2009 CanLII 75648

Workplace Safety and Insurance Board

APPEALS RESOLUTION OFFICER DECISION

Decision Number: 20090055

Worker: Worker Rep: Employer: (not participating) Objection by: Worker Nature of Enquiry: Decision without oral hearing

ISSUE:

1The worker objects to the decision of the case manager dated November 8, 2008, denying reimbursement for a computer purchase, and the licensing fee to carry out her job duties.

HOW THE ISSUE ARISES:

The worker was employed as a hatchery labourer. This claim was established with an accident date of July 25, 1997, when the worker developed low back pain while performing her job duties. The workers symptoms progressed to the point where she was unable to continue working as of October 23, 1997.

Entitlement in this claim was initially denied. In a decision dated October 31, 2002 an Appeals Resolution Officer (ARO) allowed entitlement in this claim and paid temporary total disability benefits from October 23, 1997 until September 14, 1998. Entitlement to benefits beyond that date was left to the discretion of the operating area.

The ARO decision also concluded the worker had a permanent impairment as a result of the workplace injury, and in April 2003, the worker was granted a 23 percent non-economic loss award.

The operating area ultimately denied entitlement to benefits subsequent to September 1998 as the worker was not considered to have been involved in self-directed Labour Market Re-entry (LMR) activities. The worker did eventually return to work on May 31, 2004 in automobile sales. The ARO decision dated August 30, 2007 accepted that for part of the period of time in question the worker was involved in self-directed LMR activities, and therefore allowed full benefits from January 1, 1999 until January 1, 2001.

The August 2007 ARO decision also concluded that since the worker was not provided with an opportunity to participate in an LMR program, the costs she had incurred for her initial computer purchase was a reasonable expense related to improving her employability, and therefore she should be reimbursed for these costs. There was also an issue raised regarding software upgrades, and the purchase of a second computer the worker had purchased after the first one had malfunctioned, however the ARO denied this request.

In a decision dated September 23, 2008, the Workplace Safety Insurance Appeals Tribunal (WSIAT) denied full benefits from January 1, 2001 until May 31, 2004 and funding for the purchase of the worker’s second computer and associated upgrades.

In implementing the decision of the ARO, the case manager requested the invoice for the initial computer the worker had purchased sometime in 1999. The worker was unable to provide this information as she no longer had it available. However the worker did provide the invoice for the second computer that she purchased in March 2003. However, the adjudicator did not accept this as being appropriate and has since refused to reimburse the worker for the costs of the computer, which had been allowed by the ARO decision.

The case manager has also denied entitlement for reimbursement of the $175 licensing fee, renewable every two years, which the worker has incurred in order to continue working in automotive retail sales.

Authority Reference

19-03-06 LMR Expenses

ASSESSMENT OF EVIDENCE AND SUBMISSIONS:

In arriving at my decision, I considered the information in the claim file, the relevant sections of the Act, and the appropriate operational policies.

Having reviewed all of the available information, the following is a summary of my assessment/observations:

• The applicable policy states that the WSIB pays the necessary expenses related to a labour market reentry assessment and plan.

• One of the conclusions reached by the August 30, 2007 ARO decision states; “As the worker was not provided with an opportunity to attend an LMR program, I find the cost of the first computer purchase to be a reasonable expense related to improving the workers employability.” This decision clearly allows entitlement for the workers initial computer she purchased sometime in 1999, and there has been no doubt raised about the fact the worker did indeed purchase a computer, taught herself to use different software programs that eventually had a positive impact on her ability to re-enter the workforce.

• The question is not if the worker should be reimbursed for her initial computer purchase, but rather how much. While on the surface it makes sense for the case manager to request the invoice from the worker so that she could be reimbursed, I find it is unreasonable to conclude that she should not be reimbursed for the computer purchase because she is unable to produce the initial invoice. Quite frankly, it comes as no surprise that in late 2007 the worker would no longer have access to an invoice for a computer that she purchased approximately 8 years earlier. Additionally, she would not have a need to keep the invoice when considering the fact that this first computer had malfunctioned, and had to be replaced in early 2003.

• The worker has been able to provide the invoice for the second computer, which she purchased in March 2003. When one considers the rapid technological change and declining computer costs as their use became more prevalent and widespread, I find it is reasonable to conclude the amount paid by this worker for the purchase of her second computer in March 2003 was roughly equal to what she would have paid for the initial computer sometime in 1999. Therefore the information submitted by the worker indicating a total cost of $1007.24 for the cost of her computer is accepted as being a fair and equitable estimate of what she would have paid for the first computer.

• In terms of the reimbursement for licensing fees, as has been noted in the August 2007 ARO decision, the worker was not provided with any LMR program as by the time her appeal had been resolved, she had already returned to the workforce in May 2004. There is no indication anywhere in the file that the job objective ultimately pursued by this worker is considered to be inappropriate or unreasonable for her, and it has been accepted that the workers purchase of a computer enhanced her skills and employability that allowed her to ultimately seek employment in automotive retail sales. Given the fact that the Ontario Motor Vehicle Association requires individuals in this field to pay a $175 licensing fee that is renewable every two years, I accept that the initial costs incurred by this worker to work in this field would have been an expense reasonably covered by any LMR program that would have been implemented.

• Although it is justifiable to pay for the workers licensing fee when she first entered the field of retail automotive sales, the responsibility of ongoing license renewal would rest with the worker. I base this conclusion on the fact that by the time she would have been required to renew her license through the Ontario Motor Vehicle Association, she would have been in a position to establish herself in this field over the two-year timeframe and the license renewal fee would be a small and reasonable expense that all workers in this field would incur. Once the worker has established herself in the job objective, it would in my view not be appropriate to require the WSIB to pay for the licensing fee renewal ad infinitum.

CONCLUSION:

Based on my review of all the available information, I have arrived at the following conclusions.

1. The worker is to be reimbursed $1,007.24 for the cost of her computer.

2The worker is to be reimbursed the initial $175 licensing fee she paid to the Ontario Motor Vehicle Association in order to pursue employment in retail automobile sales. Ongoing renewal of this licensing fee is the responsibility of the worker.

The workers objection is therefore, allowed in part.