DECISION NUMBER:

20230052

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER (NOT PARTICIPATING)

REPRESENTED by:

SELF

HEARING:

VIDEOCONFERENCE – JANUARY 31, 2023

HEARD by:

L. MANSUETI, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEE:

DATED:

CAROLINE JORDAN, MANAGER, APPEALS SERVICES DIVISION

FEBRUARY 3, 2023

ISSUE

The worker objects to the Case Manager (CM) decision dated September 3, 2021 communicating a discontinuation of loss of earnings (LOE) benefits effective August 13, 2021 due to a material change in circumstances.

BACKGROUND

On October 30, 2017, the worker attempted to lift a generator with a co-worker, weighing approximately 150lbs, and injured his low back in the process. The worker was working as a Carpenter at the time of injury, and he had worked with the employer for approximately 1.5 years.

Entitlement was accepted for a low back strain/sprain for health care benefits. The worker returned to work performing his regular work duties with accommodations. Further low back investigations confirmed he had sustained a L5-S1 disc herniation. The worker underwent L5-S1 decompression and instrumented fusion surgery on March 22, 2018, for which entitlement was accepted for health care and LOE benefits.

The worker commenced psychological treatment in August 2018, and he claimed entitlement to benefits for psychotraumatic disability. In November 2018, the worker received entitlement for psychotraumatic disability. The accepted diagnosis was Major Depressive Disorder.

The worker was referred for Return-to-Work (RTW) services, as the employer was unable to accommodate the worker with suitable work. From January to March 2019, the worker participated in an interim Work Transition (WT) plan for computer skills upgrading. In August 2019, the worker was sponsored to participate in a WT plan for the suitable occupation (SO) of Electrical Engineering Technician. He then participated in vocational training for the approved SO until November 2019. RTW services were closed effective December 10, 2019 due to the worker’s compensable psychological

condition. The worker continued to receive full LOE benefits while he co-operated in health care measures. In November 2019, the worker received a 21 per cent non-economic loss (NEL) benefit in recognition of his low back permanent impairment (PI).

On September 3, 2021, the CM was informed the worker was out of the country due to a family emergency. The CM noted attempts to reach the worker via telephone were made several times starting on August 13, 2021, all the calls were not returned until August 27, 2021. The decision letter dated September 3, 2021 communicated LOE benefits would cease effective August 13, 2021, on the basis a material change in circumstances had occurred wherein the worker left the country on or about that day.

The worker objected to the decision dated September 3, 2021, and this is now the issue before the Appeals Services Division (ASD).

AUTHORITY

Section 23, 34, 40 and 43 of the Workplace Safety and Insurance Act (WSIA), 1997, as amended

Operational Policy Manual Published

15-06-07 Leaving the Province/Country

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 22-01-02 Material Change in Circumstances – Worker

22-01-03 Workers’ Co-operation Obligations

April 9, 2021

April 9, 2021

April 9, 2021

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation, relevant operational policies, and testimony in reaching this decision. For the reasons that follow, I find the worker is entitled to three weeks of LOE benefits in keeping with taking a vacation, effective the date he left the country in August 2021.

Review of the Evidence

Following the October 30, 2017 accident, the worker continued working with the employer. He continued to experience low back symptoms, and he was subsequently diagnosed with a L5-S1 disc herniation.

The worker underwent a L5-S1 decompression and instrumented fusion surgery on March 22, 2018. He participated in post-surgical physiotherapy treatment, and commenced psychological treatment under the care of Dr. K. Marek, Psychologist. The worker returned to work with the employer on a work trial post- surgery performing light duties at reduced hours for a period of time before commencing an interim WT plan consisting of computer upgrading in January 2019.

The worker was followed by Dr. D. Wilson, Orthopaedic Surgeon, at the Back and Neck Speciality Program at Trillium Health Partners from September 2018 to July 2019. The July 10, 2019 report indicated the worker reached maximum medical recovery (MMR) for the low back injury, with evidence of a PI. The worker was determined to be capable of returning to work within his permanent restrictions.

The worker was referred to the Centre for Addiction and Mental Health (CAMH) for a psychological assessment. Dr. K. Kamkar, Psychologist, assessed the worker on June 25, 2019. The report indicated the worker was born in XX, and he came to Canada as a permanent resident in March 2013. The worker was noted to be married to his spouse for 17 years, and they shared two children, a yy-year-old son and an yy-year-old daughter. The worker’s DSM-5 diagnosis was confirmed to be Major Depressive Episode, Single Episode, Moderate. Dr. Kamkar indicated the worker’s exacerbating back pain was a major source of his depression. The worker’s reported symptoms of Major Depression first appeared after the back surgery in March 2018 due to ongoing pain, uncertainty about the future, financial worries, concerns about physical limitations, inability to engage in pre-accident work and previously enjoyed activities, and increased dependency on others. Dr. Kamkar surmised the worker’s symptoms were directly attributable to the onset of the index workplace injury, and he was recommended to engage in further psychological treatment. Dr. Kamkar indicated that from a psychological perspective, the worker was capable of participating in vocational retraining activities. The worker testified he was “hit hard” that he did not have a good surgical result. He stated he felt as though his life was taken away and he did not know what to do.

In August 2019, the worker received sponsorship to participate in a WT plan for the SO of Electrical Engineering Technician. In October 2019, the worker experienced an exacerbation of back pain while bowling which caused whole-body tremors. The worker reported having an increase in depressive symptoms and endorsed having suicidal thoughts. On October 8, 2019, the worker reported he had fallen at home and hit his head very hard. The worker indicated he was unsure how he fell, but thought his legs may have given way causing the fall. The worker’s spouse advised the RTW Specialist the worker was struggling with school, and he appeared withdrawn. The RTW Specialist spoke with Dr.

Marek on October 9, 2019. Dr. Marek recommended vocational retraining be placed on hold given the deterioration of the worker’s mental health condition. The worker formally withdrew from the vocational retraining program on November 14, 2019.

The worker testified he had prior experience in the selected SO, and he was initially happy with the program. He stated things “starting slipping away” from him, and he could no longer deal with the pressure of his life, finances, family responsibilities, schooling, and the effects of his back injury. The worker indicated he was not in a position to continue with the RTW plan at that time. The RTW plan was placed on hold, and the worker continued to participate in health care measures. The worker continued to receive psychological treatment with Dr. Marek.

The Community Mental Health Program (CMHP) progress report completed by Dr. Marek on November 14, 2019 indicated the worker was selling his home due to financial setbacks. It was noted the uncertainty of the worker’s future continued to undermine his progress. Dr. Marek indicated the worker was unfit for returning to work/school. The worker testified he had to sell his home due to their financial situation, and they could no longer afford to live in their house. He indicated he also had to sell his truck. The worker testified he moved to Collingwood in a rental property after the house sold.

The record indicated the worker advised the CM in January 2020 he wished to resume RTW activities, and a referral to a RTW Specialist was initiated on January 29, 2020. Memorandum x dated January 31, 2020, indicated the RTW Specialist and the worker discussed re-engagement in RTW services and SO development. The worker expressed an interest in taking a math refresher course as part of an interim WT plan. The RTW Specialist indicated an interim plan could not be supported. The worker expressed apprehension about re-engaging in the RTW process and SO development. The worker testified he last spoke with the RTW Specialist on February 5, 2020, at which time he was on his way to Cuba for a vacation. The worker indicated the RTW Specialist had informed him that clearance

from Dr. Marek was required to resume RTW activities. The worker stated he had no further contact with the RTW Specialist after this date.

On February 21, 2020, Dr. S. Mohammed, Neurosurgeon at the Back and Neck Speciality Program, recommended the worker participate in a multi-disciplinary Enhanced Functional Treatment (EFT) program. The worker commenced an EFT program on February 26, 2020. The CMHP progress report dated March 3, 2020 indicated the worker’s feelings of an uncertain future made him think he should return home to XX.

Dr. D. James, Pain Management Physician at the Back and Neck Specialty Program, administered lumbar para-spinal and right gluteal trigger point injections on March 9, 2020, which provided temporary pain relief. On August 14, 2020, Dr. James administered a lumbar transforaminal epidural steroid injection. Dr. Mohammed continued to follow-up with the worker, and indicated that from a physical perspective, he was capable of returning to work within his permanent restrictions. The worker was discharged from the EFT on September 3, 2020.

Dr. Marek’s CMHP progress report dated September 13, 2020 indicated the worker’s spouse decided to move back to XX with their children. The worker indicated the epidural injection did not alleviate his back pain, and he was told there was nothing else that could be done for him. The worker indicated he was experiencing ongoing family, financial, and life stress, which was exacerbating his back pain and depression significantly.

The worker testified his spouse and children moved back to XX in June or July 2020 on a permanent basis. He stated his marriage was suffering as their dream of living in Canada was shattered. The worker stated his spouse gave him an ultimatum; either he was going to return to XX with his family, or remain in Canada by himself. The worker testified he decided to stay behind because he wanted to get back to his original self, and he wanted to he comply with everything that WSIB expected of him. The worker explained trying to get better and improve his condition was his singular focus. The worker conceded he made the wrong choice by staying in Canada when his spouse and children left.

Dr. Mohammed reassessed the worker at the Back and Neck Specialty Program on January 21, 2021. The report indicated the worker underwent a caudal epidural injection administered by Dr. James on November 26, 2020, which provided no pain relief. The report indicated the RTW Specialist had not contacted the worker. The worker indicated he called the WSIB, and he was informed they would call him when they were ready to resume RTW activities. The worker testified he had no contact with the operating area, and his calls to the CM were not returned. He indicated he wanted to connect with the operating area to provide and receive updates on his claim, and discuss the claim direction.

The worker continued to receive psychological treatment from Dr. Marek on a weekly basis. The CMHP progress report dated March 31, 2021, indicated the worker was considering returning home to XX to find employment. He endorsed feelings of loneliness and isolation. Dr. Marek indicated the worker was unable to work. The worker testified he did not have a plan to return to XX, and he denied he was looking for work abroad at that time.

The worker underwent a fluoroscopy-guided caudal epidural steroid injection on April 22, 2021, and he experienced an acute worsening of pain post-injection as well as a novel set of left leg numbness and erectile dysfunction. There were no concerning changes observed on diagnostic imaging that would explain these symptoms. On June 10, 2021, Dr. Mohammed reassessed the worker. The report indicated the worker remained off work, and he had not resumed RTW activities. The worker indicated

he had not had any communication with the WSIB over the last 12 months despite his attempts to initiate conversation regarding potential retraining opportunities. The worker was discharged from the Back and Neck Specialty Program.

The CMHP progress report from Dr. Marek dated August 12, 2021 provided an update on the treatment period from March 18, 2021 to May 11, 2021. The report indicated the worker was considering requests from his family to return to XX, which would reduce some of his depression, loneliness, anxiety, and stress, as he does not have a support system in Canada, now that his spouse and children were in XX. Dr. Marek indicated the worker reached MMR for his psychological condition. The worker was determined to be unable to work.

Memorandum x indicated the CM left a voicemail message for the worker on August 13, 2021, which was not returned. The CM connected with Dr. Marek’s office on August 19, 2021, and they were informed the worker may not be in the country. It was noted the worker last received treatment from Dr. Marek on May 11, 2021. The CM called the worker and left voicemails requesting a return call on August 19 and 27, 2021. The CM indicated in the August 27, 2021 voicemail message, that if the worker did not return the call, his benefits would be stopped. It was documented the worker returned the CM’s call and left a voicemail message for the CM that day. The CM attempted to reach the worker on September 3, 2021, and managed to connect with the worker’s brother-in-law. The CM was informed the worker was out of the country due to an ill family member. The worker’s brother-in-law indicated the worker had only been out of the country as of that week.

The worker testified he was notified that his mother-in-law had passed away of a heart attack on June 7, 2021. He stated he made plans to travel to XX in early August 2021; however, he could not recall the exact date. He indicated his spouse was not in a proper state to care for their children, and he decided to go be with his children. The worker stated he intended to return to Canada, as it was supposed to a temporary trip. He indicated that after approximately 4 weeks in XX, he decided to stay on a permanent basis.

The worker testified he had made multiple attempts to reach the CM, and left voicemail messages requesting a return call; however, no calls were returned. The worker advised he did not indicate the reason for his call and he did not disclose he was leaving/out of the country, only that he was requesting a return call. The worker denied receiving any voicemail messages from the CM on August 13 and 19, 2021, stating he had only received one message from the CM on August 27, 2021, which he returned.

The worker testified he was aware of his obligation to inform his CM that he was out of the country, and he made an effort to get in touch with the operating area on multiple occasions. The worker indicated he intended to speak with the CM, rather than leave a detailed message regarding his whereabouts. The worker testified it was his understanding his LOE benefits would continue even after he left the country, as his LOE benefits had remained intact when he went to Cuba on holiday in February 2020. The worker advised he was under the impression his LOE benefits would be adjusted/stopped once he secured new employment. The worker testified he secured full-time employment in the XX in September 2021 as a Maintenance Electrician. He indicated the job is within his functional abilities, and he has continued working in this capacity.

Assessment of the Evidence

The worker representative pointed to operational policy 22-01-03 indicating the operating area did not follow the process in finding the worker non-cooperative, in that the worker was not notified of their obligation to co-operate and noted there was no finding of non-co-operation. To that end, the penalty of imposing a LOE benefit suspension is not in order. While I appreciate the worker representative’s argument, I do not agree the matter before me is a co-operation issue. The issue in this appeal pertains to the material change in circumstances when the worker left the country and its impact on his LOE benefit entitlement.

The first issue to be determined is the worker’s obligation to report the material change in circumstances when he left the country. Operational policy 22-01-02 indicates a material change in circumstances is defined as any change that affects a person’s entitlement to benefits and services under the Act.

The policy further states, in part:

If a person fails to inform the WSIB of a material change in circumstances, the WSIB presumes that this is intentional and thus willful, unless the person can demonstrate having no knowledge of the change. The WSIB determines whether the person reasonably should have been aware of the change by reviewing the facts of the case.

As enumerated in policy, the types of changes that must be reported to the WSIB include changes in health care status, earnings/income, work status, and availability for, or co-operation in, health care or return-to-work activities, such as:

• changing address or leaving the province [emphasis added]

• being sentenced to prison or being imprisoned

• having a non-work-related clinical condition that restricts ability to work, and/or

• having a work visa expire, or expecting deportation.

Operational policy 15-06-07 states, “WSIB benefits may be affected when a worker/survivor leaves the province or country. To minimize the possibility of an interruption in benefits, workers/survivors who leave the province or country should notify the WSIB beforehand.”

The worker’s decision to leave the country is considered a material change in circumstances, which ought to be have been reported to the WSIB prior to his departure in early August 2021. The worker testified he was aware he had an obligation to report to the CM he was leaving the country, and he made attempts to fulfil his obligation by contacting the CM several times via telephone requesting a call back, which were not returned. The operating area ultimately was not informed the worker had left the country until September 3, 2021. While I acknowledge the worker made an effort to reach the operating area to inform his CM of his plans to leave the country, I also note the worker could have reasonably left a detailed voicemail message for the CM advising of his departure and/or provided written notice of same. The worker representative submitted at the oral hearing that, he too, was unaware of the worker’s departure, and had he known, he would have sent notification to the WSIB. The worker testified he was unable to reach the operating area at any time in the months prior to his departure, which is corroborated with the statements he provided to Dr. Mohammed, as documented in the Back and Neck Specialty Program reports dated January 21, 2021 and June 10, 2021. The worker was of the view his LOE benefits would not be affected by the trip to the XX, as his benefits were not affected when he had taken a vacation to Cuba in February 2020. In review of the evidence before me, while the worker could have made a greater effort to inform the operating area of his departure, I accept he

attempted to inform the WSIB of the material change in circumstances. There is no evidence to support the worker willfully or intentionally withheld this information from the WSIB, nor is there any evidence to support the worker intended to be subversive. The worker acknowledged he was aware he had an obligation to report the material change in circumstances, and I accept he made somewhat of an effort to report it to the CM.

I will now turn my attention to the worker’s LOE benefit entitlement. The worker representative indicated he is seeking the reinstatement of LOE benefits from August 13, 2021 to the date the worker commenced employment with the new employer in September 2021.

Operational policies 22-01-02 and 18-03-02 indicate when there is a material change in circumstances, benefits are adjusted retroactively to the date of the change, whether reported on time or not.

In this case, the worker left the country in early August 2021 (exact date unknown). The worker testified he intended to be in the XX on a temporary basis, as he advised he initially planned to return to Canada. The worker subsequently changed his mind, and he decided to remain in the XX on a permanent basis, approximately 4 weeks after his arrival. It is also noted the worker secured full-time employment in September 2021, and remains employed at the current time.

I acknowledge there was a material change in circumstances when the worker left the country, which would allow for an adjustment of his LOE benefit entitlement retroactive to the date of the change. It is also noted the material change in circumstances was not reported to the operating area on time. In my view, had the worker been successful in contacting and reporting the material change in circumstances to the operating area as he intended, it stands to reason approval for his departure could have been considered under the provision of a vacation.

Operational policy 15-06-07 states, in part:

The WSIB allows up to three weeks of vacation per year, provided the vacation period does not interrupt, in relevant cases, the worker’s health care treatment or return-to-work (RTW) activities.

If a worker is:

• temporarily totally disabled/fully impaired and takes a vacation, full benefits may continue

• partially disabled/partially impaired, and in receipt of full benefits because of:

o being involved in a RTW assessment or plan or health care treatment, or

o being available for suitable work, full benefits may continue

The evidence supports the worker was in receipt in full LOE benefits at the time he left the country, as it was determined he was totally disabled due to his psychotraumatic disability. It is noted the worker was not involved in a RTW program, nor was he involved in any health care treatment at that time. As per the CMHP Progress Form dated August 12, 2021, the worker had completed the treatment block covering the period March 18, 2021 to May 11, 2021. Dr. Marek maintained the worker was unable to return to work. The report indicated MMR had been reached, and no additional treatment was recommended.

Based on the foregoing, I find the worker is entitled to the payment of LOE benefits for three weeks

pursuant to a vacation, effective the date they left the country in August 2021. This determination is based on the fact the worker’s departure did not interrupt health care treatment or any RTW activities.

CONCLUSION

I conclude the worker is entitled to three weeks of LOE benefits in accordance with taking a vacation, effective the date he left the country in August 2021, less any employment income that he may have earned.

The operating area shall determine the extent and duration of benefits beyond the three-week vacation period, subject to the usual rights of appeal.

The worker’s objection is allowed in part.

DATED February 3, 2023

L. Mansueti

Appeals Resolution Officer Appeals Services Division