WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100129
OBJECTION BY: Worker
EMPLOYER: Non-participant
REPRESENTATIVES: Worker
HEARING DATE: April 21, 2010
PARTICIPANTS: Worker, Worker Representative
ISSUES
The worker objects to the closure of labour market re-entry (LMR) services and loss of earnings (LOE) benefits as outlined in the September 16, 2008 decision.
HOW THE ISSUES AROSE
On March 14, 2005, this then 41 year old worker sustained an injury to his left shoulder as his wrench slipped while he was loosening a cap. He sought medical attention on March 15, 2005 at which time he was diagnosed with a left shoulder strain. Entitlement was accepted for the left shoulder injury.
The worker received conservative treatment however he was unsuccessful in achieving a full recovery.
The Case Manager determined that the worker reached maximum medical recovery (MMR) on November 1, 2005. MMR is achieved when the worker has reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment. As a permanent impairment was evident, the worker’s file was referred for a non-economic loss (NEL) evaluation. The worker was rated a 5% NEL award for the left shoulder on November 30, 2006.
As the incident employer was not able to provide permanent modified work, the worker was referred for LMR services. Following an LMR assessment, Drafting Technologists and Technicians, which fell under the National Occupational Classification (NOC) code 2253, was identified as the suitable employment or business (SEB). The worker’s LMR plan commenced December 4, 2006.
The worker was not successful in obtaining the required certification as he had failed two courses. The worker was provided with a job search training program and LMR services were closed. The Case Manager found that the worker was not entitled to further LOE benefits as had he successfully completed his LMR plan he would have had the skills, knowledge and ability to obtain employment in his SEB that would fully restore his pre-injury wages. This decision was communicated in a letter dated September 16, 2008.
An Objection Form was received by the Workplace Safety and Insurance Board (WSIB) indicating that the worker objected to the above decision and the file was referred to the Appeals Branch for further review and consideration.
AUTHORITY
Operational Policy Documents
18-03-02 Payment of LOE Benefits
19-03-03 Determining SEB and Earnings
19-03-10 Cooperating in LMR
22-01-03 Workers’ Cooperation Obligations
ASSESSMENT OF THE EVIDENCE
Submission
On behalf of the worker, the worker representative made the following arguments to support the worker’s appeal:
The worker demonstrated his ability to succeed in school as he did well and received high grades.
The worker’s problems were a result of pain related to the work injury.
The Christmas break and increasing pain problems contributed to the worker’s learning problems.
The schooling was at fault for the worker’s failures as he was not accommodated with technical tools, such as a flash drive, to overcome his difficulties.
It was unreasonable to allow continuation of the LMR plan (job search training) but not allow the worker to retake the two failed courses that would allow him to re-enter the labour market.
File Review
Following the work injury, the worker was left with permanent physical limitations.
The worker underwent academic testing in October 2006. The testing demonstrated that the worker’s academic levels ranged from Grade 7 to post secondary levels. His functions with mixed skills and knowledge were noted to be indicative of someone who did not use specific skills on a regular basis. Following the assessment an LMR plan was devised to provide the worker with the necessary skills and abilities to obtain employment in NOC 2253.
The following pertinent information was noted in the claim file during the time the worker received LMR services:
From December 4, 2006 to August 13, 2007 the worker missed 25 days of class. His rationale for missing class included: a back flare up; the flu; funeral / bereavement for his brother-in-law; his son was ill; he separated from his spouse – transportation and accommodation issues; illness; run an errand; spend the day with his children; attend aunt’s funeral; his back was sore; his shoulder was sore; and on occasion he did not provide an explanation.
On February 6, 2007 the LMR service provider reminded the worker of the importance of attending every class.
A non-compliance letter was sent to the worker on February 20, 2007 as he had missed a total of 14 days of school since starting his upgrading; however the worker continued to miss six classes into the end of March 2007.
The LMR service provider spoke to the worker on February 21, 2007 and discussed the need for the worker to improve his attendance.
On March 6, 2007 the worker was a no-show for a scheduled meeting with the LMR service provider. The worker was sent a letter in reference to this issue.
On March 6, 2007 the secondary service provider reported that the worker rarely completed his homework.
On March 7, 2007 the worker was reminded of the importance of his attendance and the consequences of non-cooperation.
On May 2, 2007 the worker was reported as having missed three days of school to run errands or spend the day with his children. The worker was reminded by the LMR service provider of the importance of attending class and informing them when he misses class. At that time the worker managed to get back on schedule for his GED.
Prior to entering the formal training portion of the plan, the worker had to be reminded several times to contact the college to discuss the program.
On July 23, 2007 the LMR service provider discussed with the worker his attendance and at the same time they sent the worker a letter reminding him of his cooperation obligations and the consequences of non-cooperation.
On July 31, 2007 the Case Manager spoke to the worker about his cooperation oblgations.
On August 1, 2007 the LMR service provider discussed the worker’s attendance with him.
The worker obtained his GED, passing all sections of the exam including: Social Studies; Language Arts; Writing; Reading; Math; and Science. It was noted that the worker had some difficulties with the math component however he was able to successfully work through all the material.
The worker successfully completed the computer training portion of the LMR plan.
On September 5, 2007 the worker commenced his formal college training for a CAD Machining Certificate.
On September 14, 2007 the worker was reminded of his requirement to attend class and participate.
While in the formal training portion of the plan, the worker continued to miss multiple classes as well as days away from school. The rationale for the missed classes included: moving day; something came up; he was a wreck after his girlfriend destroyed his belongings; he couldn’t deal with it (personal problems); and he had a bad week.
On October 30, 2007 the worker was a no-show for a meeting with the LMR service provider.
In October 2007 the worker reported difficulty in completing his assignments due to personal problems and demands in his home life.
On November 12, 2007 the worker was reminded of his ability to attend all scheduled meetings.
On December 5, 2007 the worker reported that he had injured his right shoulder closing a van door. He indicated that his right shoulder was deteriorating as he had to compensate for the left shoulder injury.
In January 2008 the worker reported that the CAD / CAM call was going slowly due to the lack of practice. At the same time the worker reported that he had missed handing in a couple of assignments in his Engineering Drawings class as he had been sick the day that they were assigned. He had failed his mid-term exam in the Tool and Die Design course but was being given the opportunity for a rewrite.
On January 15, 2008 the worker reported an increase in pain in his right shoulder due to his lack of medication as his girlfriend had thrown out his medication.
On February 12, 2008 he reported that he had been experiencing problems with the Master CAM class and he was falling behind. He reported to be attending an additional CAM tutoring class once a week. He felt that his inability to practice at home, as he did not have a home computer, contributed to this issue. He reported that he had not been attending his Convention Machining class in two weeks due to pain in his right shoulder. The worker reported that he had not had a drink in a month, something that was previously a severe problem for him. The LMR service provider suggested the worker contact the secondary service provider where he attended academic upgrading to request access to their computer to allow for more practice time, but the worker became agitated and indicated that taking the bus was a major barrier due to pain and weakness in his shoulders as it was difficult to hold on to a pole while standing. The LMR service provider offered to arrange for a tutor of which the worker declined. The worker abruptly left prior to the completion of the meeting.
On December 3, 2008 the worker reported that he had fallen on some stairs a couple of weeks ago while walking up, and he did not have the strength in his shoulder to hold himself up during the fall.
In December 2008 the worker reported that he had been using the computer labs on occasion as his family responsibilities and other errands prevented him from doing so. The worker reported that he did not complete the final assignment for his Career Education class and was not sure if he would be able to hand it in. He reported that he had forgot about the assignment and didn’t get it done. The worker also reported difficulty saving information to his memory stick from the college computers.
On May 28, 2008 the worker arrived 20 minutes late for his scheduled meeting with the LMR service provider. He worker did not arrive with a copy of his semester marks as requested.
In May 2008 it was reported that the worker received 6% as an overall final mark in his Master CAM class. The worker reported that his assignments had been saved to his memory stick and it was stepped on and everything that was saved was lost. The worker stated that he had not spoken to the instructor regarding the destroyed assignments to request a late submission.
Also in May 2008, it was reported that the worker received an overall mark of 39% in CNC Programming / Auto CAD Inventor. The worker stated that he was unsure what went wrong, stating he handed in his assignments throughout the semester and had received good marks.
The LMR service provider spoke to a class instructor. The instructor reported that the worker had missed quite a few classing at the beginning of the tem with no explanation given. He added that the worker would leave the classroom without explanation for long periods of time and missed instruction that was being given. He also advised that the worker frequently stated that he was not feeling well and would leave class early. The instructor advised that the worker was provided with constant feedback on his errors and mistakes and the assignments were given back to the worker with feedback. He stated that the worker did not turn in many assignments. The instructor reported that the worker averaged 15% on assignments due to lack of submission. He opined that had the worker completed the assignments he would have done well enough to pass. He indicated that there were only 18 students in the class and the instructor was more than available for assistance. He added that instructors were also available each Friday in the computer lab but the worker did not arrive to those additional sessions very often, if at all.
On June 25, 2008, the worker reported that he was unable to hand in all his required assignments due to his poor computer ability, stating that he was too slow to keep up the pace. He also indicated issues regarding transferring assignments to his memory stick.
The Case Manager did not allow the worker to complete his formal training due to his inability to obtain his certification given that he had failed two courses.
The worker commenced the job search training program (JSTP) on July 14, 2008. During the four week program the worker left early on one occasion, had been absent six days due to child care issues and was absent on one occasion due to personal reasons.
Worker Testimony
The worker briefly explained that his employment history included: paper delivery; construction work; and labour work. He had been employed with the incident employer from 1995.
The worker provided information regarding his LMR program. The LMR program began with academic upgrading. He said that he was taking Oxycocet when required but indicated that he was not taking as much medication during that portion of the program. He stated that if he required medication in the morning, he then found it difficult to get to school as it made him feel ill.
During the computer training he said that not having a computer at home was an issue. He said that others who were in the program were given a computer but the WSIB would not allow one for him. He said that he did not have any past experience on a computer and found it difficult to learn. He brought home study material but found it difficult to grasp as he did not have a computer for practice / application. He said that he passed but cheated when he was tested. He clarified that the agency did the test for him. He stated that he could not use Excel without referencing material.
The worker stated that although he was successful in passing the college entrance exam, given his lack of computer skills he was permitted to write the essay portion of the exam using pen and paper rather than a computer.
He stated that he did well in the first semester of college. He also stated that during that period he did very little work on the computer. He explained that he did measurements and wrote programs using paper. He said that he only worked on the computer for his math class. He said that he was taking medication, as required, during the first semester and added that on bad days he could not go to school as he would wake up in agony. When asked why he did not always the call the LMR service provider or the school to advise them of his absence the worker could not provide an explanation. He said that he did not return calls as he would turn his phone off. He later added that at times he did not have a phone.
He was questioned about his drinking issue as noted in the claim file. He stated that he had an issue in the first semester but it did not affect his work or LMR participation.
The worker indicated that much more work was required on the computer during the second semester at college. He said that the knowledge that was acquired in the first semester was being applied to computer usage. He said that his right shoulder was sore all of the time and everything he did had agitated it. He continued taking his medication.
The worker discussed the issue with taking public transportation. He said that taking the bus was brutal. He said that the bus ride to school was 45 minutes. He said that although he did not have to stand a lot, on the occasions that he did he said it was bad as he had to hold on to a pole and the bus rides were generally not smooth.
He described problems with his memory stick. He said that he stored all the course information on his memory stick but could not retrieve the information. He added that all of his completed assignments for Master Cam were on that memory stick. He explained that he had physically damaged the memory stick when he was riding the bus to school. He said that he had asked a fellow student to help him retrieve the stored information but they were not able to help. He said that he also spoke to the instructor and explained to problems. He said that the instructor tried to retrieve the information but was unsuccessful. He said that around February 2007 he noticed that he had a problem with his memory stick.
When questioned about failing his Master Cam course the worker stated that he was surprised that he had failed as he thought he was doing well. The worker stated that he handed in his assignments all at once as he had the option to do so.
The worker could not recall the other course that he had failed.
The worker initially stated that all of his assignments were done but he was told that he could not hand them in late. He later corrected himself and said that most of the work was done.
He said that he asked if he could retake the courses but was told that it was not in the budget. He later stated that he was not sure if that was the reason. When further probed he said that the LMR service provider informed him that the WSIB would not pay for the courses and if he took the courses again it would be at his own expense.
The worker stated that 90% of his attendance problems were pain related. He said that he had a problem sitting due to arthritis in his back and pain in his shoulders. He said that he was using the computer four hours per day, during the second semester, and this caused an increase in pain. He said that he was taking more medication which made him more agitated.
He said that he tried to make up his lost time on Fridays. He said that he attended computer lab four or five times. He said that he found it difficult to attend computer lab on Fridays due to commitments with his children. The worker clarified that his children were 10 and 12 years old and attended school full time. He said that he had custody of his children every other Friday. When asked why he did not attend computer lab on Friday he stated that he was getting ready for his children. When asked how he prepared for his children he stated that he did this by not attending school. He later added that he took pain medication and relaxed, waiting for his children. When asked why he did not attend computer lab on the days he did not have his children he did not provide an explanation.
He said that in the job search training program he learned to write a resume, conduct a job search and was given interview skills by participating in mock interviews. He said the received two job offers but both were outside of his physical limitations and he was not able to accept the jobs.
The worker said that he did not look for work following the closure of LMR services as he was not capable of working.
Analysis
Workers are required to co-operate in all aspects of LMR assessments and plans. If a worker does not co-operate, benefits are reduced or suspended, and the LMR assessment or plan may be terminated.
Workers co-operate in LMR assessments and plans by: participating in the activities of the LMR assessment to identify SEB; participating in the preparation of an LMR plan; and fulfilling the mutually agreed upon commitments outlined in the LMR plan.
On November 6, 2006 the worker signed a LMR Plan which outlined responsibilities of the worker that stated:
The worker agrees to be available and cooperate in the provision of this LMR plan. The worker agrees to arrive on time and participate in all scheduled activities. If for any reason the worker cannot, he or she will immediately provide an explanation to the Provider.
The worker agrees to follow the requirements of all facilities and persons providing LMR services. The worker will notify the Provider about anything which may interfere with achieving the milestones laid out in this plan, and / or with the scheduled completion of this plan.
To ensure ongoing provision of LMR services and benefits, the worker must adhere to the provisions and schedules developed in this plan.
The SEB that was identified was within the worker’s physical limitations and the academic testing identified that the worker had the academic ability to succeed in post-secondary education.
Although the worker testified that 90% of his attendance issues were a result of pain, the evidence on file demonstrated otherwise. While there was evidence of some attendance related to pain, the worker did not provide medical documentation to support those absences which at times extended for days. There were many occasions when the worker was absent for personal reasons or absent for no reason at all. It was also noted that many times the worker did not contact the LMR service provider or the secondary service provider to report his absence. The worker could not provide a reasonable explanation for not doing this. Even when the worker was reminded of his obligations to report absences and provide explanations he continued to be negligent in this area of responsibility.
Throughout the LMR process the worker continuously brought up the issue of not having a personal computer and had requested authorization for one on several occasions. He reported that he required more practice time on a computer. The evidence supported that ownership of a computer was not a requirement for success in the LMR plan. The worker had use of the secondary service provider’s computers throughout the program. While in college, the worker was to attend classes from Monday to Thursday in order to allow him to attend computer lab on Fridays. The worker rarely utilized that opportunity. He was reminded by the LMR service provider that he had such opportunity and when the worker complained of having to take a long bus ride to the college the worker was presented with the option of using the computers at the facility where he attended academic upgrading. The worker did not take advantage of that option. Through testimony the worker indicated that he could not attend computer lab on Fridays as he was preparing for his children. His preparation consisted of resting. While I can appreciate that the worker wanted to be rested for his children, given the degree of the worker’s impairment, I am not convinced that a few hours at school would have impaired him further. I also do not accept this to be a reasonable explanation given that his children attended school full time and he had custody of his children every other Friday. The worker did not provide an explanation of why he could not attend computer lab on the days he did not have his children.
The worker also cited problems with his memory stick as being a barrier to his success. I am not convinced that the worker presented his problems with his memory stick accurately. There was conflicting information regarding problems with the memory stick. In May 2008, the worker reported to the LMR service provider that his memory stick had been stepped on and everything that was saved was lost. At that time the worker stated that he had not spoke to the instructor about the destroyed assignments. The worker provided a different account of his problems during testimony as he stated that he had completed all his assignments and saved them to the memory stick yet he also testified that he noted the problem with his memory stick in February 2008 and as such, it would be unrealistic that he would continue to attempt to save documents on a broken memory stick. The worker’s testimony also differed from the information provided to the LMR service provider as he testified that he had reported his problems to his instructor, who also made an attempt to retrieve the lost information.
It was also noted that the worker testified that he was surprised that he had failed as he thought he was doing well. I find that difficult to accept given that the worker’s final grades were 6% and 39%, which would not be considered near-passes. He reported that he opted to hand in all assignments at one time and was not required to hand in assignments throughout the semester. This was contrary to the information on file. The worker reported to the LMR service provider that he did not complete all of his assignments as he had difficulties keeping up as he was not proficient on the computer. The instructor reported that the worker was provided with constant feedback on his errors and mistakes, and the assignments were given back to the worker with feedback. He stated that the worker did not turn in many assignments. The instructor reported that the worker averaged 15% on assignments due to lack of submission.
The worker was offered additional opportunities / support in order to assist in the successful completion of the LMR program. The worker failed in a class that was small and the instructor confirmed that they were more than available for assistance. The worker did not utilize the computer lab on Fridays nor did he attempt to use the computer at the facility where he attended academic upgrading. The LMR service provider offered to arrange for a tutor for the worker but he hastily declined that offer.
Other barriers to success were noted as the worker’s girlfriend had destroyed his school books and the worker’s glasses were missing for a period of time. Those barriers were not related to the work injury but rather to personal problems at home.
While the worker was experiencing increase in pain it was noted that this was also at time when the worker’s girlfriend had thrown out his medication during a personal dispute.
Information on file indicated that the worker had drinking problems. While the worker testified that his drinking did not affect the LMR program, it was interesting to note that he felt the need to report to the LMR service provider that he had quit drinking and he had referred to his drinking as a severe problem.
There were a multitude of issues contributing to the worker’s failure in the LMR program, most of which were not related to the work injury.
In reviewing the information above, I find that the worker was provided with ample opportunity to succeed in his LMR program. While the worker reported that he had difficulties in increasing pain, there was an absence of medical evidence to support that he could not attend school. Having said that, it was also noted that much of the worker’s absences from school were not related to his work injury. It was also noted that the inability to pass two courses appeared to be predominantly related to incomplete assignments as his instructor opined that the worker would have passed had he completed his assignments.
CONCLUSION
I find that the worker did not fulfil his obligations to fully participate in the LMR program. As he did not demonstrate cooperation, the Case Manager appropriately terminated LMR services and there was no basis to allow the worker to repeat his failed courses given his demonstration of non-cooperation.
Had the worker been successful in completing his LMR plan, he would have improved his transferrable skills and had the opportunity to fully restore his pre-injury earnings. As such there is no entitlement to further LOE benefits.
The objection is denied.
DATED April 30, 2010
Ms. K. Hille Appeals Resolution Officer Appeals Branch