- Availability for employment (medical authorization)
- Availability for employment (refusing suitable work) (personal reasons)
- Suitable employment (suitable for worker's capabilities)
- Loss of earnings {LOE} (wage loss)
- Loss of earnings {LOE} (eligibility) (impairment)
- Suitable employment (factors other than physical capability) (shift change)
The issues under appeal were: a) the suitability of the offered modified work; b) entitlement to Loss of Earnings (LOE) benefits from December 5, 2017 to March 5, 2018; and, c) entitlement to LOE benefits from March 6, 2018 to April 19, 2019 and ongoing.
The Panel allowed the appeal, in part.Tribunal case law has held that a worker should not be penalized for following the advice of their health professionals in good faith (see Decision No. 133/21). The Panel noted that both Dr. Klerer and Dr. Castiglione concluded that the seriousness of the worker's injury merited a period of time off work. The worker was therefore entitled to full LOE benefits from December 5, 2017. The worker was fit to return to available suitable work as of January 16, 2018. The worker eventually returned to work on March 6, 2018. The worker's various days off work during the period under review were noted but there was no corresponding note or report from a medical professional authorizing the time off work. OPM Document No. 11-02-02, "Lost Time Claims" indicates that for wage loss benefits to be paid, there must be clinical authorization for the lost time from work. The worker was not entitled for the intermittent lost days from work. The Panel clarified that to pay partial LOE benefits due to an overall reduction in hours not only requires confirmation of a reduction in hours, but also medical or clinical confirmation that the reason for the reduced hours is due to the work-related injury. The medical reporting indicated that the worker overall was working within his restrictions in suitable and available work. While his hours varied, the Panel did not attribute the reduction of hours to his work disability and noted the lack of medical authorization for reduced hours. The worker was not entitled to partial LOE benefits from March 5, 2018, to March 19, 2019. The RTW specialist's notes confirmed that the worker was on a RTW plan from March 19, 2019 to April 19, 2019. The Time Summary sheets for this period confirmed that the hours worked were significantly less than the overall average. The Panel found that for the period of time that the worker was involved in a WSIB sponsored RTW plan, he was entitled to partial LOE benefits for any wage loss. The calculation of the degree of wage loss incurred, if any, was remitted back to the WSIB to calculate.Further, the worker testified that in late March 2019 to early April 2019 the employer had proposed that his job and shift schedule change. In the Panel's view, the worker was concerned with the change in his work schedule and its impact on his non-occupational life. He made a personal decision not to comply with the change in schedule. It was not due to the unsuitability of the work. Workers are entitled to their own choices concerning employment conditions; however, to be entitled to full LOE benefits there must be demonstrable clinical evidence that the nature and seriousness of their condition prevents work. The worker was not entitled to full LOE from April 19, 2019.