Worker v. Employer, 2023 CanLII 57742

20230066

REPRESENTED by:

HEARD by:

DATED:

JANUARY 12, 2023

ISSUE

The worker is objecting to the Case Manager decision dated January 11, 2021 denying entitlement to a s.147(4) supplement.

BACKGROUND

According to the Employer’s Report of Accidental Injury or Industrial Disease – Form 7, the worker was hired by the employer in December 1980 and employed as a Drop Hammer Operator. On February 22, 1989, the worker was removing wedges from a hammer to remove boards. The bar used to remove the wedge slipped causing the worker to lose their balance placing all of their weight on the left side. The worker sustained a fracture of the left ankle.

The claim was allowed and the worker received a temporary total (TT) benefit from February 23, 1989 until June 19, 1989, at which time they returned to work in a tunnel gluers position. According to the Vocational Rehabilitation Services (VRS) Closure Report dated November 13, 1990, the worker was able to apply for and secure this new position on a permanent basis.

In September of 1990, the worker was awarded a 9% Permanent Disability (PD) pension for a fractured dislocation of the left ankle with open reduction and internal fixation, hardware remaining.

In October of 1992, entitlement to a PD reassessment for the left ankle was denied. After July of 1992, the majority of the medical reporting through to January of 2005 speaks to health care items such as orthotics. Other than the working requesting entitlement to health care items, there is no further enquiries or additional information sent to the case record until October of 2020.

The Employer’s Continuity Report (WREO7) dated October 1, 2020 indicates that on September 29, 2020 the worker reported swelling and pain in the left ankle. The pain was regular and varied in intensity. According to the employer, the worker performed his regular work duties from February 22, 1989 through to September 9, 2020. The worker did not lose any time from work.

On October 29, 2020, the worker completed and submitted a Worker’s Report of Injury – Form 6 indicating that the employer recently reduced their rate of pay from $27.53 to $21.41 as they were unable to perform duties around the plant.

On November 9, 2020 (memo 1), December 17, 2020 (memo 2) and December 23, 2020 (memo 3) the Case Manager attempted to obtain additional information from the employer in terms of restrictions and the reduction of the hourly rate.

On January 8, 2021, the Case Manager conducted a review for entitlement to s.147(4) benefits and obtained additional information from the employer. The Case Manager concluded that the criteria required establishing entitlement to a s.147(4) benefit was not met and entitlement was denied. This decision was communicated in writing on January 11, 2021.

In the correspondence dated February 16, 2021, the employer notes that the worker was returned to their regular posting held prior to the surplus process, Heat Treater. The employer notes that the current FAF submitted prevents the worker from performing the duties of this role in their entirety and in a safe manner, therefore the employer would continue to accommodate the worker in the Assembly department.

The worker objects to the January 11, 2021 decision.

AUTHORITY

Operational Policy Published

18-07-10 Sections 147(2) and 147(4) Supplements (Permanent Disability) January 2, 2018

ANALYSIS

In my review, I have had regard for the case file documentation, relevant policy, legislation and the submissions put forth by the worker representative and the employer representative with respect to the issue. I have considered all the evidence and the following is a summary of my decision.

Worker Representative Submission

The worker representative provided an Appeal Readiness Form and a written submission dated October 25, 2022 on behalf of the worker. The representative also provided copies of Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions xxx/xx, yyy/yy and zzz/zz.

The worker representative references the January 11, 2021 letter from the Case Manager as well as the February 16, 2021 letter from the employer. According to the representative, due to the injury and restrictions, the worker could not be accommodated on the Drop Hammer job. For some time, the worker was moved to a job as a tow motor driver, a job that would have made their losses less substantial. The worker reported on their Form 6 dated October 29, 2021 that because of their 31-year-old injury, their wages were being reduced from $27.53 to $21.41 (reiterated in memo 1). The representative referenced the three WSIAT decisions that allowed entitlement to a s147(4) benefit.

Employer Representative Submission

The employer is participating in the appeals process and provided a Respondent Form and submission, received to the case record on December 6, 2021. The employer provided the following relevant information:

In September 1990, the worker was assessed for a permanent disability pension pursuant to the pre- 1989 Workers’ Compensation Act. Their ankle disability was rated on September 17, 1990 at 9%. On October 25, 1991, their PD level was reviewed and confirmed to not be worse than 9%. It does not appear that they has been the subject of a further PD assessment since 1991.

The worker’s current employer is XX Inc. XX Inc. is a distinct and separate legal entity from YY Inc. XX Inc. operates its business in the same location as the prior employer. Based on the worker’s conversations with WSIB (memo 4) it seems likely that the worker continued to work for XX Inc. once the assets of the prior employer were disposed of by the Receiver.

The worker will reach the age of 64 on January 6, 2023. They have maintained employment after their injury, and after the Receivership of the injury employer. As a result, until their request in early

2021, there was no reason for them to request a supplement under section 147 of the pre-1997 Act.

The Board considered and assessed the worker’s request in Memo 5, dated January 8, 2021. The worker notes that all workers in their job position were affected by a reconfiguration of the work. They said that job changes in the position were based on seniority. When they raised a concern about pain while doing their changed job, the employer accommodated them in a position that resulted in a reduced wage rate. They identified that the change in wage went from $27.53 per hour to $21.41 per hour.

By the date of this change, more than 30 years had passed since the worker’s injury. As noted above, there has been no change in the rating for the worker’s PD pension since it was first determined in September 1990. Through all those years, they continued to be employed. They did not require a vocational rehabilitation program because they continued in their employment. The employer representative submits that the worker was never entitled to section 147(4) supplement because their post-injury earning capacity not only approximated their pre-injury earnings, but fully restored those earnings.

The Case Manager concluded that the loss of income was not related to the compensable ankle injury but was due to employment changes in the workplace.

Taken at face value, the worker’s untested evidence implies that their wage rate was decreased in October 2020 in part because of their permanent ankle injury. Even if that is correct, given the passage of time since the onset of the PD pension with no need for a supplement, it is not clear that section 147(4) applies to this claim. The question is whether the worker’s earning capacity was not increased after vocational rehabilitation. This assessment might be different if, for example, the evidence supported

that their condition had deteriorated below their assessed PD level. However, the Board has not made that finding, and there has been no ruling to date as to whether they are entitled to a PD reassessment.

According to the worker representative, the Board must complete the calculation to determine if the worker has approximated their net average pre-injury earnings, even at the reduced wage rate of $21.41. The operating would need to calculate whether the wage of $21.41 per hour (at 40 hours per week) approximates the pre-injury earnings within the meaning of s.147(10).

Issue: Entitlement to a s.147(4) benefit

I find that the criteria required establishing entitlement to a s.147(4) benefit has not been met. I arrived at this decision based on the following:

Policy

Policy 18-07-10 Sections 147(2) and 147(4) Supplements (Permanent Disability) states in part:

A worker with an injury date prior to January 2, 1990 who was in receipt of a partial permanent disability benefit after July 26, 1989 may be entitled to a supplement if the worker

would likely benefit from and co-operates in a work transition (WT) plan that could help to increase the worker's earning capacity to the extent that the sum of the worker's earning capacity after the WT plan and the amount of the worker's partial permanent disability benefit approximates the worker's pre-injury gross average earnings or pre-injury net average earnings (NAE) (s. 147(2) supplement), or
is not likely to benefit from a WT plan or if the worker's earning capacity did not increase to the extent expected following completion of a WT plan (s. 147(4) supplement).

The s. 147(2) supplement is paid as a monthly amount. The value of the monthly amount is dependent on factors such as

the worker’s claim limit (i.e., 75 per cent of pre-injury gross average earnings for injury dates prior to April 1, 1985 or 90 per cent of pre-injury NAE for injury dates between April 1, 1985 and January 1, 1990, subject to the statutory maximum average earnings)
the worker’s partial permanent disability benefit amount
the worker’s post-injury earnings (i.e., 75 per cent of gross average earnings after the injury for injury dates prior to April 1, 1985 or 90 per cent of NAE after the injury for injuries dates between April 1, 1985 and January 1, 1990)
any disability payments paid under the Canada Pension Plan/Quebec Pension Plan in respect of the work-related injury/disease.

A worker who is receiving a partial permanent disability benefit is entitled to a s. 147(4) supplement if the WSIB determines

the worker is not likely to benefit from a WT plan as described in the “Entitlement: s. 147(2) supplement” section, or
the worker’s earning capacity after completing a WT plan did not increase to the extent that the worker's earning capacity after the WT plan and the amount of the worker’s partial permanent disability benefit approximates the worker’s pre-injury gross average earnings or pre-injury NAE.

Case Details and Findings

In determining whether the criteria required establishing entitlement to a s147(4) supplement have been met, I am guided by policy 18-07-10 which states a worker may be entitled to a supplement if the worker is not likely to benefit from a WT plan or if the worker's earning capacity did not increase to the extent expected following completion of a WT plan (s. 147(4) supplement).

In the January 11, 2021 decision, the Case Manager confirms that the worker’s earnings were affected as a result of an employment situation and not the compensable injury. The Case Manager concluded that the worker was able to approximate their pre-injury escalated earnings and therefore, entitlement to a s.147(4) supplement was not warranted.

In reviewing this case, there is a very limited amount of recent information to account for the worker’s request, on the case record.

According to the worker, the employer reduced their pay from $27.53 to $21.41. It appears that the reduction took place from September 9, 2020 until February 16, 2021. However, in reviewing this case I note the following:

The VRS Closure Report dated November 13, 1990 documents that the worker was able to apply for and secure a new position (tunnel gluers position) on a permanent basis as they were unable to return to their pre-injury job.
There is no information from November of 1990 to September of 2020 to indicate what jobs the worker was employed at through the 30 years of their employment. Specifically, it is not clear as to the job they was working at as of September of 2020 and what job they were moved to.
The worker did not provide proof of earnings over the last 30 years nor did the worker provide proof of earnings to demonstrate the recent reduction in earnings.
The worker has not reported a recurrence over the 30-year span from 1990 to 2020.
The worker has not reporting a worsening of the ankle and a PD pension reassessment has not been requested since 1991/1992.

Essentially, with the exception of health care items, this case has been inactive for 30 years. While the worker indicates that they were placed into a new job due to their ankle injury in 2020, there is no evidence to support this argument.

Memo 5 dated January 8, 2021 documents a conversation with the employer representative who confirms that the job change was due to a corporate reconfiguration. Changes to the worker’s job was based on seniority. The worker was affected along with other co-workers.

Memo 5 also documents a follow-up conversation with the worker, at which time the worker confirms that all the employees performing their job were affected. They were performing a job but felt discomfort. The employer placed them in a lower pay scale job as it was more in line with their restrictions. The Case Manager notes that the job of Heat Treat Operator remained suitable as they were performing this position without complaint at the time that their job was affected. As noted, there is no information in terms of any of the jobs the worker was asked to perform and no details around changes in restrictions.

The worker representative references three WSIAT decisions in support of the worker’s position. WSIAT decision xxx/xx speaks to a reinstatement of s.147(4) benefits which is not the identified issue in this case. WSIAT decision zzz/zz addresses proof of income, and in this case, proof of income/earnings has not been provided. WSIAT decision yyy/yy addresses two different accidents under two different claims. Although the Vice Chair(s) grant entitlement to a s.147(4) benefit in each of these cases, I did not find that the scenarios outlined in these three WSIAT decisions mirror the scenario in this case and therefore, I was unable to place any weight on these three decisions.

In considering the limited information that is before me, I am unable to make a connection between the worker’s temporary reduction in earnings and the compensable ankle injury. As a result I find that this case does not meet the criteria required for consideration of a s.147(4) supplement and entitlement remains denied.

CONCLUSION

I conclude:

Entitlement to a s.147(4) supplement remains denied. The worker’s objection is denied.

DATED January 12, 2023

D. Gowanlock

Appeals Resolution Officer Appeals Services Division