WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1336/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1336/15 BEFORE: S. Netten: Vice-Chair HEARING: June 24, 2015 at Toronto Written DATE OF DECISION: September 18, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2102 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated July 22, 2014 APPEARANCES: For the worker: For the employer: Interpreter: G. Majesky, Union representative Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1336/15 REASONS (i) Issue [1] The issue under appeal is the calculation of the worker s partial loss of earnings (LOE) benefits effective March 31, 2014, specifically the post-injury hours of work upon which these are to be based. (ii) Overview [2] The worker, an electrician, sustained a compensable left shoulder injury on April 4, This resulted in a permanent impairment, as well as the need for retraining. Soon after the completion of a work transition (WT) plan on March 28, 2014, the worker secured employment in his suitable occupation (SO). 1 Partial LOE benefits were calculated at 85% of the difference between pre-injury net average earnings and post-injury net average earnings using a 40-hour work week. The worker s representative objected, arguing that a 37.5-hour work week ought to be used in the calculation since the worker s pre-injury hours of work were 37.5 hours per week. [3] The worker s objection was denied at the appeals levels of the Board in July [4] The worker now appeals to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. (iii) Law and policy [5] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. Section 126 requires the Tribunal to apply Board policy when making its decisions. [6] Section 43 governs the calculation of LOE benefits: 43(2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the difference between, (a) the worker s net average earnings before the injury; and (b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury. (4) The Board shall determine the worker s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker under section 42 and is available and, (a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or (b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision. 1 The Board began referring to labour market re-entry (LMR) as work transition (WT), and to suitable employment or business (SEB) as a suitable occupation (SO), in December 2010.

3 Page: 2 Decision No. 1336/15 [7] Board policy on Final LOE Benefit Review (Operational Policy Manual ( OPM ) Document No ) states: In conducting the final LOE review for a worker employed in a suitable occupation (SO) identified job, the WSIB uses the worker s actual earnings to pay the LOE benefit, even if the earnings are not consistent with recent wage information. The only exception would be where the worker is voluntarily under-employed. [8] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Discussion [9] The Employer s and Worker s Reports of Injury (June 27 and 28, 2007) confirm that the worker worked a regular schedule, Monday to Friday, 7.5 hours per day and 37.5 hours per week. His employment status was temporary full-time, and he had worked for the accident employer for eight months. [10] Initial entitlement was not granted until May 2008, and hence LOE benefits were then awarded retrospectively (to June 8, 2007, the date of layoff) as well as prospectively. The LOE benefits were calculated using an earnings basis of $ gross weekly earnings, based upon average earnings during a four-week period prior to the accident date. This reflected a wage of $33.13 per hour, an RSP contribution of $0.99 per hour, and 10% vacation pay on each paycheque, whereas the worker took only one day off during this four-week period. A long-term rate recalculation was not undertaken. [11] Following the completion of the work transition plan on March 28, 2014, the Case Manager projected entry-level wages of $15 per hour. However, the worker then secured employment as a field technician, within his targeted SO. As set out in an from his new employer dated April 15, 2014, his starting wage would be $13 per hour and he would be expected to work between 40 & 60 hours per week. Board documentation indicates that the worker s LOE benefits, from March 31, 2014, reflect the actual earnings of $520 gross weekly (40 hours at $13 per hour). [12] The worker s representative, Mr. Majesky, provided written submissions to the Tribunal dated March 18, He seeks to have LOE benefits calculated using the worker s actual wage of $13 per hour, but with post-wt hours deemed at 37.5 per week, rather than actual hours or 40 hours per week. [13] Mr. Majesky relies upon a stipulation found in Board policy from 2007 to 2010 (and also outlined in a letter from the Board in 2007), which stated: A SEB should not only meet restrictions that are caused by the injury, but should also meet, as closely as possible, the number of hours the worker worked prior to the injury. [14] This provision was found within the policy on Determining Suitable Employment or Business and Earnings (OPM Document No , dated July 2007). That policy was revised effective December 2010, and the updated version of the policy did not contain this provision. The current version, titled Determining Suitable Occupation states only that a worker working part-time hours pre-accident is not expected to either significantly increase the number of hours or obtain full-time employment in the SO; it does not address the expectations for full-time workers.

4 Page: 3 Decision No. 1336/15 [15] Mr. Majesky further relies upon Tribunal Decisions No. 495/06R2 and 2386/10, which found that pre-accident work hours (36 and 37.5 hours, respectively) ought to be used in calculating post-injury earnings for LOE purposes. 2 However, in both of these cases (and in two other cases with similar results, Decisions No. 440/11 and 447/14), the 2007 policy applied and the workers post-lmr earnings had been deemed by the Board as the workers had not yet found employment. There were no actual earnings to consider. Current and former Board policy on LOE benefits stipulates that when a worker is not employed following LMR or WT, post-injury earnings are those the worker would earn in the SEB or SO (OPM Documents No , ). Determining post-injury earnings for an unemployed worker necessarily entails a best estimate of what that worker is able to earn in suitable employment. Given the previous policy stipulating similar pre- and post-injury hours of work, it was consistent with the law and policy to apply an expectation of pre-accident work hours to the SO wage. [16] I note that had the worker s post-wt earnings been determined in this fashion, without any knowledge of actual earnings, they would have been $ gross per week ($15 x 37.5 hrs), leading to lower partial LOE benefits than those actually awarded. Moreover, extrapolating to full-time workers the newer policy expectation of not having to significantly increase working hours, it is not clear that expecting a full-time worker to work 40 rather than 37.5 hours per week, in a new employment context, entails such an increase. [17] In any case, the appeal at hand is distinguishable from the above-cited decisions on the facts, because the worker in this case had secured employment following WT. In such circumstances, Board policy unequivocally requires the use of actual earnings to calculate any ongoing partial LOE benefits. In selecting a SO, a worker might only be expected to work preaccident hours post-wt, at a specified projected wage. However, if that worker in fact works more hours or for higher wages at the time of a LOE benefit review, this will further mitigate the wage loss and reduce LOE benefits. Correspondingly, if actual hours and/or wages are lower than expected due not to voluntary under-employment but to such things as the type of employment, a probationary period or changing work requirements, LOE benefits will be higher than anticipated in the WT plan. 3 The use of actual earnings to calculate LOE benefits is consistent with the WSIA, which requires LOE benefits to be based upon the earnings a worker earns or is able to earn in suitable, available employment. [18] I am aware that Decision No. 1017/15, released after Mr. Majesky had filed his submissions for this appeal, followed Decision No. 2386/10 yet appears to involve a worker who had secured employment. I do not find the analysis therein persuasive since the decision relied upon policy no longer in effect, and did not cite the applicable Board policy on the use of actual earnings to calculate LOE benefits. 2 3 I note here that the symmetry between pre- and post-accident earnings recommended by Mr. Majesky and found in these decisions would not appear to be achieved by the use of a 37.5-hour post-accident work week in the appeal at hand. Consideration of both pre- and post-accident earnings is required, and yet in the absence of a long-term rate the worker s earnings basis was equivalent to a 39-hour work week (due to the pre-payment of vacation time greater than the time off taken during the four weeks pre-accident, after factoring out the RSP contribution). See the section headed Under-employed within OPM Document No I note that this occurred in the case at hand, to the worker s benefit, in that the Board accepted the lower actual wage of $13 per hour without question.

5 Page: 4 Decision No. 1336/15 [19] In the result, and pursuant to the WSIA and Board policy on LOE benefits (OPM Document No ), I conclude that the worker s post-wt LOE benefits ought to have been calculated based upon his actual earnings, being his actual wage at his actual hours, and not based upon a 37.5-hour work week. [20] It appears that the Board utilized the lower end of 40 to 60 hours and estimated the worker s actual employment earnings on that basis, rather than obtaining paystubs for an initial period of employment in Mr. Majesky does not dispute this estimate of actual earnings, and as such I do not consider it necessary to obtain proof of income on a post-hearing basis. The worker s request, to have partial LOE benefits from March 31, 2014 calculated based upon wages of $13 per hour at 37.5 hours per week, is denied.

6 Page: 5 Decision No. 1336/15 DISPOSITION [21] The appeal is denied. DATED: September 18, 2015 SIGNED: S. Netten