WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100142
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Employer Representative
ISSUE
The worker objects to the decision of April 28, 2010, in which the operating area terminated the Labour Market Re-entry (LMR) plan based on a finding of worker non co-operation.
The decision resulted in a decrease from full to partial Loss of Earnings (LOE) benefits, based on projected earnings had the worker completed the LMR plan in the Suitable Employment or Business (SEB) of Cashier, Self-Serve Gas Bar Attendant.
The worker seeks full LOE benefits or, in the alternative, increased partial LOE benefits based on a 20 hour work week.
HOW THE ISSUE ARISES
On November 18, 2008, this then 57 year old driver was on a ladder lifting an oversized chair over his shoulders when he turned and felt a "pop" in his low back. The worker was initially diagnosed with mechanical low back pain. Full LOE benefits were paid from November 19, 2008 to April 29, 2010 and partial LOE benefits from April 29, 2010 and continuing.
The worker was referred to a Regional Evaluation Centre (REC) in March 2009 and was diagnosed with acute lumbosacral strain with pre-existent, chronic, multi-level spondylitic changes throughout his lumbar spine, as well as chronic multi-level cervical spondylitic changes. The prognosis was for an incomplete recovery and the recommendations were that the worker was limited to self-restricted activities at home.
The employer was unable to provide modified work and the worker's file was referred to a LMR provider. In the LMR Plan Proposal Summary dated May 20, 2009, the LMR provider determined the worker was unemployable, noting it would be unlikely that he would secure and sustain employment based on his physical injury and precautions, limited number of years in the workforce, and the local economy in the Thunder Bay area. The alternative Suitable Employment or Business (SEB) was Retail Salesperson, Gas Bar Attendant, or Cashier, National Classification Code (NOC) #6421.
In a decision dated June 3, 2009, the operating area determined the worker was unemployable based on the worker's age, medical precautions, and large population of unemployed younger individuals in the geographic area. The operating area determined the worker had a permanent impairment in his low back and the worker's file was reviewed by the Non Economic Loss (NEL) department in January 2010. The worker was provided a 10% NEL award for "low back strain on degenerative disc disease".
In April 2010, the operating area reconsidered their decision of June 3, 2009 regarding the worker's employability and returned the worker's file to the LMR provider. The LMR provider subsequently identified the SEB of Cashier, Self-Serve Gas Bar Attendant with the LMR plan consisting of a four week Job Search Training Program followed by a job placement.
The worker indicated he was physically unable to participate in the LMR program and the operating area determined the worker was non co-operative.
On April 28, 2010, the operating area informed the worker of their finding of non co-operation and reduced his wage loss benefits from full to partial LOE, reflecting the worker's earnings potential had he completed the LMR plan as a full time Cashier, Self-Serve Gas Bar Attendant, earning $10.25 per hour. The decision was communicated to the worker in the Case Manager's letter of April 29, 2010.
The worker objected to the decision of April 28, 2010. The operating area upheld their decision and the worker's file was forwarded to the Appeals Branch for further consideration.
AUTHORITY
Operational Policy Manual (OPM) documents:
19-03-03 Determining Suitable and Available Employment or Business, and Earnings
19-03-10 Co-operating in LMR
22-01-03 Worker's Co-operation Obligations
RESOLUTION METHOD AND PROCESS
The worker submitted a 60 day expedited decision option which was received by the Appeals Branch on August 17, 2010. This election requires the Appeals Branch to make an expedited decision (within 60 days) based on the information on file. The 60 day time frame in this case expires on October 15, 2010.
ASSESSMENT OF THE EVIDENCE
The worker was referred to a Regional Evaluation Centre (REC) in March 2009 and was seen by an orthopaedic specialist and registered physiotherapist. The worker was diagnosed with acute lumbosacral strain with pre-existent, chronic, multi-level spondylitic changes throughout his lumbar spine, as well as chronic multi-level cervical spondylitic changes. The prognosis was for an incomplete recovery and the recommendations were that the worker's low back condition would prevent him from returning to his pre-injury job, being retrained or finding any other type of modified employment. The current restrictions were noted as follows; "The patient is hypertensive with diffuse arthritic changes referable to his cervical and lumbar spine. He may carry out activities at home and can self-restrict himself with respect to his symptoms".
I reviewed the Psych-Vocational Assessment (PVA) on file dated May 10, 2009. The worker was noted to have obtained a grade 12 equivalency in 1981, possesses an AZ class license, and had previously taken a brief carpentry course. The worker's employment history involved driving tractor trailer, moving furniture, work in sawmills as a labourer, machine operator and heavy equipment tire repairman. The worker's general intellectual abilities were found to be above the average range and this suggested a strong formal retraining potential. The worker's occupational preference was to work in a self-directed, hands-on job. Examples in the PVA were noted as occupations in business administration, finance, supervision, teaching or sales. At the time of the PVA the worker reported being able to sit or stand no more than 15 minutes.
The LMR assessment in May 2009 noted the worker was convicted for possession of marijuana and assault in Canada and a conviction of drug possession, escaping from jail and automobile theft in the United States. The worker informed the LMR provider that there were still outstanding warrants for his arrest in the United States.
The above LMR assessment also noted the worker is experienced in customer relations and would be able to capitalize on employment as a parts clerk, light delivery driver or in a sales related capacity. The final recommendation of the LMR assessment indicated the worker was unemployable and states:
Given the worker's physical injury and physical precautions, as well as his limited number of years remaining in the workforce and the depressed economy in Thunder Bay area, it is unlikely that the worker would be able to secure or sustain employment at this time. As such, a no-plan option is being recommended.
The WSIB Case Manager contacted the LMR provider to discuss the issue of whether the worker would be considered bondable in Memo 17. The LMR provider indicated the worker could be bonded however the employer would have to pay higher premiums. The LMR provider added that these increased premiums, the worker's age, medical precaution and current economy would result in the worker being unlikely to be successful in obtaining employment.
Memo 17 indicates the worker has prior claims with NEL awards of 21% for his neck and 2% for his hands/fingers. His total combined NEL award including all claims for his neck, hands and back is 33%.
A LMR addendum report dated April 21, 2010 noted the worker would likely have significant difficulties performing full time employment as a result of his medical status and precautions. The worker reported his medical condition was progressively worsening at that time, and he had progressed from Tylenol 3 to Oxycodone for pain control and, as a result, lost his driver's license as a result of the new medication.
With regards to functional abilities, the LMR provider indicated the position of Self-Serve Gas Bar Attendant is listed as limited strength level and the worker would be able to physically perform this work with accommodation, being the use of an ergonomic chair and/or sit/stand stool. The worker would also require a placement to be trained in the use of full cash/credit transactions and operation of a computerized cash register. It was the opinion of the LMR provider that the worker would likely have significant difficulties performing full time employment as a result of his medical condition and recommended a Functional Abilities Evaluation (FAE). The LMR addendum recommended a four week Job Search Training program followed by a job placement from July 2, 2010 to September 30. 2010.
On April 15, 2010, Dr. Hoffman, orthopaedic specialist, noted arrangements would be made for a steroid epidural injection in order to relieve pain. Further medical information from Dr. Hoffman is not on file.
Memo 38 recorded a call from the worker on June 2, 2010, which stated the worker had "an injection" in his back had improved symptoms and that he was actively pursuing work, not in his SEB as he felt he could not work in this field due to his criminal record and was looking into home based computer work.
In the Objection Form (Appeals) dated May 31, 2009, the worker states he requires laying down on a memory foam mattress for a period of 1-2 hours, frequently throughout the day, in order to obtain pain relief. The worker requested full LOE benefits however he added there was some improvement in that he felt he was now capable of working 20 hours per week in a suitable modified position.
Analysis and findings:
In this case, the worker did not co-operate in the LMR plan and the operating area adjusted the worker's LOE benefits to reflect the SEB of Self-Serve Gas Bar Attendant, had the worker completed the LMR plan. This decision is in keeping with OPM document 19-03-10 "Co-operating in LMR".
The question is whether the worker is employable in the SEB of Cashier, Self-Serve Gas Bar Attendant on a full time basis. I find there is evidence to suggest the worker is employable in his SEB on a part time basis. I will explain my findings.
OPM document 19-03-03 states in part:
A SEB represents a category of jobs suited to a worker's transferable skills that
are safe
are within the worker's functional abilities
reduce or eliminate the loss of earnings resulting from the injury
are achievable after LMR, and
are available in the local labour market.
"Available" means that employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job.
Memo 38 records a call from the worker where he reported to have had an injection performed on his back which resulted in an improvement. The worker stated he would not pursue his SEB due to his criminal record but was "looking into" a home based computer work.
The worker's Objection Form (Appeals) dated May 31, 2010 states:
I feel they should be reduced [hours] by 20 hours per week to a 20 hour work week as per LMR providers advice, and my own personal feelings on my physical abilities, which I think I now can go 3-4 hours of work per day, as long as within capabilities.
I note the REC was conducted 4 months post injury and the worker's functioning appears to have improved recently, following a steroid injection in the low back and a change in medication. As noted above, the worker feels capable of working on a part time basis and was actively searching for work.
Although the worker claims his past criminal record would be a barrier to working in the SEB of Cashier, Self-Serve Gas Bar Attendant, this criminal record does not appear to have been a factor in his ability to obtain employment in the past. As a furniture mover, the worker would be going into people's homes and would have been in a position of trust. As such, I do not see the worker's criminal past as being a barrier to finding employment in his SEB of Cashier, Self-Serve Gas Bar Attendant.
The NOC Career Handbook for the position of Cashier is noted to be listed a "light" while the occupation of Self-Serve Gas Bar Attendant was noted to be "limited" physical demand. Noting the light/limited physical demands, I find the SEB of Cashier, Self-Serve Gas Bar Attendant is suitable with the requirement of an ergonomic chair and sit/stand stool, as recommended by the LMR service provider.
The LMR provider referred to employment information through HRSDC which indicated there were available jobs as Cashiers in Thunder Bay and the surrounding area, with 41 employers recently hiring for the position of Cashier. The prospects for this SEB were considered "good" for the next two years.
I find the SEB of Cashier, Self-Serve Gas Bar Attendant to be suitable (with accommodation) and available.
In reviewing the medical information on file pertaining to the worker's low back condition, I do not find the worker would be capable of sustained employment in his SEB on a full time basis. As such, I find the worker is capable of working on a part time basis at 20 hours per week in the SEB of Cashier, Self-Serve Gas Bar Attendant.
CONCLUSION
In reaching my conclusion, I considered all the documentation in the worker's claim file, the relevant sections of the WSIB Act and operational policy.
The worker's objection is allowed in part.
I find the worker's SEB of Cashier, Self-Serve Gas Bar Attendant to be suitable with accommodation.
I find the worker is limited to work on a part time basis for 20 hours per week from April 29, 2010.
Partial LOE benefits are to be adjusted from April 29, 2010, to reflect the above noted findings.
DATED September 23, 2010
M. Barbeau Appeals Resolution Officer Appeals Branch