WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100063
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
ISSUES
- Denial of apprentice status
- Denial of use of minor’s rate
- Denial of a psychological impairment
HOW THE ISSUES ARISE
The worker was hired as a carpenter’s helper on June 11, 1990. That same day he suffered a serious traumatic injury when a nail he was striking with a hammer entered his right eye. He was 17 years old at the time.
He was diagnosed with a laceration of the right cornea and traumatic injury of the cataract. He underwent extensive surgery and eventually had an evisceration surgery on February 24, 2004 and artificial eye implant in April 2004.
He now has a Non-Economic Loss (NEL) award totalling 35% for his permanent right eye injury.
The injury prevented him from returning to his pre-injury job. He was provided job skills and job search assistance to help him secure work that was within his capabilities and that would restore his pre-injury earnings of $6.50/hr. His Future-Economic Loss (FEL) awards have been calculated based on his pre-injury earnings.
His representative requested the pre-injury earnings be adjusted using an apprentice’s rate but the request was denied as there was no evidence the worker was enrolled in an apprenticeship program. His claim was also reviewed to see if his compensation rate could be calculated by using the average industrial wage at the time of his injury but the worker was not a student at the time of his accident.
His claim was also reviewed for psychological entitlement; however, this was denied as there was insufficient evidence that he suffered from an ongoing psychological impairment related to his accident.
The worker objected to these decisions and the matter was referred to the Appeals Branch for further consideration.
AUTHORITY
Relevant operational policies
12-04-13 – Apprentices
12-04-07 – Students in Work Education Programs
15-04-02 – Psychotraumatic Disability
18-04-10 – Calculating FEL for Students, Learners and Apprentices
18-06-01 – Calculating Temporary Total Disability Rate
RESOLUTION METHOD AND PROCESS
The worker’s representative informed me by voicemail on May 19, 2010 to proceed to a final decision on the above issues with the information currently on file. There were no further submissions.
The employer did not participate in the appeal.
ASSESSMENT OF THE EVIDENCE
I have carefully considered all of the available information and relevant operational policies in reaching this decision.
Pre-accident rate
The worker was injured on the day he was hired. The employer’s report of injury (Form 7) indicates he was hired as a full-time employee at $6.50/hour. He was not identified as an apprentice.
When his file was reviewed for a FEL award, it was determined he could not return to his pre-injury employment because of his injury. A Vocational Rehabilitation referral found he had limited work experience due to his age. Vocational testing found him to be in the low average range of intellectual ability which made him an unsuitable candidate for upgrading. He had a grade 10 education.
He was provided a short-term vocational rehabilitation program that gave him job searching skills. He was expected to be able to restore his pre-injury wages or with a small wage loss. His initial FEL was paid from August 1992 to August 1994.
The worker was contacted on August 5, 1994 and stated that he had not planned to return to school after he hired by his employer in June 1990 and planned to remain in the job had the accident not occurred. The FEL Adjudicator who recorded the information determined that there was no basis to recalculate the pre-accident earnings using the policy for student workers.
The worker was working at a shoe factory at the time and earning $8.22/hour, which was lower than his escalated pre-injury net average earnings. He was again given a FEL award from August 1994 to August 1997 to recognize the continuing wage loss.
At the time of the final FEL review in August 1997, it was felt he would have a difficult time locating work that paid more than the minimum wage and would continue to suffer a wage loss. A FEL award was implemented from August 1997 to February 2038, when he turns 65 years old.
Further vocational rehabilitation assistance was denied in July 2004 because it was determined he had the ability to restore his pre-injury wages without further assistance.
The worker’s representative wrote to the WSIB on September 18, 2008 asking for a review of the average earnings used to calculate his WSIB benefits and entitlement to psychotraumatic impairment.
The representative felt the evidence supported the worker was a student at the time of the accident and had entered an apprenticeship with the employer. He included a letter from an Industrial Training Consultant with the Ministry of Skills Development Apprenticeship Branch dated February 19, 1991 that said the worker had discussed the possibilities of an apprenticeship program in carpentry while he was still in high school. He was told to find a contractor willing to hire him before they could sign the contract of apprenticeship.
The representative felt the worker’s career goals were well established when he suffered his accident and submitted several Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions which he felt supported his position.
The Case Manager (C/M) reviewed the matter and consulted an adjudication and policy specialist but concluded there was no evidence the worker was a registered apprentice at the time of his accident and was not a student either. A recalculation using a minor’s rate was also denied.
Operational policy 14-04-13 states in part:
An apprentice is a person registered under the Trades Qualification and Apprenticeship Act (specified construction trades) or the Apprenticeship and Certification Act (all other trades), who has signed a contract of apprenticeship for training and instruction in a trade, through or from an employer.
There is no evidence the worker was enrolled or registered in any apprenticeship program as required by WSIB policy. Although there is evidence the worker made enquiries about a carpentry apprenticeship, he did not formally register in such a program as required in the apprenticeship Acts.
He was hired as a carpenter’s helper according to the Form 7 but was not classified as an apprentice. He told his C/M on August 5, 1994 that he was not in school and had intentions of remaining in the job had the accident not occurred.
It cannot be reasonably assumed that his career goals were “well defined” when he had his accident. The evidence does not support he “was already taking the necessary steps to become a carpenter”, as suggested in the representative’s letter of September 17, 2008. The only evidence in this respect is that he enquired about an apprenticeship program while still in high school and was advised what he needed to do to become an apprentice.
There is no tangible evidence supporting the worker was on his way to becoming a carpenter because he was injured on his first day on the job. It cannot be said that he had the aptitudes or interest to carry on in this profession based on his limited experience.
Policy 12-04-07 states in part:
Secondary school students who are registered in Ministry of Education work education programs and who are placed with an employer (placement host) to gain practical work experience, and who are not paid by the placement host, have WSIB coverage during the placement. The Ministry of Education provides coverage. These students, also referred to as pupils, are deemed to be workers under the Education Act.
There is no documentation the worker was enrolled in such a program so there is no consideration to recalculate his benefits under this policy. He informed his C/M on October 15, 2008 that he had left school prior to the accident and was not going to resume school.
Operational policy 18-06-01 states in part:
If a worker is under the age of 21, a special minor's wage basis can be used in a re-opened claim if:
- the date the claim is re-opened is six months or more from the date of the accident, and
- the worker's most recent earnings are below the minor's rate set by the WSIB, or
- the worker is unemployed prior to the re-opening of the claim, for reasons unrelated to the claim, e.g., attending school. The minor's wage basis is never used as the original temporary total disability rate.
The worker does not qualify for reconsideration under this policy as his file was not reopened. He received continuous benefits immediately following his accident to date and continuing.
The worker was hired as an employee of the accident employer and suffered an unfortunate accident on his first day on the job. He was paid temporary and FEL benefits in accordance with the policies that recognize his employment.
There is no entitlement to a reconsideration of his benefits using the apprenticeship, student or minor wage policies.
Psychotraumatic impairment
The worker representative wrote on September 17, 2008:
“As I am sure you will agree, our client suffered an extremely traumatic injury which, at the age of 17 left him with the total loss of sight in his right eye. Not only did it prevent him from pursuing his goal as a carpenter, it also had a significant impact on all other aspects of his life.
His medical file contains information which confirms that our client began to suffer from depression and in fact attempted to harm himself as a result of inability to cope with the affects of his injury.”
The C/M reviewed the request for psychotraumatic impairment and noted mention in a brain surgeon’s report of July 13, 1995 of the worker suffering from depression and had a psychiatric consultation which revealed he was depressed due to the loss of function in his right eye and an inability to mobilize.
A subsequent report from the surgeon dated October 20, 1995 indicated the worker had a prolonged post operative recovery and depression from a previous history of a pre-morbid psychiatric condition.
Another physician replied to the WSIB’s request for information on September 2, 1997 and reported the worker was hospitalized in February 1991 for drug ingestion, suicidal gesture and depression related to personal problems “but his right eye had a lot to do with it”.
In May 1993 he was being reviewed by a drug addiction treatment centre because he reported a drug problem.
From January to March 1996, he was having suicidal ideas and was seen by a social worker. He started on anti-depressant Elavil which was discontinued in December 1996 because he was feeling better.
There are specific situations where the WSIB allows loss of earnings (LOE) benefits for a psychotraumatic disability. This includes when someone has suffered a direct head injury. It also includes when someone has an extremely strong emotional reaction to:
- the accident or disease itself, and/or
- the prolonged disability and circumstances surrounding it, and/or
- a serious physical injury caused by the accident, and/or
- medical treatment they got due to the accident.
We only consider entitlement for psychiatric conditions that:
- appear within five years of the accident or the last surgery related to the accident, and
- have a medical diagnosis.
Generally, we consider this condition temporary, except in rare cases.
The worker suffered a serious traumatic injury requiring several surgeries and an unfortunate outcome in that he required an artificial eye. He was quite young when he had his accident and it would not be outside of the realm of possibility that he developed some depression related to this accident or its outcome, but the type, extent and duration of the impairment cannot be established because there is not a report from a psychologist or psychiatrist on file that provides these important details.
This is further complicated by evidence of a concurrent brain injury which may have caused right sided headaches and a diagnosis of chronic pain and mention of prior psychological problems that may have pre-dated this claim.
There are no other medical reports pertaining to the worker’s psychological problems and no indication if it continued beyond December 1996. There is no information in the claim about his hospitalizations or drug rehabilitation. There are no medical reports on file after May 2004.
Because of this lack of important information, I cannot determine the compatibility of his psychotraumatic impairment and its relation to this claim.
CONCLUSION
There is no evidence the worker was an apprentice or student at the time of his accident. Entitlement on those grounds is denied.
There is no entitlement to using the minor’s rate in this claim.
Psychotraumatic entitlement is denied.
The objection is denied.
DATED May 25, 2010
D. Giannobile
Appeals Resolution Officer
Appeals Branch