WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090036
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: July 20, 2009
ATTENDEES: Worker, Worker Representative, Interpreter (Croation)
ISSUE
The worker is objecting to the Adjudicator’s letter dated November 8, 2007 which confirmed the worker’s partial loss of earnings (PLOE) benefits rate from the final LOE benefit review date (December 1, 2007) would be based on deemed earnings of $10.00 per hour.
HOW THE ISSUE ARISES
The worker’s claim for a low back impairment arising out of a November 2001 onset of sciatica pain was granted noting the worker’s repetitive duties as a drywaller. At the time of the onset, the worker was working for his brother’s company as an employee.
The worker was able to continue working modified duties, along with reduced hours and the occasional period of lost time, until March 31, 2003 when he stopped work completely.
In June 2003, he was granted a 14% Non-Economic Loss (NEL) award.
Since he was no longer able to perform the duties of a drywaller, the worker was provided with Labour Market Re-entry (LMR) services in order to be re-trained.
After repeated warnings regarding non-co-operation in his LMR program, the worker’s LMR program was closed as of January 20, 2005 and his LOE benefit rate was adjusted to the entry-level earnings expected from his suitable employment or business (SEB) of “Electronics Assembler” as determined by the LMR program.
At the time of the final LOE benefit review date in late 2007, since the worker was still unemployed and it was considered that he lacked sufficient transferrable skills to have progressed significantly in the wage expected from the SEB, his final LOE benefit rate from November 2007 was based on expected earnings of only $10.00 per hour.
The worker has objected to this determination claiming he is competitively unemployable and totally disabled. He is requesting full LOE benefits from the LOE benefit “locked-in” date.
AUTHORITY
As per the Workplace Safety and Insurance Board (WSIB) Operational Policy Manual (OPM)
18-03-06 Final LOE Benefit Review
11-01-05 Determining Maximum Medical Recovery
19-03-05 LMR Plans
19-03-10 Co-operating in LMR
ASSESSMENT OF THE EVIDENCE
The worker testified he came to Canada in 1988. While in Croatia he completed grade eight and had worked in the construction trade as a general labourer. He indicated he had difficulty while in school and only had the basics in the Croatian language.
Upon arriving in Canada, he had no English skills and was only able to locate employment in a family business as a drywaller. He stated Croatian was the language used while on the worksite.
In March 2003 when it became evident the worker would no longer be able to perform general construction duties, the worker was referred for a LMR assessment; however, due to non-work-related (alcohol) issues, the assessment was deferred for approximately a year.
With regards to medical treatment, Dr. Taylor, orthopaedic consultant, reviewed the worker in December 2003. It was determined the worker had “atypical mechanical sciatica with little, if any, back pain”. There were no findings of nerve root irritation on straight leg raising or femoral nerve stretch. Surgery was not considered an option, as it would be of no benefit. A trial of epidural steroid injections was considered and the worker was encouraged to remain active.
In February 2004, the worker was referred back to the LMR Service Provider. The SEB of “Electronics Assembler” was chosen as being appropriate. The position was considered within the worker’s restrictions of no lifting greater than ten pounds, no repetitive bending, no squatting and limited stair use. The restrictions did not prevent the worker from driving; however, the worker’s driver’s licence was under suspension for three years due to a charge of drinking while under the influence. It was noted that this suspension would significantly affect his ability to attend activities in his LMR plan. In addition, there was a concern with the worker’s lack of language skills and transferable skills; thus, he would require considerable time in upgrading to obtain these skills.
The LMR plan was to include 18 months of English as a Second Language (ESL) training, with a six-month work placement and job coaching. The targeted end date for the LMR plan was April 7, 2006.
During the first month, the worker advised the Service Provider (see report #3) that he did not wish to continue with the ESL training as he had difficulty retaining information and did not like the classroom environment. He indicated he wanted to move straight into the work placement. However, the ESL classes continued and improvement was noted. It was considered important by the LMR Service Provider that the worker improve his English skills to the grade 8 level, if possible, to improve the possibility of finding employment at the end of the program.
By September 2004, the worker advised the LMR Service Provider that he wished to continue with the ESL program to improve his chances of finding employment; however, it was also being noted the worker had missed six lessons in the month of August. The worker’s academic level was considered to be approximately at the grade 4 level at this time. There was also mention that due to domestic issues, the worker’s wife was no longer driving him to the program and the worker was driving himself even though his licence had been suspended. There were also financial concerns as the worker was not receiving as much on WSIB benefits as he was while he was working.
The worker continued with the ESL classes for the next several months, but on average lost approximately one week per month due to absenteeism. It was noted the worker’s wife was expecting a baby; however, the worker was not advising the LMR Service Provider or school that this was the reason for his attendance issues. A warning letter dated October 12, 2004 was issued to the worker.
By December 2004, the worker’s reading and grammar skills were considered at the grade 5 level.
The worker attended approximately nine months of the upgrading portion of the LMR plan; however, his attendance was sporadic and he continued not to advise the academic institution for the reasons of his non-attendance. There was also a problem with arriving late and leaving early. The worker subsequently indicated this was often the result of relying on others for transportation. The worker testified he had lost interest in the program by this time due to lack of progress and inability to convince himself that future employment in any field was within his reach.
After repeated warnings, the Adjudicator closed the worker’s LMR plan for attendance reasons and adjusted the worker’s LOE benefit rate from January 20, 2005 to coincide with the expected earnings of $8.00 per hour had the worker completed the program. At the time of the final review date in November 2007, the earnings projection represented the low end scale of $10.00 per hour for the SEB. This PLOE benefit rate will remain in effect until the worker turns 65 years of age.
With regards to the warnings the worker received over time, memo 59A of the claim record file provided the following:
April 2003, the worker’s LMR was placed on hold while he sought assistance for his alcohol problem.
On January 30, 2004, a letter was sent the worker advising him the LMR services would be re-opened as he indicated the non-work related problem would no longer be a barrier to the LMR services.
On March 30, 2004, the worker was advised of his obligations.
On October 12, 2004, a final warning letter was given.
A closure letter was sent on January 21, 2005.
There is no indication in the claim record file that the worker objected to this adjustment letter.
The PLOE benefit rate remained in effect until it was time to consider the worker for the final LOE benefit rate. In memo 62 of the claim record file dated October 5, 2006, the Adjudicator noted the worker returned a form 41 stating he was not working and was informed by his doctor that he was unable to work.
In late 2007, the worker returned his 72-month questionnaire and indicated he was not working and had no earnings. He stated he was not in receipt of Canada Pension Plan (CPP) benefits however, during the hearing he indicated he had received social assistance benefits during some of the period after the adjustment in his LOE benefit rate.
The family physician completed an application for Ontario Disability Support Program Benefits (ODSPB) in February 2009 indicating the worker was experiencing mechanical low back pain. According to the application form, the only medication being prescribed for the worker was Celebrex. In the doctor’s clinical notes, it was noted the worker was staying at home in March 2005 (two months after the LMR program closure) and he was taking care of his children. There are two notations dated December 7, 2005 and October 12, 2006, which state “no change” in the worker’s low back condition. Although the worker testified he was being treated every two months by the family physician during this time, the clinical notes provided do not verify this. There are no other medical reports, other than the two previously mentioned notations, regarding treatment after the closure of the LMR program.
The worker stated he presently remains on Celebrex and over-the-counter pain medications. He has a sedentary lifestyle and performs very little of the household duties. His wife currently works and his oldest daughter takes care of the youngest child. He indicated he is basically there for security reasons only. He did mention that his culture did not consider it necessary for him to perform many of the household duties, even if he was physically capable of performing them.
He has applied for ODSBP benefits and has a hearing scheduled for September 2009 to handle his application. He stated he presently sees his doctor every six months and there have been no recent referrals to a specialist.
The worker’s representative provided the following in his summation:
Noting the worker’s lack of transferable skills, language difficulties, his denial that there were other non-work related problems causing problems and his physical impairment, the original SEB was questionable and probably “doomed” from the start.
The worker’s testimony demonstrated he is presently unemployable and unable to work in any capacity. If this was not the case, the worker would have found employment during the last four years.
Although the original adjustment in LOE benefits in January 2005 is presently not an issue in this appeal, a review of the worker’s condition in December 2007 confirmed he was unable to work at the time, even if the LMR program had not been closed.
ANALYSIS:
Although the original choice of SEB is not an issue before me, it is not possible to comment on the present issue without reviewing the SEB and the events surrounding the closure of the program and adjustment in LOE benefits.
Whereas the worker’s representative emphasized the worker’s physical impairment, I have noted that a 14% NEL award is not a significant award when it applies to a back impairment. It is also interesting to note that the specialist commented in late 2003 that there was little actual back pain demonstrated by the worker. This becomes significant when compared to the worker’s own testimony that he was more afraid of actually experiencing an increase in back pain if he were to work, rather than being in constant pain at present. He further testified he was able to drive and still socialized with friends during the day rather than perform household duties.
Based on the actual physical findings present in 2004 and 2005, I consider the worker was partially disabled at the time and capable of performing modified employment. I am aware of the worker’s lack of transferable skills however, the LMR program developed for the worker took this into account and was to provide over a year and half of ESL training to overcome this deficit. It was only after this upgrading that the actual training for the new position would commence. In addition, had the worker co-operated in the ESL portion of his LMR program, there was the possibility of further extension of the time allotted for re-training beyond the original program schedule if it was required.
Therefore, I consider the worker was provided with an opportunity to progress to a level which would have allowed a chance of successful employment being realized had he not imposed restrictions on his attendance. The actual progress reports from the LMR Service Provider indicated that progress was being made, noting the worker was originally at a grade 2 level and had reached a grade 4/5 level at the time of the closure, less than half way through the program.
By 2007, the worker may have lost some of the skills he was given during the LMR program due to lack of practice however, I consider this loss to be attributable to the worker’s actions of poor attendance which attributed to the closure of the LMR program, rather than a short-coming of the course.
In addition, a review of the documentation at the time indicates there were numerous non-work-related factors involved, such as the denial of alcohol being a problem, family issues and the worker’s perception of his role in the family, that were affecting his upgrading.
Thus, I consider the worker was capable of the succeeding in the program had more effort been directed by him into the LMR plan.
With regards to the worker’s level of impairment, I have already commented the 14% award is not one associated with total disability. Of more importance is the lack in the medical reports supporting a conclusion that deterioration has occurred since the NEL rating. There is a lack of medical treatment recorded in the family physician’s clinical notes over the last four years. I also note the ODSBP application form is very similar with regards to the findings from the NEL assessment.
Therefore, I do not consider any deterioration has occurred in the worker’s physical findings to warrant a determination that he is medically totally disabled at present.
In summary, after reviewing the entire claim record file and testimony heard, I conclude the worker’s final LOE benefit rate was correctly calculated. I base this conclusion on the following:
The worker remained partially disabled in 2007.
The worker was demonstrating sufficient progress in the ESL program, even if he was not fully participating, that he should have been able to overcome many of the barriers which were previously limiting his transferrable skills. Thus, the barriers which remained in 2007 were due to the worker’s actions of non-participation which had resulted in the closure of the LMR plan.
It was correct to use the low-end earnings of the chosen SEB at the time of the final lock-in as the worker did have significant barriers to overcome and it would not be unreasonable to assume any employment found would be limiting in its prospects of financial advancement.
CONCLUSION
I conclude the worker’s final LOE benefit rate was correctly calculated.
The worker’s objection is denied.
DATED July 30, 2009
N. Norvack Appeals Resolution Officer Appeals Branch