Worker v. Employer, 2025 CanLII 144154

20260004

REPRESENTED by:

HEARD by:

DATED:

JULY 8, 2025

ISSUES

The worker, through their representative, is objecting to the following case manager decisions:

Decision dated September 11, 2024, which denied entitlement to a recurrence of the right ankle impairment.
Decision dated September 11, 2024, which denied entitlement for the left knee, ankle and foot as secondary conditions.
Decision dated November 21, 2024, which determined the worker is entitled to loss of earnings (LOE) benefits based on their capacity to earn $17.20 per hour, working 40 hours per week in the suitable occupation (SO) of Other Customer and Information Services Representative (NOC 6552) as of November 9, 2024.

BACKGROUND

On November 4, 2019, the worker, employed as a labourer, opened an electric overhead garage door at a loading dock to dispose of garbage. The worker closed the door and attempted to push plastic totes away from the door, causing the door to come down on their right leg. Entitlement was granted for their right fibula and tibial fractures and the surgical repairs on November 7 and 19, 2019. The worker underwent a subsequent hardware removal on March 7, 2022. Loss of earnings benefits were allowed from November 5, 2019.

The worker did not return to work with the employer. The Return to Work (RTW) Specialist approved a RTW plan with training for the suitable occupation (SO) of Customer Service Clerk. The worker participated in the return to work plan and was ultimately determined to have reached maximum medical recovery (MMR) for the right leg injury by August 4, 2022, with a permanent impairment. The worker was rated to have a 3% Non-Economic Loss (NEL) quantum on October 24, 2022.

After some interruption in the return to work program, the worker resumed participation in the RTW plan (with training) for the SO of Customer Service Representative in May 2023. The RTW Specialist

confirmed the WSIB would sponsor language and employment placement services in their decision from October 26, 2023.

In their decision dated August 8, 2024, the case manager granted temporary psychotraumatic disability entitlement for the worker’s adjustment disorder related to extended disablement and to non-medical, socioeconomic factors. They determined the worker was partially impaired from a psychological perspective, however there were no specific psychological restrictions.

On September 11, 2024, the case manager denied entitlement to a left knee, ankle, and foot injury as a secondary condition. The case manager also denied a recurrence of the work-related right leg fractures, as the clinical information did not support a significant deterioration.

The RTW Specialist confirmed the completion of the return to work plan with training, for the selected SO of Customer Service Representative as of November 8, 2024. They determined the worker could reasonably be expected to earn entry-level wages in the SO.

In their decision dated November 21, 2024, the case manager confirmed the loss of earnings entitlement effective November 9, 2024, upon completion of the approved RTW plan. The loss of earnings benefits were adjusted based on the worker’s capacity to earn $17.20 per hour, working 40 hours per week in the SO of Other Customer and Information Services Representative (NOC 6552).

The worker has objected to the September 11, 2024, and November 21, 2024, decisions and this forms the basis of the appeal.

AUTHORITY

Operational Policy Manual

Published

15-02-05 Recurrences

April 9, 2021

15-05-01 Resulting from Work-Related Disability/Impairment

April 9, 2021

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

September 1, 2021

19-02-10 RTW Assessments and Plans

November 30, 2020

ANALYSIS

I have carefully considered the available information, legislation and relevant operational policies in reaching this decision. I find there is no entitlement to a recurrence of the work-related injury or a secondary left ankle condition. I find the worker is entitled to partial loss of earnings as of November 9, 2024, based on their capacity to earn entry-level SO wages.

Worker’s Position and Remedy Sought

While the worker’s representative disagrees with the case management decisions from September 11, 2024, and November 21, 2024, they have not provided a written submission or explanation of their objection within the Appeals Readiness Form.

Employer’s Position and Remedy Sought

The employer is participating in the appeal, however, has not provided a written submission for consideration.

Assessment of Evidence

Recurrence of Right Fibula and Tibial Fractures

I find the clinical evidence does not support the worker experienced a significant deterioration of their right fibula and tibial fractures.

Policy 15-02-05, Recurrences, outlines that a worker may be entitled to benefits for a recurrence of a work-related injury if the worker experiences a significant deterioration that:

does not result from a significant new incident/exposure, and
is clinically compatible with the original injury/disease.

The policy defines a significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. Indicators of a significant deterioration may include:

the need for active (non-maintenance) clinical treatment
a change in functional abilities, or
a change in the ability to perform a job or suitable occupation.

While a worker may take an occasional day off from work, this is generally not indicative of a significant deterioration.

In this case, the worker reached maximum medical recovery as of August 4, 2022, when they were discharged from the Lower Extremity Specialty Program. The specialist had recommended permanent restrictions of walking up to one hour, standing up to 30 minutes, stair climbing five to ten steps, lifting to 5-10kgs, and pushing and pulling up to 5-10kgs. The worker was also recommended to avoid prolonged or repetitive low level work, such as deep squatting, kneeling, and crouching. A NEL quantum of 3% was rated to acknowledge the range of motion and sensory impairments.

In my review of the clinical evidence, the worker first reported a recent increase in right leg pain to their doctor on March 25, 2024. The worker reported using Tylenol as needed, had not been sleeping due to the pain and had been missing their classes since March 20, 2024. The physician documented the worker had pain with right ankle range of motion and prescribed Meloxicam.

While I note the doctor authored a medical note for the worker’s absence from March 20 to April 5, 2024, I find there are no clinical findings within the doctor’s direct assessment of the worker supporting any significant changes to the original injury. While I acknowledge the worker experienced worsening pain in the right lower leg without any new injury or incident, I find the clinical notes do not support a change in the worker’s functional abilities or range of motion, and the imaging results do not show any clinical change of the right fibula and tibia fractures. The bilateral ankle x-ray from July 5, 2024, showed instrumentation and deformity of right tibia, however, did not suggest there had been any change since the original injury. On August 15, 2024, the doctor attributed the worker’s antalgic gait to the work-related injury and increased the dosage of Tramadol, however, did not recommend active treatment or initiate a referral to an orthopedic specialist.

Although the worker advised their case manager they were recommended more treatment for their right leg, I find the available clinical information does not indicate active treatment for the right fibula and tibial fractures. On March 27, 2024, Dr. Prewel had assessed the main clinical issue to be the worker’s right iliotibial (IT) band tenderness and recommended active therapy for this issue.

Policy 15-02-05 explains that a significant deterioration is clinically compatible with the original injury when the WSIB has determined the body parts affected now are the same as, or related to, those affected by the original injury, and there is a causal link between the deterioration and the original injury. Given there is no entitlement for a right IT band condition within the claim, I find there is no clinical compatibility established between the worker’s IT band issues and the work-related right fibula and tibial fractures.

In summary, I have determined the criteria in Policy 15-02-05 for a recurrence of the right fibula and tibial fractures has not been met. From the perspective of the work-related entitlement, I find there is no recommendation for active treatment, any significant change to the worker’s functional abilities, or any measurable changes in the clinical findings of the compensable injury. I find entitlement to a recurrence of the right fibula and tibial fractures is not in order. It is important to note that I make no findings that preclude the operating area from deciding on any future recurrences. Any new decisions rendered by the operating area are subject to the usual rights of appeal.

Entitlement to as a Secondary Condition

Policy 15-05-01, Resulting from Work-Related Disability/Impairment, states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work- related injury.

The worker first reported left lower leg issues from compensating for their right ankle impairment on March 27, 2024. Dr. Prewel’s assessment confirmed no redness or swelling in the left knee or ankle, and the worker had intact strength, sensation, and range of motion.

On July 4, 2024, Dr. Prewel noted a three month history of left ankle pain with intermittent swelling that was worse in the mornings. The worker denied having any specific injury to their left ankle. The doctor documented a normal gait with mild tenderness over left lateral malleolus. The left ankle x-ray from July 5, 2024, was normal.

With the available clinical information, I find there is no confirmation the worker sustained an injury to their left ankle or lower leg. While the worker reports having pain in their left ankle, the evidence does not confirm clinical findings consistent with an injury. The worker’s range of motion, sensation and strength were intact, they were observed to walk with a normal gait and had normal imaging results.

Dr. Prewel prescribed pain medication specific to the worker’s right lower leg pain and there is no evidence any further imaging or treatment being recommended for the left leg. Although the worker reported tenderness or discomfort in their left ankle, I find the clinical evidence does not demonstrate an associated impairment. Furthermore, when the worker attended their doctor for follow-up visits on July 31 and August 15, 2024, there is no documentation the worker continued to report left leg or ankle symptoms.

Further to Policy 15-05-01, a causal link must be established between a secondary condition and the work-related injury. While the worker initially attributed their left ankle pain to compensating for their right fibula and tibial fractures, I find there is no clinical opinion confirming the worker sustained a secondary condition or impairment. Accordingly, I find that entitlement to a secondary condition is not in order.

Loss of Earnings Adjustment

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), explains that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. The policy examples include workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.

The policy goes on to state:

Post-injury earnings may be based on either actual employment earnings or determined earnings. Determined earnings are the earnings associated with the identified SO and are based on current labour market wage information. The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker remains unemployed at the completion or closure of the RTW plan (with training).

The worker completed a return to work plan with training on November 8, 2024. They had participated in language fluency courses, computer upgrading and employment services for the determined suitable occupation of Other Customer and Information Services Representative (NOC 6552).

I am bound by previous appeals decisions on record. An appeals resolution officer previously determined the worker is capable of working full-time in their March 11, 2024, decision. While I acknowledge temporary psychotraumatic disability entitlement has since been granted, the worker was determined to be partially impaired with no specific psychological restrictions. Furthermore, as I previously found the criteria for a recurrence of their work-related injury had not been met, I find there have been no changes to the work-related functional abilities since the worker reached maximum medical recovery on August 4, 2022.

Policy 19-02-10, RTW Assessments and Plans, explains the earnings for the SO are an estimate of what the worker is capable of earning when re-entering the labour market in a SO. When the RTW plan (with training) involves the worker acquiring a new skill set or entering a new field, updated entry-level wages are used to determine post-injury earnings. As the worker acquired new skills throughout their training program and did not have prior experience in the determined SO, I find the RTW Specialist’s determination the worker was capable of earning updated entry-level wages to be appropriate. As of November 9, 2024, the provincial minimum wage was $17.20 per hour.

While the worker representative is objecting to the loss of earnings adjustment and the determination the worker is able to work 40 hours per week earning $17.20 per hour, they have not provided a submission to explain their position. Further to Policy 18-03-02, post-injury earnings are based on determined earnings when a worker remains unemployed at the completion or closure of the RTW plan (with training). As the worker’s pre-injury earnings were higher than the earnings the worker is capable of earning in the SO, I find there is evidence of an ongoing wage loss due to the injury.

In summary, I find the worker is entitled to loss of earnings benefits as of November 9, 2024, based on the updated entry-level SO wage of $17.20 per hour, working 40 hours per week.

CONCLUSION

I conclude the following:

Entitlement to a recurrence of the right fibula and tibial fractures is not in order. It is important to note that I make no findings that preclude the operating area from deciding on any future recurrences. Any new decisions rendered by the operating area are subject to the usual rights of appeal.
Entitlement for a left lower leg injury as a secondary condition is not in order.
Loss of earnings benefits are appropriately adjusted effective November 9, 2024, based on the worker’s capacity to earn the updated entry-level SO wage of $17.20 per hour, working 40 hours per week.

The objection is denied.

DATED JULY 8, 2025

K. Denbok

Appeals Resolution Officer Appeals Services Division