Workplace Safety and Insurance Board
DECISION NUMBER: 20230081
OBJECTING PARTY: WORKER
REPRESENTED by: SELF
RESPONDENT: EMPLOYER (NOT PARTICIPATING)
HEARING: TELECONFERENCE – MAY 29, 2023
HEARD by: K. MACMILLAN, APPEALS RESOLUTION OFFICER
ADDITIONAL ATTENDEES: NONE
ISSUES
The worker is objecting to the following:
The Case Manager’s decision of July 28, 2022 to reduce entitlement to loss of earnings benefits due to a post-accident change from July 27, 2022 to September 5, 2022; and,
The Case Manager’s decision dated September 30, 2022 authorizing an ongoing reduction to loss of earnings benefits due to a post-accident change.
BACKGROUND
On October 19, 2021, the worker fell three feet while descending a ladder. The worker’s left knee twisted and they fell onto the ground. Surgery was performed on October 22, 2021 for an open reduction internal fixation, lateral meniscal repair, and bone grafting with a bone substitute. A Workplace Safety and Insurance Board (WSIB) decision letter dated November 24, 2021 allowed entitlement to health care benefits and loss of earnings benefits for a left knee injury. A Case Manager’s decision letter dated February 7, 2022 authorized entitlement to the left tibial plateau fracture with extensive bony disruption. A Return-to-Work Specialist’s decision letter dated June 28, 2022 approved an interim return-to-work plan with computer skills training which was to run for the twelve-week period of July 4, 2022 to September 23, 2022.
On July 26, 2022, the worker informed the WSIB that they would be leaving on a family trip to Province X the next day and would not returning until the Labour Day weekend (September 5, 2022). The worker explained that they would be flying back to attend the Lower Extremity Specialty Program appointment in August 2022. The Case Manager’s decision letter of July 28, 2022 based the worker’s loss of earnings benefits for the period of July 27, 2022 to September 5, 2022 on the determined suitable occupation without training of Customer Service Representative using entry-level wages of $15.00 per hour over a 40-hour week. The decision letter confirmed that there was no resulting wage loss for the period adjusted due to the post-accident, non-work-related change.
The worker attended the Lower Extremity Specialty Program assessment on August 26, 2022 but left early during a break. The worker later explained that they had experienced a panic attack. The Return-to-Work Specialist sent a co-operation warning letter on September 7, 2022. The worker left a message for the Return-to-Work Specialist at 11:30 pm on September 8, 2022 indicating that they were not in either City Y or Z and were not interested in completing the return-to-work plan for computer skills training. The worker left another after-hours message for the Return-to-Work Specialist at approximately 8:43 pm on September 12, 2022 indicating that they would not be participating in return-to-work services and that they would not be returning to work until being medically cleared to do so. The Return-to-Work Specialist confirmed the closure of the authorized return-to-work plan effective September 20, 2022 within a letter dated September 21, 2022.
The Case Manager’s decision letter dated September 30, 2022 stated that loss of earnings benefits continued to be based on the suitable occupation of Customer Service Representative with no ongoing wage loss as the worker had confirmed being no longer able to participate in either health care or return-to-work activities. The decision letter verified that the Case Manager would consider reinstating benefits if the worker wished to re-engage in health care and return-to-work activities in the future. The Case Manager’s letter of February 8, 2023 accepted that maximum medical recovery was reached with permanent restrictions as of January 20, 2023. An 8% non-economic loss benefit for the permanent left leg impairment was awarded on February 13, 2023. The worker requested that their objection to the decisions of July 28, 2022 and September 30, 2022 be resolved by an oral hearing. The issues are now before me.
AUTHORITY
Operational Policy Manual
Published
15-06-07 Leaving the Province/Country
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
19-02-10 RTW Assessments and Plans
22-01-02 Material Change in Circumstances – Worker
April 9, 2021
April 9, 2021
November 30, 2020
April 9, 2021
ANALYSIS
I find that loss of earnings benefits were appropriately adjusted from July 27, 2022 to September 5, 2022, as well as from September 5, 2022 onward. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Worker’s position and testimony
It is the worker’s position that no one told them that they could not go on vacation and that no one is provided with the WSIB rules at the start of a claim. The worker explains that due to the global pandemic they had been waiting to go on vacation to visit family and take care of personal matters for two years.
After the injury, the worker’s spouse had to increase their hours from a part-time basis for financial reasons while the worker was required to ensure that their two children aged 8 and 14 were completing on-line learning during the pandemic. According to the worker, they were not missing physiotherapy by going to Province X as another block had not been registered. The worker states that there was essentially a mutual agreement with the worker and the doctors that they would be unable to attend as they would be going to school. The worker confirms that they continued walking and performing home exercises.
With respect to the computer skills training, the worker indicates only needing general knowledge and that they were unable to sit for many hours due to the leg injury. Even when home, the worker found it too hard to do the computer training with their two children participating in online learning. The worker describes being 60 years old and not needing to get into depth with computer skills as they never asked how to learn about things like spreadsheets. In the worker’s view, the material learned at the beginning of the training was all that they required. The worker also expresses the view that they felt forced to attend the computer training class or else they would lose their benefits.
The worker confirms that they want to keep working but that no one will employ them as the injury represents a liability risk. The worker questions where they can work since they need to change positioning from sitting to standing every ten minutes. The worker indicates that they cannot perform an inside job requiring them to sit as they are an outside person. The worker describes having to get out into the yard even when at home no matter the time of year. The worker indicates being open to discussing return-to-work with the WSIB but feels that the new Case Manager should be contacting them given how frequently their file has been reassigned.
Jurisdiction
I appreciate the worker’s testimony that they tripped recently resulting in being in bed for three days. The worker expresses frustration that no WSIB employee has met them in person even though they have a serious leg injury and have a hard time walking. The worker notes that they avoid going down to the basement due to the risk of using stairs. The worker indicates that at the start of the claim, the doctors discussed amputating the leg. The worker notes that hearing such news would cause anxiety in anyone.
Within testimony, the worker explains that they are on crutches and that the skin graft surgery was cancelled due to the recent tripping incident. Briefly, the worker outlines that a nurse will be visiting through home care and that a physiotherapist will be bringing them a walker. The worker verifies that they are performing wound care diligently while awaiting an appointment with the orthopaedic clinic. All that being said, I find that the recent tripping incident is not properly before me. Therefore, I make no findings with respect to any potential entitlement to loss of earnings benefits or health care benefits arising as either a recurrence or new incident.
1) Period of July 27, 2022 to September 5, 2022
I accept that the worker removed themselves from the authorized return-to-work plan by leaving Province A on July 27, 2022 without having any pre-approved vacation time from either the Case Manager or Return-to-Work Specialist. The worker argues that they were not aware that they were unable to take vacation or that notification was required until being informed so by the Return-to-Work Specialist.
Policy 15-06-07, Leaving the Province/Country, outlines that the WSIB allows up to three weeks of vacation per year, provided the vacation period does not interrupt health care treatment or return-to-work activities. Full benefits may continue if a worker is partially impaired and in receipt of full loss of earnings benefits because of being involved in a return-to-work plan.
Policy 15-06-08, Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances, states that a worker’s status may change in ways that may not be related to the work-related injury. Policy 15-06-08, outlines that a suitable occupation is to be identified in cases where the worker’s inability to work is due to both the work-related injury and a non-work-related change in circumstance. Policy states that loss of earnings benefits are then paid based on the earnings of the identified suitable occupation. Policy 22-01-02, Material Change in Circumstances – Worker, lists changes including changes that impact the worker’s availability for return-to-work activities.
In this case, the authorized computer skills training was scheduled to begin on July 11, 2022. The case record indicates that the worker did not start as expected and did not call to notify. On July 12, 2022, the worker notified the training provider that they could not attend that day as they need to look after their children. The provider then informs the WSIB of a virtual learning option. On the same day, the worker contacted the Case Manager to explain that they were unable to participate in in-person training as they have to take care of their children during the day. The Case Manager discusses the possibility of online training with the worker and confirms that it is self-paced with the ability to still attend doctor appointments or the wound specialist.
I observe that the worker then starts the interim plan for computer upgrading on July 20, 2022. The following day, the Case Manager authorizes physiotherapy treatment three times per week to October 3, 2022. On July 22, 2022, the worker informs the Lower Extremity Program treatment clinic that their children are home for the summer and that their spouse is working. The worker requests that they start treatment again in September once their life schedule calms down. On July 26, 2022, the worker explains to the Return-to-Work Specialist that they asked for the training not to start until September due to childcare responsibilities. The case record documents the worker’s indication that it is not possible to take the computer on vacation as they have a desktop and so will not being schoolwork while they are away.
During a separate conversation on the same date, the Case Manager expresses concern to the worker that they will be missing physiotherapy treatment while they are away. I observe that the Case Manager explains to the worker that vacation can be approved up to three weeks if it does not disrupt recovery or return-to-work activities. The Case Manager also informs the worker that loss of earnings benefits will be based on a suitable occupation without training while they are away which eliminates any ongoing wage loss benefit until September 5, 2022. The Case Manager later adjusts the worker’s loss of earnings benefits effective July 27, 2022 as the worker left Province A on vacation and personal matters.
I recognize the worker’s testimony regarding feeling dizzy and experiencing headaches when sitting too long in front of a screen or feeling claustrophobic while sitting in a room. The worker explains that they flew in late on August 25, 2022 in order to attend the assessment on August 26, 2022. The worker indicates that on August 26, 2022, the physiotherapist completed their assessment and that it seemed like forever waiting for the orthopaedic specialist. During this break, the worker left the assessment area and went to the washroom for approximately three minutes where they experienced a panic attack. The worker had to leave due to anxiety and get out to the fresh air.
The worker describes leaving through an outside door that was closest and did not have pandemic screening staff like the entrances. The worker explains that there was no one at reception or in the office area to inform that they were leaving. Once outside, the worker thought of going back but decided to go home instead. Upon arriving at home, the worker began to charge their phone and noticed the missed calls that they then returned. It is the worker’s testimony that they drove back to Province X approximately four days later. It is the worker’s testimony that they returned to Province A approximately two days after that.
In summary, I appreciate that the worker was not aware that they were required to request and obtain authorization for vacation until July 26, 2022. I also recognize the difference between the worker’s testimony and the Case Manager’s documentation regarding the booking of physiotherapy. In addition, I am aware of the worker’s disagreement with the authorized computer skills training and explanation of having a panic attack during the assessment on August 26, 2022. Regardless, it is my view that the worker’s out-of-province travel from July 27, 2022 represents a disruption to the authorized return-to-work plan. For this reason, I find that Policy 15-06-07 does not support the payment of three weeks of full loss of earnings benefits as the vacation was not pre-authorized and interrupts the computer skills training.
Further, I find that the travel outside of Province A represents both a material change under Policy 22-01-02 as well as a post-accident change under Policy 15-06-08 as it impacts the worker’s availability for return-to-work activities.
Accordingly, it is my opinion that loss of earnings benefits from July 27, 2022 to September 5, 2022 are to be based on the determined earnings of a suitable occupation without training. While I am aware of the worker’s testimony regarding needing to be outdoors frequently, I find that they possess transferrable skills within the construction and building industries. I further accept that Customer Service Representative positions may be found within building suppliers which would allow the worker change position as required. Accordingly, I find that loss of earnings benefits were appropriately adjusted effective July 27, 2022 until September 5, 2022 using the minimum wage of $15.00 per hour at 40-hours per week for the identified suitable occupation without training.
2) Ongoing reduction due to post-accident, non-work-related change in circumstances
In my view, entitlement to loss of earnings benefits was adjusted correctly from September 5, 2022 using the determined wage of a suitable occupation without training.
The decision letter of September 30, 2022 states that the Case Manager will review for reinstatement of benefits if the worker wishes to re-engage in healthcare and return-to-work activities in the future. Policy 19-02-10, RTW Assessments and Plans, confirms that return-to-work plans are closed and benefits adjusted accordingly when a worker fails to participate in the completion of plan activities. It is the worker’s testimony that they have not returned to any type of work although they have enquired with various people about potential employment.
The Return-to-Work Specialist’s co-operation letter of September 7, 2022 documents three unreturned messages to the worker during the period of September 1, 2022 to September 7, 2022. As discussed above, the worker left messages for the Return-to-Work Specialist after hours on September 8, 2022 and September 12, 2022 indicating that they will not being participating in return-to-work services. The Return-to-Work Specialist’s letter of September 21, 2022 explains that the Return-to-Work plan was being closed effective September 20, 2022 as the worker indicates having no intention of resuming the plan until medically cleared by the surgeon to do so. The Lower Extremity Program’s discharge report of September 29, 2022 states that the worker did not reply despite numerous attempts to reschedule a follow-up appointment. The case record does document that the worker attended a follow-up assessment with the orthopaedic surgeon on October 31, 2022.
Based on the worker’s testimony and the documentation contained within the case record, I find that there is insufficient evidence of the worker notifying either the Case Manager or the Return-to-Work Specialist of any willingness to resume return-to-work activities between September 5, 2022 and the date of the oral hearing. Therefore, I find that entitlement to loss of earnings benefits from September 5, 2022 is to continue to be based on the determined wages of the identified suitable occupation without training as the worker has effectively withdrawn themselves from return-to-work services. Even so, my findings do not prevent the worker from potentially confirming their willingness to re-engage in return-to-work activities as offered within the Case Manager’s decision letter of September 30, 2022.
CONCLUSION
I conclude the following:
- A post-accident non-work-related change in circumstances prevented the worker from participating in the authorized return-to-work plan involving computer skills training from July 27, 2022 to September 5, 2022 (non-inclusive).
Loss of earnings benefits were appropriately adjusted from July 27, 2022 to September 5, 2022 based on the determined entry-level wage of $15.00 per hour over a 40-hour week as a Customer Service Representative as a suitable occupation without training.
- The post-accident non-work-related change in circumstances preventing the worker from participating in the authorized return-to-work services continued beyond September 5, 2022.
Entitlement to loss of earnings benefits was appropriately adjusted effective September 5, 2022 using the determined entry-level wages of $15.00 per hour on a full-time basis for the suitable occupation with training of Customer Service Representative.
The worker’s objection is denied.
DATED June 7, 2023
K. MacMillan
Appeals Resolution Officer Appeals Services Division