APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230105
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
neil clark, appeals resolution officer
AUGUST 24, 2023
ISSUE
The worker, through their representative, objects to the Case Manager’s December 30, 2022 decision, which denied loss of earnings benefits following the worker’s temporary work disruption on November 11, 2022.
BACKGROUND
On December 23, 2021, the worker, who was employed as a Sheet Metal Journeyman, slipped while standing on a piece of pipe and fell backward, striking their head, neck, and upper back. The worker’s claim was allowed for initial entitlement to benefits on December 24, 2021, for head, neck, and upper back injuries.
The worker was later terminated from their employment on February 16, 2022. In their decision dated May 17, 2022, the Case Manager determined that the worker’s termination was, in part, related to their workplace injury and that the employer had not met their re-employment obligations. As a result of this decision, the worker also began to receive full loss of earnings benefits as of the date of their termination. According to the information on file, the employer re-employed the worker, and the worker returned to modified duties and hours on June 12, 2022. These duties primarily consisted of performing light assembly and fabrication work with micro-breaks, as required, and no production quotas.
In July 2022, the worker stopped working due to a non-compensable medical issue.
In their decision dated November 16, 2022, the Case Manager extended entitlement to include an exacerbation of pre-existing degenerative changes in the cervical spine; however, denied entitlement to benefits for radicular features of the cervical and upper thoracic spine. Within the decision, the Case Manager also determined that the worker’s head injury reached maximum medical recovery with no permanent impairment as of October 24, 2022.
On October 27, 2022, the worker was cleared to resume modified duties as their non-compensable medical issue had resolved. In their decision dated February 21, 2023, the Case Manager determined that the worker had entitlement to loss of earnings benefits from October 27, 2022, as the employer was now unable to offer modified work.
Prior to the worker being able to return to work, they were laid off on November 11, 2022, due to a lack of available work. In their decision dated December 30, 2022, the Case Manager determined that the worker was not entitled to loss of earnings benefits beginning November 11, 2022, as there was no evidence to support that the worker would normally seek alternative employment during similar work disruptions. This decision was reconsidered on February 14, 2023 and May 2, 2023, and upheld.
In their decision dated May 16, 2023, the Case Manager confirmed that the worker’s temporary lay-off ended as of May 3, 2023; however, the worker was entitled to full loss of earnings benefits as of that date, as the employer was not able to provide modified work. In their decision dated July 6, 2023, the Case Manager determined that the worker’s neck and upper back injury reached maximum medical recovery with a permanent impairment as of June 14, 2023. The worker subsequently received an 8% Non-Economic Loss (NEL) benefit. As the employer remained unable to accommodate the worker’s permanent restrictions, the worker is currently in receipt of full loss of earnings benefits and participating in a return-to-work plan with training.
The worker, through their representative, objected to the Case Manager’s decision, which denied loss of earnings benefits during their temporary layoff from November 11, 2022 to May 2, 2023. This issue forms the basis of the appeal before me.
AUTHORITY
Operational Policy Manual
Published
15-06-02, Entitlement Following Temporary Work Disruptions
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation, and relevant operational policies in reaching this decision. I find that the worker is entitled to loss of earnings benefits for the duration of their temporary work disruption from November 11, 2022 to May 2, 2023 Worker’s Position The worker, through their representative, states they should be entitled to full loss of earnings benefits for the duration of their temporary work disruption. They provide a comprehensive review of the history of their claim and note that at the time of their layoff, they were receiving full loss of earnings benefits. Therefore, they state that, in accordance with policy, their loss of earnings should have been maintained during the layoff.
The worker also identifies that after other layoffs, they sought work either through their union hall or outside of their union; however, in this case, their injury prevented them from doing so. They acknowledge that during two shorter layoffs, they did not work, but state that this occurred during COVID-19. To support their position that work would have been available, they have provided a statement from their union to confirm that members were in demand and fully employed. The worker notes that the work-related injury impacted their ability to work in their pre-injury position or earn income and that, as a result, they should be entitled to loss of earnings benefits.
Employer’s Position The employer, through their representative, states that the decision to deny loss of earnings benefits during the worker’s temporary lay-off should be upheld. They state that there is no evidence to establish that the worker would have sought other work in the general labour market and that layoffs are a normal part of the worker’s job. The employer also notes that the work-related injury would not have impacted the worker’s ability to earn income through new employment and that the worker did not attempt to find any work within their restrictions. Assessment of Entitlement Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions, states that the Workplace Safety and Insurance Board generally maintains the loss of earnings benefits the worker was receiving at the start of a temporary work disruption. Loss of earnings benefits may be adjusted if the worker’s level of impairment significantly improves or deteriorates during the work disruption.
Workers are entitled to additional LOE benefits when evidence indicates:
the worker would seek new employment in the general labour market to attempt to restore their loss of earnings during the temporary work disruption (i.e., if they were not injured), and
the work-related injury/disease impacts the worker’s ability to earn income through new employment.
As noted above, Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions, confirms that workers may be entitled to additional loss of earnings benefits if evidence shows they would seek new employment, and the work-related injury would impact their ability to earn income through new employment. Given that the general rule is that the level of loss of earnings benefits at the start of a temporary work disruption are to be maintained, the additional loss of earnings would represent any earnings over and above the level of benefits that a worker was receiving at the start of a temporary work disruption. However, in this case, the worker is not seeking additional loss of earnings benefits beyond the loss of earnings benefits that they were receiving when their temporary work disruption began. As such, I find it is not necessary to consider the provision of the policy that relates to additional loss of earnings benefits.
Instead, as noted above, the policy confirms that workers are generally entitled to continue to receive the loss of earnings benefits that they were receiving prior to the temporary disruption. In my review of the file, I note that immediately before the worker’s temporary work disruption on November 11, 2022, they were receiving ongoing loss of earnings benefits. In this case, there is no information to support that there were any unusual or exceptional circumstances, which would warrant a deviation from the general rule. Therefore, in accordance with the general rule outlined in Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions, I find that the worker is entitled to the loss of earnings benefits that they were receiving at the start of their temporary work disruption on November 11, 2022.
In accepting that the worker’s loss of earnings benefits should be maintained, it is relevant that when the layoff began, the employer was not able to accommodate the worker and when the worker’s layoff ended, the employer continued to be unable to provide suitable modified duties. This supports that the worker required significant accommodations within their industry, and that even in the absence of a layoff, the employer would not have been able to provide the worker with suitable modified work to restore their pre-injury earnings. Therefore, it is reasonable to conclude that if the layoff had not occurred, the worker would have continued to receive full loss of earnings benefits during the period in question. Five days following the worker’s temporary work disruption, the Back and Neck Specialty Program confirmed that the worker was limited to 10-20 kg lifting, had restrictions concerning bending and twisting of their neck and upper back, and was unable to climb ladders. In addition, the worker also required regular micro-breaks. In assessing these restrictions, I find that they would have precluded the worker from performing the essential duties of their pre-injury position as a Sheet Metal Journeyman, especially given the heavy nature of the position.
I recognize the employer’s position that the work-related injury would not have impacted the worker’s ability to earn income through new employment and that the worker also did not attempt to find any work within their restrictions. When considering this, I note that the worker is hired through the union hall. As the nature of the work disruption was over five months in length, rather than a shorter seasonal or holiday break, I accept that the expected pattern within the worker’s industry would be to seek further work through the union during a disruption of this nature. However, it is relevant the union has provided a statement, which confirms that the worker’s trade was in-demand and that members were in “full employment” at the time. As the worker’s compensable restrictions would have precluded the worker from being hired through the union hall, it is evident that the work-related impairment disadvantaged the worker when compared to other uninjured co-workers who were also affected by the work disruption, as these individuals would have had the ability to obtain the available work, if they chose to do so.
In addition, when examining the worker’s pattern of employment, I acknowledge that while there was one instance, outside of the COVID-19 shutdown periods, in which the worker did not seek other employment, the information on file establishes that the worker was consistently employed or generally sought employment during layoffs. In this case, the worker remained laid-off for approximately five months, which is longer than any other recent layoffs. During this period, the worker was unable to seek new employment through the union and due to the extent of their compensable impairment and their ongoing treatment, their ability to secure new work outside of their union would have also been significantly impacted.
When reviewing the duration of the worker’s loss of earnings benefits during their work disruption, Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions, confirms that loss of earnings benefits may be adjusted if the worker’s level of impairment significantly improves or deteriorates during the work disruption. In my review of the medical information on file, the worker restrictions remained largely unchanged and the worker reached maximum medical recovery shortly after their layoff ended. Given this, I find that there should be no adjustment to the loss of earnings benefits during the temporary work disruption.
In consideration of all of the above, I find that the worker is entitled to loss of earnings benefits for the duration of their temporary work disruption from November 11, 2022 to May 2, 2023, as per Operational Policy 15-06-02, Entitlement Following Temporary Work Disruptions.
CONCLUSION
I find that the worker is entitled to loss of earnings benefits for the duration of their temporary work disruption from November 11, 2022 to May 2, 2023.
The worker’s objection is allowed.
DATED August 24, 2023
Neil Clark Appeals Resolution Officer
Appeals Services Division