Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20100022
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
ISSUE
This worker has requested entitlement to benefits under Section 147 of the Workplace Safety and Insurance Act (the Act). Benefits have been denied as outlined in the adjudicator’s decisions of March 19, 2009 and July 21, 2009.
HOW THE ISSUE ARISES
This claim was established on January 8, 1977 when this worker fell off a piece of duct work and injured his left knee. On January 17, 1977 the worker was diagnosed with an anterior cruciate tear and surgery was performed February 24, 1977. Arthroscopic surgery was carried out May 11, 1994 and by June 27, 1994, good range of motion was noted and a brace was recommended.
On November 7, 1994, the worker was granted a 5 per cent permanent disability award for the left knee. This was increased to 15 per cent on December 11, 2002. Further surgery was carried out January 13, 2009 and the permanent disability award was increased to 25 per cent after examination on July 6, 2009.
On March 19, 2009, the worker advised the claims manager that his job with his current employer would be lost with a full closure expected by June 2009. As such, the worker requested entitlement to a labour market re-entry (LMR) plan with consideration of supplementary benefits under s147(2) or s147(4).
The adjudicator’s decision of March 19, 2009 indicated that in order to determine if the worker would be entitled to a LMR plan, there would have to be a calculation regarding the escalated pre-accident earnings in combination with the quantum of the pension award to determine if a plan would be required to help the worker meet his escalated pre-accident earnings. The decision indicated that the worker would only need to earn between $9.18 per hour to $10.20 per hour to achieve the escalated pre-accident earnings and since minimum wage as of
March 31, 2009 was increased to $9.50 per hour, it was determined that the worker’s earnings capacity was in a range that would preclude him from qualifying for a LMR plan and supplementary benefits. This decision was upheld in another letter dated July 21, 2009.
The worker provided correspondence on February 9, 2010 indicating that he is in constant pain and discomfort while walking, standing, or even sitting, and he is only able to do minimal activities. His daily living has been greatly affected. As Dana has closed, he has tried to look for work; however, in today’s market and the necessity for a high level of accommodation, he is unable to compete on a “level playing field” for employment and has requested that the Workplace Safety and Insurance Board (WSIB) assist him both financially and vocationally to find suitable and gainful work if possible. The worker’s correspondence indicated he had been on Employment Insurance (EI) benefits but was not able to find work that would accommodate his injury.
AUTHORITY
Entitlement to Pre-1990 pension supplements is assessed in accordance to Workplace Safety and Insurance Act (the Act) Operational Policy Manual Document: 18-07-10, which states the following, in part:
“The WSIB pays s.147(2) supplements to workers who have a wage loss, whether working or not, and
- are likely to benefit from an LMR plan by improving their earning capacity to the extent that it plus the permanent disability benefit would approximate the worker's pre-injury escalated gross average earnings (for accidents before April 1, 1985), or pre-injury escalated net average earnings (for accidents between April 1, 1985 and January 1, 1990).
For the purposes of s.147(2), the WSIB considers the SEB earnings representative of the estimated earning capacity of the worker. The decision-maker adds the worker's permanent disability benefit to the SEB earnings. The sum is the worker's total potential earning capacity. To qualify for a s.147(2) supplement, the total potential earning capacity must approximate the worker's escalated pre-injury earnings. "To approximate" means "to come reasonably close to." No mathematical standard is applied to determine if a worker approximates the escalated pre-injury earnings. The decision-maker must be satisfied that the total potential earning capacity after completion of the LMR plan approximates the worker's pre-injury earnings.
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
o has left the country
o is incarcerated, or
o has removed him/herself from the workforce.”
RESOLUTION METHOD AND PROCESS
The worker has requested a decision in accordance with the Appeals Branch 60 day option process.
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
Technically, this worker only needs to earn approximately minimum wage to approximate the pre-injury earnings. Minimum wage jobs such as gas station attendants, parking lot attendants, et. cetera, do not require an LMR plan. The worker has sufficient skills to perform a minimum wage position and for this reason the worker technically does not qualify for a LMR plan and therefore supplementary benefits under s.147(2).
However, supplementary benefits under s.147(4) can be paid if a worker has a wage loss and is not eligible for a s.147(2) supplement. In other words, the worker does not need training to perform a minimum wage position; however in this case, the worker’s situation has to be considered in terms of whether or not he is physically capable of sustaining a minimum wage position.
Most minimum wage positions require physical activity in terms of prolonged standing at the minimum. As noted in the permanent disability award assessment Memo 72, this worker is restricted from kneeling and squatting, low level work, prolonged standing and walking, climbing ladders and stairs, and heavy carrying. Essentially, this precludes the worker from performing most elemental service-type jobs. In addition, the worker does have a substantial residual impairment in the left knee and Memo 72 has suggested it is possible the worker could require a total knee replacement sometime in the future. As such, the appeals resolution officer (ARO) determines that subsequent to the increase in the permanent impairment, in addition to the increasing age of the worker, he is entitled to supplementary benefits under s.147(4) effective the date of the permanent disability award assessment, July 6, 2009.
CONCLUSION
This worker is entitled to supplementary benefits under s.147(4) effective July 6, 2009 and as such, the worker’s objection is granted in part.
The ARO does not find this worker would benefit from a LMR plan as a minimum wage position could enable the worker to approximate the total potential earning capacity of the escalated pre-injury earnings. Unfortunately, the worker does not really have the physical capability to sustain a typical minimum wage position and as such, the increased physical impairment recognized by the 25 per cent permanent disability award, in combination with the worker’s age, causes him to qualify for benefits under s.147(4).
The worker’s objection is allowed.
Dated: March 18, 2010
S.M. Elliott
Appeals Resolution Officer
Appeals Branch