- Availability for employment (medical authorization)
- Loss of earnings {LOE} (cooperation)
- Benefits (reduction or suspension) (cooperation)
- Work transition plan (cooperation)
In a decision dated March 3, 2023, the RTW Specialist determined that the worker had not cooperated with the work transition (WT) plan and confirmed the application of a penalty that included a reduction in LOE benefits by 50%, followed by an adjustment to reflect the determined earnings for the SO. The issues under appeal were: a) the quantum of Loss of Earnings (LOE) benefits from March 13 to 27, 2023, for non-cooperation in the return-to-work plan, and, b) the quantum of LOE benefits from March 28, 2023 to age 65.
The Panel allowed the appeal.The worker's LOE benefits from March 13 to 27, 2023 should not be reduced as a result of worker non-cooperation in the RTW process. The worker was co-operating in the RTW process and his WT plan the best that he could and had legitimate reasons for missing time from his training and for not returning to the training. The worker provided legitimate reasons for missing his training, namely, his low back condition; medical appointments for his low back condition; and vertigo (a non-compensable condition for a short period of time). These reasons were legitimate within the context of Policy 22-01-03, because the worker's vertigo was an unexpected illness, and the other absences were related to the compensable condition.While a worker is obligated to co-operate in the RTW process, they are not required to ignore their symptoms or exceed their restrictions. There was no evidence before the Panel that the worker had misrepresented the severity of the symptoms, and his testimony was supported by a medical report. There was no evidence indicating that the worker failed to provide information, maintain communication or co-operate in health care measures, or that he engaged in a pattern of behaviour that was intended to frustrate the RTW process. Rather, the worker sought health care attention as needed, attended classes when he could, and regularly informed the WSIB when the symptoms of his compensable injury or subsequently arising condition prevented him from participating in the WT program. The Panel determined that the worker was co-operating as best as he could in his WT plan and had legitimate reasons for missing time from and not returning to his training.The Panel found that the worker was entitled to full LOE benefits from March 13, 2023 to age 65 because the severity of his compensable condition completely prevented him from participating in a WT plan or working in any employment as of March 13, 2023.