Worker v. Employer, 2025 CanLII 24860

APPEALS RESOLUTION OFFICER DECISION

Decision Number: 20250021

OBJECTING PARTY: worker

REPRESENTED by: Worker Representative

RESPONDENT PARTY: employer

HEARING: HEARING IN WRITING

HEARD by: K. Erkila, appeals resolution officer
DATED: February 5, 2025

ISSUES

The worker objects to the following decisions:

1. The case manager’s decision dated January 26, 2024, that denied entitlement to loss of earnings (LOE) benefits effective March 30, 2022.
2. The calculation of the worker’s long-term rate, effective November 29, 2021, as it did not include the portions of work where the worker was paid in cash from the employer.

BACKGROUND

On September 5, 2021, this non-resident worker of Ontario was driving a long-haul truck in Country A, when they lost control, causing the truck to flip onto its left side. Entitlement was allowed for LOE and health care benefits for a pelvis/ilium fracture plus cellulitis and abscess, left arm laceration, left hip/acetabulum fracture, heterotopic ossification of the left hip and a scrotum abrasion. The worker left Canada on October 17, 2021, and sought medical attention in Country B (their home country.)

In the decision dated January 26, 2024, the case manager reconsidered an October 17, 2021 decision that denied entitlement to LOE benefits when the worker left the country and allowed full LOE benefits from October 17, 2021, to March 30, 2022. The case manager reviewed the out of country medical evidence and determined the worker was partially impaired as of March 30, 2022, and had the worker been in Canada, they would have been able to return to work and restore their earnings. No further LOE benefits were allowed beyond March 30, 2022. The worker objected to this decision.

In the decision dated March 13, 2024, the payment specialist recalculated the worker’s short-term and long-term benefit rates after receiving new earnings information. This resulted in an increase benefit amount to the worker. The worker objected to this decision as the calculation did not include portions of income that were paid in cash. The issues have been referred to the Appeals Services Division for further consideration.

AUTHORITY

Operational Policy Manual

Published
18-02-03 Determining Long-term Average Earnings: Workers in Permanent Employment	April 9, 2021
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)	April 9, 2021
19-02-07 RTW Overview and Key Concepts	April 9, 2021

Adjudicative Advice: Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA, March 2002

ANALYSIS

I have carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. The worker’s objection is allowed in part. Based on my review of the evidence and reasons explained below, I find the worker is entitled to full LOE benefits from March 30, 2022, to May 2022, and partial LOE benefits from May 2022 to March 30, 2024. I find the long-term rate was calculated correctly, as there is no evidence to support the worker was paid in cash for portions of their work.

The Worker’s Position and Remedy Sought

The worker representative provided a lengthy submission in the appeals readiness form dated August 13, 2024, that I have summarized as follows.

The worker representative submits the worker left the country as they were severely injured in the compensable motor vehicle accident and as such, were unable to care for themselves. They were unfamiliar with WSIB entitlement and the Canadian medical system and required help from their parents to pursue medical rehabilitation in Country B.

The worker representative submits the worker was totally impaired by their work-related injuries as of March 30, 2022, and was not medically capable of reengaging in pre-accident employment with the accident employer as a long-distance driver. In addition, when the worker returned to Canada and began treatment through the specialty program, in March 2024, the return-to-work restrictions clearly conflict with their ability to reengage as a long-distance trucker. In addition, the representative submits that through the specialty program, the worker is pending an orthopedic assessment to consider a proposed surgery, which further indicates the worker is totally disabled.

The representative submits that should the worker be deemed partially impaired, there is no evidence to support the employer could have offered modified work and therefore, they should still be entitled to full LOE benefits. The representative submits the worker attempted to mitigate their losses during their return to their home country while medically rehabilitating and attempting alternative work.

The worker representative submits the basis of the long-term rate ought to be $9,484.00, noting the worker was paid cash for portions of the work they performed, and the worker should not be penalized for the employer’s method of issuing payment. The representative submits that nowhere in legislation or in policy does it state that T4 slips are used, moreover, total employment earnings are used, whether a portion was paid in cash or not. The representative submits the employer submitted invoices of the worker’s mileage.

The representative is seeking the overturning of the decision dated January 26, 2024, that determined the worker was partially impaired and discontinued LOE benefits as of March 30, 2022, and is requesting the worker be paid full LOE to March 11, 2024, when they returned to Canada and their LOE benefits were reactivated. The representative is also requesting the long-term rate calculation include the portions of work where the worker was paid in cash from the employer.

The employer is not participating in the appeal.

1. Is the worker entitled to LOE benefits beyond March 30, 2022?

Based on my review of the evidence and reasons explained below, I find the worker is entitled to full LOE benefits from March 30, 2022, to May 2022, and partial LOE benefits from May 2022 to March 30, 2024.

The worker is a non-resident worker of Ontario, who was working for the employer as a long-haul truck driver. After their motor vehicle accident on September 5, 2021, the worker left Canada on October 17, 2021, and sought medical attention in their home country of Country B. The worker reported in a correspondence sent to file dated July 25, 2023, that they were in no condition to take care of themselves when they were discharged from the hospital in Canada, and they didn’t have any place to live upon discharge as they had only been staying in short term rentals while working in Ontario. The worker’s parents came to pick the worker up and bring them back to Country B where they could house the worker and aide in their recovery.

I find it is reasonable that the worker left the country when they were discharged from the hospital in Canada as the worker was not a resident of Canada and required ongoing treatment and health care. The worker did not have anywhere to live in Canada, and they were unable to take care of themselves as they had sustained significant injuries as a result of the motor vehicle accident. The worker acted in a reasonable matter noting the circumstances, as the worker didn’t have any other option but to leave the country to be taken care of by their family.

The worker submitted correspondence outlining their health care measures and submitted medical chart notes from Country B to support their ongoing health care treatment outside of Canada. I note the worker was attending regular medical appointments for their workplace injury from October 2021 to February 2024.

I have reviewed the medical evidence on file from Country B and note the worker was non-weight bearing for the first three months after the motor vehicle accident. The worker was in treatment at a physiotherapy facility, in Country B, beginning November 15, 2021, and was considered at that time to be totally disabled as their functional abilities were very limited and they required assistance with almost all activities of daily living. As per the discharge report from the physiotherapy facility on March 31, 2022, the worker was discharged from treatment, and it was noted the worker was able to dress and bathe independently, was able to leave the house without assistance, was able to drive and walk without assistance, however, they continued to walk with a limp. They were discharged with the recommendation to continue at home exercises.

The worker continued to seek medical attention through orthopedic clinics and ongoing improvement in their functional abilities was noted. As per the orthopedic report dated June 15, 2022, the worker had started working part-time in deliveries and was not taking any medication for pain. As per the orthopedic report dated December 27, 2022, the worker enquired about engaging in physical activity and the assessor assured the worker there was no need to avoid participating in any sport of their choice, including martial arts. This medical evidence supports the worker was partially impaired as they were discharged from treatment and able to begin working part-time.

The worker also submitted their return-to-work efforts in an attempt to mitigate their losses while they were in Country B from October 2021 to February 2024. I note the worker secured part-time work performing deliveries and did some part-time teaching beginning May 2022.

• May 2022 – secured part time employment doing private car deliveries for about 25 hours total, transporting books and electronics weighing 5 to 10-lbs. Total earnings $584.96 CAD.
• June 2022 – secured part time employment doing private car deliveries for about 28 hours total, transporting books and electronics weighing 5 to 10-lbs. Total earnings $646.19 CAD.
• July 2022 – secured part time employment doing private car deliveries for about 15 hours total, transporting books and electronics weighing 5 to 10-lbs. Total earnings $235.61 CAD.
• September 2022 – secured part time employment doing private car deliveries for about 3 hours total, transporting books and electronics weighing 5 to 10-lbs. Total earnings $39.00 CAD.
• October 2022 – secured part time employment doing private car deliveries for about 5 hours total, transporting books and electronics weighing 5 to 10-lbs. Total earnings $45.58 CAD.
• December 2022 – secured part time employment doing private car deliveries, transporting books and electronics weighing 5 to 10-lbs. Total earnings $128.51 CAD.
• January 2023 – secured part time employment doing private car deliveries for about 2 hours total, transporting books and electronics weighing 5 to 10-lbs. Also worked 4 hours as a private teacher. Total earnings $115.95 CAD.
• February 2023 – secured part time employment doing private car deliveries for about 3 hours total, transporting books and electronics weighing 5 to 10-lbs, also worked as a private teacher for 3 hours. Total earnings $132.00 CAD.
• July 2023 – unfit to work, receiving full disability from Country B government.
• November 2023 – secured employment as a part time private teacher for 8 hours. Total earnings $149.00 CAD.
• December 2023 – secured employment as a part time private teacher for 8 hours. Total earnings $149.00 CAD.
• January 2024 – secured employment as a part time private teacher for 8 hours. Total earnings $149.00 CAD.
• February 2024 – secured employment as a part time private teacher. Ongoing. Teaching math, and two languages.

Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states, in part, if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.

As provided in the evidence above, the worker was totally impaired and unable to return to any type of work from October 17, 2021, when they left Canada to May 2022, when they began part-time employment.

Policy 18-03-02 further states, 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. Examples include but are not limited to:

• workers who return to work at reduced hours or wages, and
• workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.

The evidence supports that as of May 2022, the worker was partially impaired and able to work part-time while they were in Country B. The worker took reasonable steps in an attempt to mitigate their losses, by continuing to attend health care treatment and find several part-time jobs but was unable to restore all of their pre-injury earnings.

To assist in making my decision, I reviewed the adjudicative advice document, Practice Guidelines for Ordering LOE Benefit Arrears Under WSIA. This document provides advice for situations where the worker’s LOE benefits have been discontinued as a result of an operating area decision, but an Appeal Resolution Officer finds the worker is entitled to further benefits for part or all of the period in arrears.

The adjudicative advice document outlines that workers are entitled to full LOE benefits where an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered, but the worker is making reasonable efforts to secure suitable employment or engaging in active health care treatment reasonably aimed at improving employability and minimizing LOE.

The adjudicative advice document also notes that workers are entitled to partial LOE benefits (equivalent to 85% the difference between the pre-accident earnings and the current, post-accident earnings) where an impairment exists that prevents the worker from returning to pre-injury employment and no suitable employment has been offered to the worker, but the worker has found a job and is currently earning.

While the adjudicative advice document is not binding, I find that it does provide reliable support for a conclusion that the worker would be entitled to full LOE benefits from March 30, 2022, until they began part-time work in May 2022, as the evidence on file supports the nature and seriousness of the worker’s injury completely prevented them from returning to any type of work and the worker attempted to mitigate their losses as they continued to attend health care treatment. Furthermore, I find the worker is entitled to partial LOE benefits from May 2022 to March 11, 2024, as their impairment continued to prevent them from returning to pre-injury employment, no suitable work was offered, however, the worker found a job and was earning part-time wages.

As such, the worker is entitled to full LOE benefits March 30, 2022, until they began part-time work in May 2022, and is entitled to partial LOE benefits from May 2022 to March 11, 2024, based on their actual earnings.

I remit back to the operating area to gather the necessary earnings information to determine the exact date the worker began their part-time employment in May 2022 and to determine their earnings between May 2022 and March 11, 2024, to ensure partial LOE is paid correctly.

2. Should the worker’s long-term rate include the portions of work where the worker was paid in cash from the employer?

Based on my review of the evidence and reasons explained below, I find the long-term rate was calculated correctly, as there is insufficient evidence of the cash payments made to the worker.

On January 19, 2022, a request was made by WSIB staff for a worker status/optional insurance enquiry to determine whether the worker was an independent operator or a worker with coverage. The response dated January 22, 2022, confirmed the worker was a worker with coverage in place. The Form 7 dated March 2, 2024, also confirmed the worker was a permanent full-time worker. The payment specialist memo dated March 13, 2024, determined the worker was permanently employed and required a long-term rate calculation as their earnings varied from week to week. The worker’s LOE benefits were based on the earnings information submitted to file from the employer.

Under policy 18-02-03 Determining Long-term Average Earnings: Workers in Permanent Employment, the long-term average earnings are based on the employment earnings in the 12 months before the injury, or a lesser period. In this case, the earning period was shortened to 49 days (from July 19, 2021, to September 5, 2021) when the worker began work to the date of accident. Based on the worker’s total earnings that period ($5,628.86) their benefit rate was calculated as follows:

Weekly gross average earnings: $804.12
Weekly net average earnings: $654.56
LOE rate: $556.38

The worker representative is arguing the long-term rate calculation was done incorrectly as it did not include the portions of work where the worker was paid in cash from the employer. They state the worker was paid approximately $4,000 in cash; therefore, the full amount of employment earnings should be $9,484.00, not $5,628.96. The worker provided invoices to file, which they state confirms their actual earnings as the mileage invoices support the cash portion of their income. The representative states there is nowhere in legislation or in policy where it’s stated that T4 slips are used, moreover, total employment earnings are used, whether a portion was paid in cash or not.

The representative is correct in their statement that total employment earnings are used to determine long-term average earnings whether paid in cash or not. However, there must be evidence of these earnings. Additionally, the worker representative’s assertion that there is no legislation or policy that states T4 statements are used to determine long-term rate calculations is incorrect, as there is policy language that provides guidance for these situations. WSIB policy 18-02-03 Determining Long-term Average Earnings: Workers in Permanent Employment, states that to determine long-term average earnings, the WSIB requires the worker and/or employer to supply relevant earnings information.

The following documents are accepted as “proof of earnings”:

• Income and Deduction Statement from CRA
• T4 statements issued by the employer
• pay cheque stubs
• Record of Employment as submitted for EI purposes, or
• letters from prior employers.

Policy 18-02-03 goes on to say, the WSIB has sole discretion to determine what is acceptable “proof of earnings.” The WSIB may exercise discretion where documents not listed above are submitted as “proof of earnings.” This can be interpreted to mean the worker’s mileage invoices could have been used to provide proof of the cash portion of their income had the invoices also shown the total payment provided to the worker. The invoices the worker provided include mileage, but do not include a mileage rate paid nor do they have any totals or payments listed on them to support the amount the worker was paid. I do note there are handwritten amounts that provide the totals; however, I am unable to accept this as it is not sufficient evidence.

The only evidence on file to support the worker’s proof of earnings are paystubs provided by the employer and the worker’s 2021 T4 statement. I reviewed the worker’s T4 statement and note the worker’s total gross earnings for 2021 was $5,628.86 as the worker did not claim the additional $4,000 cash portion of their income on their taxes.

In a conversation with WSIB staff on September 3, 2024, the worker representative confirmed the worker had not completed their tax returns for 2021 as they had only been in the country for a couple of months. WSIB staff advised the representative that if the worker did decide to complete their 2021 tax return, this could be reviewed, however, as there appeared to be no intent at that point, the issue was forwarded to appeals. Upon review of the file, the worker has not provided any additional earnings information to file, other than the mileage invoices from July 2021 and August 2021.

As per policy 18-02-03, to be able to include the cash payments as part of the worker’s income, there needs to be proof of earnings that supports the worker was paid in cash for portions of their work. The evidence on file confirms the worker did not report their cash payments as taxable income, as there is no evidence of it on their 2021 T4 statement and furthermore, the invoices the worker provided don’t include the totals to support the amount the worker was paid. As such, I find the long-term rate was calculated correctly, as there is no evidence to support the worker was paid in cash for portions of their work.

As noted on the first page of the decision, this decision may be reconsidered should the worker be able to obtain satisfactory proof of earnings, such as a letter from the employer or a revised income tax statement.

CONCLUSION

I find:

1. the worker is entitled to full LOE benefits from March 30, 2022, to May 2022.
2. the worker is entitled to partial LOE benefits from May 2022 to March 30, 2024, based on actual earnings.
3. the long-term rate was calculated correctly, as there is no evidence to support the worker was paid in cash for portions of their work.

The objection is allowed-in-part.

DATED February 5, 2025

K. Erkila

K. Erkila
Appeals Resolution Officer
Appeals Services Division