Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100138
Objection By: Worker
Representative: Worker Representative
Employer: Non Participating
Hearing Date: N/A
Issue
The worker’s representative, on behalf of the worker, has appealed the case manager’s decisions dated March 9, 2009, August 14, 2009 and September 10, 2009.
The case manager has concluded that the worker is entitled to partial loss of earnings benefits in recognition of the labour market re-entry (LMR) plan and suitable employment or business (SEB) target resulting from the LMR activities.
How the Issue Arises
The claim has been established with an accident date of June 6, 2004 for this mechanical insulator. The worker was in a man lift and operated the controls, which shot the boom approximately six feet in the air. The worker was thrown upwards and landed in the bucket, injuring his lower back.
He was diagnosed with a low back strain and treatment was provided on a conservative basis to include light duty and physiotherapy.
The record indicates the worker continued to work in the modified employment with the accident employer through to the fall of 2006.
It was determined that the worker would have experienced a permanent impairment stemming from the occupational injury and the worker has been provided with a 15 per cent non-economic loss (NEL) award in recognition of the permanent impairment stemming from the occupational accident.
It was determined that the worker would not be able to continue in modified employment with the accident employer and LMR activities were instituted.
The worker underwent a psychological vocational assessment and it was determined that the worker would be capable of returning to a suitable employment or business (SEB) target as a customer service clerk.
A LMR plan was put in place for the worker to include six weeks upgrading followed by a six week retail sales associate program and then a four week job search.
The worker was unable to complete the LMR plan and the case manager has concluded that the worker is entitled to partial loss of earnings benefits in recognition of his ability to return to the identified SEB and potential earnings associated with it.
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’s representative’s appeal in light of Operational Policy Documents:
- 19-03-03 - Determining Suitable and Available Employment or Business, and Earnings
- 19-03-05 - LMR Plans
Resolution Method and Process
The worker’s representative has submitted a 60 day decision option. By completing this option form, the worker’s representative indicates his understanding that the appeals resolution officer will provide a final decision of the WSIB based on the information on record and any additional information submitted with the objection form.
Assessment of the Evidence
The worker’s representative provided submissions in his letter in support of his appeal dated June 24, 2010.
He notes that the worker is not capable of returning to the SEB target outlined on the record.
He notes the psychological vocational assessment did conclude that the worker’s ability to return to the identified SEB was “guarded”. He also notes that the worker’s physician supports that the worker cannot return to gainful employment. In particular he cites the medical report dated August 5, 2009 and quotes
“...Since the beginning of his retraining program, his back pain has worsened. This is likely due to prolonged sitting associated with his classes. As he is unable to sit longer than 30 to 60 minutes at a time, his retraining should be reconsidered.”
In addition, he notes that the worker was not able to progress in his LMR activities beyond half to one hour per day.
He also notes that the WSIB’s investigator noted the following:
“The worker states he goes to his hobby shop at home and does some woodworking for approximately one hour, goes into the house and rests for two hours, then returns to his woodworking for another hour. The worker stated that his wife and sister-in-law help him from time to time, if needed.
The worker stated he changes positions frequently, (standing, sitting, lying down) to alleviate the pain in his lower back. The worker stated he could not stay in one position for too long because it seems to aggravate his lower back condition.”
A review of the clinical documentation on record reveals that the worker is in receipt of a 15 per cent NEL award recognizing a partial impairment as a result of the occupational injury. In noting the worker’s partial impairment, it is accepted that the worker would be capable of returning to modified employment honouring the restrictions outlined on the record.
At the time of the creation of the LMR program, the restrictions were that of lifting, carrying, sitting, walking, crouching, crawling and bending.
The psycho vocational assessment noted that the worker’s transferable skills were supervisory duties and driving.
Throughout the LMR plan, the worker was not able to extend his attendance in class beyond one hour.
It became quickly evident that the worker was not progressing in his upgrading and quickly fell behind.
In September 2009, the service provider noted that the worker was not completing his homework assignments. They go on to state that the worker does well in comprehension and math exercises but is falling behind schedule due to his lack of attendance.
They also noted the worker did indicate he was attempting positional changes to reduce the discomfort but was not able to take his medication before school due to comprehension difficulties.
The worker indicated to the service provider that he was not able to continue in the LMR plan beyond that of one hour and had indicated to the service provider that he had an appointment with his family physician the following month.
The appeals resolution officer specifically notes that the worker’s activities while at home engaging in woodworking, the worker describes appropriate pacing activities. What is striking is the worker’s failure to complete any homework assignments resulting from the LMR upgrading. The appeals resolution officer finds that the worker could have engaged the similar pacing activities as described in his hobbies to complete the upgrading portion of his LMR activities.
The clinical documentation on record does not support that the worker is incapable of returning to any form of modified employment and the appeals resolution officer finds that the SEB target would have been suitable for the worker had he completed the LMR plan.
Once again, the appeals resolution officer finds that the worker could have engaged in the pacing activities as described in his hobbies to allow him to complete the LMR activities outlined on the record.
The appeals resolution officer finds that the SEB target of a customer service or retail sales associate program to be within the restrictions provided to the worker and the appeals resolution officer confirms the reduction in partial loss of earnings benefits being paid to the worker.
Conclusion
Having reviewed the evidence on record, it is the judgement of the appeals resolution officer that there is insufficient evidence available to support the worker’s contention he is unable to return to any form of employment and should be found unemployable.
The appeals resolution officer finds that the LMR program as designed by the service provider and approved by the WSIB is appropriate and the worker should be capable of returning to the SEB target and securing the projected earnings as outlined in the LMR plan.
The worker’s representative’s appeal is denied.
Dated: July 21, 2010
N. J. Shruiff
Appeals Resolution Officer
Appeals Branch