DECISION NUMBER:
20230083
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
M. RODRIGUES, APPEALS RESOLUTION OFFICER
JUNE 9, 2023
ISSUES
The worker, through their representative, is objecting to the following decisions made by the case manager:
A decision of September 23, 2022 that determined the re-employment threshold was not met.
A decision of July 9, 2021 that denied entitlement to loss of earnings (LOE) benefits following the surgery of tenolysis and the joint release of the right hand ring and little finger metacarpophalangeal (MCP) joints.
BACKGROUND
Prior Appeals Resolution Officer decisions of December 2, 2022 and January 26, 2023 have thoroughly documented the claim history and have no bearing on the current issues under appeal in this claim. As such, I will only provide a brief history in order to place the issues for this appeal into context.
Briefly, on November 8, 2019, this operations manager slipped on an ice-covered metal ramp. The worker caught their right ring and small fingers in a grate and also injured their right elbow. Initial entitlement was accepted for a right elbow bruise, right hand and fingers strains, and right third and fourth finger tenosynovitis. On April 7, 2020, the worker’s employment was terminated as part of corporate restructuring. The worker was offered a 59-week severance pay package.
In a decision letter of July 9, 2021, entitlement was extended to include right hand ring and little finger MCP stiffness post fracture, including surgery. The case manager denied entitlement to LOE benefits following the surgery because there was no wage loss. The worker was not working as they were previously laid off by the employer due to restructuring at the company and was looking for new employment. The decision was reconsidered on August 27, 2021, but the original decision was upheld.
A permanent impairment was accepted for the right ring and little fingers. On April 4, 2022, the worker received a 1.5% non-economic loss benefit.
In a decision letter of September 23, 2022, the case manager determined the re-employment threshold was not met for the unable to work criterion. The worker did not lose time from work and had returned to regular duties.
The worker objects to the decisions dated July 9, 2021 and September 23, 2022. The issues were referred to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
15-02-05 Recurrences
April 9, 2021
19-02-03 Re-employment Obligations
November 30, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Issue #1 – Re-employment threshold
For the reasons that follow, I find the re-employment threshold is not met.
Worker position
In the submission of August 27, 2021, the worker representative stated the worker indicated the employer was not pleased at the filing of a WSIB claim. Prior to the termination, the worker was employed for thirteen years and was a high performer at the employer’s company. They opined the worker’s employment was terminated within five months of the date of injury and it was presumed the termination was due to the workplace injury. They referenced the termination presumption in policy 19-02-02 (Re- employment Obligations) in support of their position and asked the WSIB investigate the reasons behind the termination.
In the submission of September 6, 2022, the representative stated the worker continued to work and self- accommodated their workplace injury until the termination. They reiterated their position about the termination occurring within six-months of and being related to the workplace accident. In support of their position, they requested full LOE benefits from April 8, 2020 to April 21, 2021 and referenced sections 41(1), 41(10) and 41(13) of the Workplace Safety and Insurance Act (WSIA).
Employer position
In the submission of May 11, 2023, the employer representative opined the worker’s employment was terminated due to restructuring and not the workplace injury. They stated the restructuring initiative began in October 2019, when the company wanted to simplify its global structure by combining various operations. They noted 29-individuals were impacted as a result of this initiative, with 13-employees also impacted in April 2020 along with the worker.
The representative stated the worker was working until they had their employment terminated, indicating the criterion for “unable to work” was not met in policy 19-02-09 (Re-employment Obligations). They
argued no evidence to the contrary was provided by the worker or their representative and contend the September 23, 2022 decision should be upheld.
Policy
When certain conditions are met, injury employers may have, in addition to their obligations to cooperate in the return-to-work (RTW) process, an obligation to re-employ a worker who has been unable to work due to a work-related injury. Policy 19-02-09 (Re-employment Obligations) outlines an injury employer's re-employment obligations, how the WSIB determines compliance with those obligations, and the applicable penalties for non-compliance.
Injury employers have an obligation to re-employ their workers if the following three conditions are satisfied:
the worker has been “unable to work” as a result of the work-related injury/disease
the worker was continuously employed with the injury employer for at least one year before the date of injury, and
the injury employer regularly employs 20 or more workers.
If the re-employment conditions as outlined above have been met, an injury employer’s re-employment obligation starts when it receives notice that a worker is medically able to perform the essential duties of either their pre-injury employment, or suitable work. Notice may be provided to the injury employer by the worker, the worker's treating health professional(s), and/or the WSIB.
Findings
When considering whether the employer has breached their re-employment obligation, I first need to determine if the re-employment threshold is met. In weighing the available evidence, I am not persuaded that all three criteria for the threshold are met as outlined in policy 19-02-09 (Re-employment Obligations). I do not find the “unable to work” criterion is met.
In regards to “unable to work,” the re-employment policy states that workers are considered unable to work if, because of the work-related injury/disease, they:
are absent from work
work less than regular hours, and/or
require accommodated work that pays, or normally pays, less than their regular pay, regardless of whether the injury employer reimburses a worker for an actual loss of earnings or not.
I note the worker representative stated the worker self-accommodated their right ring and little finger injuries while employed. While that may be the case, the fact remains, the worker was not absent from work. This is supported by the reporting in the Worker’s Report of Injury/Disease (Form 6) and Employer’s Report of Injury/Disease (Form 7) of February 13, 2020 and December 27, 2019 respectively. The worker confirmed returning to regular duties with no loss in time or pay in the Form 6. In the Form 7, the employer indicated the worker resumed their regular duties on November 9, 2019.
Furthermore, by the worker representative’s own admission in their submission of September 6, 2022, the worker continued to work. There is no available evidence to suggest the worker worked less than regular hours, nor required accommodated work that normally paid less than their regular pay. Of note, the worker continued to perform their regular duties until their employment was terminated on April 7, 2020.
The worker representative argued the termination of April 7, 2020 was related to the workplace injury, given it occurred within five-months of the workplace accident. However, it is important to note I found the re-employment threshold is not met in this claim. I also note the worker was not the only employee terminated in 2020. As indicated by the employer representative in their submission of May 11, 2023, the employer terminated 29-employees in 2020. In the month of April 2020 alone, 13-employees, in addition to the worker, had their employment terminated.
Of significance, policy 19-02-09 (Re-employment Obligations) states a worker have three months to ask the WSIB to investigate non-compliance. If the request is made after three months, the WSIB is not required to investigate, but may choose to do so. The WSIB may investigate on its own initiative at any time. In this case, the request to investigate the potential non-compliance came from the worker representative in their correspondence of August 27, 2021. This is more than 16-months after the termination date of April 7, 2020.
Noting the reasons outlined above and the re-employment obligation policy, I find the criterion for “unable to work” is not met. Thus, I do not find the re-employment threshold is met in this claim.
Issue #2 – Entitlement to LOE benefits following the surgery of July 22, 2021
For the reasons that follow, I find entitlement to LOE benefits is in order from July 22, 2021 to September 8, 2021. I find entitlement to LOE benefits beyond September 8, 2021 is not in order.
Worker position
In the correspondence of August 27, 2021, the worker representative argued the worker was unable to work or look for work. They opined the worker was entitled to LOE benefits from the date of surgery and requested return to work services once the worker reached maximum medical recovery. The representative attached the worker’s termination letter dated April 7, 2020 in support of their position.
In the submission of September 6, 2022, the representative stated the worker was looking for employment after their termination and again following the July 2021 surgery. The worker was able to secure employment at a car dealership, selling new and used vehicles, in November 2021. They requested full LOE benefits from April 21, 2021 to the date the worker recovered from surgery and from the surgery date to November 2021, when they returned to the workforce. The representative argued the worker continued to experience a wage loss and was entitled to partial LOE benefits from November 2021. They referenced sections 42 and 43(1) and 43(4) of the WSIA.
Employer position
In the submission of May 11, 2023, the employer representative indicated that while it was commendable the worker looked for jobs, entitlement to LOE benefits was not in order. They argued any LOE was not a result of the work-related injury, but instead due to the restructuring initiative. They requested the case manager’s decision of July 9, 2021 be upheld.
Policy
Policy 15-02-05 (Recurrences) outlines the circumstances under which a worker may be entitled to benefits for a recurrence of a work-related injury. Generally, a worker who experiences an actual loss of earnings due to a recurrence is entitled to LOE benefits. A worker who does not experience an actual LOE due to a recurrence may be entitled to LOE benefits if, at the time of the recurrence, he/she was expected to have actual earnings in the near future.
To determine whether a worker was expected to have actual earnings in the near future, the WSIB may consider whether the worker:
was expected to return to an existing job
was scheduled to start a new job
was actively engaged in formal job search activities, or
recently completed a return-to-work plan.
A worker who had permanently exited the workforce or was not actively engaged in the workforce at the time of the recurrence would not be expected to have actual earnings in the near future.
Findings
The worker representative referenced sections 42 and 43(1) and 43(4) of the WSIA in support of LOE benefits. However, I relied on policy 15-02-05 (Recurrences) in order determine if the worker is entitled to LOE benefits following the surgery. In this claim, the worker did not experience an actual LOE due to a recurrence, but would be, in my view, expected to have actual earnings in the near future and may be entitled to LOE benefits. I find the available evidence, as indicated by the case manager, worker representative and the worker themselves, supports the worker was actively engaged in job search activities at the time of the surgery.
Of note, in the April 23, 2021 specialty clinic report, the assessment team recommended the worker return to work with restrictions. They had limitations for lifting, pushing and pulling of 5- to 10-kg, occasionally gripping and pinching with their right hand and only climbing up to three steps on a ladder. Of note, the worker told the assessment team they were currently looking for work and had not returned to their prior job due to restructuring. The restrictions remained the same in the June 7, 2021 specialty clinic report.
In the July 9, 2021 decision, the case manager accepted and extended entitlement to right hand ring and little finger MCP stiffness post fracture, including surgery. The case manager noted the worker was currently looking for a new job.
The operative report of July 22, 2021 notes the worker underwent an extensor tenolysis right little finger extensor digiti quinti tendon, right little finger extensor digitorum communis (EDC) tendon and EDC tendons to right ring finger, MCP joint releases and capsulotomies surgeries.
In the progress report of July 22, 2021, the occupational therapist noted bandages were present on the dorsum of the worker’s hand. They were still under the effect of the anesthetic and sensation could not be assessed. A hand Waveflex continuous passive motion device was applied to the right hand. The plan was for the worker to use the Waveflex device on a full-time basis and follow up for formal therapy.
In the August 4, 2021 specialty clinic report, the assessment team recommended the worker not return to work. The team opined the worker had to be healed enough to return to work and recommended they remain off work for another month. The September 8, 2021 specialty clinic report indicated the worker was now capable of returning to work with restrictions. The worker’s limitations remained the same as those previously identified in the April and June 2021 specialty clinic reports.
In the submission of September 6, 2022, the worker representative stated the worker began looking for employment following the termination and again after the July 2021 surgery. The worker attended a training program in October 2021 and started as a car salesperson in November 2021. In my view, there
is no evidence to support the worker permanently exited the workforce, or was not actively engaged in trying to find work at the time of the recurrence.
Noting policy 15-02-05 (Recurrences), I find entitlement to LOE benefits from July 22, 2021 to September 8, 2021 is allowed. While the employer representative contends any LOE was not a result of the work- related injury and instead due to the restructuring initiative, I respectfully disagree under these circumstances. I find the clinical evidence supports the worker’s LOE was related to the workplace injury during that period. I am satisfied the worker was actively engaged in formal job search activities at the time of the recurrence, or surgery. In my view, this supports the worker was expected to have actual earnings in the near future.
However, I do not find the LOE beyond September 8, 2021 is related to the workplace injury. I find the worker was capable of returning to the workforce at that time. I note the worker did so in October 2021, when they underwent training for a new position as a car salesperson. Thus, I find the worker is entitled to LOE benefits from July 22, 2021 to September 8, 2021. I find entitlement to LOE benefits beyond September 8, 2021 is denied.
CONCLUSION
As outlined in the above decision, I conclude:
The re-employment threshold is not met.
Entitlement to LOE benefits from July 22, 2021 to September 8, 2021 is allowed. Entitlement to LOE benefits beyond September 8, 2021 is denied.
The worker’s objection is allowed in part.
DATED June 9, 2023
Ms. M. Rodrigues
Appeals Resolution Officer Appeals Services Division