APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230043
OBJECTING PARTY:
WORKER
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
in writing
HEARD by:
S. Vagadia, appeals resolution officer
JANUARY 16, 2023
ISSUE
The worker objects to a Case Manager’s (CM) November 17, 2022 decision that noted they did not wish to return to work with the accident employer. This resulted in the termination of the re-employment obligation. The decision took effect June 13, 2022 (the date the worker secured alternate employment) and resulted in the closure of re-employment payments.
BACKGROUND
On November 17, 2021, the then 55 year old Machine Operator experienced groin pain after pushing a very heavy item (cardboard bales) that got caught on a conveyer line.
A January 3, 2022 decision from the “operations division” indicated entitlement to a groin strain was approved. However, entitlement to a hernia was denied. A January 25, 2022 reconsideration decision from the CM granted entitlement to the hernia. The worker had compensable surgery on March 13, 2022 and resumed their regular job duties on April 25, 2022. They were terminated on April 28, 2022.
A June 7, 2022 CM decision found the worker recovered from their hernia on April 23, 2022 with no residual impairment. The worker secured a job with a new employer on June 13, 2022.
An August 2, 2022 CM decision found the employer breached its re-employment obligation. The CM amended the decision on November 17, 2022 to confirm re-employment payments were only approved to the end of the re-employment obligation (there was no change to the benefits paid).
AUTHORITY
Operational Policy Manual
19-02-09 Re-employment Obligations
Published
November 30, 2020
ANALYSIS
The worker submitted the following:
The decision to stop their benefits because they found a job was incorrect.
They were entitled to re-employment payments for up to one year after the termination. This included the equivalent of partial LOE benefits if they secured employment at a wage loss.
They secured a job via a temporary agency on June 13, 2022. They earned less than their pre-injury wage. They were let go by that employer on August 2, 2022 due to a work shortage.
They found another job on August 22, 2022, again at a wage loss.
They were entitled to benefits for one year from the termination date, less their actual earnings.
The employer did not provide a submission.
I find the re-employment obligation ended on August 8, 2022. The worker is entitled to further re-employment payments (less their actual earnings) from June 13 to August 8, 2022. I note the following in arriving at my decision.
Policy 19-02-09 provides guidance. It states that if a worker is medically able to perform the essential duties of the pre-injury job without accommodation, they may no longer be entitled to LOE benefits. However, if the injury employer fails to comply with their re-employment obligations, the WSIB may issue re-employment payments to the worker. Re-employment payments are equal to LOE benefits (i.e., 85% of a worker’s pre-injury net average earnings) and are paid from the date the re-employment obligation was breached. Re-employment payments are issued for up to one year from the date of the breach, or until the end of the re-employment obligations (whichever comes first), if the worker has not returned to work and co-operates in appropriate RTW services.
I note the worker was fit for their essential duties without accommodation when they were terminated. The question is “when did the re-employment obligation end”?
Policy 19-02-09 states an injury employer is obligated to re-employ the worker until the earliest of:
two years from the date of injury
one year after the worker is medically able to perform the essential duties of their pre-injury work, or
the date on which the worker reaches 65 years of age.
I note the worker was medically able to perform the essential duties of their pre-injury work effective April 23, 2022 (the maximum medical recovery date). This means the obligation would end April 23, 2023. However, policy 19-02-09 also provides an exception when a worker severs the employment relationship. It states in cases where a re-employment obligation exists, but a worker voluntarily quits their job, no further re-employment obligation will generally apply.
In this case, I note the worker was terminated on April 28, 2022 and secured a new job on June 13, 2022, earning less than their pre-accident earnings. A worker securing a new job after being fired is not necessarily evidence of them severing the employment relationship. A worker cannot be “faulted” for attempting to mitigate their wage loss.
With the above in mind, when did the worker sever the employment relationship (and therefore end the re-employment obligation)? A review of the memos on file answers this question. I note a memo that the CM began on July 28, 2022 and completed on August 8, 2022. It documented a conversation with the worker that took place on August 8, 2022. In that conversation, the worker was advised the employer was found in breach. However, the worker stated they did not intend to return to work with the accident employer. I find the worker severed the employment relationship as of this date. Consequently, they are entitled to re-employment payments (less their actual earnings) to August 8, 2022.
CONCLUSION
As outlined in the above decision I conclude the re-employment obligation ceased on August 8, 2022. The worker is entitled to re-employment payments (less their actual earnings) from June 13 to August 8, 2022.
The worker’s objection is allowed in part.
DATED January 16, 2023
S. Vagadia
Appeals Resolution Officer
Appeals Services Division