WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100147
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative, Interpreter, Observers
HEARING DATE: September 24, 2010
ISSUE
The worker objects to the suitable employment or business (SEB) and associated earnings used in the decision of November 24, 2009 to calculate the loss of earnings (LOE) benefit.
HOW THE ISSUES AROSE
On January 15, 2007 this now 38 year old worker reported a gradual onset of right shoulder pain. He attributed the onset to the repetitive and heavy physical demands of his job as a brake operator.
The injury was initially diagnosed as a soft tissue strain and treatment consisted of physiotherapy. In May 2007 ultrasound of the shoulder demonstrated the following findings: moderate biceps tenosynovitis; moderate subscapularis tendinosis; moderate supraspinatus tendinosis; mild infraspinatus and teres minor tendinosis, and; some distention of the acromioclavicular (AC) joint.
In July 2007 the worker was assessed by an orthopaedic surgeon who noted that most of the worker’s discomfort was localized around the AC joint and rotator cuff. Cortisone injection was of limited benefit. MRI, carried out in January 2008, reportedly revealed SLAP lesion, tear of the anterior inferior labrum, and degeneration in the AC joint.
The worker attended a second orthopaedic specialist for surgical consultation. The specialist found that the majority of the worker’s complaints were not in keeping with MRI findings. He suggested a diagnostic arthroscopy and repair of the labrum, if necessary. The worker attended another surgeon for a second opinion on surgery. The surgeon endorsed arthroscopic surgery due to the persistence of symptoms. The worker did not proceed with surgery. He was found to have a permanent impairment and, in May 2010, was granted a 12% non-economic loss (NEL) benefit.
The worker was found unfit for his pre-injury job and he was referred for labour market re-entry (LMR) intervention. Psycho-vocational assessment indicated the worker was best suited to direct placement, skills training, or training on the job. Arrangements were made for a 14-week program which would provide the worker with certification in security-related occupations. The worker completed the program and job search training in June 2009. At the time of LMR file closure in July 2009 the worker was still looking for work.
The LOE benefit was reduced to reflect projected earnings for security guard occupations. The wage, $9.50 per hour, reflected low entry earnings for this category of occupations. The worker has objected to the security guard SEB and the projected earnings used to calculate the LOE benefit.
AUTHORITY
19-03-01 – Overview
19-03-02 – LMR Assessments
19-03-03 – Determining SEB and Earnings Watch updates
19-03-04 – Entitlement to LMR Plans
19-03-05 – LMR Plans
19-03-10 – Co-operating in LMR
EXHIBITS
Exhibit #1 – HRSDC NOC description for sub group 6651, Security Guards and Related Occupations
ASSESSMENT OF THE EVIDENCE
Worker Testimony
The worker confirmed that his work-related right shoulder injury prevented him from returning to work at his heavy, repetitive pre-injury job. He recalled the initial meeting with the LMR provider and the psycho-vocational assessment. He testified that he accepted the vocational objective of security guard on the basis of assurance from the LMR provider that the job would involve nothing more than sitting in a car and watching a parking lot.
The worker described his 14-week LMR training program. He advised that he was required to read a chapter of a training manual, watch a video on job scenarios, and look up job-related definitions on the computer each day. The tests were open-book and the answers had already been marked on the sheet. The worker did not feel the course was instructive. The worker advised that he received his security licence.
The worker reported that the LMR provider arranged for a couple of interviews after the program. He stated that one of the positions involved watching an event and interacting with the public. The worker did not feel comfortable with the job because his shoulder impairment would prevent him from defending himself. The second job involved security work at a hospital. The worker was under the impression that he was not called back after the interview because he had to explain that he left his last job because of a work-related injury.
The worker advised that he has not conducted any form of job search since LMR closed in July 2009. He did not apply for any further security jobs because he felt he had exhausted job possibilities in his area during the four-week WSIB-sponsored job search. He has not re-contacted any of the companies. He allowed his security licence to expire several weeks ago. The worker has not applied for any other type of employment, explaining that he does not know what he can do.
The worker confirmed that he needs one credit to complete high school. He began a correspondence course in physical education about a year ago but has only completed the first section. He intends to complete the course but was not sure when.
The worker stated that he stays home and watches television. He lives with his parents and they take care of household chores and meal preparation. When asked why, in late 2008, the adjudicator could not reach him during the day, the worker replied that numerous bill-collectors contact him at home. His father does not know how to respond and tells everyone the worker is not available until evening. The worker denied being employed in any capacity since his injury.
The worker did not mention any psychological problem or mood disorder until the issue was raised by his representative. The representative noted that anxiety and depression were mentioned in the psycho-vocational assessment report. The worker could not recall any discussion regarding these issues at that time. He did not specifically endorse any symptoms of depression or undue anxiety other than to say that he does not sleep well.
The worker’s current medications include Oxycontin 20 mg, Celebrex 200 mg, and Prevacid. He takes these medications every six hours on a daily basis. The worker denied being prescribed any medication for depression or anxiety. He sees his family doctor every three weeks. He is on a waiting list to see a psychologist and another orthopaedic surgeon.
The worker’s description of his shoulder condition was vague. He demonstrated pain over the superior aspect of the shoulder and trapezius. He advised that he is limited in his ability to perform overhead activities, lifting, pushing and pulling. He can perform writing activities with periodic breaks. He described no problem with other activities. The worker stated the pain is constant, nine on a scale of ten, and affects his concentration.
Policy
The WSIB provides the worker with a labour market (LMR) re-entry assessment and, if necessary, an LMR plan. LMR services are provided to ensure workers have the skills, knowledge, and abilities to re-enter the labour market and restore their pre-injury earnings.
The WSIB conducts an LMR assessment if it is unlikely the worker will be re-employed by the accident employer due to the nature of the injury; the employer has been unable to arrange suitable and available work for the worker that restores the pre-injury earnings; or the worker’s employer is not co-operating in the early and safe return to work process. LMR assessments are used to determine whether a worker requires an LMR plan to re-enter the labour market and restore pre-injury earnings.
The WSIB decides whether a worker requires an LMR plan based on the results of the LMR assessment. An LMR plan will enhance the worker’s transferable job skills or provide the worker with new job skills enabling re-entry into the labour market with the accident employer or in a suitable employment or business (SEB).
A SEB represents a category of jobs suited to a worker’s transferable skills that are safe, within the worker’s functional abilities, and mitigate wage loss due to injury. Post-injury earnings are determined by examining wage information for suitable jobs in the category and the worker’s skill level for these suitable jobs.
An LMR plan is sponsored when it is the most appropriate and cost-effective way to enable a worker to re-enter the labour market and mitigate wage loss associated with the injury.
Workers are required to co-operate in all aspects and activities of the LMR assessment and plan. Workers receive benefits while co-operating in the LMR assessment or plan. If a worker does not co-operate, benefits are reduced or suspended and the LMR assessment or plan may be terminated.
When determining the worker’s benefits at the completion of the LMR plan, earnings for workers whose plan involves acquiring a new skill set or a new field are based on average entry-level wages. If the SEB is with the accident employer, benefits are based on the actual earnings from the job.
Assessment
The worker representative submitted that the worker is not fit for work as a security guard due to his organic shoulder impairment, injury-related psychological impairment, and lack of qualifying skills. He acknowledged that there is insufficient evidence on record to make a determination on entitlement to psychotraumatic disability, and requested that a determination of suitability and earnings potential be made based on the information available. The representative suggested that the LMR program did not qualify the worker for employment as a security guard. He noted the limited nature of the training program, the worker’s low academic and intelligence scores, and psychological difficulties documented in the psycho-vocational assessment report. He requested a finding that the worker is entitled to functional abilities testing, psychological assessment, LMR reassessment, and full LOE benefits beyond July 10, 2009.
In order to consider the worker’s request for further LOE benefits, it must be determined whether the work-related impairment and vocational factors prevent the worker from pursuing employment in the identified vocational objective. In making this determination, I reviewed the record and considered the evidence and submissions. I had particular regard for the worker’s functional abilities and psycho-vocational characteristics.
At the time of LMR closure the worker was 36 years of age. He was born, raised and educated in Ontario. He was one course short of high school completion. Testing confirmed the following: that the worker is fluent and literate in English; that he had low average academic abilities and aptitudes, and; he was best suited to training on the job or short term training. According to contemporaneous reports from the LMR provider, the worker expressed a strong interest in security-related occupations. He completed the 14-week program, including reading and video assignments without expressed concern about psychological difficulties. He applied for security licensing during the course of the program and was licensed by the time of LMR file closure.
The representative suggested that the worker’s interest in security occupations was based on an inaccurate job description provided by the LMR provider. He has also claimed that the job was not physically suitable and that the training program did not provide the necessary skills. In support of this claim, the representative submitted the NOC description for security guards and related occupations.
According to the HRSDC document, security-related occupations include crossing guards, gate attendants, and night watchmen, and security guards. Jobs are available with private security agencies, retail stores, transportation facilities, residential and industrial complexes, and public institutions. High school completion and specialized training are not required for the entry level security positions pursued by the worker. Required physical abilities include full vision, good hearing, and the ability to stand and walk. According to the HRSDC document, security occupations do not require coordination of limbs. The strength requirement is light, indicating a requirement to lift weights not exceeding 10 kilograms. On the basis of the HRSDC, the worker meets the educational and physical requirements for entry level security occupations.
The worker testified that he has conducted no job search since July 2009. He has made no recent attempt to complete the one correspondence course he needs for high school. He has, by his own account, engaged in no activity that would mitigate his wage loss. The worker’s suggestion that he “does not know what he can do” is not a reasonable explanation for his inaction, given his involvement in LMR and job search training.
The representative’s suggestion that there is a psychological barrier to employment has been considered on the basis of documentation currently available. The only reference to psychological difficulties was made in the course of the January 2009 psycho-vocational assessment. The psychologist who conducted the assessment wrote,
(The worker) denied suffering from any major cognitive issues.
In terms of his psychological symptomatology, he advised that he misses work and may be somewhat depressed. He noted experiencing feelings of helplessness and some social withrawal. He reported being “a little more irritable then (sic) usual” and experiencing lower tolerance levels when frustrated. He further noted increased anxiety and stress and worry about the future. He endorsed that his heart sometimes races and he sometimes perspires as well as sometimes experiences (sic) his legs/knees trembling.
(The worker) did not note much change in his appetite but advised that he experiences difficulties falling asleep and experiences disrupted sleep due to pain. As well his energy level is “a bit lower”.
(The worker) does not feel that there are any psychological barriers that prevent him from returning to the workforce…
The worker’s self-report indicates a normal degree of anxiety associated with his uncertain vocational future; however, he denied any psychological barrier to pursuing or performing physically suitable employment.
The evidence supports that the worker had the skills and physical abilities to pursue the entry-level security objective identified at LMR. Neither the psycho-vocational assessment nor LMR reporting suggested that psychological issues were a barrier to employment during the course of LMR. The projected wage associated with entry-level security occupations was an accurate reflection of the worker’s earning potential. The LOE benefit was correctly assessed and the worker is not entitled to a greater benefit beyond July 10, 2009.
CONCLUSION
The worker’s objection is denied.
The worker’s request for adjustment of the LOE benefits beyond July 10, 2009 is denied.
The worker intends to submit medical evidence to support a claim for psychotraumatic disability. Should entitlement to psychotraumatic disability be granted, it will be incumbent on Operations to determine whether the condition affects employability and, if so, when it began to affect employability and to what degree. The present decision makes no finding on these issues.
DATED September 30, 2010
D. Shepherd
Appeals Resolution Officer
Appeals Branch