Decision #18/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after August 13, 2020. A videoconference hearing was held on January 19, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after August 13, 2020.
The worker is not entitled to wage loss benefits after August 13, 2020.
On January 4, 2019, an Employer's Accident Report was received by the WCB indicating the worker injured their left ankle in an incident at work on December 20, 2018. It was reported the worker was walking from their house to their work vehicle when they slipped on ice. On January 7, 2019, the WCB spoke with the worker to gather further information. The worker advised they have a home dispatch and were heading out to the worksite and as they were clearing off the vehicle’s windows, they slipped and fell awkwardly. The worker reported after they fell, they continued on to the jobsite, however they felt their ankle was painful and went to an office in the vicinity. When they realized their ankle was injured worse than they initially thought, they attended at a local hospital after which they were taken to a larger hospital for surgery.
The hospital report from December 20, 2018 was received by the WCB on January 8, 2019. It noted the worker had obvious left ankle swelling and was unable to weight bear. An x-ray taken on the same date indicated a "Bimalleolar fracture with disruption of the ankle mortise and lateral talar shift" and it was recommended the worker be sent for orthopedic surgery at a larger facility. The worker was examined at the larger facility and an open reduction and internal fixation (ORIF) was performed. At a follow-up appointment with the treating orthopedic surgeon on January 16, 2019, the staples from the surgery were removed and the surgeon reported, "The wound looks good, No erythema, redness or drainage noted." The surgeon recommended that the worker start physiotherapy, which they did on January 21, 2019.
As a progress report dated May 22, 2019 from the worker's treating family physician noted that the worker’s progress was slow, the WCB requested the worker attend for a call-in examination. The call-in examination took place on May 30, 2019, with a WCB orthopedic consultant. After examining the worker, the WCB orthopedic consultant provided their opinion on June 6, 2019. The consultant opined the worker's diagnosis was a left ankle fracture and noted the worker had "…prolonged immobilization and activity restrictions imposed which appear to have resulted in some restrictions in ankle mobility and some muscle atrophy." The WCB orthopedic consultant went on to provide that the normal course of recovery from an ankle fracture was for immobilization for six weeks after surgery, with weight bearing allowed after time. Light duties could be performed as early two to three weeks after surgery, with six weeks post-operative being the normal time period and return to heavier duties expected after the twelve week post-op period. The consultant further opined there would be no medical restrictions in place for the worker as a return to their normal activities "…would serve to return muscle strength and improve ankle range of motion" but did note that a return to climbing ladders would not be appropriate at this time. However, the worker should be encouraged to work towards those duties over the next six weeks.
At a follow-up appointment on July 3, 2019, the worker's treating family physician noted the worker was continuing with physiotherapy and had improved range of motion, however, would not be capable of performing their job duties involving climbing. Accompanying the report from the treating physician was an x-ray of the worker's left ankle taken the same date which indicated "Fixation hardware is unchanged in position and alignment and no complication is evident. The ankle mortise is maintained." A physiotherapy discharge report was received on September 5, 2019, noting the worker's foot was still sore, progressing as the day goes on and restrictions were recommended. The worker attended for a further call-in examination with a WCB orthopedic consultant on October 1, 2019, who documented their opinion to the worker's file on October 3, 2019. The consultant noted, based on their examination of the worker and the medical information on file, including the examination and x-rays completed by the worker's treating physician, that the worker's left ankle fracture had healed, with no complications identified. The WCB orthopedic consultant noted restrictions had been provided by the treating physiotherapist, however, given that the worker's left ankle had healed, no work restrictions were required. The consultant further noted the worker's reporting of their job duties involving climbing at heights and indicated that a "…gradual and safe return to these activities would appear reasonable." As well, the consultant opined the worker was not medically restricted related to their left ankle fracture from climbing with a heavy tool belt on and that it would be "…reasonable to do so in a controlled environment and with supervision." The WCB orthopedic consultant recommended a work hardening or reconditioning program for the worker. The worker commenced a four-week reconditioning program on November 29, 2019.
The discharge report from the reconditioning program was received by the WCB on April 22, 2020. The report noted the worker had missed one of the four weeks of the program due to illness. The physiotherapist indicated the worker expressed apprehension regarding their job duties involving climbing and noted those duties were difficult to assess, and recommended assessment by an occupational therapist at the worker's job site. The physiotherapist noted the worker had "…good ankle plantar flexion strength, and 4/5 dorsiflexion strength." At a follow-up appointment with their treating family physician on May 22, 2020, the worker reported a chronically painful left ankle and the physician recommended restrictions of sedentary and light duties only, with no climbing ladders or lifting greater than twenty pounds. A follow-up appointment with the treating orthopedic surgeon took place on June 4, 2020. The surgeon opined the worker possibly had early post-traumatic osteoarthritis in their ankle and recommended an ankle splint. An x-ray taken at the time of the visit indicated "Fixation hardware is seen within the medial and lateral malleoli. The ankle mortise is maintained. No complication is evident."
On August 4, 2020, after reviewing the worker's file, including the diagnostic imaging and speaking with the worker's treating orthopedic surgeon, the WCB orthopedic consultant provided a further opinion to the worker's file. The consultant opined the worker's "…possible minor decrease in ankle and/or subtalar range of motion, which has recovered to a functional range, is medically accounted for by the workplace accident. This, however, should not have an impact on function." Further, the WCB orthopedic consultant noted the diagnostic imaging did not support the worker had post-traumatic arthritis or a fracture complication and as such, the worker's reporting of non-specific ankle pain was not medically accounted for. As well, the consultant noted after the reconditioning program, the physiotherapist did not recommend any work restrictions and the restrictions recommended by the worker's treating family physician were based on the worker's subjective reporting of their inability to perform their job duties related to climbing. On August 6, 2020, the employer was advised by the WCB that the worker had no restrictions related to the December 20, 2018 workplace accident. On August 7, 2020, the worker was advised by the WCB that it had been determined they had recovered from the workplace accident and they were not entitled to wage loss benefits after August 13, 2020.
A progress report was received from the worker's treating physician from a follow-up appointment on August 12, 2020. The physician noted the worker's left ankle was swollen and had reduced range of motion. Under "Treatment Plan", the physician noted "nonsteroidal anti-inflammatory and permanent restriction from climbing ladders climbing poles and working on uneven ground This fracture was comminuted medially with likely a (sic) avulsion of a section of the cartilage and is already developing osteoarthritis 2 years later, this ankle is going to only deteriorate and may need to be fused later on" Recommended restrictions were sedentary and light duties, no climbing poles, no climbing ladders, no walking on uneven ground. On August 12, 2020, the WCB wrote to the worker's treating physician requesting clarification for the restrictions indicated on their report. On August 17, 2020, the treating physician provided an opinion that the worker would not completely recover from their injury as they continued to have "…quite marked swelling around the ankle, the ankle joint goes flexion and dorsiflexion and quite significantly has side-to-side movement" and noted because of those issues, the worker would be unable to perform their job duties involving climbing and working on uneven ground. Further, the treating physician noted information from the treating orthopedic surgeon supported the worker sustained a more serious injury than initially thought and a copy of the surgeon's June 4, 2020 letter was attached. On August 19, 2020, the WCB orthopedic consultant, after discussion with the worker's treating physician and review of the information provided, opined there was no change to their August 4, 2020 opinion the worker no longer required restrictions. On August 25, 2020, the worker was advised there would be no change to the earlier decision they were not entitled to wage loss benefits after August 13, 2020.
The worker requested reconsideration of the WCB's decision to Review Office on September 11, 2020, noting in their submission that due to the December 20, 2018 workplace accident, they were no longer physically able to perform their job duties and believed they should be entitled to further wage loss benefits. The employer provided a submission in support of the WCB's decision on November 24, 2020, a copy of which was provided to the worker, who provided a response on December 15, 2020.
On December 17, 2020, Review Office upheld the WCB's decision and determined the worker was not entitled to wage loss benefits after August 13, 2020. Review Office noted the worker accepted the employer's voluntary retirement package in April 2019, which was implemented on August 13, 2020, when the worker was determined capable of returning to their pre-accident job duties. Review Office further noted the employer advised the worker on August 7, 2020 they could accommodate them with sedentary duties, however, as the worker had accepted the voluntary retirement package, they ended their loss of earning capacity and as such, were not entitled to further wage loss benefits.
The worker's representative submitted additional information and requested Review Office reconsider the earlier decision on April 19, 2021. The representative presented the argument that the medical evidence from the worker's treating healthcare providers supported the worker had not recovered from the workplace accident and required restrictions and accommodated duties, which duties were not offered by the employer as the employer advised the worker had opted to accept their voluntary retirement package. On June 16, 2021, Review Office again determined the worker was not entitled to wage loss benefits after August 13, 2020. Review Office accepted the opinions of the WCB orthopedic consultant the worker had recovered from their left ankle fracture and was fit to return to their full regular duties by August 14, 2020.
The worker's representative filed an appeal with the Appeal Commission on June 21, 2021. A videoconference hearing was arranged for January 19, 2022.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, (the "Act") regulations under the Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Policy 44.60.20, Date of Retirement states that “When a worker who is capable of employment voluntarily retires or withdraws from the labour force, the WCB will complete a new review of his or her loss of earning capacity. This policy provides the WCB with a set of principles for determining when a worker is retired from the labour force.” The policy provides examples of situations and indicators as to whether or not a worker may be considered to have retired from the labour force.
The Worker’s Position
The worker was represented by a worker advisor and both participated in the hearing via video conference. The worker advisor made a submission on behalf of the worker. In addition, the worker answered questions posed to them by the worker advisor as well as by the panel.
The worker advisor opened their presentation by stating the following:
“…we believe that the evidence available on the file supports both that [the worker] had not sufficiently recovered from [their] left ankle injury such as to be able to resume all of the physical demands of [their] pre-accident job. And in addition to that, it’s our position that the worker continued to experience a loss of earning capacity even beyond [the worker’s] departure date from the accident employer. As we said in our Review Office submission, while the worker voluntarily submitted the application for a voluntary retirement incentive package, our position is that the worker did not, in fact, voluntarily retire from the pre-accident employer at any point after that, and certainly not as of August 13, 2020. Rather, the employer retired [the worker], and so for those reasons we believe that [the worker] is entitled to further wage loss benefits.”
Through questions posed by the worker advisor, the worker provided the panel a brief history of their employment as well as a description of the accident and the resulting medical treatment they received. The worker told the panel that, just prior to their ankle surgery, the worker had a conversation with the treating surgeon and the worker was advised by the surgeon that they had a very bad ankle break which was “…one of the worst I’ve ever seen.”. The worker stated that the surgeon advised them that the recovery was likely to be “…maybe 80%”.
The worker further explained to the panel the circumstances leading up to their application to participate in the employer’s early retirement program. The worker stated that it was their plan that, upon retiring from the accident employer, they would obtain employment with one of a number of other different workplaces doing essentially the same work as they were performing with the accident employer. The worker referred the panel to a letter which was on file from one of the other workplaces that confirmed that an employment opportunity existed for the worker upon their retirement.
The worker also described the follow-up examination with the worker’s treating surgeon that occurred after the worker was approved for the employer’s early retirement program. The worker advised the panel that at the follow-up appointment with the surgeon, the surgeon stated, “Well, your pole climbing days were over.”
The worker explained to the panel that their accident employer accepted the worker’s early retirement but delayed the worker’s formal retirement date until they were able to return to work and that during that time the employer did not accommodate the worker by offering modified duties that would take into account the worker’s restrictions.
The worker also stated that they never fully recovered from the compensable injury or the resulting surgery and provided the panel examples of how their ankle continued to be problematic.
The worker advised the panel that they commenced employment with another employer shortly after their wage loss benefits from WCB were discontinued. The new job involved driving which the worker had obtained the required licensing for several years prior to their retirement. The worker stated that the driving duties did not require the use of their left ankle. The driving position paid significantly less than the worker’s salary with the accident employer or other potential employer’s performing the worker’s pre-accident duties.
The worker adviser then referred the panel to the WCB Policy 44.60.20, Date of Retirement regarding retirements and suggested that, based upon the criteria of the policy, the worker was entitled to further wage loss benefits as they had demonstrated that their intent was to continue to participate in the labour force with one of a number of other workplaces after their retirement but could not due to their ongoing ankle problems.
As well, the worker advisor submitted that the WCB’s August 7, 2020 letter to the worker stated that the worker was able to “attempt” a return to the worker’s pre-accident duties suggested that the WCB was not completely convinced that the worker had fully recovered. And further, since the worker was provided with a permanent impairment award, the worker advisor submitted that the evidence was that the worker had not recovered from their compensable injury and that further wage loss benefits were appropriate.
The Employer’s Position
The employer did not participate in the hearing. However, they did provide a written submission to the panel. In their submission, the employer submitted their position that the worker is not entitled to wage loss benefits after August 13, 2020.
The Employer based their position on two main arguments:
1) That the worker had recovered from their injury, and;
2) That the worker had voluntarily retired from their employment with the accident employer.
The employer’s submission made reference to the medical evidence on file that supported the worker had recovered from their workplace injury and was able to return to their pre-accident employment as of August 13, 2020, which ended their loss of earning capacity. The employer further submitted that the medical reporting from the worker’s caregivers that the worker had not recovered from their injuries was based on the worker’s subjective reporting and not objective medical evidence.
With respect to the matter of the worker’s retirement from their employment with the accident employer. The employer disagreed with the worker’s position that their retirement was not voluntary. They stated that worker applied for and was granted a retirement package that was to take effect once the worker was cleared to return to work. Further, the employer submitted that the application for the retirement package stated that the application was irrevocable, which meant that the application could not be withdrawn later on. The employer stated that the worker’s loss of earning capacity ended once their retirement became effective.
The employer further stated that the evidence on file supported that the worker’s post retirement plan was to work as a driver, which they were able to do. This further supported, in the employer’s view, that the worker’s compensable injury did not restrict the worker’s post retirement employment plan.
The issue before the panel is whether the worker is entitled to wage loss benefits after August 13, 2020. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to experience a loss of earning capacity as a result of their compensable injury after wage loss benefits were discontinued. For the reasons that follow, the panel is unable to make that finding.
The worker advisor submitted that the worker’s retirement should not be considered voluntary given the employer’s discretion as to the specific retirement date and that the employer had not accommodated the worker prior to the retirement date, which the worker advisor suggested was a good indicator that there was little probability of the employer accommodating the worker after August 13, 2020 when they were deemed recovered from the workplace injury. However, the panel’s position is that the worker had indeed voluntarily applied for a retirement package which they were granted. As a result, the panel’s finding for the purposes of this appeal is that the worker voluntarily retired from their employment with the accident employer effective August 13, 2020. Any dispute as to the terms and conditions of their retirement would be a labour relations issue and outside the jurisdiction of this panel.
Generally, once a worker chooses to sever the employment relationship through either resignation or retirement and it is unrelated to the compensable injury, their entitlement to wage loss benefits ceases, as the primary cause of the wage loss is no longer due to the compensable injury but instead is the result of the worker ceasing their employment. And although there may be extenuating circumstances in which an injured worker would be entitled to ongoing wage loss benefits after they have retired or resigned from their employment, the panel could not identify such circumstances in this instance. Therefore, as a result of the worker’s decision to voluntarily retire, they are not entitled to wage loss benefits after August 13, 2020.
The worker advisor also asked the panel to consider the worker’s evidence that they had retired with the intent of securing employment with another workplace which the panel understood was similar to the duties performed by the worker with the accident employer prior to the workplace injury. The worker’s position was that, because of the workplace injury, the worker was no longer able to secure employment with the other workplace and therefore the worker should be provided wage loss benefits based on their continued loss of income, which the worker submitted was a direct result of the compensable injury.
The worker advisor referred the panel to WCB Policy 44.60.20, Date of Retirement, which lays out principles and examples to consider when determining whether a worker has retired from the work force. The worker advisor submitted that the evidence supported that, although the worker had retired from employment with the accident employer, they were fully intending on continuing to work with another workplace and the compensable injury prevented the worker from commencing the alternative employment. Therefore, the worker should be entitled to ongoing wage loss benefits based on the worker’s inability to work for a new employer.
In support of the worker’s position, the panel was asked to review the document submitted to the worker’s file that was provided by another workplace. The document indicated that the other workplace had a verbal agreement with the worker to employ them after the worker had retired from the accident employer, which now the other workplace was unable to continue to offer the worker due the worker’s “…recent injuries and associated limitations.” The document first appears on the file as part of the worker adviser’s submission dated April 19, 2021. The document from the other workplace refers to a verbal offer for employment in a full-time position that would pay between $70,000-75,000 per year. The worker confirmed that there was no specific start date and no other specific details were discussed. What the panel understood the worker to be requesting is that the panel reinstate wage loss benefits based on the proposed salary outlined in the document provided by the other workplace.
The panel is unable to make such a determination in this instance.
As stated previously, while the panel recognizes that there may be extenuating circumstances when a worker may be entitled to ongoing wage loss benefits after they had left the employ of an accident employer, the panel does not accept that the present claim is one of them for the following reasons:
• The letter from the other workplace is undated and was provided to the WCB in April 2021, which was over two years after the worker had applied for and was granted a retirement package and eight months after the worker had retired from their employment with the accident employer and WCB wage loss benefits had discontinued. As a result, the panel has difficulty relying on such a document as confirmation of an employment arrangement.
• The letter from the other workplace does not contain any details as to a start date. When asked by the panel if the worker discussed further details with the other workplace, the worker stated that they had not. As a result, the panel is unable to determine when the actual loss of earning capacity from the other workplace was to commence if the worker was deemed to be entitled to ongoing WCB wage loss benefits.
• The document refers to an offer of full-time employment, which appears to be at odds with the worker’s comments noted in the March 21, 2019 memorandum indicating that the worker planned on working again doing “contract stuff” once they were healed. In the panel’s view, contract employment is different from full-time employment. While not determinative, the panel is concerned about the inconsistency.
The panel also notes that the worker submitted their application for a retirement package on or about February 13, 2019, which was after the December 20, 2018 accident date. The worker also stated that they were advised by their attending surgeon just prior to the December 20, 2018 surgery that the procedure may only result in an 80% recovery. (This appears to contrast the surgeon’s subsequent reporting that appears to the panel to be, at least initially, looking toward a full recovery). It appears to the panel therefore, that by the worker’s evidence, they were well aware that they may not make a full recovery from the surgery caused by the workplace injury. However, they still chose to apply for the voluntary retirement package. The worker’s decision to retire from their employment after they were made aware by their surgeon that they may not make a full recovery from the injury and resulting surgery casts doubt on the worker’s assertion that after they had retired, they had an ongoing plan to commence full-time employment with another workplace performing similar duties.
Based on the information available, the panel’s determination is that the worker’s decision to retire was not related to the compensable injury and the worker was no longer entitled to wage loss benefits upon their retirement which occurred on August 13, 2020.
Although not determinative, given the panel’s position that the worker is not entitled to further wage loss benefits upon their retirement, the panel also considered the issue as to whether the worker had recovered from their compensable injury when WCB determined that the worker was not entitled to wage loss benefits after August 13, 2020 as both the employer and the worker had made submissions on the matter.
The employer, in their written submission, stated that the worker had recovered from their compensable injury and therefore was no longer entitled to wage loss benefits. The worker submitted that they had not recovered and were unable to perform the essential duties of their employment and therefore they were entitled to further wage loss benefits. The focus of the disagreement was whether or not the worker’s injury prevented them from climbing long ladders or using pole spurs to climb poles which were essential duties of their employment.
After a careful review of the information available to the panel, it is our determination that the worker had recovered from the compensable injury and that there was a lack of clinical medical reporting that supported the need for ongoing medical restrictions that would have precluded them from climbing ladders and/or using pole spurs to climb poles.
The panel’s determination is based upon the following:
• The operative report confirms that the worker underwent an ORIF surgery to a left ankle fracture. There is no mention of any complications or concerns arising from the surgery.
• The worker was examined by the treating surgeon on March 7, 2019 when the treating surgeon reported the following:
“This patient was seen post ankle fracture. X-ray is good. Sent for physiotherapy…Obviously, he is not going to be climbing poles next week or in 2 weeks, more likely like (sic) 3 months to be safe climbing poles.”
• The worker participated in a call-in medical examination that was performed by a WCB orthopedic consultant that occurred on May 30, 2019. Part of the resulting report states the following:
“Based on my review of [the worker’s] management and condition, [they were] immobilized for approximately 11 weeks and weight bearing restrictions were imposed for the same duration. Thereafter, [their] reported experience of swelling and pain which appeared to have prompted the March 28, 2019 x-rays appears to have led to the imposition of yet more restrictions.
At the call-in exam today, reduced range of motion and musculature atrophy were identified which are most likely a result of prolonged immobilization and the imposition of prolonged weight bearing activity restrictions. At this point in time, it would be most reasonable to encourage [the worker] to normalize activity and expect a return to pre-injury function in the near future.”
• The worker was again examined by a WCB orthopedic consultant on October 1, 2019. The WCB orthopedic consultant opined that, based on their examination and review of the medical information and imaging available that the worker’s ankle fracture was fully healed without any complications identified and that the worker’s prognosis was positive and a full recovery expected. The WCB orthopedic consultant also provided an opinion that there was no need for medical restrictions at ground level and that the worker should begin a gradual return to climbing at height. As a result, WCB authorized a four-week work reconditioning program which occurred during December 2019.
• The June 4, 2020 report prepared by the worker’s treating surgeon states that the worker has tenderness in their injured ankle. The report also states “X-rays show no joint space narrowing but subchondral sclerosis indicating post-traumatic OA (osteoarthritis).” The treating surgeon notes in the assessment, in part, the following, “Perhaps some early post-traumatic osteoarthritis.” Attached to the report is an x-ray report from the same date which states “Findings: Fixation hardware is seen within the medial and lateral malleoli. The ankle mortise is maintained. No complication is evident.”
Based on the report, the WCB orthopedic consultant requested the imaging that was done on June 4, 2020 and contacted the treating surgeon on July 28, 2020 to discuss the comments contained in the June 4, 2020 report. The WCB orthopedic consultant reported that the worker’s surgeon stated that the worker had reduced subtalar motion in the left ankle and opined this may interfere with the use of climbing spikes and with climbing and that the surgeon was relying upon the worker’s reported inability to climb poles.
• The worker’s treating physician provided a report dated August 12, 2020 which stated, in part, the following:
“This fracture was comminuted medially with likely an avulsion of a section of cartilage and is already developing osteoarthritis 2 years later. This ankle is going to only deteriorate and may need to be fused later.”
• In response, and as a result of a telephone conversation that occurred between the worker’s treating physician and the WCB orthopedic consultant, the WCB orthopedic consultant sent a letter to the worker’s treating physician dated August 19, 2020 that stated, in part, the following:
“…Although it is true that the treating surgeon noted comminution at the medial side of the ankle, and the possibility of degenerative pathology, I noted that having concluded a review of all the imaging for [the worker’s] ankle, and having recently spoken with the treating surgeon, there is no evidence of a fracture complication. That is, the fracture comminution noted is extra-articular and would have no impact on the condition of the joint. Furthermore, in reviewing all the available ankle X-rays, there is no evidence of ankle degeneration.
We furthermore discussed [the worker’s] ankle and hindfoot mobility. Although potentially altered, this appears to be within the normal functional range, and not predictive of an inability to climb poles, and would not serve as the basis for the imposition of medical restrictions.
After reviewing all the information available to the panel, we prefer the opinion provided by the WCB orthopedic consultant that the worker had recovered from the compensable injury when the WCB determined that there was no entitlement to wage loss benefits after August 13, 2020.
The worker's appeal is dismissed.
M.L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of February, 2022