WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110007
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker Representative, Employer Representative
ISSUES
The worker requests:
his earnings basis be established on an apprentice journeyman’s wages.
a change of SEB from User Support Technician NOC#2282 along with a change of venue for the LMR program 51-week course from Everest College to a three year course at Cambrian College.
HOW THE ISSUES AROSE
On October 2, 2008, this worker was 33 years of age and employed as a maintenance helper/uncertified mechanic. On that date, he was walking in the shop and carrying a milk crate when he tripped over a part on the floor.
As a result, he suffered an inter-articular fracture of the distal tibia with a transverse fracture of the distal fibula of the right leg. He underwent surgical repair on October 3, 2008.
The worker had a previous fracture with plate and screw fixation. Therefore, the employer was granted 75% Second Injury Enhancement Fund (SIEF) relief.
Once he recovered from the surgery, he returned to work at modified duties with the employer. He continued performing modified duties until March 20, 2009 when the employer no longer had any modified work available for him.
The worker was referred to a Labour Market Re-entry (LMR) service provider to assist him in returning to suitable work. The worker underwent a LMR assessment and a Functional Capacity Evaluation (FCE).
The worker’s representative submitted a letter dated July 2, 2010 requesting that the worker’s earnings basis be set based on average earnings of a journeyman employed by the employer in the same trade. The case manager conducted enquiries and it was determined there was no signed agreement or contract for the worker through the employer or from his employer, to be considered an apprentice.
Therefore, it was not established the worker was hired as an apprentice. As such, his earnings basis remained based on his pre-accident wages of $14.00 per hour. This decision was outlined in the letter dated July 21, 2010. This issue is under objection.
Further to the LMR assessment and FCE, the Suitable Employment or Business (SEB) of computer support technician or heavy equipment operator were identified for the worker. On July 20, 2010, the worker, his representative and the Case Manager discussed the SEBs during a teleconference. The worker chose the SEB of Computer Support Technician NOC 2282.
In that discussion, it was reiterated by the Case Manager that the LMR plan for this SEB consisted of a 51-week course at Everest College, followed by job searching. The worker’s representative requested the worker attend a computer program at Cambrian College instead.
The worker’s representative submitted a letter dated July 20, 2010 confirming the conversation and reiterating that they were requesting a three year college program at Cambrian College rather than the 51-week program at Everest College. The Case Manager approved the LMR plan for the 51-week program at Everest College. This issue is under objection.
The worker began the Everest College program on August 30, 2010 and continues to attend the program to date, with no apparent difficulties. The worker is currently in receipt of a Non-Economic Loss (NEL) benefit of 16% for the residual impairment to the right leg.
AUTHORITY
Operational Policy#12-04-13, Apprentices
Operational Policy#19-03-03, Determining Suitable Employment or Business, and Earnings
Operational Policy#19-03-05, LMR Plans (now called Work Transition Plans)
Operational Policy#19-03-06, Work Transition Expenses
RESOLUTION METHOD AND PROCESS
The worker’s representative, on behalf of the worker chose the 60-day decision option. The appeal decision will be based on all available information in the file.
ASSESSMENT OF THE EVIDENCE
I have carefully reviewed this claim in its entirety and considered the worker representative’s arguments on behalf of his client. The following is my assessment of the facts and evidence on record.
Earnings Basis:
The worker’s representative advised the Case Manager that the worker was registered with the Ministry of Training and had submitted his papers to them and as a result should be considered an apprentice.
The worker advised the case manager that he had an apprenticeship number and card. He obtained them when he started the heavy equipment program at Cambrian College in 2005. He finished the program in 2007. He then worked for Pioneer for 6 months and was laid off in the fall. He then started his employment with Marcotte Inc. in September 2008.
The worker stated he’d been told by the employer he would receive $18 or $19 per hour, however, he only received $14.00 per hour.
The employer checked their records and the worker was not hired as an apprentice. There was no contract or agreement in place for the employer to record and report his hours to the Ministry of Training. There was no agreement signed between the worker and the employer.
Having considered the evidence on file, I am not satisfied that the worker was hired in the capacity of an apprentice by this employer. Although the worker does have an apprenticeship number and card, he must enter into an apprenticeship contract/agreement with an employer in order to be considered an apprentice. There is no such contract/agreement in this case.
As such, he is not an apprentice for the purpose of Operational Policy#12-04-13. His earnings basis will remain based on his pre-accident wages of $14.00 per hour.
SEB and Training Venue:
The WSIB will accept an LMR plan for a worker that it considers most suitable, reasonable, and cost-effective and which is necessary for the worker to return to suitable and available employment.
I have reviewed the chosen SEB of Computer Support Technician and find this SEB to be suitable and within the worker’s restrictions. As well, the worker had an interest in this field and agreed with the SEB.
I reviewed the service provider reports submitted to the claim file and noted that the worker enjoyed the program at Everest College. There were seven students in his class and he was happy with his teacher.
On September 30, 2010, the worker indicated he no longer wanted to attend Cambrian College. He preferred the training at Everest College because the teachers are more accessible and he will be certified once he has completed the program.
This program will allow the worker to approximate and mitigate his wage loss entirely. His pre-accident wages were $14.00 per hour, his expected entry level wage, following certification from this program will be $16.00 per hour. Therefore, I find the program offered at Everest College to be suitable and reasonable for the worker and it will allow the worker to be certified upon completion.
CONCLUSION
1-The current earnings basis is upheld.
2-There is no evidence to support the worker had been hired as an apprentice.
3-The SEB of Computer Support Technician is upheld.
4-The venue of Everest College for the program is also upheld.
The worker’s objection is denied.
DATED January 6, 2011
M.St-Hilaire
Appeals Resolution Officer
Appeals Branch