WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090028
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUE
The worker objects the Suitable Employment or Business (SEB) wage rate used in the calculation of his final Loss of Earnings (LOE) Benefit.
HOW THE ISSUE ARISES
On February 20, 2002, at the age of 36, this worker slipped on a wet surface and injured his groin and right hip. At the time of the injury the worker had been employed for 4 years as a driver earning $19.00 per hour with his employer. The initial diagnosis was right hip and groin strain. After medical investigations it was found that the worker had an injury related disc bulge in the lumbar spine which was treated conservatively.
The worker’s injury reached maximum medical recovery in June 2004, it was then determined that the worker’s ongoing injury of the back was permanent and required permanent modified work. On December 14, 2004 the worker was granted a 16% non-economic loss (NEL) benefit for the residual impairment of the right side of the lumbar spine with radiating pain into the right leg and foot.
Attempts to return to suitable work with the employer failed and the worker was provided with labour market re-entry (LMR) services to enable him to re-enter the local labour market in suitable employment. In order to mitigate as much as possible any potential long term wage loss, the initial LMR plan included academic upgrading with a view to sponsorship in a college level program for a Technical Occupation in Life Sciences. The projected wages after completion of a college program were expected to come close to the worker’s pre injury earnings.
The worker was in receipt of full Loss of Earnings (LOE) benefits during the period of medical rehabilitation and during the time he was in the LMR program.
In July 2005, after completing the majority of the academic upgrading program that was geared to allow him entry into a college program for a Technical Occupation in Life Sciences, the worker withdrew from the program.
Generally, only one LMR plan is provided to a worker. Given the difficulties that the worker was having with the educational component of the target occupation requiring successful completion of a college program, the case manager allowed for an amended LMR plan. The worker’s interests, knowledge, skills, aptitude and his physical abilities were considered for the type of employment he could do without any further educational requirements and the new occupation agreed upon and considered appropriate was that of Security Guard, National Occupational Code (NOC) 6651. The expected earnings for the area of the worker’s residence, Quinte, Ontario ranged from $7.45 at the entry level to $10.50 at the experienced level at that time. As a result, the amended LMR plan was created in August of 2005 with target job of Security Guard and included a Job Search Training Program with an expected completion date of October 7, 2005.
On October 2, 2005 the worker, started a job with a manufacturing company earning $9.00 per hour but this position did not become a permanent job as he worked there for one day.
The worker completed the amended LMR plan and his LOE benefits were adjusted effective October 3, 2005 to reflect his loss of earnings between the pre injury hourly rate of $19.00 per hour and the rate of pay he could earn of $7.45 per hour as a security guard. The entry-level wages were used to calculate his loss of earnings noting the worker had just begun to job search and hence had limited experience in the role. This decision was communicated to the worker and his representative via a telephone conversation and in a decision letter dated October 20, 2005.
At 72 months post injury, the adjudicator conducted a review of the worker’s claim to determine if there continued to be a work related wage loss. The worker indicated on the WSIB Earnings Questionaire dated September 24, 2007 that he was not working and declared that he had no earnings. He also indicted that he had not applied for Canada Pension or Canada Disability Benefits. As the worker continued to have a work related loss of earnings, the case manager concluded that the worker was entitled to the LOE benefit to age 65. The case manager accessed wage information from the Service Canada website for job of Security Guard in the Peterborough area, and used the high-end wage rate (that of an experienced worker) of $18.40 per hour. This wage rate was used to determine the final LOE benefit to age 65. The decision was communicated to the worker in a letter dated March 5, 2008.
On behalf of the worker, the representative disagreed with the wages used to calculate the final LOE benefit. On May 26, 2009, the case manager considered the additional information provided in the representative’s letter of March 12, 2009 and upheld the decision of March 5, 2008.
As the decision remained the same and the worker was dissatisfied, the worker’s representative submitted an appeal on the worker’s behalf.
AUTHORITY
Operational Policy Manual Document:
18-03-06 – Final Loss of Earnings (LOE) Benefit Review
RESOLUTION METHOD AND PROCESS
On behalf of the worker, the representative has opted for a 60 Day Decision. The employer has not chosen to participate.
ASSESSMENT OF THE EVIDENCE
In assessing the issue in dispute I have had regard for all of the information in the claim file and in particular the following categories of information/evidence as summarized below:
Operational policy
The representative’s statements and submissions
Operational policy
18-03-06 – Final Loss of Earnings (LOE) Benefit Review
This policy includes the following criteria with respect to the determination of the final LOE benefit:
“When final review occurs before the worker is able to find a job
The SEB-identified earnings for the purposes of locking in the LOE benefit until age 65 are based on the available wage information as of the LMR plan completion date. Where the final review occurs before the worker is able to find a job, if the WSIB originally used
entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the LOE benefit. This generally occurs if the LMR plan was designed to provide the worker with new skills or if the worker would have entered a new field.
mid-range wages to determine the post-injury earnings, updated mid-range wages are used. This generally occurs if the LMR plan was designed to improve a worker’s existing or transferable job skills, see 19-03-03, Determining Suitable and Available Employment or Business, and Earnings.
Adjusting earnings to that of an experienced worker
The earnings of an experienced worker should reflect the level of earnings most likely achieved by those workers in the SEB that had a full experience doing the job (e.g., had several years of experience in the job). In some cases, this may be at or close to the maximum earnings identified in the wage information, and in other cases, it may not. In selecting earnings to reflect those of an experienced worker, the decision-maker should consider factors such as
the nature of the job (e.g., in some jobs, few workers are able to earn the high-end wages)
the age of the worker (movement into the high-end wages may take many years)
geographic location may limit the number of workers that can achieve high-end wages
level of education and training provided by a LMR plan, and
any other information that may identify wage levels (job rate), such as where pay increases are linked to exceptional performance.”
- The representative’s statements and submissions
In the Objection Form dated April 3, 2009 the representative mentions that the wage selected to determine the worker’s final LOE was inappropriate because:
a) The worker had no training in the role of security guard and has no transferable skills for the job,
b) In 2005 the Security Guard (NOC) 6651 job had a wage rate of $7.45 at the entry level and $10.50 at the high end in the Quinte area, thus a high end wage rate of $18.40 in 2008 appears to be an inaccurate figure,
c) The 2005 wages of $10.50 should have been used at the final LOE review,
d) Given that the worker lives in Campbellford, wages for the Quinte should have been used, not Peterborough,
The worker’s representative submitted:
a) Labour market information from Service Canada showing an average salary of $12.53 for Security Guards in 2009,
b) Job advertisements from Jobfutures.ca with Service Canada, which provided numerous posting and two within the worker’s commute. The job in Belleville paying from $8.75-$12.90, the job in Quinte paying $13.34,
c) Job requirement criteria for four jobs was included: three of which indicated a requirement of a Grade 12 Diploma and all required a security check. One job did not require a Grade 12 Diploma and was advertised at a wage rate of $9.50.
He has requested that the worker’s final LOE benefits be based upon a wage of $10.50.
ANALYSIS
The worker’s LMR plan was amended in 2005 to accommodate the worker, the new occupation agreed upon was that of Security Guard with projected earnings for the Quinte area ranging from $7.45 at the entry level to $10.50 at the experienced level. The case manager selected the entry-level wages to make LOE payments to the worker after completion of the LMR plan in October 2005, because the worker was to undertake a job search in a business which was a new field to the worker and he had no experience in the work. It fell to reason that when hired in a new job without experience, he would likely be hired at entry-level wages.
Policy 18-03-06, Final Loss of Earnings (LOE) Benefit Review, indicates that when entry-level wages are used to determine post-injury earnings, updated entry-level wages are used in cases where the worker is unable to find a job at the time of the final LOE review. This is applied in cases where a worker is provided with an LMR plan that was designed to provide new skills or if the worker would have entered a new field and due to a shortened limit time between the completion of the LMR plan and the date of the final review, as it would not be fair to the worker to determine long term earnings based upon earnings of an experienced worker.
In looking at the circumstances for this worker, the LMR plan provided the worker with a new occupation, but only included a job search training program because the worker has transferrable skills that are applicable to the occupation of Security Guard without training. The LMR completion date was October 21, 2005 and the final review date was March 5, 2008.
Hence, the worker was equipped to undertake a Security Guard job upon completion of the LMR plan and had been given the skills to job search and had over 2 years to find a job.
Given the above, I cannot conclude that the worker was unable to find a job due to a short span of time between the LMR completion date and the final LOE review date or because he did not possess the knowledge, skills and ability to undertake the work of a Security Guard. This being the case, I conclude that the worker is not entitled a wage loss at the final LOE review based upon updated entry-level wages.
The same policy also provides that in cases where a worker is not currently employed at the time of final LOE review, the final LOE earnings are adjusted to reflect those of an experienced worker.
In this case, the worker did work in October 2005, the length of employment and reasons for discontinued employment are not clear. The worker declared on the Earnings Questionaire of September 24, 2007 that he was not working or earning any money from self employed income at the time of the final LOE review. The case manager determined that the worker had a continued wage loss but because he was currently unemployed, that his wage loss be based upon the earnings of an experienced worker. The earnings used to calculate the wage loss were from 2006 and the area selected was Peterborough. The wages cited for 2006, from low end to high end, are: $8.25, $10.54 and $18.40. These earnings were obtained from the Service Canada website, Labour Market Information and a print-out of the information was attached to the decision letter of March 5, 2008. The adjudicator selected the high-end or maximum wage to calculate the final LOE rate.
I agree with the case manager’s interpretation of the policy that recommends adjustment of the final LOE earnings to that of an experienced worker. The policy does not however stipulate that the maximum wage be used when selecting the earnings for experienced workers. Experienced workers may earn between mid-range to high-end wages. Consideration of the individual circumstances should be given when determining the final wage rate between mid- range wages and high-end wages.
In this case, the following circumstances support that the usage mid-range wages be used to determining the final LOE benefit for this worker:
the worker did not have any work experience doing the job of a Security Guard to be considered fully qualified, therefore it is unlikely that he would have been able to achieve a high-end salary,
the worker does not have a Grade 12 Diploma, thus reducing the number of potential jobs,
the worker’s geographic location limits the number of potential jobs.
In light of the above, I find that the usage of the maximum wage rate of an experienced worker is not appropriate in this case. Mid-range wages at the final LOE review more closely match the individual circumstances of the worker at the time of the final LOE review.
The representative has argued that wages for the Peterborough area should not have been used to determine worker’s final LOE benefits.
I note that, before the injury the worker drove from his residence in Whitby to his job in Scarborough which is about 38 kilometres each way. After the injury he moved to Campbellford. This rural area is about 47 kilometres from Belleville (Quinte area) and about 58 kilometres to Peterborough. These two cities are the closest locations to him where he would likely be able to obtain work as a security guard. The worker would be aware his move to a rural area could impact his proximity to available work and lengthen his commute.
Therefore, I agree with the adjudicator’s selection of Peterborough as an area that the worker could commute to obtain work noting the proximity to his residence. However, the area of Quinte, should also have been considered when determining the final LOE benefit, noting it is closer to the worker’s residence and noting it was used in the amended LMR Plan.
The representative requests that 2005 earnings be used for the final LOE benefit. The policy provides that updated earnings be used at the final LOE review. Hence, I agree with the adjudicator’s usage of updated earnings to determine the final LOE benefits.
In conclusion, having regard for the policy criteria and the worker’s circumstances at the time of the final review, I find that, the worker’s final LOE benefit was correctly adjusted to earnings of an experienced worker for the job of Security Guard (NOC 6651); however, the use of the high-end or maximum wage rate is not appropriate when considering the worker’s circumstances and I find that mid-range earning more closely match the worker’s vocational profile. I also conclude that the selection of the final LOE wage be based upon wages for the geographic area of Quinte.
Updated earnings reflecting the date of the final LOE review are to be used to calculate the final LOE benefit in accordance with policy.
CONCLUSION
The worker’s objection is allowed in part. The business unit is requested to determine the worker’s final LOE benefit based on updated mid-range wages in the area of Quinte for the job of Security Guard (NOC 6651).
DATED August 28, 2009
G. Matthew Appeals Resolution Officer