WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1870/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1870/15 BEFORE: N. Perryman : Vice-Chair E. Tracey : Member Representative of Employers C. Salama : Member Representative of Workers HEARING: September 10, 2015 at Toronto Oral DATE OF DECISION: October 8, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2252 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) D. Mosser dated October 18, 2012 APPEARANCES: For the worker: For the employer: Interpreter: S. Cirillo, Paralegal A. K., Health and Safety Representative, Employer N/A 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. 1870/15 REASONS (i) Introduction [1] The worker appealed two ARO decisions dated May 7, 2010 and October 18, They concluded that the worker was not entitled to loss of earnings (LOE) benefits from April 24, 2009 to November 11, (ii) Issues [2] At the outset of the hearing, preliminary issues were canvassed with both parties. The worker s representative advised that the worker was abandoning his appeal with respect to the ARO decision dated May 7, Accordingly, the only issue under appeal is entitlement to LOE benefits from April 24, 2009 to November 11, (iii) Background [3] The following are the basic facts. [4] The now 48-year-old worker began working for the accident employer in late The worker was trained in various areas of the employer s operations. His predominant role for the accident employer was working in the plant as a machine operator. [5] On July 25, 2008, the worker was injured while in the course of his employment. On that date, a piece of steel, weighing approximately 270 pounds dislodged from a magnetic crane and fell, striking the worker in the chest and crushing his small left toe. An ambulance was called for the worker and he was taken to a local hospital where he received medical treatment. The worker was diagnosed with a fracture of the proximal phalanx of the fifth toe by Dr. A. Sekyi-Otu, an orthopedic surgeon. [6] As a result of the injury to the toe, the worker had to eventually have revision amputation surgery to remove the toe. As a result of this compensable injury, the worker did miss time from work. The worker eventually returned to work on modified duties on November 19, The worker returned to full-time hours doing administrative work for the accident employer. The worker had not yet returned to his pre-accident position when he was laid off on April 24, [7] The work disruption that started for the worker on April 24, 2009 was initially anticipated to be a short-term layoff. However, in a letter dated April 23, 2010, the worker was advised that he would not be recalled to work. The worker was provided with pay in lieu of notice, severance pay and a Record of Employment (ROE) dated April 20, [8] The worker subsequently obtained employment with another employer and commenced working with that employer on November 11, (iv) Law and policy [9] Since the worker was injured in 2008, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

3 September 21, 2015 Page: 2 Decision No. 1870/15 [10] Specifically, section 43 of the WSIA governs the worker s entitlement in this case. Section 43 provides that a worker who has a loss of earnings as a result of an injury is entitled to benefits. Subsection (1) paragraphs (a) to (d) set out the duration of the benefits. [11] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. Accordingly, we have considered the various polices provided by the Board and contained in Exhibit #3 as necessary in deciding the issues in this appeal. [12] In particular, we have considered: Operational Policy Manual (OPM) Document No , Entitlement Following Work Disruptions: General ; OPM Document No , Entitlement Following Work Disruptions: Short-term and Long-term Layoffs. [13] Pursuant to OPM Document No , a worker s benefit status is generally maintained during a work disruption that affects the entire workforce and is of a short duration. Additional services may be provided during short-term work disruptions where a worker s employability is clearly affected by their work-related impairment/disability and associated clinical restrictions. [14] The policy lists the following factors that suggest that the worker s employability is affected by their work-related impairment or disability: 1. The worker is in the early phase of recovery (i.e., there is a recent date of accident/recurrence/deterioration). 2. The worker is still receiving WSIB-approved active (non-maintenance) health care treatment (e.g., physiotherapy) on a frequent basis. 3. The worker is on a graduated return to work program. 4. The worker requires a high degree of accommodation. (Tasks and work processes have been specifically accommodated for the worker s impairment/disability and are not likely to exist with or be provided by another employer.) 5. The worker has an impairment/disability that is significant enough that it clearly presents an obstacle to the worker finding alternate employment. (Workers who have more than one work-related impairment/disability may be significantly impaired/disabled due to the combination of their impairments/disabilities.) [15] OPM Document describes a long-term layoff as follows: Usually, when a short-term layoff lasts more than three-months, it becomes a long-term layoff from the three-month mark onward. A work disruption is considered long-term when it has lasted three months or more, and it has no recall date a recall did not occur on the date provided, or it has a recall date, but the date is far in the future and the likelihood of an actual recall occurring on that date is low. When a short-term layoff becomes a long-term layoff, it is generally presumed that the worker will have to seek employment elsewhere, and due to his/her work-related

4 September 21, 2015 Page: 3 Decision No. 1870/15 impairment/disability and associated clinical restrictions, may require assistance from the WSIB to re-enter the labour market. [16] OPM Document No states that the general rules for entitlement is that a worker who qualified for additional benefits and/or services during the short-term layoff are likely eligible for continued benefits and/or services. Those workers who did not qualify for benefits and/or services during the short-term layoff and are still unable to perform their pre-accident job three months from the date of the layoff may also qualify for additional benefits and/or services. Only when the criteria for a long-term lay off has been met and the decision-maker is unable to determine an appropriate SEB, the Board can then offer an LMR assessment to workers who: have a likely permanent impairment/disability are unable to perform their pre-accident job due to the work-related impairment/disability, and [Emphasis added] (v) have not previously received LMR services. Testimony [17] The worker testified at the hearing. [18] The worker testified that he immigrated to Canada on May 26, He indicated that he did not have any training or schooling in Canada. The worker testified that he completed secondary school, Police College and military/security training in his home country prior to coming to Canada. The worker advised that he had no training in any specific trade. [19] The worker testified that he started with the accident employer in November 2000 as a machine operator. The worker testified that he had several positions as a machine operator including a brake-press operator, plasma operator and sheer operator. The worker stated that safety shoes were required while working in the plant. He described the work as heavy lifting of steel assisted by an overhead crane/magnet. He advised that this was very strenuous manual labour. [20] Following the worker s accident on July 25, 2008, he testified that he was in a cast (solid and air cast) for approximately nine months altogether. Throughout this period, the worker testified that he used crutches. [21] On November 19, 2008 the worker advised that he returned to work for the accident employer. The worker did not return to his pre-accident position but he was placed on modified duties working in the office doing purchasing and receiving. The worker indicated that he sat at a desk, took orders, processed orders and called suppliers after receiving approval. The worker was seated while performing his duties. The worker advised that there was no walking involved. [22] The worker testified that he did not have any issues with his left foot between November 2008 and April The worker denied any issues with walking, sensitivities and balance. [23] The worker confirmed that he had not returned to his pre-accident position when he was laid off in April He advised that at the time of his layoff, he was still wearing an air shoe cast. The worker advised that he subsequently ordered and received custom safety shoes which

5 September 21, 2015 Page: 4 Decision No. 1870/15 he currently uses with his new employer. The worker advised that he has no issues using the custom safety shoes with his new employer. [24] The worker testified that at the time of the layoff, he felt that he was capable of performing his pre-accident job. The worker testified that after his layoff, he immediately began looking for work because of financial pressures. He began looking for similar manual labour jobs and applied to several agencies. The worker advised that no one in his field was hiring at the time due to the economy. The worker advised that he received Employment Insurance benefits for approximately eight to nine months following the layoff. [25] Between April 2009 and January 2010, the worker testified that he was in constant contact with the human resources manager, pre-accident position supervisor and the plant manager. The worker advised that he was never recalled. [26] The worker found employment with a new employer on his own, a position he continues to hold. The worker is a forklift operator. This position involves driving a forklift and making deliveries throughout the warehouse. The worker advised that this position requires both sitting and standing. He testified that he is less active in his current position than his previous pre-accident position with the accident employer. As a result, the worker says that he feels pain in his left foot approximately after three hours of either sitting or standing. (vi) Submissions [27] The worker s representative emphasized that the worker was on modified duties when he was laid off. He indicated that in April 2009, the worker was still disabled and required assistance to re-enter the workforce. He submitted that the worker was not only in a modified position but was receiving assistance to and from work from a colleague on a daily basis which was a significant accommodation. Moreover, it was submitted that the worker was advised not to wear safety shoes by the surgeon that performed the amputation surgery. It was not until the surgeon, Dr. Alexander, was contacted by the Board in May 2009 that Dr. Alexander agreed to a trial for the safety boots. At no point was the worker given the opportunity to perform a trial to determine whether or not custom safety shoes would be tolerated given the significance of the injury. [28] The worker s representative noted that contrary to the worker s oral testimony at the hearing, the contemporaneous medical records indicate that the worker was complaining of pain, cramps, swelling and numbness as a result of his injury in June He also noted that in the clinical notes of the worker s family physician Dr. D. Merker, the worker complained of ongoing issues with his left foot in August and September [29] Finally, the worker s representative argued that Board policy states that if a worker is on modified duties as a result of a compensable workplace accident at the time of the layoff, the worker is entitled to benefits and/or services. To support his submission, the worker representative relied on the section entitled Long-term layoffs entire or partial workforce in OPM Document No [30] The employer representative stressed in his submissions that the layoffs in 2009 were a result of the economy and not related to the worker s compensable accident and resulting impairment/disability.

6 September 21, 2015 Page: 5 Decision No. 1870/15 (vii) Analysis [31] After carefully reviewing the evidence before us including the oral testimony of the worker the Panel denies this appeal. The Panel finds that the worker s loss of earnings was caused primarily by the employment situation and not by a work-related impairment and/or disability. [32] Following the worker s compensable injury in July 2008, the worker returned to modified duties and full-time hours on November 19, Between July 25, 2008 and November 19, 2008 the worker did not work and was in receipt of full LOE benefits. [33] The worker s limitations at the time that he returned to work were no climbing stairs/ladders, no running or jumping and no safety shoes. Dr. Alexander provided these restrictions in a Health Professional s Progress Report (Form 26) on October 28, Dr. Alexander subsequently completed a Functional Abilities Form dated November 24, 2008 which indicated that the worker can walk, as tolerated, stand, as tolerated and stair climb as tolerated. Dr. Alexander indicated that the work was unable to climb ladders and that he was not to use safety shoes on his left foot. Dr. Alexander indicated that the latter restriction was permanent. Dr. Alexander also provided the worker with a medical note indicating that the worker was unable to wear safety shoes for medical reasons on November 24, These are the restrictions that existed at the time of the worker s layoff on April 24, [34] On May 25, 2009, the worker notified the Board of his layoff. The Board then contacted the employer who advised that the company has taken a huge hit and have lost major contracts. The employer advised the Board that the current layoff is for at least six weeks and affects 32 of their 40 employees. The employer advised that they are also periodically shutting down for a week at a time. The employer denied that the worker s layoff had anything to do with the worker s injury. The employer advised the Board that the worker s layoff was not permanent. On May 25, 2009 the employer did advise the Board that the current layoff would be for six weeks. The employer further advised that once the layoff is over they would be in a position to offer the worker work, including his pre-accident job that does not involve ladder or stair climbing. The employer also confirmed that no position at their organization requires climbing stairs or ladders. These conversations between the Board and the employer took place on May 25, 2009 and May 27, and are reflected in Memos #12, 13 and 22. [35] The Board also contacted Dr. Alexander to inquire into the possibility of the worker being able to wear custom work boots. Dr. Alexander was agreeable with a trial of custom work boots and walking shoes as long as they were tolerated. Dr. Alexander subsequently examined the worker on June 8, 2009 and provided the Board with a Worker s Progress Report (Form 41) of the same date. The only limitation listed on the Form 41 was that the worker must wear custom work shoes. [36] The worker received a letter from the employer dated July 17, 2006 that indicated that due to continued bad news from our customers (lay offs, shutdowns, reduction in shifts), it remains extremely difficult to guess a recall date. The worker was provided the option of requesting that the employer provide him with pay in lieu of notice or to defer the acceptance of the pay in lieu of notice until September 2009 when the company hoped to have better insight into their personnel needs. If the worker chose to receive pay in lieu of notice he would not be eligible to be recalled. Based on the following correspondence from the employer dated

7 September 21, 2015 Page: 6 Decision No. 1870/15 September 28, 2009, November 2, 2009, November 9, 2009 and April 23, 2010, the worker chose to defer pay in lieu of notice with the hope of being recalled. [37] The worker was advised in a letter dated April 23, 2010 that he would not be recalled and the worker was provided with a ROE. It was clear in the employer s letter to the worker that the worker was not the only individual that chose to defer their pay in lieu of notice, but rather a number of employees were also in the same position of the worker and were being laid off permanently as well. [38] The worker s representative pointed to the Board policy in relation to long-term layoffs. With long-term layoffs the policy states that it is generally presumed that the worker will have to seek employment elsewhere, and due to his/her work-related impairment/disability and associated clinical restrictions, may require assistance from the WSIB to re-enter the labour market. However, this section of the policy applies to layoffs longer than three months. [39] Accordingly, we must first look to whether or not the worker qualified for benefits in relation to a short-term layoff which affected the employer s entire workforce. As the worker was not receiving benefits at the time of the layoff, the worker s circumstances falls outside of the general rule for entitlement. Therefore, the worker s circumstances were analyzed in relation to the exceptions to the general rule. [40] In reviewing exceptions to the general rule as set out in OPM Document No , at the time of the worker s layoff in April 2009 the Panel finds the following: The worker was not in the early phase of recovery. Between April 24, 2009 and June 8, 2009 the worker s only restrictions were no climbing of stairs or ladders (which was not required for any position with the accident employer) and no safety shoes. On June 8, 2009, following a visit with the worker, Dr. Alexander s only restrictions was that the worker was required to wear custom safety boots. Therefore, the worker was in a position to return to his pre-accident employment as of June 8, 2009 demonstrating that the worker s recovery was almost complete at the time of the layoff. The worker was not receiving any WSIB-approved active treatment. The worker was performing modified duties on a full-time basis; however, his pre-accident duties were within the restrictions provided by Dr. Alexander in the Form 41 on June 8, The worker did not require a high degree of accommodation. Carpooling with a co-worker to and from the bus stop, in the Panel s view, does not constitute accommodation that would not likely have existed with another employer. Finally, given that the worker was able to return to his pre-accident job by June 8, 2009, his impairment/disability was not significant enough that it would have presented an obstacle to the worker finding alternate employment. In fact, the worker found alternative employment on his own. The only obstacle that the worker identified in securing alternative employment that he faced was the downturn in the economy. [41] For workers who did not qualify for additional benefits/service during the short-term layoff, they will only qualify for additional benefits if they are still unable to perform their pre-accident job after the three-month waiting period has expired.

8 September 21, 2015 Page: 7 Decision No. 1870/15 [42] By the end of July 2009, the worker s only restriction was that he was required to wear custom made work boots, which were approved by the Board in May 2009 and formalized by Dr. Alexander on June 8, [43] The worker s representative indicated in his submissions that Dr. Alexander only approved the worker wearing custom safety boots on an as tolerated basis. Dr. Alexander did indicate that he would have liked to examine the worker first when initially contacted by the Board. However, after Dr. Alexander saw the worker he did not qualify the wearing of custom boots. The Panel finds it more likely than not that after having seen the worker, Dr. Alexander was satisfied that the worker would be able to wear custom work shoes without the need for any additional qualifications or restrictions. Accordingly, the worker was able to return to his pre-accident job by June 8, 2009, within the three-month waiting period. Therefore, we find on a balance of probabilities that the worker was not entitled to LOE benefits from April 24, 2009 to November 11, 2010.

9 September 21, 2015 Page: 8 Decision No. 1870/15 DISPOSITION [44] The appeal is denied. DATED: October 8, 2015 SIGNED: N. Perryman, E. Tracey, C. Salama