WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100140
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: June 03, 2010-09-29
ATTENDEES: Worker, Worker Advisor
ISSUES
The worker’s representative on behalf of the worker has appealed the Case Manager’s decision dated June 22, 2009.
The Case Manager has concluded that the worker is not entitled to partial loss of earnings (LOE) benefits in recognition of any material change in circumstance.
The Case Manager has concluded that the worker is capable of returning to suitable employment as a dispatcher and has declined the worker’s request for partial LOE benefits.
AUTHORITY
The Appeals Resolution Officer (ARO) will consider the worker representative’s appeal in light of Operational Policy Document
18-03-02 – Payment of LOE.
HOW THE ISSUE ARISES
On January 23, 2002 this chop saw operator experienced an onset of pain in the right shoulder and wrist while performing his regular job duties.
He has been diagnosed with tendonitis and treatment was provided on a conservative basis to include rest, medicine and physiotherapy.
Following the EMG studies it was determined that the worker had experienced carpal tunnel syndrome (CTS) and ulnar neuropathy. The worker attended the regional evaluation centre (REC) in April 2002 and it was determined that the worker was experiencing moderate to severe CTS ulnar sensory neuropathy and extensor tenosynovitis on the right side and DeQuervains tenosynovitis on the left with a moderate to severe CTS.
The worker has been seen for the purposes of a non-economic loss (NEL) assessment and awarded a 27 per cent award in recognition of the permanent impairment stemming from the occupational injury.
It was determined that the worker would not be able to continue in modified employment with the accident employer as following an extensive period of time the worker remained with the employer on modified work.
As a result labour market re-entry (LMR) activities were instituted and a suitable employment or business (SEB) target as a dispatcher was selected for the worker.
The worker did not return to work in a SEB target and has requested a partial LOE in recognition of his LMR re-entry activities.
The Case Manager has concluded that the identified SEB target is suitable and in keeping with the restrictions provided to the worker and has denied the worker’s request for partial LOE benefits. The worker’s representative on behalf of the worker, has appealed this decision and this issue is now before the ARO for further consideration.
EXHIBITS
(Not applicable).
ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under oath. The worker’s representative made oral submissions on behalf of the worker.
Initially the worker’s representative had requested a review of the set maximum medical recovery (MMR) date and this was withdrawn as a result of discussions between the worker, the ARO and the worker’s representative. The worker’s representative requested that the hearing proceed based on the SEB target and partial LOE benefits.
The worker confirmed the accident history on record and the diagnosis has been provided to him. It also confirms he is in receipt of a 22 per cent NEL award.
The worker states that subsequent to November 2002 he had returned to regular employment with the accident employer and then subsequently to modified work.
He states he was laid off in 2004/2005 as the employer was no longer able to provide him with modified work.
He does confirm undergoing psycho-vocational testing and a SEB target of a dispatcher was selected by the LMR process.
He does confirm the activities of the LMR program and including placement with a taxi company which did not last beyond approximately four weeks. He confirms there was no offer of employment made. He also confirms undergoing an interview with a trucking company but was not provided with any offer of employment since he was not bondable.
The worker indicated that at no time during the LMR process did the issue of his bond ability come to the limelight.
The worker also confirmed he was unaware of the requirement for being bondable for the dispatching duties. The worker confirms he has been employed by three temporary agencies since the closure of benefits and continues to be so at a minimum wage level to the present time. He states he does normally work 30 to 35 hours per week.
The worker was closely questioned regarding the nature of the dispatcher position and his knowledge of it. The worker confirmed that he had no idea nor was there any discussions regarding the issue of bond ability prior to the selection of the SEB target.
The worker confirmed that he is not bondable and has not requested a pardon due to financial resources.
In light of the worker’s not being a bondable employee the ARO finds that the SEB target selected by the LMR provider and the Case Manager is not suitable in light of the worker’s bond ability issues.
Clearly the worker has to his credit returned to an elemental service position taking various forms through the temporary agency and the ARO finds that the SEB target be recast to that of an elemental service position at a minimum wage level. The payment of partial LOE benefits are to begin effective May 21, 2009 to the present time and continuing.
The worker’s representative has requested an older workers election for a no review option. This request is also granted as a result of this decision.
CONCLUSION
Having reviewed the evidence on record, heard the testimony provided by the worker, considering the submissions made by the representative, it is the judgement of the ARO that:
The SEB target of a dispatcher is considered non-suitable and the ARO grants the worker representative’s request to alter the SEB target to an elemental service position in recognition of the worker’s continued LMR activities.
The SEB target is altered to elemental service positions at a minimum wage level and partial LOE benefits are restored to the worker effective May 21, 2009 and continuing.
In recognition of the worker’s age the worker is eligible to request a non‑review option is also granted.
The worker representative’s appeal is granted.
Dated: July 6, 2010
N. J. Shruiff
Appeals Resolution Officer
Appeals Branch