quit this job on November 29, 2019 based on his doctor’s advice to stop manual labour and do retraining. The worker started school for Business Finance in May 2020. The worker began a part-time job stocking pharmacy shelves on February 16, 2021, but started an unpaid leave of absence on March 9, 2021. The worker started a third job as a research analyst on a full-time permanent basis on May 3, 2021 where the new employer accommodated the worker’s injuries.
The worker contacted the WSIB in February 2021 regarding ongoing recovery issues. The CM determined the worker’s injuries were not at MMR in October 2019 and reactivated entitlement for left wrist, forearm, and elbow strains since October 15, 2019. The worker attended a Specialty Program and in a letter of November 29, 2021, the CM updated entitlement to include left ulnar neuritis and surgery. The worker had surgery on February 8, 2022 and received full LOE benefits as of this date. The CM later determined the worker’s injuries reached MMR without a permanent impairment on November 7, 2022.
In a letter of June 14, 2022, the CM allowed entitlement to LOE benefits from October 11, 2019 to November 15, 2019 non-inclusive. The CM explained there was sufficient evidence to support the worker was unable to perform pre-accident work duties and the accident employer did not offer accommodated work. The CM denied LOE benefits from November 15, 2019 until the worker’s surgery date of February 8, 2022. The CM indicated the worker was partially impaired with functional limitations for his left elbow, and the worker demonstrated his ability to secure suitable employment, but the worker removed himself from employment to attend college. In a separate letter dated July 4, 2022, a Payment Specialist determined the worker’s long-term average gross weekly earnings were $910.34.
The worker’s representative submitted an Appeal Readiness Form to appeal the June 14, 2022 decision.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-02-07 RTW Overview and Key Concepts
September 1, 2021
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker is entitled to full LOE benefits, less actual earnings received, for the period of November 15, 2019 to February 7, 2022 inclusive.
The worker’s appeal is allowed in part because the worker’s representative requested full LOE benefits, but I am only able to grant full LOE benefits less actual earnings received during the period in question.
Worker’s Oral Testimony
The worker is right hand dominant. He completed his grade 12 education, took a one-year break, and then went to school in a Police Foundations program. The worker completed one year of this two-year program and then stopped without graduating. The worker worked as a security guard for two years and then moved to Province X performing labour jobs in the oil sands for two to three years. The worker would drive to a broken oil well and put an oil tube down the well to fix/service it. The worker described this as heavy manual labour operating heavy equipment and lifting up to 50kg to perform the duties. After that, the worker worked at bars in nightclubs and restaurants from 2014 to 2018. The worker explained he had a supervisory role but still performed many physically heavy tasks to manage an area when staff was falling short. This would include physically setting up a bar, filling and moving heavy ice buckets, running around, carrying trays with plates, and cleaning tables as needed.
The worker started as a general labourer working full-time hours at Company A through the accident employer in 2018. The worker described this work as heavy two-handed manual labour. The worker would straighten 320lb tubes after they were cast and monitor the tubes for quality control. The worker used a foot-operated kicker to bounce the tubes into the air and then turned/dragged the tubes onto rollers. The worker was also responsible for peeling copper off 300-400lb cut rings. Following his injury, the worker performed modified duties at the same site. The worker participated in physiotherapy treatment following his injury. In fall 2019, the physiotherapist told the worker he was 85% better and “cleared” him to return to pre-injury duties provided the same conditions did not arise that originally caused the injury. The worker stated his last day with the accident employer was October 11, 2019 before they laid him off.
The worker immediately looked for work elsewhere and submitted multiple resumes. The worker got a job as a helper with a new employer starting November 15, 2019. The worker stated this was still heavy labour though a little lighter than his pre-injury duties. The worker described handling boxes of cups weighing 25lbs, lifting the boxes to shoulder level and occasionally overhead. The worker also described lifting blanks (1ft stacks of cardboard sheets weighing 25lbs) from a skid, working his way down towards the floor. The worker clarified the majority of this work involved moving 25lb loads from waist to shoulder height but had occasional above-shoulder lifting. The worker stated he did not have a new incident in this job but the general movements of his left arm to perform the work aggravated his left elbow nerve pain.
The worker stated his hourly wage was about $17.50. The worker explained the company had a “weird” schedule with three days on, two days off on a rotating basis, but it worked out to an average of 40 hours per week. The worker completed six shifts but experienced a flare-up of left elbow pain as well as a dime-sized blood spot on his left elbow. He saw Dr. Persaud (his family doctor from birth until 2021) on November 28, 2019, explaining his new work duties and ongoing elbow issues. The worker testified his doctor stated he would have ongoing issues and was unable to continue manual labour. The doctor recommended permanent restrictions for lifting/moving 5kg maximum and no overhead movements. The doctor advised the worker to get retraining for a new career. The worker confirmed he quit based on his doctor’s advice on November 29, 2019.
The worker applied for office jobs but did not receive any responses. He confirmed he never worked in a white collar setting before. The worker went to an employment centre, got a counsellor, and took courses on writing resumes and applying to jobs. The counsellor completed aptitude testing and reviewed the worker’s prior employment history and skills to provide guidance on new careers and retraining options. They recommended the worker look at white collar careers since the worker had prior supervisory experience in restaurants but could not perform the labour part of these roles anymore. The counsellor helped the worker pick the Business Finance program based on the worker’s prior experience and aptitude for working with numbers.
The worker looked into retraining, which is a program within Employment Insurance that provides funding for retraining. However, the worker recalled significant layoffs in March 2020 due to COVID and stated there was no funding available for the worker as a result. The worker pursued school on his own and began this program on May 4, 2020. The worker explained school was remote due to COVID and he completed a full course load for the remainder of the year, ending up on the Dean’s Honour Roll.
The worker stated money was tight while he was in school so he looked for a part-time job to help with funding. He found part-time work as a merchandiser for about $15.50 per hour. The worker stated the employer would schedule his shifts, which occurred at night and did not conflict with school, but there were no guaranteed hours. The worker started this position on February 16, 2021 while still attending school. The worker stated he drove to grocery stores and was paid mileage to do so. At the stores, products would already be set out and the worker would be responsible for removing expired products and placing new products on pharmacy shelves. Shelf heights meant the worker would be lifting and reaching from six inches off the floor to just over his shoulder height. The products weighed up to 1lb. The worker stated he had a flare-up of extreme left elbow pain after working a few shifts due to the general arm movements required for the work. The worker’s last day with this employer was March 1, 2021 before he started a leave of absence.
The worker continued doing courses for his Business Finance program and reached the co-op/placement portion of the program. The worker initially stated he reached out to a company called XX before correcting himself and saying the company reached out to him through his fiancé. The worker stated this is a market research company that studies franchise systems on a macro level, grades them based on various attributes, and provides this information to the public. The worker stated his school program taught him about business structures, which gave him the knowledge and skills to complete the analysis work necessary to work with this employer.
XX hired the worker for a paid placement as a research analyst through his school program on May 3, 2021. The worker’s position had an hourly wage of $18.00 and guaranteed 40 hours per week. This was a work-from-home job with job duties completed on a computer. The employer gave the worker flexibility to take breaks as needed to accommodate his left elbow pain and limitations. The worker explained he often worked two separate four-hour periods each day to fulfil his eight hours of work per day. The break in between allowed him to do stretches and exercises and use ice/heat to manage his elbow issues. The employer promoted the worker to senior research analyst a few months later. He continued to work 40 hours per week but received an annual salary of $40,000 plus full benefits. The worker was responsible for managing four team members, meeting with marketing and sales departments, and maintaining databases. The worker stated he enjoyed the work with this employer and the flexibility allowed him to continue working while managing his elbow issues.
The worker had one semester remaining for his Business Finance program but school returned to in-person classes. The worker decided to accept the promotion with XX and work full-time while placing his school on hold. The worker testified he still intends to finish the program in the future. The worker was still employed in this position until his left elbow surgery in February 2022. The worker took two weeks off work following the surgery and then returned to work with this employer. However, this employer had significant layoffs that affected the worker in February 2023. The worker explained he was offered a job to manage a YY in July 2023, and formally started this position in September 2023.
In terms of treatment, the worker stated he performed the stretching and strengthening exercises provided by his initial physiotherapy treatment daily from fall 2019 to date. He explained the problem was that the exercises were to treat golfer’s elbow so his muscles recovered after the injury but the exercises did not resolve his nerve pain. The worker continued to see his family doctor for pain management and participated in medical assessments and testing in an attempt to fix his left elbow issues. The worker stated it was not until the dynamic ultrasound in October 2021 that he learned of his ulnar nerve slipping over the bone with general movements of the arm.
The worker had left elbow surgery in February 2022 and described it as life changing. Before the surgery, the worker said he had nerve pain every day that could last for hours. The worker explained he could feel the nerve sliding over bone as he moved his arm, which would irritate the nerve and cause it to swell/pinch in the elbow joint. The worker’s arm would contract against his body until the swelling eased. This would also cause weakness in his left hand, resulting in the worker occasionally dropping dishes. After the surgery, the worker stated his nerve pain was gone almost immediately. Once he healed and completed physiotherapy, the surgeon stated they expected a full recovery with no functional restrictions. The worker testified that he feels fully recovered and functional at this time.
Worker’s Position
It is the worker representative’s position that the worker is entitled to full LOE benefits from November 15, 2019 up to and including February 8, 2022. They argued evidence and testimony confirms manual labour was not suitable for the worker’s left elbow injury on an ongoing basis. They also argued the worker made diligent and sensible efforts to mitigate his wage loss by seeking guidance regarding job searching and retraining, and attending school that led to a new career. The worker’s representative noted memo A lists the worker’s gross weekly long-term average earnings as $910.34, and argued the worker’s new employment continued to result in a wage loss.
Employer’s Position
The employer’s representative confirmed they will not participate in the appeal when speaking with an Appeals Coordinator on June 28, 2023.
Clarification of Review
Although the worker’s representative argued for the allowance of full LOE benefits up to and including February 8, 2022, the operating area already allowed full LOE benefits for the worker’s surgery on February 8, 2022. It appears this issue is already resolved in the worker’s favour. As such, my analysis will review LOE benefits for the period of November 15, 2019 to February 7, 2022 inclusive.
Assessment of Entitlement
It is the worker representative’s position that the worker is entitled to full LOE benefits from November 15, 2019 to February 7, 2022 inclusive. For the reasons that follow, I find evidence on file supports the worker is entitled to full LOE benefits less his actual earnings received from three new jobs during this period. When making my decision, I considered two relevant policies.
Policy 19-02-07 (RTW Overview and Key Concepts) states that to determine whether the worker can return to work, the worker’s functional abilities and limitations are compared to the demands of the particular job. The policy defines suitable work as post-injury work that is safe, productive, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the greatest extent possible.
Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings benefits beginning when the loss of earnings begins. The policy adds:
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work process.
Workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits.
When reviewing LOE benefits in arrears, full LOE benefits are in order when the worker has an impairment that prevents them from returning to pre-injury employment and suitable employment has not been offered, but the worker makes reasonable efforts to secure suitable employment or engage in other activities reasonably aimed at improving their employability and minimizing their loss of earnings.
I find this applies to the worker’s circumstances. Within their June 2022 decision letter, the CM accepted the worker was partially impaired with functional limitations for his compensable left elbow condition since October 15, 2019. The CM stated evidence supported this impairment prevented the worker from returning to his pre-injury duties and that the accident employer did not offer suitable employment after October 11, 2019. Medical reports on file support these conclusions. In September 2019, the treating physiotherapist stated the worker had not returned to his pre-injury level of functioning and was unable to resume all of his pre-injury duties due to ongoing functional limitations. As of November 2019, the family doctor concluded the worker could not continue manual labour and recommended the worker pursue retraining to accommodate his chronic left elbow strain.
The family doctor listed permanent restrictions for the worker’s left elbow as of November 28, 2019. The doctor restricted the worker from overhead work and lifting, pushing, or pulling any weight over 5kg. Based on the worker’s testimony, his pre-injury duties with the accident employer as well as the duties required for his job with ZZ would exceed these restrictions. The worker was required to drag 300-400lb objects at his pre-injury job. The worker also testified that he lifted and carried objects weighing 25lbs each, and performed some lifting and reaching overhead, as a helper.
In March 2021, the family doctor noted the worker should avoid repetitive reaching and bending/twisting repetitive movements of his left arm. The doctor also recommended the worker limit use of his left hand and arm for gripping, pinching, pushing and pulling due to his chronic left elbow strain. The worker confirmed he had to stock products on pharmacy shelves at a variety of heights including slightly above shoulder height. Although the worker indicated he did not stock objects weighing more than 1lb, this would reasonably involve repetitive gripping of products as well as repetitive bending and reaching of the arms to lift, move and place products.
The worker testified he found his computer job with XX suitable and sustainable despite his ongoing left elbow pain and limitations from May 2021 until his surgery in February 2022. The worker confirmed this was a work-from-home position and this employer offered flexibility in his daily scheduling, allowing the worker to take breaks as needed for stretching, exercises, and symptom management.
I find medical evidence on file demonstrates the worker engaged in activities reasonably aimed at improving or resolving his left elbow condition in an attempt to improve his employability. Clinic notes and medical reports confirm the worker continued to see his family doctor on an ongoing basis for pain management and to clarify his ongoing or updated left elbow restrictions. The worker testified he continued his home exercise program daily from fall 2019 to date.
The worker also consistently attended assessments and medical testing recommended by his doctor and the WSIB to investigate the nature of his left elbow condition and possible treatment options. This included an MRI in August 2020, assessments with the Hand and Upper Limb Clinic in February 2021 and April 2021, as well as assessments, imaging, surgery, and physiotherapy with the Upper Extremity Specialty Program from September 2021 until they discharged the worker in November 2022. The CM concluded the worker’s left elbow condition recovered without a permanent impairment as of November 7, 2022. As such, I find the worker’s active and consistent engagement in these healthcare activities improved the worker’s future employability by resulting in a full functional recovery.
The worker’s representative argued the worker made diligent and sensible efforts to mitigate his wage loss by seeking guidance regarding job searching and retraining, and attending school that led to a new career. I agree. I find the worker’s testimony, supported by documentary evidence on file, establishes the worker made reasonable and concerted efforts to improve his employability and secure suitable employment without any significant delays or deviations. I also find documentary evidence and the worker’s testimony shows the worker found three separate jobs in an attempt to mitigate his loss of earnings between November 2019 and February 2022.
The worker searched for and secured new employment within one month after the accident employer laid him off. An ROE dated December 11, 2019 confirms the worker earned wages in the position of helper from November 15, 2019 until November 29, 2019. The ROE indicates the worker worked 91 hours and earned $1,670.82 during this period of 15 days. Although this job was physically unsuitable for the worker’s restrictions, I find it reasonable that the worker searched for and attempted work that involved a lighter version of manual labour since this is the industry he worked in previously. When the worker experienced worsening left elbow symptoms, he promptly visited his family doctor and accepted the doctor’s conclusion that the job was unsuitable and the worker should seek retraining opportunities.
The worker was not idle in the five-month period between when he ended employment and started schooling in May 2020. The worker went to a local employment centre, got a counsellor, and participated in all recommended activities to improve his employability. The worker completed aptitude testing, reviewed his employment history and transferable skills, and took courses on writing resumes and applying for jobs. The worker applied for office jobs that would accommodate his permanent left elbow restrictions. When these applications were unsuccessful, the worker accepted the counsellor’s advice to pursue schooling in Business Finance, which would complement his prior skills and experience, and improve his employability.
The worker testified that COVID affected available funding through AA after March 2020. However, the worker pursued schooling on his own and transcripts confirm he attended the Business Finance program on a full-time basis from May to December 2020. Transcripts also confirm the worker attended school on a part-time basis in 2021 while making an effort to secure suitable employment to assist with finances while self-funding his schooling. An ROE of March 26, 2021 confirms the worker earned wages in the position of merchandiser from February 17, 2021 until March 1, 2021. The ROE indicates the worker worked 50 hours and earned $896.16 during this period of 13 days. Although the position was ultimately unsustainable, I find the worker made a reasonable effort to secure suitable employment by accepting this job since it did not involve heavy lifting and had overnight shifts that would not conflict with school.
The worker testified his program included a co-op placement that facilitated him securing employment with XX. The worker added that he had never worked white collar jobs before but his schooling gave him the knowledge and skills necessary to be successful in this position. An employment contract dated April 29, 2021 confirms XX hired the worker as a research analyst, with work beginning May 3, 2021. The company guaranteed the worker $18.00 per hour and 40 hours of work per week. An amended contract confirms the worker’s promotion to senior research analyst effective September 1, 2021 with an annual salary of $40,000.
I find it significant that the worker’s diligent efforts and ongoing participation in school led to the worker securing a placement and later a full-time permanent position in suitable employment. The worker testified the computer work and the new employer’s flexible scheduling accommodated his left elbow restrictions sufficiently. This allowed the worker to secure and successfully sustain this suitable employment at 40 hours per week until his surgery on February 8, 2022.
In summary, I find the worker actively engaged in recommended healthcare assessments, medical investigations, and treatment including surgery in a reasonable effort to improve his condition and employability. This resulted in the worker fully recovering without an ongoing functional impairment as a barrier for his employability. I find the worker made reasonable efforts to improve his employability by attending an employment centre, working with a counsellor, taking courses to assist with job searching, and pursuing schooling to retrain for new and suitable employment. Additionally, although the positions were ultimately unsustainable, and the position with XX did not fully restore the worker’s pre-injury gross average earnings, I find these new jobs demonstrate the worker made reasonable efforts to secure suitable employment based on his prior work experience, functional limitations, and time commitments to school.
I considered these details as well as the CM’s decision that the worker had a compensable impairment preventing him from resuming pre-injury duties and the accident employer did not offer suitable employment. With all of this in mind, I find the worker is entitled to full LOE benefits from November 15, 2019 to February 7, 2022 inclusive, less actual earnings he received during this period.
CONCLUSION
I find the worker is entitled to full LOE benefits, less actual earnings received, for the period of November 15, 2019 to February 7, 2022 inclusive.
The worker’s appeal is allowed in part because the worker’s representative requested full LOE benefits, but I am only able to grant full LOE benefits less actual earnings received during the period in question.
DATED September 21, 2023
Stephanie Waters
Appeals Resolution Officer
Appeals Services Division