WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110009
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: November 05, 2010
ATTENDEES: Worker, Worker Representative
ISSUE
The worker objects to the adjudicator’s letter dated November 5, 2009 that confirmed the worker was not working in her suitable employment or business (SEB) identified job, and therefore, partial loss of earnings (LOE) benefits would continue to be based on her deemed SEB earnings of $13.00 per hour at 40 hours per week rather than her actual earnings.
HOW THE ISSUE ARISES
The worker was employed as a ‘Tip Flip Operator’ with the employer and began her employment with them in September 2000. On April 4, 2006, at 30 years of age, she reported difficulties with her right shoulder that she attributed to her job duties. She worked on a machine that holds rolls of ply which required pulling to remove the ply from the roll.
The worker was assessed at the shoulder and elbow program in Toronto on November 13, 2006 and diagnosed with a right shoulder chronic rotator cuff tendonopathy and chronic myofascial pain. Arrangements were made for her to attend a Functional Restoration Program (FRP) at the
Toronto Western Hospital thereafter in January 2007. The FRP recommended the following functional precautions:
avoid sustained or repetitive reaching with the right upper extremity;
avoid overhead activity;
avoid load handling such as lifting, carrying, reaching, pushing and pulling, finger/handling and gripping beyond demonstrated physical capabilities;
avoid sustained neck postures, particularly forward flexion;
avoid impact activity.
Following the completion of the FRP, labour market re-entry (LMR) activities were initiated. The worker also went on to receive a 10 per cent non-economic loss (NEL) award for the right shoulder permanent impairment as explained in the NEL adjudicator’s letter of May 25, 2007.
The psycho-vocational assessment report of May 11, 2007 and the LMR Plan Proposal Report of May 29, 2007 recommended the SEB of Paralegal, Major Group 4211. The minor group National Occupational Classification (NOC) 421, Paralegals, Social Service Workers, and Occupations in Education and Religion. Having regard for the 10 per cent NEL award for the right shoulder condition, the SEB was deemed suitable, available, and within the worker’s academic and aptitudinal abilities. The worker also was motivated to pursue this SEB and had the potential to earn $13.00 per hour as identified in the LMR reporting. The SEB was found to be within the worker’s right shoulder restrictions and it was suggested it would partially restore the worker’s earnings profile.
In April 2008, the LMR provider contacted the adjudicator informing her that the worker did not attend the week of March 31 to April 4, 2008. The worker explained her doctor advised her not to attend due to headaches and stress and requested a change in her plan. The worker expressed concerns regarding her current program. She had completed upgrading in computer courses and in October 2007, began her Paralegal Program at TRIOS College. The adjudicator reviewed these details on April 7, 2008 and denied the request to change SEB’s.
The LMR provider contacted the adjudicator on April 9, 2009 asking about a possible change from the Paralegal Program to the Legal Assistant Program. The worker was extremely anxious about the paralegal testing, as well as the overall course information to that point in time. It was confirmed that a change to Legal Assistant Program would reduce the plan by 15 weeks and this was supported by the case manager. It was also noted that this change would be more in line with what the worker’s original plan was.
On April 17, 2008, the case manager was contacted by the adjudicator who reported she had not been at school that week due to a condition/illness that occurred on April 11, 2008. She attended her doctor and was sent for x-rays and provided with anti-inflammatory medication, muscle relaxants, and Percocet. The worker explained her doctor that she could not drive while on the medication and therefore she did not attend school that week. The case manager advised the worker that she would support the lost time and requested the medical documentation to support the above information. It was also during this time that the worker requested entitlement to the neck area as all her treatment to that point in time also centered on the neck and she requested a review of this issue.
The adjudicator also received a call from the worker on August 21, 2008 confirming that she was having ongoing neck difficulties and missed school from August 19 to September 7, 2008. This was supported by her family physician according to the worker.
In December 2008, the adjudicator reviewed the worker’s entitlement to the neck and confirmed entitlement was extended to this area of injury (cervical strain). Maximum medical recovery (MMR) was determined as explained in the FRP Discharge Report of March 23, 2007. Entitlement was also extended for full LOE benefits during the period of time the worker missed at the end of August and beginning of September 2008. This was upon review of Dr. Stewart’s clinical notes and the case manager accepted the worker was unable to fully participate in LMR activities due to increased neck pain.
The worker was referred for and participated in an LMR program with the goal of NOC 4211 – Paralegal, which was amended in June 2008 – same NOC but with specific goal of Law Clerk. The worker was also provided with a Job Search Techniques Program (JSTP). The worker completed her LMR program and effective February 6, 2009, partial LOE benefits were adjusted to reflect the SEB wage. This was explained in the February 24, 2009 letter.
Correspondence was later received on file dated April 14, 2009 confirming the worker obtained part time employment as a law clerk working 10 to 15 hours a week at $15.00 per hour. This information was reviewed by the case manager who concluded there was no change of partial LOE benefits as the worker was working in her SEB and was considered to be under employed.
The worker’s representative submitted a letter dated November 4, 2009 suggesting that, since the worker had returned to work within her identified SEB, her LOE benefits should be based on her actual earnings. The case manager reviewed this information and explained that the worker was not working 40 hours a week as per the approved LMR plan and was considered to be under employed and therefore, not working in her SEB identified job. This was explained in her letter dated November 5, 2009.
The worker’s representative, on behalf of the worker, completed an Objection Form dated December 9, 2009 objecting to the November 5, 2009 decision to base partial LOE benefits on deemed SEB earnings as opposed to actual earnings. The case manager maintained her prior decision on the issue. The worker again objected and the matter was referred to the Appeals Branch for review. A hearing was arranged for November 5, 2010 to address the issue under objection.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Document:
18-03-03 – Reviewing LOE Benefits (prior to final review)
EXHIBITS
There were no exhibits submitted at the time of the hearing. However, the worker representative requested the opportunity to provide a post hearing submission.
His fax dated December 22, 2010, and received in the Appeals Branch on January 4, 2011 attached a copy of a report from Dr. Stewart dated December 20, 2010. This was accepted as a late submission.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record, the submission, the worker’s sworn testimony, and have considered the matter.
The worker explained she is employed as a law clerk with her employer. Reference was made to the April 14, 2009 letter received from this new employer which confirms that she works from 10 to 15 hours per week. She explained she was initially working three days a week but now is working five days per week. She said that things got very busy at the office and she increased her hours to four days and then progressed to five days. The worker explained she feels incapable of working more hours per day than what she is doing right now. She explained she does well in her job and enjoys her work. She said that, as she increased her days, the employer has allowed her to pace herself and alternate duties as required to alleviate any ongoing discomfort she may have at any given time. She alternates from typing, filing, opening and closing drawers when filing, etc. She said she performs a lot of paper work. She said the work can get repetitive and she moves to different tasks as required. She explained the new employer is aware of her health issues and is very accommodating having regard for her ongoing restrictions.
The worker explained that from April 2009 to the present, she did try to increase her hours per day but had great discomfort. She explained she developed headaches and that it was difficult for her to increase her hours than what she is currently working. She said that she enjoys her job and will stay at this employer regardless of the outcome of this hearing.
The worker’s representative made reference to the fact that the LMR activities began with only the right shoulder entitlement acknowledged. In October 2008, the worker missed a few courses because of a flare-up of her neck and shoulder condition. During this time, she did not have entitlement to the neck. The worker explained upon questioning, that she went to TRIOS College and arranged to make up courses herself. During this time, neck entitlement was not recognized.
The worker’s representative confirmed the worker was assessed for the NEL of the neck on
March 27, 2009. He also made reference to her LMR program that was amended several times and suggests the WSIB knew the worker was struggling but would not accept her to drop down to a lower job of legal assistant or general clerk.
Reference was also made to the letter of February 13, 2009 which explained the completion of the worker’s LMR program. The worker’s representative made reference to the outlined restrictions and said the work the worker was performing exceeds her restrictions as explained in the February 13, 2009 letter. He explained that currently, she has great difficulty performing her job and needs to alternate her duties and move to different tasks and performs the job the best she can and enjoys doing the work.
The worker also explained the medications she is taking such as Percocet, Motrin, muscle relaxants, in addition to anti-inflammatory medication at various times throughout the recovery process. She said she uses a heating pad and a special pillow in addition to other aids to maintain comfort of her condition. The worker explained that she is currently making $15.00 an hour and cannot do more hours even if they were available. She explained her current employer is very accommodating and supportive and understands her situation and helps her work around her capabilities.
The worker’s representative maintains the worker has significant restrictions for both the shoulder and the neck. He is of the view that the worker has mitigated her own circumstances and in fact, has increased her days of work to stay employed. The employer has been very accommodating but he suggests that the permanent restrictions on the worker are not conducive to a job as a legal clerk or as a legal assistant. He notes that when the neck restrictions and the permanent impairment for the neck were confirmed, the restrictions were never revisited by the operating area to determine whether in fact the LMR program was appropriate for the worker.
The worker’s representative is of the view that the worker has returned to work within her identified SEB and that policy states her LOE benefits should be based on her actual earnings. Reference was also made to a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision that dealt with FEL benefits however; the representative suggests the same premise applies in this case. He also notes that the final LOE benefit review has not occurred and if the worker suffers a material change between now and the time of the final review, she has an obligation to report the change and benefits can be affected thereafter.
The worker representative’s letter of November 4, 2009 explained the worker had returned to work as a law clerk. This was a position within her identified SEB working 20 hours per week. He maintained Board policy stated her LOE benefits should be based on her actual earnings. The case manager’s letter of November 5, 2009 explained the worker could only be considered working in the SEB identified job if she was working full time as explained in the LMR plan.
Board policy sates a worker is considered to be under-employed when he or she is employed in such a way that does not permit the use of his or her full abilities, skills, and training in mitigating the loss of earnings resulting from the work-related injury. In some cases, a worker may return to the identified suitable occupation but at reduced hours or lower wages than what was projected. There is a need to examine why the earnings and/or hours have been reduced. This may be due to unforseen aspects arising from the type of employment, or reflective of a probationary period, or changing work requirements/demands.
If the decision-maker is satisfied that the worker is not voluntarily under-employing him/herself, then LOE benefits can be paid on actual earnings. If the decision-maker is satisfied that the worker chose to work fewer hours or at a lower earnings, LOE benefits will be paid at the suitable occupation earnings established as part of the work transition plan, rather than at actual earnings.
I have considered all of the information as outlined above. The worker participated in the LMR program with the goal of NOC 4211 – paralegal, which was later amended in June 2008 to the same NOC but with a specific goal of law clerk at the request of the worker and this was approved. The worker completed LMR and in February 2009, LOE benefits were adjusted to reflect the SEB wages.
I acknowledge the record shows the worker missed some time from participating in the LMR program due to complaints of pain but the approved SEB/LMR plan indicates the worker was able to work a 40 hour work week post LMR activities. It makes no mention of reduced hours. At no time did the worker object to these decisions within the 30 day legislative timeframes.
I concur with the case manager that the worker is considered “underemployed” as per Board policy. The worker was working 40 hours per week pre injury, and the LMR plan approved the worker to work 40 hours per week post injury. A worker can only be considered to be working in the SEB identified job if she is working fulltime. I find the worker is considered to be underemployed having regard for the applicable policy and, notwithstanding the updated reporting from Dr. Stewart. Actual earnings are to be used to pay LOE benefits in cases where the worker is employed in her SEB identified job at 40 hours per week. The worker does not meet the criteria and therefore, the deemed SEB earnings are applicable to pay partial LOE benefits.
I also note Dr. Stewart’s previous reporting of November 10, 2009 where the worker was seen with complaints of pain in the right shoulder and neck and entitlement to a recurrence was denied. When comparing the most recent medical reporting to the NEL assessment evaluations, I find no evidence that leads me to conclude the worker’s condition has deteriorated and in fact, the findings are consistent from when assessed for the awards. I find the worker is considered capable of performing a 40 hour work week within the identified SEB.
Board policy sates actual earnings are to be used to pay LOE benefits when a worker is employed in his/her identified job. As the worker is not working in her SEB identified job because she is not working full time, the worker’s deemed SEB earnings are to be used to pay partial LOE benefits.
CONCLUSION
The worker’s objection is denied.
Dated February 7, 2011
F. Bruno
Appeals Resolution Officer
Appeals Branch