WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER 20100146
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
ISSUES
The worker objects to the decision of December 9, 2009 which determined the Suitable Employment or Business (SEB) of Customer Service Representative and the decision of
March 19, 2010 involving the closure of the Labour Market Re-entry (LMR) plan for non cooperation.
The worker is seeking full Loss of Earnings (LOE) benefits from March 19, 2010 and a new SEB.
HOW THE ISSUES AROSE
On December 25, 2007, this then 34 year old part-time Personal Support Worker/Attendant felt a pinching sensation to her low back when she was assisting a resident from the bed to the bathroom. The worker was diagnosed with mechanical back pain. Full LOE benefits were paid from January 2, 2008 to March 19, 2010.
The worker was referred to a Regional Evaluation Centre in February 2008 and an MRI was requested for the worker’s ongoing low back pain and stiffness. The MRI was conducted in March 2008 and revealed a left L4-5 disc herniation. The worker was subsequently referred to Dr. Schneider, an orthopaedic surgeon, who performed a left L5 hemilaminectomy with L5 and S1 foraminotomy and left L4-5 discectomy on October 1, 2008.
The worker received physiotherapy following surgery and a functional capacity evaluation (FCE) was conducted in May 2009 which provided the following low back precautions: no repetitive forward bending, left or right rotation, pushing, pulling, stair climbing, no lifting greater than 15 pounds from floor to waist or from waist to floor, no standing or sitting greater than 30 minutes and no prolonged walking.
The operating area determined the worker had a permanent impairment in her low back. In
July 2009, the worker was seen for a Non Economic Loss (NEL) assessment and she was provided a 20% whole person NEL award.
The employer was unable to permanently accommodate the worker and she was referred to a Labour Market Re-entry (LMR) provider. The Workplace Safety and Insurance Board (WSIB) Case Manager determined the SEB of “Administrative Support Worker” was appropriate and the LMR plan was accepted which included academic upgrading, computer training, a program in office administration and job search.
Medical information from the worker’s family physician dated October 13, 2009 indicated the worker was having worsening of her back pain over the past few weeks and required a break from schooling or a decrease in hours. The family doctor noted the sitting in the classroom was an aggravating factor and the worker was being administered medications to deal with neuropathic pain. The worker began attending LMR for three hours per day.
The worker’s representative provided a letter dated November 19, 2009 which indicated the worker was having increased low back pain while upgrading for four hours per day and questioned the choice of SEB in light of the worker’s precautions as outlined in the FCE.
In response to the worker representative’s letter of November 19, 2009, the WSIB Case Manager determined the SEB of Administrative Support Worker was no longer suitable and the SEB was changed to that of Customer Service Representative (CSR). The WSIB Case Manager communicated this decision in a letter dated December 1, 2009. At the same time, the WSIB Case Manager also noted the worker was not attending the upgrading program on a full time basis (three hours per day instead to four) and that LMR services would be withdrawn if the worker did not cooperate in all aspects of the LMR plan.
The worker’s representative objected to the decision of December 1, 2009 as the new SEB was viewed as being unsuitable based on the worker’s medical condition and precautions.
In a decision dated March 19, 2010, the WSIB Case Manager determined the worker was not cooperating in all aspects of the LMR plan and WSIB sponsorship for LMR was withdrawn. The WSIB Case Manager determined that had the worker completed the LMR program, she would have earned an average wage for the SEB of CSR of $12.00 per hour up to 37.5 hours per week. As a result, the WSIB Case Manager ended full LOE benefits as no further wage loss was anticipated.
The worker’s representative objected to the decision of March 19, 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:
18-03-02 Payment of LOE benefits
19-03-03 Determining Suitable and Available Employment or Business, and Earnings
19-03-10 Co-operating in LMR
22-01-03 Workers’ Co-operation Obligations
RESOLUTION METHOD AND PROCESS
The worker submitted a 60 day expedited decision option which was received by the Appeals Branch on July 23, 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 September 20, 2010.
ASSESSMENT OF THE EVIDENCE
I find the original SEB of CSR to be unsuitable and that the worker’s non-co-operation in the LMR plan to have been for legitimate medical reasons. I will explain my findings.
I will first address the issue of SEB suitability and then the issue of non-co-operation.
SEB suitability:
OPM document 19-03-03 “Determining Suitable and Available Employment or Business, and Earnings” states in part:
Definitions 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.
The worker was seen for a psycho-vocational assessment on June 4, 2009. The psychologist found the worker possessed the required intellectual abilities for the occupations of administrative clerk and general office clerk with the benefit of a period of academic upgrading.
The LMR Plan Proposal Summary dated June 24, 2009 recommended the SEB of Administrative Support, National Occupational Code (NOC) #144 with alternate SEB being Clerical occupations, General Office Skills, NOC #141.
The LMR provider recommended SEB of Administrative Support was selected based on the worker’s interests, transferable skills, physical abilities, academic and psycho-vocational assessment results. The NOC Career Handbook noted the recommended SEB was listed in the limited physical demands level and within the worker’s physical precautions. The occupation of Administrative Support was noted to allow the worker the flexibility to move as required, taking into consideration the worker is unable to sit or stand for longer than 30 minutes at a time.
The recommended SEB of Administrative Support Worker was accepted by the operating area as being suitable.
The LMR information sources noted there was a high placement rate for the field of Administrative Support in the geographic area. The Sault College of Applied Arts and Technology Performance Indicators (2007-2008) noted 92% of Sault Ste. Marie area graduates were employed in a related field and wage source information provided low wage earnings from $10.65 to $17.51 per hour.
The LMR progress report dated December 16, 2009 recorded that on December 1, 2009, the WSIB case manager changed the SEB to CSR. It is recorded in the LMR progress report that the worker did not agree with the change in SEB.
Memo #54 records the choice of CSR as a suitable SEB was based on the fact local call-in centres would be hiring and thus there was a demand for these positions in the area. There is no specific mention of how the worker’s precaution of sitting no more than 30 minutes would be addressed.
I note in the above Memo that the WSIB Case Manager doubted the worker’s sitting precaution, noting the worker did not have any problems maintaining a household and caring for her children. In a letter from the worker dated April 3, 2009, I note the worker reported she was having family members assist her in performing household duties.
The family doctor provided a letter dated March 25, 2010 which stated she did not find the SEB of CSR to be medically suitable noting the worker’s precautions.
I am not convinced the SEB of CSR would be suitable for the worker, due to prolonged sitting. This view is supported by the worker’s family physician.
It would appear the original recommended SEB of Administrative Support Worker is suitable for the worker, in that it would allow her the flexibility to move as required. I note the LMR provider recommended the SEB of Administrative Support Worker as it restored pre-accident earnings and was based on the worker’s interests, transferable skills, physical abilities, academic and psycho-vocational assessment results.
Non co-operation:
OPM document 22-01-03 “Workers’ Co-operation Obligations” states in part:
Reducing or suspending benefits The WSIB may reduce or suspend a worker's benefits if after notifying the worker of the obligation(s), the worker
- fails to co-operate with the obligation(s), and
- does not have a legitimate reason for not co-operating.
Legitimate reason When a worker does not meet an obligation, the WSIB determines whether there was a legitimate reason. Workers are not penalized for non-co-operation if there is a legitimate reason. Legitimate reasons include;
- unexpected illness, accidents, severe weather conditions
- compelling personal reasons, such as a death in the family
- the actions or inactions of a relevant third party, such as Canada Revenue Agency (CRA), if tax records are involved.
I note the worker began upgrading on July 13, 2009, starting at four hours per day with the expectation to gradually increase to six hours per day. The Monthly Progress Report of
July 2009 from Grade Expectations noted the worker was a dedicated and ambitious student. In August 2009, the monthly report indicated the worker was provided with ergonomic equipment and she would often walk while reading to prevent discomfort.
On October 13, 2009, the worker’s family physician stated:
[The worker] is having worsening of her back pain over the past few weeks and requires a break from her schooling or decrease in the hours. She has to sit for 4 hours with only a few breaks and this is aggravating the situation. She is being started on medications for her neuropathic pain and will be reassessed in 3 wks [weeks] time.
The LMR provider report of October 14, 2009 noted the worker informed her LMR Rehabilitation Consultant that she was unable to attend upgrading for more than three hours per day due to pain.
On November 3, 2009, the family doctor noted the worker could only attend school for three hours per day and that the worker would be re-assessed in six weeks.
The LMR progress notes reported that the worker continued to regularly attend classes for three hours per day instead of four and regularly performed homework. The record shows the worker continued to progress in the program and obtain very high grades in both upgrading and Customer Service, with marks in the 90s.
A letter from the Progressive Training Centre dated March 1, 2010, warned the worker a four week co-op placement would be eliminated due to the fact the worker was only attending three hours per day, as this demonstrated the worker was not prepared to work in a full time environment.
I note the worker’s pre-injury position as a Personal Support Worker was on a part-time basis of 19.25 hours per week, and the worker’s SEB earnings would be based on these same hours, which the worker was approximating while attending LMR.
The worker’s increased pain may be related to non-organic issues, however I will only comment on the worker’s organic findings.
In this case, I find the worker was progressing through the LMR program however there was non-co-operation in that there is evidence of reduced attendance hours. I find, however, there were legitimate reasons for the reduced hours, as there is documented evidence of an increased pain response and a change in medication.
OPM document 22-01-03 “Workers’ Co-operation Obligations” provides examples of legitimate reasons for non-co-operation, however this list is not all-inclusive. The finding of non-co-operation for legitimate medical reasons is supported by the worker’s family physician who indicated the worker was having difficulties coping due to increased low back and neuropathic pain.
In this case, as the non-co-operation was for legitimate medical reasons, the worker is entitled to full LOE benefits from March 19, 2010.
CONCLUSION
The worker’s objection is allowed.
Full LOE benefits are to be restored from March 19, 2010.
The worker is entitled to further LMR services.
I am returning the worker’s file to the operating area in order to re-consider the SEB of Administrative Support Worker, in light of the above noted findings.
DATED September 20, 2010
M. Barbeau
Appeals Resolution Officer
Appeals Branch