WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20090092
OBJECTION BY: Worker
REPRESENTATIVE: Worker
EMPLOYER: Not Participating
ISSUE
The worker is objecting to the claims decision dated January 5, 2009 that denies entitlement to supplementary benefits under Section 147(4) of the Worker’s Compensation Act (WCA).
HOW THE ISSUE ARISES
On June 11, 1984 this then 28 year old construction labourer lifted a 220 lbs beam and felt back pain. Initially the worker was diagnosed with a low back strain however upon further investigation it was noted the worker had unstable spondylolisthesis grade 2 at L5 on sacrum with no neurologic disorder.
On November 7, 1986 the worker underwent a posterior fusion of L4 to L5 with right posterior iliac bone graft. On May 13, 1987 the worker’s surgeon reported that although the worker still had considerable concern and protective attitude to his back, the worker was encouraged to increase his exercise activity to recondition his back. It was anticipated that the worker would have significant improvement in his pain. On September 16, 1987 this specialist indicated that the worker had recovered sufficiently that rehabilitation into some form of work should now be considered. The worker should not return to work in the construction industry and should not do work with heavy lifting. He also indicated that the worker would require some symptomatic treatment for back pain from time to time should his back pain get bad.
On April 14, 1989 the worker was assessed for a Permanent Disability (PD) Award and was granted a 30% award on a provisional basis for two years as there was a reasonable expectation of future improvement.
On August 7, 1991 this PD Award was reassessed and confirmed with the findings of symptom magnification and functional overlay and an expressed concern at the worker’s level of inactivity and consequently long term prognosis.
There is no further medical information beyond this report.
The worker became involved with a Vocational Rehabilitation (VR) Counsellor in December 1987 to assist him in returning to the work force. It was confirmed that the employer did not have modified work for this worker therefore retraining was explored. The worker underwent psychological vocational assessment in January 1988 that confirmed the worker had some potential for academic upgrading at the community college level, however the worker did not express a strong interest in this. The worker was then referred to a 12 week pre-vocational assessment in June 1988 however this assessment was cancelled by the Occupational Therapist as the worker’s pain levels were interfering. Further treatment was recommended.
The worker did undergo further treatment which was completed in September 1988. He met with the VR Counsellor and the pre-vocational assessment was again offered to him. The worker declined the program as he felt it was of no value to him. The worker had apparently found employment as a security guard on a construction site however this job only lasted two weeks as the worker could not cope because of his injury. In November 1988 the VR Counsellor again offered the worker pre-vocational programs in several venues however the worker declined. At that time the worker indicated he was interested in applying for Canada Disability Benefits and there was a possible caretaking position at a local dump that he was interested in. In January 1989 the VR Counsellor again followed up with the worker who confirmed the caretaking job did not materialise for him. Further services were discontinued as the worker did not wish to pursue further VR but sought financial self-sufficiency elsewhere.
There was very little interaction with the worker beyond this point with the exception of the PD assessments and inquiries regarding medication until 2008 when the worker obtained representation who requested entitlement to 147(4) benefits.
These benefits were denied as outlined in the January 5, 2009 decision and the worker is now objecting to this decision.
AUTHORITY
Operational Policy Manual document:
Policy #18-01-10 Pre-1990 Pension Supplements
RESOLUTION METHOD & PROCESS
The worker requested a decision without a hearing based on claim file information. The employer is not participating in the appeal. No further submissions were provided.
ASSESSMENT OF THE EVIDENCE
In reaching my conclusions I considered the claim file evidence as well as relevant policy and legislation.
Supplementary benefits under Section 147(4) became available as of July 26, 1989. As confirmed in Policy #18-01-10:
If a worker is unable to benefit from an LMR plan or following completion of an LMR plan, did not increase his/her earning capacity to the extent expected, that worker may be entitled to a supplement under s.147(4). The amount of either supplement is determined by a calculation formula.
The WSIB pays s.147(4) supplements to workers
- who have a wage loss but are not eligible for a s.147(2) supplement, or
- whose earning capacity, after participating in an LMR plan and receiving a supplement under s.147(2), did not increase to the extent that the worker's total potential earning capacity approximated the escalated pre-injury earnings.
The WSIB does not pay s.147(4) supplements if the decision-maker cannot determine if a worker would benefit from an LMR plan and be entitled to a section 147(2) supplement because the worker
- refuses to participate in an LMR plan
- is uncooperative in an LMR plan, or
- would benefit from an LMR plan but
- has left the country
- is incarcerated, or
- has removed him/herself from the workforce.
This supplement is payable to age 65 and along with this benefit is another supplement payable under Section 147(14), known as the $200 additional payment (monthly) which is payable for life.
I previously summarized the events of this case and note that in 1991, at the time of the PD Reassessment, these supplementary benefits were available for consideration however they were not allowed. I also note that the worker’s request for Canada Disability Benefits was denied.
The representative noted in his letter dated December 2, 2008 that the pre-vocational assessment was terminated by the Occupational Therapist and not the worker and it was also this therapist who recommended applying for Canada Disability Benefits.
I note the December 7, 1988 VR report that outlines the worker sought Canada Disability Benefits as he believed he would receive more from this source than from any employment he would obtain, but it was his intent to secure light labour positions in his area of residence. The worker was advised at that time that the only benefit he would continue to receive was his PD award once it was assessed and the worker understood this and proceeded with this course of action.
Subsequently the worker’s request for Canada Disability Benefits was denied and he declined any further VR assistance as outlined in the VR closure report dated February 8, 1989.
I find the representative’s assertions in his December 2, 2008 letter misleading in that it refers only to that one point in time where it was noted the worker was unable to continue with the pre-vocational assessment and does not refer to all of the activity that took place subsequently.
As noted in Policy #18-01-10 this supplementary benefit is only paid in situations where it is determined that the worker would not benefit from an LMR (then VR) program and/or is incapable of restoring his pre injury earnings. In this case the worker chose not to continue with VR services having determined that he would establish financial security from other sources. From a medical perspective there is no indication that this worker was incapable of returning to work, in fact the medical reports confirm that the worker should be increasing his activity and looking for suitable work.
Based on the facts of this case, I do not believe that the criteria to allow supplementary benefits under Section 147(4) of the WCA have been met. There is no indication that the worker would not have benefited from a VR program, one was in fact offered to him and he declined it.
CONCLUSION
Based on the facts of this case, I conclude that the worker would have benefited from a VR (now LMR) program. He is therefore not entitled to supplementary benefits under Section 147(4) of the WCA.
The worker’s objection is denied.
DATED August 20, 2009
C. D’Angelo
Appeals Resolution Officer
Appeals Branch