APPEALS RESOLUTION OFFICER DECISION
claim:
20230078
OBJECTING PARTY:
employer
REPRESENTED by:
not represented
RESPONDENT:
worker
REPRESENTED by:
not represented
HEARING:
HEARING IN WRITING
HEARD by:
m. haughton, appeals resolution officer
JUNE 29, 2023
ISSUE
The employer is objecting to the Eligibility Adjudicator’s (EA) decision dated December 5, 2022, which allowed entitlement to partial loss of earnings (LOE) benefits. The EA reconsidered and upheld this decision on January 27, 2023.
BACKGROUND
On November 1, 2022, this driver/operator drove a cement mixer over a steel plate, which caused
a bouncing effect in the truck. The worker stated they came up and down on their seat, their body twisted and they landed on their side. The worker subsequently experienced an onset of lower back pain. The worker reported the incident to the employer and sought medical attention on
November 2, 2022.
On December 5, 2022, the EA accepted initial entitlement to a lumbar sprain/strain. The EA also allowed entitlement to partial LOE benefits from November 02, 2022 to December 05, 2022. The EA noted the worker had worked overtime in each of the four (4) weeks prior to the date of the work-related injury. The employer provided the worker with modified work; however, as per their company policy, the worker was not able to work overtime while performing modified work. As a result, the worker incurred a wage loss as a result of the work-related injury and was entitled to partial LOE benefits. The EA reconsidered and upheld this decision on January 27, 2023.
The employer’s objection to the EA’s decision dated December 5, 2022 and the subsequent reconsideration of that decision on January 27, 2023, form the basis for this appeal.
AUTHORITY
Operational Policy Manual
Published
Policy 18-02-02 Determining Short-term Average Earnings
April 1, 2016
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker is entitled to partial LOE benefits from November 02, 2022 to December 05, 2022. My findings and analysis are provided below.
The employer did not provide a submission with the Appeal Readiness Form dated April 13, 2023; however, a submission was previously provided on December 8, 2022. The employer stated the worker was not entitled to partial LOE benefits. The employer indicated that according to their Early and Safe Return to Work plan, an employee’s work days were evaluated on an individual basis and the employee would be entitled to work a maximum of eight (8) hours per day, following seniority in the applicable collective bargaining agreement (CBA).
The worker was offered modified work immediately following the injury and they did not incur a loss of earnings. The employer noted that for health and safety reasons, the employer did not put employees at risk by providing them additional hours to work that exceeded their assigned time according to their CBA. Additionally, to allow an employee an opportunity to heal from an injury, they were not provided with extra hours of modified work. The employer stated that this was not considered lost time. The employer noted that according to the CBA, work was assigned to the employees on the basis of seniority. If there was a lack of work, the senior person could opt to go home or continue the work on a voluntary basis. This was noted to be applicable for employees performing modified work as well, but the employer provided
eight (8) hours work to worker’s performing modified work in good faith. The employer stated the allowance of partial LOE benefits may create a low morale in other employees who did not have an opportunity to work overtime due to a lack of work.
The worker is not participating in this appeal and did not provide a submission for consideration.
Following the work-related injury, the worker returned to modified work, eight (8) hours per shift, five (5) shifts per week. Paystubs for the worker support the worker was working overtime in each of the four (4) weeks prior to the work-related injury; however, the worker was not provided with an opportunity to work overtime while they were performing modified work. As a result, the worker claimed and received partial LOE benefits from November 02, 2022 to December 05, 2022.
Policy 18-02-02, Determining Short-term Average Earnings, indicates that short-term average earnings are the worker’s earnings from the accident employer and all other employment at the time of the injury. Loss of earnings (LOE) benefits are paid for the first 12 weeks following the injury based on the short-term average earnings.
Earnings included in short-term average earnings are items paid, such as
the base (hourly, daily, or weekly) rate of pay with the accident employer at the time of injury
gratuities and tips included in gross earnings for taxation. If the reported gratuities and tips represent 25% or less of the worker’s gross earnings, proof is not required. If the reported gratuities and tips represent 25% or more of the worker’s gross earnings, proof is required
shift differentials, expressed as a weekly average (differential paid at least once in the four weeks prior to the injury) or where the shift rotation is longer than four weeks, one full shift cycle
vacation pay, if paid as a percentage of the base rate with each paycheque
mandatory (contractual) overtime
voluntary overtime, if worked regularly (see below)
regular production bonuses and commissions (see below)
room and board, if these are part of the worker's pay, rather than occasional, special expenses, and/or
the hourly, daily, or weekly pay with other employers, if the worker was concurrently employed at the time of injury
Overtime is considered voluntary if it is not part of the employment contract or collective bargaining agreement, it is not normally part of regularly scheduled work hours, or the worker has the option of working the overtime. If voluntary overtime is worked in each of the four weeks before the injury, or
in each week of one complete shift rotation (if the shift rotation is shorter, or longer than
four weeks), the overtime is included in the short-term average earnings. The amount of overtime
included is the average amount of overtime worked in those four weeks or in each week of
one complete shift rotation.
If voluntary overtime is not worked in each of the four weeks or in each week of one
complete shift rotation before the injury, the overtime is considered irregular overtime and is
not included in the short-term average earnings.
Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states in part that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins.
The employer referenced their company policy and their collective agreement to support the worker did not lose time from work as a result of the work-related injury. I have reviewed and considered the employer’s submission; however, it is important to note that claims are reviewed and adjudicated based on the Workplace Safety and Insurance Board (WSIB) policies rather than those of individual employers.
In this case, the worker performed voluntary overtime in each of the four (4) weeks prior to the work-related injury. As a result, the worker’s overtime was appropriately included in their short-term average earnings. While the worker returned to modified work on a full-time basis, overtime was not available to them while they were performing modified work. As a result, the modified work did not fully restore the worker’s pre-injury earnings and the worker incurred a wage loss resulting from the work-related injury from November 02, 2022 to December 05, 2022.
As the worker had a loss of earnings as a result of the work-related injury, I find the worker is entitled to partial loss of earnings benefits from November 02, 2022 to December 05, 2022.
CONCLUSION
The employer’s objection is denied.
The worker is entitled to partial loss of earnings benefits from November 02, 2022 to December 05, 2022.
DATED June 29, 2023
M. Haughton
Appeals Resolution Officer
Appeals Services Division