WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090060
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVE: Worker Representative
HEARING DATE: August 11, 2009
ATTENDEES: Worker, Worker Representative, Employer
ISSUES
The worker representative is objecting to the suitability of the Suitable and Available Employment or Business (SEB) – NOC 6465 - Other Protective Services – Private Investigator.
The worker representative is objecting to the earnings information used to calculate the Future Economic Loss (FEL) benefit at the first review (referred to as R1) from May 1, 2004 to May 1, 2007 and at the final FEL review (referred to as R2) from May 1, 2007 to November 1, 2021.
HOW THE ISSUES ARISE
The Appeals Resolution Officer (ARO) decision of August 20, 2008 directed a Non-Economic Loss (NEL) redetermination of the existing 15% NEL award for the worker’s bilateral knee condition. Once the NEL redetermination was completed, the operating area was to review the suitability of the SEB that had been previously approved and the earnings used to calculate the monthly FEL award at R1 and R2.
The NEL redetermination for the worker’s bilateral knee condition resulted in an increase in the NEL quantum from 15% to 25%. Following the increase in the NEL quantum, the Adjudicator reviewed the suitability of the SEB and found that although there had been an increase in the NEL quantum, the SEB remained suitable.
The Adjudicator reviewed the earnings used to calculate the payment of the FEL benefit at R1 and R2 and determined the earnings used in the calculations were appropriate. The Adjudicator issued the decision letter dated January 8, 2009 that included the decision that the SEB was suitable and the earnings used at R1 and R2 were appropriate.
The worker representative has objected to the decisions provided in the letter dated January 8, 2009 with the letter dated January 15, 2009 and these matters are now before me.
AUTHORITY
18-04-14 – Reviewing FEL Benefits (Prior to Final Review)
18-04-20 – Final FEL Benefit Review
19-03-03 – Determining Suitable and Available Employment or Business, and Earnings
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and have considered the evidence and testimony.
Testimony
The worker testified that his retirement from the employer was because of work related injuries involving the right shoulder, low back and knees and the fact that the employer was not able to provide him with permanent modified work to accommodate the restrictions for the work related areas of injury. The worker feels that the union, the employer and the company doctor at employer felt that the worker was a good candidate to retire.
The worker confirmed having completed a degree in Law Enforcement at Humber College and working as a security guard at various employers prior to being hired by the employer. The worker felt the work in general, as a security guard, required lots of walking, stair climbing as well as having to be physically able to restrain an individual if a situation such as this presented itself.
When the Labour Market Re-Entry (LMR) Plan was being developed, the worker testified that a Suitable and Available Employment or Business (SEB) was selected. The worker said that the SEB was discussed with the Adjudicator at the time but the worker was told by the Adjudicator that the LMR Provider had the last say in the SEB determination.
The work testified that the SEB of Private Investigator was probably achievable academically but not sustainable based on the physical limitations for the right shoulder, low back and both knees. The worker agrees with the physical restrictions that have been identified on record for the bilateral knee condition. The worker stated there was an objection to the SEB and felt that an Outfitter would have been a viable SEB however was told this was self-employment and not accepted in the LMR Process
The worker stated that it was always his intention to move back to the Sudbury area after retiring and that the LMR Provider was aware of this when the LMR Plan was being developed. The worker stated that when it was time to enrol in the Private Investigator program, the program was full. The worker did not attend Durham College and withdrew from the LMR Plan as the family home in Ajax had been sold and a new home had been purchased in the Sudbury area where the worker resides now.
The worker moved from Ajax to Sudbury and basically there was minimal effort by the worker to initiate further LMR services once the move was complete. The worker moved to a 50 acre farm with fields and hired someone to work the farm as he doesn’t own a tractor or he would do the work himself. When asked specifically if contact had been made with the WSIB office in Sudbury after relocating to that area, the worker said no, there had not been. I didn’t get the impression from the worker that his current lifestyle was sedentary as when I asked the worker to describe an average day for me it included grass cutting, and working at getting some firewood.
The worker has had aggravations of the bilateral knee condition on occasion but could not be more specific. The worker does not have a family doctor and has been refused by a couple of doctor’s as a patient but does go to walk-in clinics for medication refills as needed. The worker said at one point a doctor had indicated that further surgery on the knees would be required and further use of the knees would mean further deterioration.
The worker has not been actively searching for employment since the closure of the FEL supplementary benefit on September 11, 2002. The worker was asked if employment had been secured since relocating to the Sudbury area and the worker answered there had not.
The worker representative in the closing statement referred to the prior ARO review memo dated December 10, 2007 where the ARO wrote “on first blush I would be willing to adjust the R2 earnings to reflect updated mid range. This would likely be more reflective of a full experienced worker than the high wage used”. The worker representative feels that adjusting the earnings used to calculate the R2 benefit to mid range would be more reflective of what a person working in the SEB would earn.
The employer in closing stated that the SEB of Private Investigator is an appropriate choice based on the worker’s restrictions and the fact that the restrictions have not changed since initially being determined and that these same restrictions for the right shoulder, low back and bilateral knee impairment were taken into consideration when the SEB was determined. A comparison of the worker’s physical restrictions and intellectual aptitudes once the training program had been completed confirms the suitability of the SEB.
The employer submitted the worker chose not to pursue LMR services once relocation was completed and that there is no evidence on record to show otherwise. Also submitted is that the combined amount of the monthly pensions being received from the employer and CPP as well as the monthly FEL benefit are not much of an incentive to work.
The employer in closing submitted that the worker chose to relocate and therefore the earnings that should be used to calculate the FEL should be based on the wages of an experienced worker working in the same field in Ajax.
Analysis
The ARO decision of April 16, 1997 accepted entitlement on an aggravation basis for the worker’s bilateral knee condition - patellofemoral syndrome, and allowed the payment of temporary total disability benefits from September 27, 1994 to February 13, 1995 and relief from the Second Injury and Enhancement Fund (SIEF) at 75% on all costs acknowledging the pre-existing condition.
An ARO Agreement of August 9, 2001 allowed continuing entitlement in the claim for a recurrence and left the extent an duration of benefits up to the operating area as well as increasing the SIEF to 90%.
A further ARO decision of December 12, 2002 upheld the denial of temporary total disability benefits by from August 23, 1999 to January 2002 and found the payment of temporary partial disability benefits for this period to be appropriate.
The ARO review memo of December 10, 2007 does state under the action heading that the ARO would have been willing to adjust the R2 earnings to reflect updated mid range as this would likely be more reflective of a fully experienced worker than the high wage used. To clarify, a review memo is just that a review of the case and is not a final decision and not a finding of fact. The ARO did not conclude in his decision on this issue.
The workplace parties agreed prior to the ARO decision of August 20, 2008 that the NEL redetermination would take place first. Once the NEL redetermination was completed, a review of suitability of the SEB and the estimated earnings used to calculate the monthly FEL awards at R1 and R2 by the Adjudicator.
The worker’s bilateral knee impairment prevented the worker from returning to the pre-injury job and the employer was not able to permanently accommodate the worker with modified work, within the restrictions for the right shoulder, low back and bilateral knee condition and subsequently the worker was referred to an LMR Provider to develop a LMR Plan.
Although I am not making a finding on this matter, I am not able to locate a prior claim or subsequent claim for either the right shoulder or low back for which the worker has a recognized permanent impairment of function by WSIB either by a pension (date of injury prior to January 1, 1990) or a NEL award (date of injury on or after January 2, 1990).
The record reveals the worker had a post secondary degree in Law Enforcement from Humber College. The LMR Plan was developed and submitted for approval with the recommended SEB. The LMR Plan required the worker to attend academic upgrading from May 13, 2002 to August 9, 2002 followed by a 1 year Public and Private Investigations Program at Durham College from August 10, 2002 to April 30, 2003. A Job Search Training Program was scheduled from May 1, 2003 to May 31, 2003.
The permanent restrictions identified on record by the WSIB Medical Consultant, a doctor on staff at WSIB are as follows:
No repetitive crouching, squatting, prolonged walking on uneven ground or repetitive ascending/descending of stairs.
The Adjudicator examined the LMR Plan and determined the SEB was within the worker’s physical restrictions and viable. The worker signed the LMR Plan and there is no evidence on record that the worker objected to the SEB. To clarify, the LMR Provider is not the decision maker when it comes to determining whether or not an LMR Plan and a SEB are appropriate, this is a decision rendered by the Adjudicator at WSIB.
The worker completed the upgrading portion of the LMR Plan despite an absence for non-compensable left hand surgery from June 17, 2002 to July 4, 2002 and applied for enrolment in the 1 year Public and Private Investigations Program but was placed on a waiting list as the course was full. It was also at this time the worker advised the Adjudicator there was a permanent move being planned to the Sudbury area.
FEL supplementary benefits were closed on September 11, 2002 and converted to the monthly FEL award only as the worker had withdrawn from the LMR Plan and was moving to the Sudbury area. The record confirms the worker was advised by the Adjudicator that the FEL Supplementary benefits were closing and that perhaps the approved SEB may have to be revisited as it might not be a viable SEB in the new place of residence. The worker was advised that if the LMR services were to be restarted, a referral could be made to an LMR Provider in Sudbury and full supplementary benefits restored.
There is no indication on record that the worker contacted WSIB for any reason between September 11, 2002 and January 21, 2004 when the Adjudicator was preparing to review the claim as the R1 date was approaching. The Adjudicator used wages from actual job offers from the HRDC website and the average wage was $14.97 per hour. The FEL at R1 was based on this wage and a 40 hour work week. The FEL R1 was paid from May 1, 2004 to May 1, 2007. I find the wage used to calculate the FEL R1 benefit to be accurate and in keeping with policy as the worker was not employed in the SEB at the time of the review. The salary is based on the mid-range wage from actual job offers in Southern Ontario.
The FEL R2 monthly benefit was calculated using the wage for the SEB in the Sudbury Area. The entry wage is $9.35 per hour, mid range $14.85 per hour and the high range is $21.25 per hour. The Adjudicator determined the high wage was to be used to calculate the FEL R2 benefit from May 1, 2007 to November 1, 2021 (age 65). In my view, the Adjudicator understood the policy as it is referenced in the decision memo. It is also noted that the Adjudicator used wages from the Sudbury Area and not Ajax the place the worker resided when the LMR plan was accepted. There are currently jobs advertised through the HRDC website for the approved SEB with the wages ranging from $18.00 per hour to $25.00 per hour in Southern Ontario.
In my opinion, the wage of $21.25 is a mid-range wage when looking at the range in earnings for the current jobs advertised in Southern Ontario. It is quite conceivable the worker would have been employed in the SEB following the completion of the LMR Plan and would have had job experience in the SEB.
In my view the LMR Plan for the worker was designed to improve the worker’s skills and transferrable job skills noting the fact the worker had previously earned a college degree in Law Enforcement and had some work experience as a security guard. The worker agreed with the SEB at the time and signed the LMR Plan and there is no evidence on record that the worker objected to the SEB. The worker completed the upgrading portion of the LMR plan prior to relocating to St. Charles, Ontario and assuming ownership of a 50 acre farm.
It is clear in my opinion that the worker did not make any attempt to resume LMR Services once settled in the Sudbury area. The worker readily admits that there were no job search efforts to secure employment on a regular basis either on a full time or part-time basis. The worker agreed with the permanent physical restrictions on record for the bilateral knee condition and it is noted that these restrictions have not changed since 2001, despite the increase in the NEL quantum and these same restrictions were used to determine the suitability of the SEB.
I find the wage used to determine the FEL benefit at R1 and R2 to be appropriate and in keeping with policy and although I do find the earnings used to calculate the monthly benefit at each of these reviews accurate, I am not identifying the worker as an experienced work, but rather a worker who would have had the necessary skills and abilities to secure employment in the approved SEB within the range of earnings provided for the SEB. The application of earnings for the SEB based on Southern Ontario wage possibilities is also accurate in that the worker chose to relocate to Northern Ontario and had withdraw from the LMR Plan.
In my opinion the workers efforts since the closure of FEL supplementary benefits do not demonstrate that the worker has made efforts to mitigate the wage loss incurred due to the work injuries covered under this claim. The worker did not capitalize on the opportunity that was available in terms of completing the LMR Plan in order to become gainfully employed.
In my view the evidence on record supports the SEB of Private investigation was suitable and the worker was capable of achieving his goal both intellectually and physically.
The earnings used to calculate the FEL benefit at R1 are mid-range wages for the SEB and the earnings used to calculate the FEL benefit at R2 are mid-range and reflect the wage the worker could possibly be earning if employed in the approved SEB whether residing in Ajax or St. Charles, Ontario.
Although the worker claims unable to physically do the SEB of a Private Investigator, this is in direct contrast to evidence and testimony. The worker never objected to the SEB, he completed the upgrading portion of the LMR Plan and did not voice any physical concerns with the SEB. Further to this is that the worker testified that a SEB he would have been interested in would have been an Outfitter which in my opinion is certainly more physical in nature that the SEB of a Private Investigator. The worker also testified that if he owned a tractor he would be able to do the work on the farm and in my opinion confirms the worker feels capable of being physically active.
It is noteworthy that the worker is currently receiving a pension from the employer of approximately $1000 to $1100 per month, approximately $1000 to $1100 per month in CPP benefits and the monthly FEL award of $653.05 under this claim. The worker has not actively searched for employment since relocating to St. Charles, Ontario and with the monthly income stated above and perhaps revenue generated from the farm, I would agree with the employer representative that this would not equate to an incentive to return to work.
CONCLUSION
The SEB of Private Investigator is appropriate and within the worker’s physical restrictions and these restrictions are unchanged despite the increase in the NEL quantum.
The earnings used to calculate the FEL R1 and FEL R2 benefits are appropriate and in keeping with the applicable policies.
The worker’s objection is denied.
DATED August 21, 2009
C.Anzil
Appeals Resolution Officer
Appeals Branch