WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110006
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: December 6, 2010
ATTENDEES: Worker, Worker representative, Interpreter
ISSUE:
The worker in this case is requesting that full loss of earnings (LOE) benefits be allowed from July 8, 2010 on the basis that the identified suitable employment or business (SEB) objective is not suitable.
HOW THE ISSUE AROSE:
On July 13, 2006 this then 30 year old worker claimed compensable injuries to his left knee and left wrist after a six foot fall through a floor. At the time of injury the worker had been employed with the accident employer since June 25, 2003 as a labourer. Pre-injury wages were reported as $22.20 per hour based on a 40 hour work week.
This was originally considered as a no lost time claim as the worker was paid by the employer during his absence.
The worker was diagnosed with a meniscus tear of the left knee and strain of the left wrist. Treatment post accident was conservative consisting of analgesics and physiotherapy.
On September 23, 2006 an MRI scan showed evidence of mild degenerative changes in the left knee.
On February 7, 2007 the worker returned to modified duties at graduated hours with the employer. The employer laid the worker off due to a work shortage on July 29, 2008.
After review full loss of earnings (LOE) benefits were allowed from August 11, 2008
On October 24, 2008 the worker was referred for assessment at a local functional restoration program. The results indicated that the worker was suffering from an adjustment disorder, pain disorder, and depressed mood.
On April 8, 2009 a WSIB medical consultant reviewed the existing medical reports and offered the opinion that the worker met the necessary criteria for chronic pain disability (CPD) for the left knee.
As the employer could not offer permanent modified duties the worker was referred for labour market re-entry (LMR) services on May 2, 2009.
After assessment a suitable employment or business (SEB) objective of cashier was recommended. In order to access this objective, a program of limited educational upgrading, followed by a 38 week job placement, and 4 weeks of job search training and support was provided.
On November 12, 2009 a 20% Non Economic Loss (NEL) award was granted in recognition of the CPD condition.
The worker successfully completed a work placement at a local gas bar as part of the LMR plan.
On July 8, 2010 LMR services were closed with the worker remaining unemployed.
As a result of the LMR closure LOE benefits were adjusted to reflect the entry level wages associated with the identified SEB effective July 8, 2010.
On September 9, 2009 the worker formally objected to denial of full LOE benefits from
July 8, 2010.
AUTHORITY:
Policy No: 18-03-02 : Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE:
The worker representative argued through the original objection form, related file documents, and worker testimony that the worker was not capable of working within the identified SEB of cashier due to his limited education and compensable condition.
It was further argued that due to the worker’s educational level, compensable condition, and medications that he was not capable of pursing or maintaining any form of employment.
The employer was informed of this objection but elected not to participate in the Appeals process.
Testimony of the worker:
The worker testified that he came to Canada at the age of 23 and that he only possessed a Grade 5 education.
He indicated that once arriving in Canada he took English and Computer courses for approximately two years but did not obtain any certificates from this training.
The worker confirmed that he participated fully with the LMR program and worked at two local gas bars through the LMR placement process.
The worker then stated that he was in constant pain requiring pain relief medication and that this affected most aspects of his daily living.
He stated that his sitting tolerance is only approximately 10 minutes due to left leg pain and that he has no use of his left wrist.
It was noted that the worker was able to sit through the entire hearing, approximately 1hour, without discomfort or alternating his position.
In reaching this decision I had regard for the worker and employer arguments, worker testimony, the Board record, and Operational policy.
Policy 18-03-02, payment of LOE benefits, stipulates:
"A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings benefits beginning when the loss of earnings begins.”
If the nature and seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker's LOE benefits."
In reviewing the circumstances of this case it is noted that the worker suffers from CPD. The 20% NEL award is considered as an accurate reflection of this condition.
It is also noted that the worker underwent 2 separate academic assessments. The results indicated that the worker was only functioning at a Grade 4 level and would require extensive upgrading to progress further in any academic training.
Despite the CPD impairment and the limited education the worker was able to successfully complete the course of LMR upgrading and training.
In reviewing the work placements it is noted that the worker worked for two separate gas bars during the LMR process. The first closed prematurely and he successfully completed his placement with the second gas bar.
The results from these work placements indicated that the worker demonstrated competency with all assigned duties.
On July 7, 2010 the worker was contacted by the adjudicator to discuss the upcoming closure of LMR services. During this conversation the worker indicated that he enjoyed his work placements and would have liked to continue working with the second employer.
The worker also stated that he was actively seeking employment through friends, computer searches, and intended to see if the second employer was in a position to hire additional staff.
At no time during this conversation did the worker state that he could not perform work within the identified SEB or indicate that he was unemployable.
The worker has demonstrated an ability to perform the duties of a cashier successfully and has demonstrated a desire and willingness to locate and secure employment.
As a result I find that the SEB of cashier is suitable and the worker is considered fit for employment.
CONCLUSION:
I conclude that the SEB of cashier is suitable and the worker is considered fit for employment.
The worker’s objection is therefore denied.
DATED this day February 28, 2011
R. Sheridan
Appeals Resolution Officer Appeals Branch