WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090048
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVE: Worker
HEARING DATE: May 04, 2009
ATTENDEES: Worker, Worker Representative
ISSUE
The closure of labour market re-entry (LMR) services.
HOW THE ISSUE ARISES
Further to the appeals resolution officer (ARO) decision of November 4, 2004, a labour market re-entry (LMR) assessment redetermination was ordered. On the basis of this decision, the file was referred to a vocational rehabilitation consultant on January 31, 2005. A meeting was arranged for February 16, 2005 which the worker did not attend having left a voicemail message stating that he was experiencing vehicle problems. A second meeting was arranged for February 23, 2005 with a vocational rehabilitation assessment for February 25, 2005. The worker attended both of these meetings with the result being the LMR plan proposal of March 31, 2005. The suitable employment or business (SEB) agreed to as per the LMR plan completed and signed by the worker on April 19, 2005 was directed towards achieving the SEB National Occupational Classification (NOC) code 147; Recording Scheduling and Distributing occupations. The plan included academic and literacy upgrading in Owen Sound from April 25, 2006 to July 10, 2006. The plan also included provisions for the worker’s travelling expenses including mileage and parking.
As of June 8, 2006, the worker stopped attending his classes in Owen Sound.
In reviewing the worker’s entitlement, the operating unit noted in the decision letter of July 5, 2006 that the worker had not attended his classes since June 8, 2006 that to spite several messages to the worker having been left on voicemail, they were not returned. It was further noted that the worker had been advised several times in writing of his obligations in LMR and the letters of February 21, 2005, April 15, 2005 and October 14, 2005 had been sited. On the basis of the worker’s absence from the agreed to LMR program, the program was terminated and the payment of LOE benefits was adjusted to the entry level earnings in the SEB for which the worker had been dedicated.
In response to this decision, the worker wrote on August 1, 2006 that he had contacted his service providers, the WSIB and the school to advise that he had been sick and that he had lost his transportation when his mother’s car had been stolen.
In the reconsideration issued on September 13, 2006, the operating unit rejected the worker’s claims that he had attempted to contact the school, his service provider and the WSIB and that in his failure to maintain contact, he had breached his LMR participation obligations.
The worker has objected to this decision and the issue is before the appeals branch.
AUTHORITY
Operational Policy Manual document:
- 19-03-10 – Co-operating in LMR
EXHIBITS
At the hearing, three exhibits were provided by the worker in late submissions. Exhibit 1A is a MapQuest map of the shortest route between Kenilworth, Ontario and Guelph, Ontario. Exhibit 1B is the shortest route and estimated time of travel between Kenilworth, Ontario and Owen Sound, Ontario and map 1C is the shortest route and estimated time of travel between Mount Forest, Ontario and Owen Sound, Ontario.
ASSESSMENT OF THE EVIDENCE
At the hearing, the worker provided testimony under oath.
He stated that he has lived in Kenilworth, Ontario for four years and that before that he was living in Mount Forest, Ontario. Some testimony was provided with respect to the LMR plan he had initially engaged in prior to the ARO decision. At that time, he testified that he determined and advised the WSIB that he would do whatever was necessary to get to any meetings or appointments that had to do with his LMR. He stated that even though he did not have a driver’s licence, he would drive a car to do so. He confirmed that from his initial LMR service to the date of the hearing, he has not had a valid driver’s licence. He states that it would be difficult for him to obtain a driver’s licence as significant amounts of money would have to be spent to qualify him for driver’s licence.
He confirmed nonetheless that despite the absence of a driver’s licence when he was negotiating his LMR plan in 2006, he agreed with schooling in Owen Sound as there was no place else that he could get the education he needed for the SEB. Though he advised that it would be a problem for him to get to Owen Sound because of the need to take breaks due to his injuries for roadside stretching as well as possible weather problems and the need to obtain assistance driving him, he agreed to participate in the LMR plan. He states that even though he had no driver’s licence, he drove himself to the training in Owen Sound on most occasions. He states that he did so because it was necessary for him to restore his earnings profile so that he could feed his children and he was advised that if he did not cooperate completely in the plan it would end.
With respect to his submissions that he had been ill in June 2006, with a non-compensable condition, he states that he may have been sick on some occasions and that when he would get up in the morning and be unable to leave the house he would take medication and return to bed and that he would then sleep for 24 hours. He indicated that it was his wife’s responsibility on these occasions to contact the WSIB and that there may have been sometimes when she had confirmed that she had forgotten to do so. He could not, however, date any of these occasions and he also stated that in his estimation he only omitted to contact someone once.
He further testified that he didn’t claim mileage to school as he stated that he didn’t know that he could. However, it is clear from the LMR plan that compensation for his mileage had already been factored into the LMR plan. He also states that he wasn’t aware that he could have the LMR plan amended if he had decided to be open about his inability to legally drive.
With respect to his activities since the closure of his LMR services, he testified that for a few months he submitted resumés and had no success. He stated that any employer who watched him enter their premises on crutches or a cane would immediately rule him out as a prospective employee. Consequently, he has stopped sending resumés and he has done nothing to restore his earnings profile. He has applied for and received Ontario Works Benefits.
The worker did not appear to be familiar with any bus schedules that might operate up and down Highway 6 from Guelph to Owen Sound indicating that only one bus travels this route per week. No evidence of bus schedules was submitted to the claim file to support this once per week only bus schedule.
In her submissions, the worker’s representative believes that the WSIB erred in finding the worker uncooperative in his LMR plan because his transportation concerns and difficulties had never been properly addressed. She believes that with the worker’s work related injuries, weather conditions in the region during the winter months and the worker’s history of being unable to either find a working vehicle or operate a vehicle legally, that greater discretion is required in assessing his cooperation in the LMR plan. She also notes that the worker was ignorant of his right to claim expenses and that if these had been properly explained to him, and he had an opportunity to claim all the mileage that he had incurred in the plan until its closure in June 2006, greater attention would have been given to his transportation situation. She states that otherwise the evidence is that the worker was committed to his program and that he should be entitled to complete the LMR effort with a full restoration of his LOE benefits retroactively.
In my review of the facts of the case, I note that the worker entered into an agreement with WSIB to abide by its policies with respect to the cooperation of the LMR plan as it financed an effort to restore his pre-injury earnings profile. Document 19-03-10: Co-operating in LMR sets out the cooperation requirements;
Workers co-operate in LMR assessments and plans by
- participating in the activities of the LMR assessment to identify suitable and available employment with the accident employer, or another suitable and available employment or business (SEB)
- participating in the preparation of an LMR plan, and
- fulfilling the mutually agreed upon commitments outlined in the LMR plan.
It is necessary for cooperation to be established that each of the three requirements is met.
Though the worker missed several appointments in the LMR assessment phase of his LMR plan, it is generally accepted that he cooperated with the first assessment.
As to participating in the preparation of a LMR plan, the worker admits that he did not have a driver’s licence yet he agreed that he would be able to participate in the academic upgrading scheduled to run from April 2006 to July 2006.
In his testimony, the worker confirmed that regardless of his own transportation difficulties he would do whatever it took to attend his training. It is my view however that a determination to behave in such a way that would violate the Highway Traffic Act places the worker clearly outside the appropriate participation in the preparation of an LMR plan and its fulfillment. Additionally, the worker testified that he maintained regular contact with his service providers but there is no documentation on the file or that was supplied by the worker at the hearing that would support him in this. I note that though the worker believes that his LMR plan was closed improperly and he objected to this in a timely manner, it took almost two years before any action was taken that would bring the appeal to a resolution. It is also noted that said program does not occur during the winter months and so any submission that the worker was unable to travel due to inclement weather carries little weight.
On the balance of all the evidence in the claim file, I do not accept that the worker was cooperative to the extent required by the policies of the WSIB in the pursuit of a LMR program. I accept that the worker’s program was appropriately closed on the basis of non-cooperation.
CONCLUSION
The worker has no entitlement to labour market re-entry (LMR) services or associated loss of earnings (LOE) benefits.
The worker’s objection is denied.
DATED May 7, 2009
B J Martlin Appeals Resolution Officer Appeals Branch