WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090073
OBJECTION BY: Worker
WORKER: Participated
EMPLOYER: (Not participating)
ISSUE
The worker is objecting to the February 23, 2009 decision which determined he was no longer entitled to full loss of earnings (LOE) benefits following the conclusion of Labour Market Re-entry services.
HOW THE ISSUE ARISES
On September 21, 2006, while employed as a forklift operator, the worker was loading trailers with empty skids when the floorboard on one of the trailers broke and the back wheel of his forklift suddenly dropped approximately eight inches, jarring the worker’s lower back. He was 30 years old at the time of injury and had been employed with this company for approximately six months.
The worker’s claim for a lower back strain was allowed for health care and full LOE benefits. Treatment was conservative, consisting of therapy and medication. He underwent a Regional Evaluation Centre (REC) assessment in the spring of 2007 following which a CT scan was requisitioned. CT scan revealed an L5-S1 asymmetric bulging of the disc on the right side without nerve root impingement. It was the Orthopaedic Surgeon’s opinion the worker would likely have difficulty performing his regular job duties given the worker’s ongoing symptoms and CT findings.
It was determined the worker was left with a permanent impairment as a result of his workplace injury and a Non-Economic Loss (NEL) assessment was arranged. He was subsequently granted a 19 per cent NEL award for his lower back impairment.
Since the employer was unable to provide the worker with modified work, LMR services were initiated. An LMR plan for the Suitable Employment or Business (SEB) of Dispatcher was approved. The worker underwent 72 weeks of upgrading to attain a grade 12 academic level and twelve weeks of dispatching training. He opted not to complete the remaining four weeks of the scheduled LMR plan for job search training since he had accepted employment with his co-op placement employer following completion of the co-op program.
The operating area concluded the worker began earning a wage which equalled his pre-injury earnings. As a result, his full LOE benefits ceased effective the date of hire with his new employer in February 2009.
Several months later, the worker contacted the WSIB to advise he had been laid off from work due to the difficult economic times and requested reinstatement of his full LOE benefits on the basis he had not received sufficient training while participating in LMR services.
The operating area denied the worker’s request on the basis the worker had concluded his training and had restored his pre-injury earnings. The worker objected to this decision. Upon receipt of the worker’s completed Objection Form, the Case Manager upheld the decision to deny further LOE benefits and LMR services and the worker’s file was referred to the Appeals Branch for further review.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
18-03-03 Reviewing LOE Benefits
19-03-01 Overview (Labour Market Re-entry)
19-03-03 Determining Suitable Employment or Business, and Earnings
19-03-05 LMR Plans
Workplace Safety and Insurance Act:
Section 43(2)
Section 43(5)
RESOLUTION METHOD AND PROCESS
The worker submitted a 60 Day Decision Option Form requesting an expedited review of the issue based upon the file information. The employer is not participating in the appeal.
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the applicable law and policy and for the arguments presented.
The worker contends he was not provided with sufficient training in the dispatching program, nor did he receive job search training as had been initially proposed in the LMR plan. He feels he should be permitted to attend Georgian College in a program of his choosing to permit him to secure long-term employment.
Review of the LMR plan submitted to file supports the worker was initially approved for a 40 week upgrading program at Grade Expectations Learning Centre in order to upgrade his literacy and mathematics skills to a grade 10 level. However, the file information supports the upgrading program was extended an additional 32 weeks at the worker’s request to allow him to reach a grade 12 level of academics, thereby increasing his potential employability. Following the upgrading, the worker underwent the three month Dispatcher training program at Progressive Training Centre which included a four week co-op placement opportunity.
The file information confirms the worker successfully completed all components of the Dispatcher training program which began in November 2008 and concluded in February 2009. At the conclusion of the program, the co-op employer offered the worker a dispatcher position at an annual salary of $30,000.
Policy 18-03-03, Reviewing LOE Benefits, records the following in part:
“LMR ends If a worker has a wage loss upon completion of a LMR plan, the LOE benefit is based on the
actual earnings of the worker in the SEB-identified job, see 19-03-03, Determining Suitable and Available Employment or Business, and Earnings, or
most recent wage information for the SEB earnings identified in the LMR assessment, if the worker is not working or is working in the SEB but is under-employed. See "Examples" below. “
After carefully reviewing the file and LMR documentation, apart from the JSTP portion of the program, I find the worker was provided with the appropriate skills and training in order to re-enter the workforce in the SEB for which he was trained. He demonstrated he was able to secure and perform a position which paid him an annual salary of $30,000. As a result, these actual earnings will be used to calculate the worker’s LOE benefits after LMR.
According to memo #80, the Case Manager appears to have used the worker’s pre-injury earnings, i.e. $14.50 per hour, to calculate his partial LOE after the completion of LMR services in lieu of using the worker’s pre-injury escalated rate of pay, as is required.
I note the worker’s pre-injury escalated rate of pay in February 2009 was approximately $619 per week, i.e. $15.48 per hour. He was offered a position with the new employer at $30,000 annually, for a weekly gross salary of $576.92. I find the file evidence supports the worker was and is still entitled to partial LOE benefits after the conclusion of LMR services as the salary paid by the co-op employer was less than his pre-injury escalated rate of pay.
The last component of the worker’s LMR program consisted of the four week Job Search Training Program (JSTP) scheduled with Rehabilitation Network Canada. The worker did not participate in this final portion of the program as a result of securing employment with the co-op employer. The file information confirms the worker lost his position with the co-op employer only a few months after his LOE benefits ceased.
Given that the worker lost his job within a relatively brief period following the conclusion of LMR services, I find he is entitled to the JSTP portion of the plan in order to ensure he has the skills, knowledge, and resources necessary to secure a job within the SEB for which he was trained.
CONCLUSION
I conclude the following:
the evidence supports the worker did not meet or exceed his pre-injury escalated rate of pay after securing a position with the co-op employer in February 2009. He is therefore entitled to partial LOE from February 9, 2009 onwards based upon the difference between his pre-injury escalated rate of pay and the salary paid by the co-op employer, i.e. $30,000 yearly; and,
the worker is entitled to a four week JSTP which is to be arranged as soon as possible. Throughout the JSTP, the worker is entitled to full LOE benefits provided he co-operates in the program.
The worker’s objection is therefore allowed in part.
DATED September 30, 2009
L. Diaz
Appeals Resolution Officer
Appeals Branch