Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100139
Objection By: Worker
Employer: Not Participating
Representatives: Worker
Hearing Date: June 11, 2010
Attendees: Worker, Worker Representative
Issue
The worker’s representative, on behalf of the worker, has appealed the Case Manager’s decision dated January 21, 2003. The Case Manager concluded the worker is not entitled to loss of earnings benefits beyond February 1, 2003 following the completion of labour market re-entry (LMR) activities.
How the Issue Arises
On November 6, 1999, this machine operator experienced a gradual onset of pain in both shoulders and neck due to the repetitive nature of her employment.
The worker was diagnosed with collateral trapezius strain and cervical strain.
The worker attended the Regional Evaluation Centre and was discharged with a cervical upper dorsal spine strain with a recommendation that the worker undergo an active physiotherapy program. Temporary restrictions of avoiding overhead work and heavy lifting were provided for approximately six weeks.
The worker was not able to return to her pre-injury employment and LMR activities were instituted in light of the 32 per cent NEL award being provided for the neck and bilateral shoulder condition.
The worker attended and completed a customer service course.
The case manager concluded that the worker is not entitled to loss of earnings benefits beyond the completion of the course.
The worker’s representative, on behalf of the worker, has appealed this decision and this issue is now before the appeals resolution officer for further consideration.
Authority
The appeals resolution officer will consider the worker representative’s appeal in light of Operational Policy Documents:
- 11-01-03 - Merits and Justice
- 18-03-02 - Payment of Loss of Earnings Benefits
- 19-03-02 - Labour Market Re-Entry (LMR) Assessments
- 19-03-05 - LMR Plans
Assessment of the Evidence
The worker provided oral testimony under oath. The worker’s representative made oral submissions on behalf of the worker.
The worker confirmed for the record the nature of her employment history prior to her occupational injury of November 6, 1999.
She stated she worked at a water park in the maintenance and management department with her spouse. She states that she was manage the snack bar and did the entrance fees, open and close the water park throughout the season. She states she and her husband worked only one season.
Subsequent to this, the worker went through schooling through an employment insurance program in the hope of operating a home-based day care centre.
She states she completed the course but did not have the money to begin the business and began employment with a variety store and then a bakery. She confirmed her employment with the accident employer taking place to allow her to secure enough funds to begin her business.
She states following the death of her spouse in 1997, she relocated her residence in December 1997 with her two children. She collected social services and began looking for work, casual on-call jobs.
She confirms her educational background is that of Grade 11 and licensed home-care provider.
She does confirm experiencing ongoing conditions of bilateral knee difficulties which have been scoped in the past and a right wrist fusion as a result of a non-occupational fall.
She confirms she is right hand dominant and does not experience any ongoing significant difficulties following the fusion of the right wrist.
She does confirm undergoing a crisis and grievance counselling following the death of her spouse along with counselling being provided to the children.
She does confirm that as a result of her inability to actively engage in activities of daily living or return to employment, she has developed depression as a result and she does receive ongoing counselling to the present time.
She confirms the activities of LMR program states she was not aware of why she was going to school but was then told it was an accounting course. She states that the course was computer based and self-taught and she did experience difficulty with the typing requirement of the course. She states that she did not have any keyboard skills prior to being in the program and was exempted from the typing course.
She states that she was having considerable difficulty performing the LMR activities that she was required to frequently look down a paper than up on a screen which bothered her neck.
She states that she must lean constantly on her right arm to be comfortable and increased difficulties if she is not able to do so.
She states that she would leave the school and do any necessary homework while lying in bed at home. She states she does have difficulty concentrating due to the level of discomfort that she is in. She states she did complete the program and believes that she did not miss any time from school.
She outlined for the record the nature of activities of daily living which she maintains a very sedentary lifestyle. She states that she will be visited by her grandchildren who will clean her residence for her. She experiences irregular sleep disruption and difficulty with personal care, especially washing and combing her hair.
She states she will occasionally go out on a shopping adventure but this is with family members.
She confirms that her spouse does not live with her due to citizenship difficulties.
The worker is not able to foresee a return to employment and is not able to suggest any form of work that she would be able to do. She states she is unable to last in any activities, maximum of approximately two hours and believes her condition is worsening.
The worker’s representative submits that the LMR assessment must coincide and take into account any additional impairments presented by the worker. She notes the worker’s non-compensable wrist and knee difficulties and submits that the worker is not competitively employable.
She notes that the worker did participate in full LMR program in spite of the other difficulties. She submits that the customer service representative would normally require an individual to engage in prolonged standing and submits that the worker’s knee difficulties would not allow her to do so. She also notes that the worker only was able to actively participate in the LMR program approximately 1.5 hours per day and the worker presents as being competitively unemployable.
She also notes the worker’s high level of impairment does not support a return to full-time employment. She submits that the worker at best would be only capable of returning to work approximately 1.5 hours per day and if the appeals resolution officer is unable to find in favour of the worker pertaining to an inability to return to any form of gainful employment, suggested the worker would only be able to return to employment on a part time basis and partial loss of earnings benefits should be paid based on this earning potential.
The worker presents with a request for full loss of earnings benefits in light of her perceived inability to return to any form of gainful employment.
The worker is in receipt of a 32 per cent NEL award in recognition of the permanent impairment stemming from the occupational injury.
The worker indicated that the non-compensable difficulties with the knee and right wrist do not pose as being a significant barrier in her activities of daily living.
The worker indicated that lifting restrictions for the right wrist do present with difficulties but she is able to manage in any aspect of her activities of daily living.
The worker suggested she is not capable of returning to any form of employment due to the ongoing nature of her pain experience.
The worker presented in the hearing as leaning on her right arm on the arm of the chair for the duration of the hearing and left early due to her inability to maintain active participation in the hearing process.
The worker presents with a varied employment history and a multitude of transferable skills ranging from the retail environment to pyro-techniques.
Upon shaking the worker’s hand at the outset of the hearing, the appeals resolution officer noticed that the worker’s hand was rough and calloused and therefore leads the appeals resolution officer to question the accuracy of the worker’s testimony regarding any activities of daily living.
Notwithstanding the 32 per cent NEL award and the testimony provided by the worker, the appeals resolution officer does find that the worker would be capable of returning to the SEB target following the completion of the LMR program.
The worker completed the LMRP and would therefore be qualified to re-enter the work force in the identified SEB. It is noted the customer category would present with a vast array of potential job function some of which would clearly be beyond the physical abilities of the worker. This would not negate the fact that given the colourful nature of the worker past work experience would allow the worker to present as a viable candidate to a potential employer.
Of particular note is the failure of the WSIB to provide the worker with partial loss of earnings benefits from the date of closure to the present time and continuing based on 85 per cent of the difference between the worker’s pre-injury employment and her earning potential.
Operations is instructed to calculate the worker’s partial loss of earnings benefits from the date of closure to the present time based on the worker’s ability to return to modified employment as a service representative at minimum wage.
Conclusion
Having reviewed the evidence on record and considered the testimony provided by the worker and submissions made by the representative, it is the judgement of the appeals resolution officer that the balance of evidence does not fall in favour of the worker pertaining to her claimed inability to return to modified employment following the completion of LMR activities.
The appeals resolution officer finds the worker would be capable of returning to work in the described SEB as an service representative at minimum wage and operations is instructed to process the worker partial loss of earnings benefits of 85 per cent of the difference between her pre-injury and net average earnings and her post LMR plan earning potential.
The worker representative’s appeal is granted in part.
Dated: July 6, 2010
N. J. Shruiff
Appeals Resolution Officer
Appeals Branch