DECISION NUMBER:

20230134

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

L. MANSUETI, APPEALS RESOLUTION OFFICER

NOVEMBER 2, 2023

ISSUE

The worker objects to the Case Manager (CM) decision dated April 13, 2023, denying the payment of loss of earnings (LOE) benefits from May 7, 2019, following their termination from employment.

BACKGROUND

On July 29, 2018, the worker was moving a skid of English muffins with extra force and felt an onset of right knee pain. They were working as a Labourer at the time of injury, and they had worked with the employer for approximately 3 months. The worker began losing from work effective September 23, 2018, and returned to work with the employer on December 14, 2018.

Initial entitlement was granted for a right knee sprain/strain for health care benefits; however, LOE benefits were denied. In February 2019, the worker’s entitlement was expanded to include an exacerbation of pre-existing chondrosis of the patellofemoral compartment and edema of the Hoffa’s fat pad. As communicated on the June 24, 2019 decision letter, the worker was determined to have reached maximum medical recovery (MMR) for their compensable knee injury on May 29, 2019, with no evidence of a permanent impairment (PI).

Workplace Safety and Insurance Appeals Tribunal (WSIAT) Decision No. YY/YY dated December 15, 2020, confirmed the worker was entitled to LOE benefits from September 23, 2018 to December 13, 2018. Although the worker did not meet the time limit to object to the June 24, 2019 decision, a time limit extension was approved as per the Appeals Registrar decision dated May 31, 2021. WSIAT Decision No. XX/XX dated February 9, 2023, confirmed:

• The worker has ongoing entitlement to a right knee condition after May 29, 2019

• The worker has entitlement to a NEL assessment for his right knee condition, namely an exacerbation of pre-existing chondrosis of the patellofemoral compartment and edema of the Hoffa’s fat pad

• The worker may pursue the issue of his potential knee surgery as being compensable to the WSIB and I make no finding on this issue.

The Vice-Chair indicated the nature and duration of benefits flowing from the decision would be returned to the operating area for further adjudication, subject to the usual rights of appeal.

The worker was determined to have reached MMR for their right knee on February 22, 2023. In April 2023, they received a 13 per cent non-economic loss (NEL) benefit in recognition of their right knee PI. The record indicated the worker requested 6 weeks of vacation from April to May 2019; however, the employer approved only 4 weeks. The worker failed to report to work on the agreed upon return-to-work date post-vacation, and the worker was subsequently terminated for job abandonment. The worker requested the payment of LOE benefits from May 7, 2019. The decision letter dated April 13, 2023 indicated LOE benefits were not in order from May 7, 2019 on the basis the wage loss was not the result of the work-related injury.

The worker objected to the decision dated April 13, 2023, and this is now the issue before the Appeals Services Division (ASD).

AUTHORITY

Workplace Safety and Insurance Act (WSIA), 1997, as amended

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-08 RTW Co-operation Obligations

January 2, 2018

November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find there is no entitlement to LOE benefits from May 7, 2019.

Review of the Evidence

Following the workplace accident, the worker was diagnosed with a medial collateral ligament (MCL) sprain. The worker participated in a Program of Care (POC) with Dr. Noien, Chiropractor, and they were assessed by Dr. O. Ayeni, Orthopaedic Surgeon at XX Fracture Clinic. The worker underwent a magnetic resonance imaging (MRI) scan on October 26, 2018, which showed evidence of moderate to severe chondrosis of the patellofemoral compartment, and moderate edema in the Hoffa’s fat pad. Dr. Ayeni recommended the worker receive steroid injections.

On December 6, 2018, a Return-to-Work (RTW) Specialist met with the parties to discuss RTW opportunities. It was determined the worker’s functional abilities would not permit a return to their pre-

injury position, so an alternate job with the employer was identified. A gradual RTW plan was developed wherein the worker would return to modified work on December 12, 2018, starting with 4 hours per shift. The modified job consisted of performing inspection of English muffins on a conveyor belt to determine if they meet quality standards. It was noted these duties could be performed sitting, standing or alternating between positions as needed. The worker would be provided with a height adjustable chair and they would have the ability to elevate their leg, as well as take breaks as needed. The RTW Specialist determined the modified work offered by the employer was suitable. The worker returned to work with the employer on December 14, 2018, performing these modified duties.

Dr. S. Hosseini, Physical Medicine and Rehabilitation Specialist, administered intra-articular knee injections with a corticosteroid to the worker on February 15, 2019 and March 26, 2019.

As documented in memorandum X, the employer representative advised the CM that the worker was approved for vacation from April 7 to May 7, 2019 as their son was getting married in Country X.

Memorandum Y dated May 13, 2019, indicated the worker had not returned to work, and they had missed 3 shifts from work. It was noted the worker had requested 6 weeks of vacation; however, the employer had only approved 4 weeks. The record indicated the employer and the CM attempted to contact the worker; however, no were no return calls.

The worker did not return to work when expected. The worker contacted the employer on May 29, 2019 to discuss returning to work and to offer a reason for their delayed return, and an exchange of communications between the parties did not result in a successful resolution. The employer determined the worker had abandoned their job and they were terminated from employment effective May 15, 2019.

Assessment of the Evidence

The worker is seeking the payment of LOE benefits from May 7, 2019. The worker representative did not provide a submission for my review and consideration. The following is a summary of my observations and findings.

As enumerated in section 43 of WSIA:

(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,

(a) the day on which the worker’s loss of earnings 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.

In addition, operational policy 18-03-02 states, in part:

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 work reintegration process.

In other words, the policy indicates that if a worker is determined to be partially impaired and they are able to return to some form of work and suitable work is available, as is the case here, LOE benefits would not be in order. In review of the evidence before me, I find the nature or seriousness of the knee injury did not completely prevent the worker from returning to any type of work as they were not totally disabled. As documented in WSIAT Decision No. XX/XX, the worker testified that while on vacation in Country X, they saw a specialist who administered an injection. The worker stated the injection was helpful, as it allowed them to walk with less pain. There is no evidence to support the worker’s level of impairment worsened while on vacation rendering them totally disabled and unable to work. With respect to the worker’s ability to return to work post-vacation, I find suitable modified work remained available with the employer. This is evidenced by the fact the worker was performing suitable modified work within their restrictions with the employer prior to departing for their approved vacation in April 2019. The suitability of the modified work offered by the employer was confirmed in WSIAT Decision No. YY/YY, which states, in part:

The employer demonstrated commendable efforts in trying to assist and accommodate the worker following his injury. The fact is that the modified duties offered by the employer were both safe and suitable.

The decision further states, in part:

[The worker representative] submitted that the worker should also be awarded partial LOE benefits for any wages lost between December 14, 2018 and the date the worker left for vacation on April 5, 2019. According to the worker, however, the employer continued to accommodate him with graduated hours on his return to work, and he received his regular wages during that period. Again, it seems, the employer acted commendably.

The evidence supports the worker did not return to work as expected in May 2019, as they took an extended unapproved vacation. Upon return from vacation, the worker was terminated for job abandonment. As per operational policy 19-02-08, the workplace parties are required to co-operate in the RTW process, which includes maintaining appropriate communication, identifying suitable work opportunities consistent with the worker’s functional abilities, and giving the WSIB all relevant information concerning the worker’s RTW. The facts and circumstances of this case are such that there is no longer an employment relationship between the workplace parties because the employer terminated the employment for reasons unrelated to the work-related injury or the worker’s claim for benefits, as such, co-operation obligations are no longer applicable in this case.

In summation, in accordance with section 43 of WSIA, I find the worker’s loss of earnings ceased on May 7, 2019. Based on the foregoing, the worker is not entitled to LOE benefits from May 7, 2019, as their wage loss as of this date is not in keeping with the work-related injury, rather it is the result of employment termination unrelated to the workplace injury or their claim for benefits.

CONCLUSION

I conclude the worker is not entitled to LOE benefits from May 7, 2019. The worker’s objection is denied.

DATED November 2, 2023

L. Mansueti

Appeals Resolution Officer Appeals Services Division