WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100067
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUE
The worker objects to the payment of partial Loss of Earnings (LOE) benefits from October 22, 2009 based on 40 hours per week instead of 20 hours per week.
HOW THE ISSUE ARISES
On September 21, 2006, the worker lifted a countertop and had an onset of severe stabbing pain in his hip, and down his leg. He was diagnosed with a disc herniation of the L5-S1 on the left with radiculopathy. Entitlement was granted and benefits were paid in accordance with the medical evidence received.
He received conservative medical management but was left with a permanent impairment. As a result of the restrictions associated with his impairment, he was unable to return to his pre-accident job as a labourer. He was therefore referred for Labour Market Re-entry (LMR) servicing. Following an assessment, a Suitable Employment or Business (SEB) of Customer Service was deemed to be appropriate. The worker became involved in upgrading, computer training and GED training and became involved in a placement on August 24, 2009. At the end of the placement, the worker was offered a job at Colour Your World to commence effective October 22, 2009. He commenced working 20 hours per week as he indicated he could not tolerate full-time employment. As the worker found a suitable job, LMR services were closed and the worker’s partial LOE benefits were adjusted as of October 22, 2009 based on a full-time job of 40 hours per week. He was advised of this decision in a letter of November 6, 2009. The worker objected to the adverse decision claiming that he remains only capable of part-time work at 20 hours per week and the file was referred to the Appeals Branch for consideration.
AUTHORITY
18-03-02 – Payment of LOE Benefits
19-04-06 – Suitable Employment
RESOLUTION METHOD & PROCESS
In lieu of a hearing, the worker’s representative requested that a decision be made based on the claim file documentation and also submitted further information on May 26, 2010. The employer was not contacted as I did not receive a Participant Form from them.
ASSESSMENT OF THE EVIDENCE
I have considered all of the evidence pertaining to this case. In doing so, while I find the worker is capable of more than 20 hours work per week, I am not satisfied that he is capable of full-time employment. The reasons are as follows:
In determining the worker’s employability, one must consider him on a holistic basis. This means taking into consideration prior compensable conditions for which he has been granted Non-Economic Loss (NEL) awards. The worker has a low back Permanent Disability (PD) award under prior claim 15973760. He was granted an additional 6% NEL award for the low back under claim 20156306. He also has a 20% NEL award for the neck area under claim 18148802 and under this claim, he was awarded an additional 14% NEL award for the low back. In total therefore, he has a 50% combined award and this is a rather significant award which must be taken into consideration;
On August 6, 2008, Dr .Mailis noted that the worker’s left leg pain is worse than the low back pain and is constant. In his job in customer service, the worker would be required to stand quite a bit over a 40 hour work week and given the leg pain, this would be difficult for the worker on a full-time basis;
The doctor further noted that it was not expected the worker would be able to sustain a school program due to pain. Despite the doctor’s assessment, the worker did appear to attempt to co-operate in his LMR program the best he could;
A Functional Restoration Program was recommended to help the worker manage his pain, but this was not done. The worker’s inability to manage his pain could contribute to the inability to sustain full-time hours;
The worker was referred for an LMR program and although he missed some time, he was able to tolerate this and completed his LMR program. Schooling required him to be in class sitting three hours per day and doing homework for another 2 hours per day. Sitting is a problem, given the worker’s requirement to alternate between sitting and standing. He lost quite a bit of time as a result. However, working would allow him more flexibility and he would not be required to sit as long. As such, although spending 25 hours per week at school seemed to be problematic, doing so in a job that is more flexible and suitable to his restrictions would not be unreasonable;
On May 13, 2009, an LMR report noted the worker had concerns over working on a full-time basis, but he committed to completing 30 hours per week with his sponsor. The sponsor did note flexibility with respect to hours and the willingness to accommodate the worker’s restrictions;
The LMR reports continued to express concern over the worker’s ability to complete full-time hours during placement and employment;
By September 19, 2009, it was reported that the worker was working 25 hours per week. Although he attempted to increase his hours, it is clear that he was unable to reach the 30 hours he had expected to in May, 2009. The worker was only able to achieve 25 hours per week as the employer was accommodating and encouraged the worker to take breaks and did not require him to do any heavy lifting. It was noted that at times, the store was busy and the worker was not always provided with the opportunity to change positions. A letter dated May 18, 2010 from his new employer indicates that the worker is only able to manage a four to five hour work day and when they have attempted to provide the worker with longer shifts, there has been an increased onset of back pain causing him to miss time from work. Expecting the worker to work longer than 25 hours per week therefore seems unreasonable.
CONCLUSION
Based on the evidence outlined in this decision, while I am not granting the worker’s request to pay partial LOE benefits based on 20 hours per week, I am directing that partial LOE benefits from October 22, 2009 be based on working 25 hours per week, as I am not satisfied he is able to maintain full-time employment.
The worker’s objection is granted in part.
DATED June 2, 2010
S. Marangoni Appeals Resolution Officer Appeals Branch