APPEALS RESOLUTION OFFICER DECISION
decision number:
20230050
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer, not participating
HEARING:
VIDEO CONFERENCE ORAL HEARING
HEARING DATE:
FEbruary 10, 2023
HEARD by:
l. diaz, appeals resolution officer (ARO)
ADDITIONAL ATTENDEES:
observer
FEBRUARY 17, 2023
ISSUE
The worker objects to the Case Manager’s April 8, 2020 decision, which denied entitlement to loss of earnings (LOE) benefits following a permanent work disruption.
BACKGROUND
The history of this claim is documented in a prior February 10, 2022 ARO decision and will therefore not be repeated at length in this decision. Briefly, on May 14, 2019, while employed as a Sales Development Representative, the worker reached to pet a rescue german shepherd when the dog suddenly bit them on the face.
Entitlement in the claim was accepted for facial bites for health care and loss of earnings (LOE) benefits. Full LOE benefits were accepted until June 11, 2019, and partial LOE benefits were paid from June 13, 2019 to December 1, 2019, and from January 1, 2020 until March 1, 2020.
On February 19, 2020, the worker was advised that they, along with their entire team, would be permanently laid off from work.
Case Manager’s decision
Further to the April 8, 2020 decision, the Case Manager concluded the worker’s loss of earnings following the work disruption was related to an employment situation and not their injury, and as a result, denied entitlement to LOE benefits beyond March 1, 2020.
Worker’s position
The worker’s representative argued that the worker’s psychological impairment affected the worker’s ability to secure a job at the time of their lay-off. The worker was still receiving partial LOE benefits at the time of their lay-off from work, as they were not yet able to fully restore their pre-injury earnings due to their psychological impairment as their earnings were partially based upon commission. The worker’s representative argued that the worker’s diminished confidence and self-worth were directly tied to the injury under the claim, which impacted the worker’s sales performance and ability to fully restore their pre-injury earnings.
Ongoing claim file events
The worker received a 1% Non-Economic Loss (NEL) benefit for facial scars on July 9, 2020, and a 10% NEL benefit under the Psychotraumatic Disability policy for Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD).
In a February 10, 2022 decision, an ARO concluded the worker’s NEL benefit for their facial disfigurement was to be increased to 2%, and their NEL benefit for Psychotraumatic Disability was to be increased to 15%.
AUTHORITY
Operational Policy Manual Published
15-06-03, Entitlement Following Permanent Work Disruptions November 3, 2014
18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) January 2, 2018
ANALYSIS
I find the worker is entitled to ongoing partial LOE benefits from when they were was last paid on February 21, 2020, until the date they secured new employment in November 2020. In arriving at this decision, I had regard for the worker’s testimony, the arguments presented, and the relevant file information.
Worker’s testimony
The worker testified that prior to their injury under the claim they had worked as a Business Development Manager, and previously as an Aesthetician. They attended Seneca College and received a diploma in International Business. The worker confirmed that prior to their injury under claim they had no psychological issues or impairment.
On the day of injury, the worker advised they were returning to their desk from a bathroom break when they saw a dog in the office and was petting him when it suddenly bit them on the face. They indicated it was a rescue german shepherd from Country A. They recall blacking out for a second and was carried to a nearby couch. The worker recalls being embarrassed, as there were puddles of blood everywhere and there were a number of people who were around them. They recall the colour of the blood being a deep red, bordering on the colour purple.
The worker indicated that the Human Resources person wanted to call an Uber for them, however, they declined as they were concerned the driver would have had issue with all the blood, and expressed their preference for an ambulance. The worker advised that a co-worker went with them to the hospital for support. They received a total of 12 stitches on their face.
They recall missing about one month from work. During this time, they recall their face hurting a lot. They ate a lot of protein so that their scar could heal. They also purchased silicone tape to cover their scars.
With respect to their pre-injury employment functioning, the worker confirmed that the quota for outbound calls as a Sales Representative was approximately 50 per day, however, they were achieving an average of 90 per day. Their job entailed making outbound calls and sending emails to sell software. They confirmed their base income was $38,000 annually, plus commission. Their commission for the month of April was $6,400. For the month of March 2020, the worker advised that their commission was $4,000. They stated that their commission was trending upwards based on performance. The worker advised that a key aspect of work in this field involved having confidence to close the deal.
The worker stated they had enjoyed an active social life, that they had been a ‘social butterfly’. The worker stated they had not previously participated in sporting activities, that their leisure time consisted primarily of going out frequently with friends. They would go out to paint night, and would attend music and food festivals with friends. The worker confirmed they lived at home with their family. Prior to their injury, they had cooked approximately every second day. The worker stated they would also clean once per week and would grocery shop. Pre-injury, the worker advised they slept well and would get approximately 10 hours of sleep per night.
With respect to psychological issues post-injury, the worker advised that right after the dog bite they felt embarrassed that the incident had occurred in front of so many people, and felt traumatized as a result of the event itself. They stated they had recurring nightmares at night of dogs, bears, and wolves attacking them. They stated these nightmares occurred approximately once per week on average, and they started after the incident under the claim. The worker stated that after the dog bite, they felt anxious, they had lost their confidence, and they felt sad. They were also irritable and had trouble sleeping.
The worker stated that although their family is caring, they became more distant and did not want to engage in as many family activities. They also no longer wanted to attend parties and festivals.
The worker returned to modified work in June 2019, working remotely. They were also making less calls – they recall being able to make less than 50 calls per day – they believe they were initially making only 30 calls per day. They also couldn’t recall how many they were closing, but it was less than pre-injury. At the time of their return to work, they advised they were more irritable and couldn’t deal with loud noises. The worker advised they were working anywhere between 25-35 hours per week, which was a reduction compared to their pre-injury 45 hours per week. They indicated that the reduction in work hours was related to them needing to take more breaks – they estimated taking an average of 4-5 breaks per day. Sometimes their breaks would only be 5 minutes, but at other times they would be longer.
The worker explained that they were making fewer calls as they lost the confidence to engage with their clients – they were still recovering and was anxious. They felt unable to ‘close’ the calls. Some calls took place telephonically and others were over videoconference. The worker explained that they did not feel confident conducting videoconference calls as a result of the scarring on their face as they felt they looked deformed. They felt they looked bad due to their facial scarring.
With respect to their earnings post-injury, the worker advised that it could be anywhere between $2,000 to $4,000 monthly, which resulted in an overall average reduction compared to pre-injury.
In addition to the above concerns, the worker also explained that they felt excluded by their employer as they weren’t permitted to participate in campaigns and contests, as is noted in memo x. The worker re-confirmed they did not feel supported by their employer.
By January 1, 2020, the worker estimated they were making 40-50 calls daily, and believes the total hours worked weekly were 35. As time progressed, the worker recalls being able to start cooking, though not as often. Their sleep was still not improved due to nightmares. They still had depression and anxiety.
The worker then recalls receiving an email in February 2020 advising they were being laid off. At the time of their lay-off, the worker recalls they were depressed and had anxiety. They felt the termination was unjust given that, immediately prior to their injury, they had been promised a promotion which was anticipated to occur sometime in September 2019. They confirmed they did not receive the promotion which had been promised, which they felt was directly tied to their injury under the claim.
The worker explained that immediately prior to their lay-off they had only been able to make approximately 40 calls per day as they were still sad, anxious, didn’t have the same motivation, and did not have the same confidence to ‘close’ calls.
Following their lay-off, the worker advised that they applied to approximately 5-10 sales job postings, however, was not successful. They indicated they didn’t apply for more as they didn’t feel confident and felt that employers would not want to hire them. In November 2020, the worker began a new job as an Operations Manager, which was not in sales. They are still employed there today. They initially worked partial hours, and then subsequently transitioned to full hours. Their job duties involve handling payroll, scheduling, and cash management. They indicated that their current position of Operations Manager is more flexible in terms of their hours. With respect to their rate of pay, the worker advised that initially, it was not comparable to their pre-injury rate of pay, but when they began working full hours, it was. They confirmed they only physically go into the workplace premises for cash management. Their current employer knows about their injury and has been very understanding and accepting.
Upon further questioning, and referencing several memos, i.e. memo xx and xxx dated November 12, 2019, I advised that I was confused because in one memo it indicated the worker was working their full hours, but in another it noted the worker was working reduced hours. The worker explained that they were working full hours, and that the slight reduction in work hours was related to the additional breaks they had needed to take throughout the day.
I then asked the worker about the Sales Development Representative role that their employer had encouraged the staff who were laid off to apply for – this is noted in memo xxx. I asked the worker why they had not applied for this job as it was similar to their pre-injury job. The worker indicated that they had felt excluded by their employer with respect to the sales contests and campaigns. They stated that even if they had applied, they didn’t feel they would have wanted to hire them for that role. The employer also didn’t indicate whether that role could be performed from home.
In summary, the worker’s representative referenced section 43(1) of the Act and Policy 18-03-02, arguing that the worker continued to be impaired following their lay-off from work, which affected their ability to secure employment and restore their pre-injury earnings. At the time of the permanent work disruption, the worker was still receiving partial loss of earnings benefits. They still needed to take additional breaks, they had loss of confidence, was anxious and depressed, and still had crying episodes.
Although the worker was at approximately 50 calls per day, it was nowhere near their pre-injury 90 calls per day. He argued it was unreasonable to conclude that the worker was capable of performing their pre-injury duties at the time of their lay-off without any accommodations or limitations.
Following their lay-off, the worker only applied for a handful of jobs due to issues relating to self-worth, self-confidence, anxiety, and depression, all of which stemmed from their injury under the claim. The worker’s representative also pointed out the WSIB eventually determined in August 2020 that the worker had achieved MMR, with a psychological permanent impairment, which was eventually rated at 15%. It was his position the worker was unable to perform their full pre-injury duties as a result of their permanent impairment.
The worker’s representative pointed to the WSIB Community Mental Health Program Progress report of August 12, 2020, which he indicated was the first report to document that the worker could return to work from a psychological perspective. He stated that the April 8, 2020 decision did not consider any of these reports. He also referred to the October 28, 2020 report from Dr. Kung who advised that the worker should be precluded from working in sales.
In summary, the worker’s representative submitted that the April 8, 2020 decision was incorrect and that the decision to deny entitlement to ongoing LOE benefits should be overturned. He also referenced the WSIAT (Workplace Safety and Insurance Appeals Tribunal) decisions submitted to file, advising that the circumstances in those cases were similar to that of the worker’s case, and that the WSIAT determined the workers were entitled to full LOE benefits in each of those cases.
Analysis
The worker’s representative submitted various WSIAT decisions to support granting entitlement to full LOE benefits beyond February 2020. I reviewed the WSIAT decisions submitted and find that the facts and circumstances of those claims are different from that of this worker’s, particularly with respect to nature of the worker’s permanent impairment, i.e. psychological permanent impairment, and the overall general facts of this particular claim. As a reminder, the WSIB is not bound by legal precedent. As a result, I will therefore render a decision based upon the merits and justice of this particular case.
In order to determine whether the worker has entitlement to LOE benefits following their permanent work disruption, I had regard for Policy 15-06-03, Entitlement Following Permanent Work Disruptions, which records the following in part:
Policy
The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the
start of a permanent work disruption.
The WSIB reviews entitlement to additional LOE benefits and return-to-work (RTW) services if a
worker is partially impaired and fit for suitable and available work at, or subsequent to, the
start of a permanent work disruption. (For information about what constitutes “suitable work”, see
19-02-01, Work Reintegration Principles, Concepts and Definitions).
To determine if the worker’s additional loss of earnings results from their work-related
injury/disease, the WSIB identifies a suitable occupation (SO) for the worker and determines
if the worker requires WSIB assistance to re-enter the labour market in that SO.
I also had regard for Policy 18-03-02, Payment and Reviewing LOE Benefits, which records the following:
Partial LOE
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. Examples include but are not limited to
workers who return to work at reduced hours or wages, and
workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
Payment
The amount of a partial LOE benefit is 85 per cent of the difference between a worker's pre- injury
NAE and the NAE a worker earns or is able to earn in suitable and available employment or business after the injury (post-injury earnings). For information about pre- injury NAE, see 18-02-07, Calculating Net Average Earnings.
Post-injury earnings may be based on either actual employment earnings or determined earnings.
Although the worker’s representative referenced the contemporaneous medical reports to support the worker’s inability to work at all following their permanent work disruption, I note the May 8, 2020 and June 18, 2020 WSIB Community Mental Health Program Progress Forms do not support this position. On page 3 of these reports, the following is documented by Dr. Azoulay, Psychologist: “There is no clear answer to this; if they were given a suitable job in an office without dogs and they found the people there supportive, this might greatly relieve their depression which is mostly related to their unhappy experience and lack of support in their past job; that could result in their functioning well; but even if the economic shut down were to end now their current depression would make it difficult to job hunt”.
The Case Manager’s October 16, 2020 decision with respect to MMR for the psychological condition specifically indicates on page 2 that the worker’s only psychological restriction involves not working in the immediate vicinity of large dogs, despite their physician indicating in an October 28, 2020 hand-written report that they are unable to work in a sales environment.
With respect to the worker’s psychological impairment, I therefore accept the evidence supports that in addition to not being able to work in the vicinity of dogs, the worker’s accepted psychological symptoms affected their concentration, persistence, and pace, as was evidenced by the worker’s testimony, the February 10, 2022 ARO decision, and their inability to fully restore their pre-injury earnings at the time of lay-off.
In summary, I find the evidence supports the worker clearly demonstrated the ability to perform their pre-injury job duties, however, at a somewhat diminished capacity, likely due to their ongoing documented psychological symptoms which affected their concentration, persistence, and pace. I note the worker had the opportunity to apply for a comparable position at the time of their lay-off, however, chose not to do so.
The worker testified they had only submitted applications for 5-10 job postings following their lay-off in February 2020. Of importance, there has been no documentation provided to the WSIB to confirm the worker’s job search efforts post-layoff. During testimony, the worker confirmed they had not applied for the Sales Development Representative position that their employer had made available for those individuals who had been laid off, despite demonstrating the ability to perform their pre-injury job duties, albeit at a reduced pace.
In light of the fact that the worker demonstrated the ability to perform their pre-injury job duties, albeit at a slightly diminished capacity, I find there was no contraindication, from a psychological perspective, to the worker applying for the Sales Development Representative position. However, I acknowledge the evidence supports the worker would likely not have been able to fully restore their pre-injury earnings due to their psychological impairment.
Policy 15-06-03 specifies that the WSIB generally maintains the loss of earnings benefits a worker was receiving at the start of a permanent work disruption. At the time of the permanent work disruption in February 2020, the worker was still receiving partial LOE benefits as they had not yet been able to restore their pre-injury earnings due to their psychological condition, which was eventually accepted to be permanent in nature.
In light of the above, and given my finding that the worker remained partially impaired from a psychological perspective at the time of their permanent lay-off, in accordance with Policy 18-03-02, I therefore find the worker is entitled to the same level of partial LOE benefits they were receiving immediately prior to their lay-off under the claim.
The worker confirmed in testimony that in November 2020 they secured a new position, which eventually restored their pre-injury earnings. Although the worker advised they initially began working only part-time, I note that neither the file medical information nor the worker’s accepted permanent physical restrictions precluded the worker from only securing part-time work. As a result, I therefore conclude the worker is entitled to ongoing partial LOE benefits from the date they last received partial LOE benefits, i.e. February 21, 2020, until the date they secured new employment as an Operations Manager in November 2020.
CONCLUSION
I conclude the worker is entitled to ongoing partial LOE benefits from when they were last paid on February 21, 2020, until the date they secured new employment in November 2020.
The worker’s objection is allowed in part.
DATED February 17, 2023
L. Diaz
Appeals Resolution Officer
Appeals Services Division