Worker v. Employer, 2025 CanLII 111679

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20250048

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT PARTY: EMPLOYER (NOT PARTICIPATING)

REPRESENTED by: EMPLOYER REPRESENTATIVE

HEARING: HEARING IN WRITING

HEARD by: H. MOHAMED, APPEALS RESOLUTION OFFICER

DATED: JANUARY 17, 2025

ISSUE

The worker representative (WR), on behalf of the worker, is objecting to the Case Manager’s (CM) decision dated November 14, 2023, which denied a review of the worker’s Loss of Earnings (LOE) benefits from June 6, 2016, onwards because it was after the worker’s 72-month Final LOE Review date.

BACKGROUND

The history of this claim has been well documented in the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated August 8, 2023, and will only be repeated briefly to place the issue into context.

The worker sustained a left knee injury on July 19, 2009, while working as a grocery store clerk. The claim was allowed for a complex medial meniscus tear, which required surgery on September 27, 2010. The worker returned to work on November 28, 2010, and continued in their pre-accident job (accommodated) until June 6, 2016, when they went off work for various medical reasons including the work-related left knee injury. The worker has remained off work since.

In June 2015, the worker requested recognition of a permanent impairment (PI) for their left knee. The request was denied by a CM in June 2015 and upheld by an Appeals Resolution Officer.

The WSIAT decision dated August 8, 2023, recognized a left knee PI with a maximum medical recovery (MMR) date of February 1, 2013. The panel concluded the worker was entitled to a Non-Economic Loss (NEL) assessment; however, the nature and duration of any LOE benefits beyond the MMR date was left to the discretion of the Operating Area.

Following the WSIAT decision the worker was awarded a 6% NEL benefit for their left knee medial meniscal tear.

The WR requested entitlement to LOE benefits from June 6, 2016, to age 65. In a decision dated November 14, 2023, the CM determined they were unable to review the worker’s request for LOE benefits from June 6, 2016, onwards, because the final 72-month LOE review date was July 19, 2015. The CM noted that based on policy, LOE benefits could only be reviewed after the 72-month review date if a number of specific criteria were met. This included a significant deterioration in the worker’s medical condition post 72 months. Since the worker did not experience a significant deterioration after 72 months (WSIAT determined that the MMR date was February 1, 2013), LOE benefits could not be reviewed.

The WR objected to this decision arguing that since the worker received their NEL benefit in August 2023, LOE benefits could be reviewed. Additionally, the WR argued the worker was co-operating both in medical rehabilitation as well as modified duties at the time of the final review and therefore LOE benefits could be reviewed post 72-months on this basis also.

In a reconsideration decision dated August 14, 2024, the CM upheld the previous decision that the worker did not meet any of the policy criteria to allow for a review of LOE benefits post 72-months.

Accordingly, the only issue to be determined in this appeal is whether the worker’s LOE benefits can be reviewed from June 6, 2016 – approximately one year after the 72-month final review date.

AUTHORITY

Workplace Safety and Insurance Act (WSIA), 1997 – Section 44

Operational Policy Manual

Published

18-03-06 - Final LOE Benefit Review

April 9, 2021

ANALYSIS

For the reasons that follow, I find that the worker’s request for LOE benefits from June 16, 2016, cannot be considered because none of the legislative/policy criteria have been met to warrant a review post-72 month.

Section 44(2) of the WSIA, provides that no review of LOE benefits is permitted more than 72-months after the date of injury. Since the accident date in this case was July 19, 2009, the date beyond which no further review is permitted is July 19, 2015. However, section 44(2.1) provides a number of specific and clearly defined criteria which, if met, can trigger entitlement to LOE benefits after the normal 72-month lock-in date or can allow the WSIB to review benefits after 72 months. These legislative criteria have also been reproduced in Policy 18-03-06 (Final LOE Benefit Review), and read as follows:

• before the 72-month period expires, the worker fails to notify the WSIB of a change in circumstances or engages in fraud or misrepresentation in connection with their claim for benefits under the insurance plan
• the worker was provided with a return-to-work (RTW) plan (with training) and the plan is not completed when the 72-month period expires
• when the 72-month period expires, the worker and the employer are co-operating in RTW activities (including RTW plans without training), or the worker is co-operating in health care measures.
• after the 72-month period expires, the worker suffers a significant deterioration in their condition that:
  • results in a redetermination of the degree of permanent impairment
  • results in an initial determination of a permanent impairment
  • is likely, in the WSIB’s opinion, to result in a redetermination of the degree of permanent impairment, or
• after the 72-month period expires, the worker suffers a significant temporary deterioration in their condition that is related to the injury.

In his submission attached to the Appeal Readiness Form dated July 22, 2024, the WR essentially takes the position that the allowance of a permanent impairment by WSIAT in August 2023 represents a significant deterioration in the worker’s left knee condition which meets one of the criteria outlined in Policy 18-03-06. Furthermore, the WR submits that both the worker and employer were co-operating in RTW measures at the time of the 72-month review. As such, the WR believes the worker’s LOE benefits can be reviewed from June 16, 2016, based on both of those criteria having been met.

Respectfully, I disagree with the WR. I find that none of the criteria have been met.

There is no evidence the worker failed to report a material change prior to the 72^nd month and nor was the worker provided a RTW plan with training that was not completed by the 72^nd month. Hence, the first two criteria in Policy 18-03-06 are not applicable. The last criterion is also not applicable as there is no evidence the worker suffered a significant temporary deterioration in their condition after the 72^nd month. Consequently, the only two criteria that might be applicable to this case is whether the worker was co- operating in RTW activities or healthcare measures at the time of the 72^nd month and whether the worker suffered a significant deterioration after the 72^nd month as a result of either a NEL determination or redetermination.

Significant deterioration post 72-month

The fact that a PI was recognized by WSIAT in August 2023 resulting in a NEL benefit does not automatically trigger a review of the worker’s LOE benefits post 72 months. Policy 18-03-06 clearly states that for LOE benefits to be reviewed post 72 months, the worker must suffer a “significant deterioration” in their condition after the 72^nd month “that results in an initial determination of a permanent impairment.” In other words, there must be both a significant deterioration and an initial determination post 72-months for LOE to be reviewed. This fact has been well established in various WSIAT decisions such as decisions 3126/16; 891/15 and 703/18.

In this case, while we have an initial determination (NEL assessment) after the 72-month period, we do not have a significant deterioration because the WSIAT decision found that the worker achieved MMR for their left knee impairment in February 2013 – more than two years prior to the final LOE review date. There is no evidence of a significant worsening post 72-months related to the accepted work-related PI (medial meniscus tear). I note the worker sustained a low back and left knee injury on August 20, 2015, when they slipped on a pineapple slice at work (Claim A). However, this was a new injury, and the worker was diagnosed with a left knee strain. There is no medical evidence on file to suggest that worker experienced a “significant deterioration” in their work-related left knee medial meniscus tear. As such, I find the criteria of a significant deterioration post 72-months has not been met.

Co-operating in RTW activities

I also do not believe the workplace parties were “co-operating in RTW activities” at the time of the final LOE decision as suggested by the WR. Policy 18-03-06 states that the WSIB generally considers the workplace parties to be co-operating in RTW activities (including RTW plans without training) at the 72- month period if the following three conditions are met:

• the employment relationship between the workplace parties has been maintained,
• the workplace parties are actively attempting to identify suitable and available work or are in the process of arranging a return to work consistent with the worker’s functional abilities, and
• neither workplace party is refusing to abide by their co-operation obligations.

I accept the worker was performing their pre-accident job duties with accommodation at the time of the 72-month review. The WSIAT decision documented that the worker’s need for modified work was due to a number of non-compensable medical conditions including the work-related left knee condition (paragraph 21). At paragraph 10 of the WSIAT decision, it was noted that the worker returned to modified duties by way of graduated hours in November 2010 following their left knee surgery in September 2010. The worker described that while they continued to perform the pre-accident job duties as a grocery clerk, they wore a knee brace at work and primarily worked at waist level and had difficulties with lifting items and shelving items at low and high levels. The worker acknowledged that they had a number of non-compensable medical conditions, particularly the low back that required them to wear a brace. The WSIAT decision noted that a couple of co-workers provided testimony at the hearing confirming that the worker had difficulties performing certain aspects of their pre-injury job due to their work-related knee as well as non-compensable back conditions which required them to assist the worker at times. The worker continued performing these job duties until they stopped working in July 2016 due to a combination of work-related and non-work-related medical reasons.

The fact that the worker was performing accommodated pre-injury job duties is not in and of itself sufficient to warrant a review of LOE benefits post-72 months. As clearly noted in Policy 18-03-06, to meet the criteria of “co-operating with RTW activities” the evidence must show that at the time of the final review the workplace parties were either actively attempting to identify suitable work or were in the process of arranging a return to work consistent with the worker’s functional abilities. This is not the case here. Rather, the contemporaneous file documentation confirms the worker had been performing pre- accident accommodated duties for nearly 5 years prior to July 2015. In other words, suitable work had already been identified many years prior to the final LOE review date and the worker’s employment situation was stable. There were no ongoing “RTW activities” at the time of the final review. As such, I find that this criterion has not been met.

Co-operating in healthcare measures at 72 months

Policy 18-03-06 states that in some cases, a worker will not be working but co-operating in health care measures at the time of the final review. Quite often the worker will be involved in a medical rehabilitation (MR) program. An MR program is any course of medical or paramedical treatment or care for a work- related injury. The purpose of an MR program is to bring the worker to a state of maximum medical recovery so that the worker may return to suitable and available employment.

The policy goes on to state that an MR program does not simply consist of the continued use of prescription medication and/or maintenance physiotherapy or chiropractic treatments. A worker is considered to be in an MR program if any of the following situations occur but is not limited to:

• receiving active treatment due to a recurrence of the work-related injury/disease
• attending a WSIB arranged specialist consultation, or
• having a prosthesis repaired or replaced.

In reviewing the case record, I find there is no evidence to support that the worker was engaged in an MR program as defined in policy. There is no evidence of any active treatment or specialist consultation around the time of the 72^nd month. According to the clinical notes provided by the worker’s family physician, the worker was seen on October 2, 2014, complaining of back pain and knee pain. The worker was told to continue with modified work and told to continue taking their Percocet medication.

The worker did not see their family physician again until August 27, 2015 (one month after the 72^nd month) where they reported a new work-related injury. Accordingly, I am satisfied that the worker was not engaged in any health care measures at the time of the 72^nd month.

As none of the criteria for reviewing LOE benefits post 72 months have been met, I find the worker’s request for LOE benefits from June 2016 cannot be considered.

CONCLUSION

The worker does not meet any of the legislative or policy criteria necessary to trigger a review of LOE benefits post 72-month. As such, the worker’s request for LOE benefits from June 2016 onwards cannot be considered.

The objection is denied.

DATED: JANUARY 17, 2025

H. Mohamed

Appeals Resolution Officer Appeals Services Division