WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100125
OBJECTION BY: Worker, Worker Representative
PARTICIPANTS: Worker
HEARING DATE: N/A
ISSUES
The worker requests:
- Entitlement to full loss of earnings (LOE) benefits from January 28, 2009 to date.
- Entitlement to a Business Management Course.
HOW THE ISSUES AROSE
The worker was born in 1968. He began working for the employer as an automotive mechanic in June 2006. The worker experienced an onset of back pain on September 27, 2007, which he related to his job duties as a mechanic. He reported the incident to his employer and sought medical attention. He was diagnosed with a back strain/mechanical back pain.
The worker continued to work until October 2, 2007, when he could no longer work due to pain. Entitlement was accepted on a disablement basis for a gradual onset of low back pain related to his job duties. The worker began receiving loss of earnings (LOE) benefits October 3, 2007.
The worker remained off of work and continued under medical investigation. A CT scan November 15, 2007 confirmed severe L5-S1 degenerative disc disease (DDD) associated with small posterior osteophytes at L5-S1, with the neural foramina moderately to severely narrowed bilaterally. There was no evidence of a disc herniation or spinal stenosis. The employer was granted 50% SIEF cost relief, in view of the pre-existing DDD.
The worker was assessed at the Regional Evaluation Centre (REC) on January 11, 2008. The diagnosis was discogenic low back pain, and noting the CT findings of severe DDD at L5-S1, the prognosis was for partial recovery. It was determined that the worker had an accident related permanent impairment for discogenic low back pain. He was assessed for a non-economic loss (NEL) award, and granted a 19% NEL award August 5, 2008.
The employer was not able to provide permanent modified work to accommodate the worker’s restrictions. There was a discussion to determine if the employer could provide work as a service adviser, if the worker was retrained. The case manager noted that the goal of labour market re-entry was to restore the pre-accident earnings in safe, suitable employment. The worker was referred for labour market re-entry (LMR) services.
A suitable and available employment or business (SEB) of NOC 0621 Retail Trade Manager was selected. The worker attended The Automotive Training Institute and completed a 6 month Fixed Operations Specialist training program, and a 2 week Sales and Leasing Course. He also attended a 4 week job search training program.
The worker completed the LMR program on October 31, 2008. The worker reported a worsening of his condition, and a further REC assessment was arranged for December 5, 2008. The orthopaedic surgeon at the REC, Dr. Heller, arranged a MRI on December 15, 2008. The MRI revealed a T11-T12 disc hernation, and multi-level DDD with foraminal stenosis at L5-S1. Dr. Heller concluded that the worker had permanent work restrictions of no heavy lifting or repetitive bending, and the ability to sit or stand as tolerated.
It was determined that there was no change in the worker’s medical precautions and the SEB remained suitable. Effective January 28, 2009, the worker’s LOE benefits were adjusted to reflect entry level earnings in the identified SEB of $10.85 per hour. This decision is outlined in the letter dated January 27, 2009. The worker is currently receiving $448.54 weekly partial LOE benefits.
The worker objected to this decision in a letter dated March 25, 2009. In this letter, he also requested sponsorship in a Automotive Business Managers Course at the Automotive Training Centre, which he feels is an essential part of his retraining. The course would enable him to prepare, calculate and complete the financial forms required for sales and leasing. He enclosed an email from the Director of Admissions, confirming that this would be an asset for future job placement.
The case manager responded in a letter dated March 25, 2009, confirming that the course was not a requirement of the SEB, and he remained employable in the SEB. The January 27, 2009 decision was confirmed. The worker submitted a further letter dated April 6, 2009, outlining the reasons that the course is necessary and included the names of contacts in the industry that also support this view.
The case manager contacted the LMR service provider who submitted a letter dated April 15, 2009. The letter confirms that the Automotive Business Manager’s Course is an additional course offered which is intended to increase employability, but is not required. The case manager confirmed the denial of the course as outlined in the April 16, 2009 letter.
The worker requested a NEL redetermination, and the medical evidence was reviewed by a WSIB medical consultant as outlined in memo #40. The medical consultant also commented on the MRI findings at T11-T12 of a disc herniation. The consultant noted that there was no clinical correlation to relate the mid back findings to the work accident. He also noted that the medical restrictions remained the same, and there was no substantial deterioration compared to the NEL assessment. Entitlement to include the
mid back, and entitlement to a NEL redetermination were denied as outlined in the October 7, 2009 letter.
The worker objected to this decision in a letter dated October 8, 2009. The worker stated that he was experiencing psychological problems related to his accident. A progress report from his family doctor noted that he would benefit from treatment at a pain clinic. It was determined that the worker should be assessed at the Functional Restoration Program (FRP). In a letter dated November 13, 2009, the worker was advised that he was approved for an assessment at the FRP, and that additional information was required to determine psychological entitlement.
The worker commenced treatment at FRP on November 4, 2009. He received full LOE benefits while participating in the program from November 4 to December 25, 2009. At the time of discharge, the worker’s medical precautions remained the same. There was no psychological diagnosis, but it was recommended that the worker participate is 12 sessions of cognitive-behaviorally oriented psychotherapy with a clinical psychologist.
The worker completed an objection form November 25, 2009 objecting to the denial of the course, and requesting full LOE benefits from January 27, 2009. In a letter dated January 4, 2010 the worker was advised that the SEB remained suitable, and he was not entitled to full LOE benefits. In a further letter dated January 4, 2010. The worker was advised that his benefits would be reduced to partial LOE benefits effective December 25, 2009.
The worker’s entitlement to the psychological condition was discussed with him as outlined in memo #52. At that time, he inquired about entitlement to chronic pain disability (CPD). He was advised that the FRP had recommended psychological sessions, and once completed psychological entitlement would be considered. In a letter dated February 23, 2010, the worker was provided with the names of psychologists and advised that he would be sponsored in 12 psychological therapy sessions.
The claim was referred to the Appeals Branch, and I contacted the worker to discuss the appeal issues. I noted that the issues of psychological and CPD entitlement had not yet been determined by the operating area. I discussed this with this case manager, and was advised there should be a ruling on these issues shortly.
The worker submitted a letter dated March 31, 2010, providing a list of automotive dealerships where he had applied for employment, and again outlining his position that he is not ready to return to the workforce. The case manager conducted chronic pain disability (CPD) inquiries, and denied entitlement to CPD as outlined in memo #58.
The worker contacted the case manager on April 19, 2010 as outlined in memo #59. He advised that he would not be attending the psychological treatment, as it would be a waste of the WSIB’s money, and they should spend the $1200 on the course he requires. He had watched a television report on fraudulent back doctors and the psychologist’s office was in the same building. The worker was advised without further psychological information entitlement could not be granted. Entitlement to CPD and psychological entitlement was denied as outlined in the April 19, 2010 letter.
METHOD OF RESOLUTION
The worker is being represented by his mother, and I discussed the issues with her. She confirmed that the worker is pursuing the following issues; entitlement to full LOE benefits from January 28, 2009, and entitlement to the course. She also advised that the worker was now attending the psychological sessions, and she would ensure that the case manager was aware of this. The worker also submitted a letter dated March 29, 2010 further outlining his position.
The employer did not elect to participate in the appeals process. The decision will be made based on the information in the claim file record.
AUTHORITY REFERENCE
Operational Policies:
18-03-02 Payment of LOE Benefits
19-03-02 LMR Assessments
19-03-03 Determining a Suitable and Available Employment or Business and Earnings
19-03-04 Entitlement to LMR Plans
19-03-05 LMR Plans
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In reviewing the issues before me, I have considered all of the information in the claim file record, the worker’s position, and the relevant policies.
I conclude that the SEB is suitable and within the worker’s medical restrictions. He is not entitled to full LOE benefits from January 27, 2009 to date. I also find that the worker’s request for payment of the Automotive Business Management course is reasonable, and although not a requirement would enhance his employability.
I will first address the issue of payment of full LOE benefits from January 27, 2009. As noted in policy 18-03-02; if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker’s LOE benefits.
In this case, the medical evidence supports that the worker is capable of working within standard back restrictions of; no heavy lifting, no repetitive bending, and the ability to sit or stand as tolerated. These restrictions were confirmed in the second REC assessment, and when the worker was assessed at the FRP program. There is no medical evidence to support that the worker’s organic condition has deteriorated and the restrictions remain valid. The identified SEB is within these restrictions.
As noted in policy 19-03-03:
If the worker has a wage loss upon completion of a LMR plan, the LOE/FEL benefit is based on
- actual earnings of the worker if working, 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.
I appreciate that the worker feels unable to work due to depression. However, the FRP did not identify any psychological restrictions, but did recommended psychological treatment sessions. Initially, the worker chose not to attend the psychological treatment sessions and psychological entitlement has been denied as outlined in the April 19, 2010 letter. The worker is now attending, and the case manager will be reconsidering the issue of psychological entitlement.
Based on the organic restrictions, I accept the opinion of the REC and FRP and find that the worker is capable of working within the identified SEB, and is entitled to partial LOE benefits based on the SEB earnings. When reconsidering the issue of psychological entitlement, the case manager can also determine the level of impairment related to the non-organic (psychological condition) and consider entitlement to full LOE benefits.
In regards to the issue of payment of the Automotive Business Manager course, I find that the worker should be sponsored in this course. Although it is not a requirement of the Fixed Operations Specialist program, it is recommended to increase employability. The course was recommended by the Director of Admissions at the Automotive Training Centre when the worker was attending the program there. As well in the letter dated April 15, 2009, the service provider confirmed that although not required, the course may increase a person’s employability and marketability if completed.
The worker has many years experience as an automotive technician/mechanic, and has no experience in the administrative portion of the automotive dealership business. It is logical that the Automotive Business Manager’s course would enhance his employability in the SEB, build on his transferrable knowledge, and provide him with additional skills. The worker has advised that the course is available in the evening, so would not disrupt his job search, or employment activities. He is not entitled to full LOE benefits while taking this course, but is entitled to payment for the cost of the course which is approximately $1200.
CONCLUSION
In reviewing the issues before me, I conclude the following:
The worker is not entitled to full LOE benefits from January 27, 2009 to date. The SEB is within the worker’s organic medical restrictions. The payment of partial LOE benefits based on the SEB earnings is confirmed.
The worker is entitled to payment for the Automotive Business Manager course.
The worker is now attending the psychological sessions. The operating area should reconsider entitlement under the psychotraumatic disability policy. This review should also consider the worker’s level of impairment, psychological restrictions, and whether the worker is entitled to full LOE benefits.
The worker’s objection is allowed in part.
DATED July 22, 2010
D. McParland
Appeals Resolution Officer
Appeals Branch