Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20110027
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative
HEARING: N/A
ISSUE
The worker objects to the November 2, 2009 case manager decision discontinuing the payment of partial Loss of Earnings (LOE) benefits at the final LOE benefit review.
HOW THE ISSUE ARISES
On October 15, 2003 this now 47 year old worker reported injury to both elbows. The claim was accepted for bilateral epicondylitis and on December 9, 2005 a 9% Non Economic Loss (NEL) award was assessed. The pre-injury wage was reported as $15.20 an hour.
Labour Market Re-entry (LMR) services were provided and a Suitable Employment or Business (now Suitable Occupation (SO)) of Pharmacy Technician (NOC 3414) identified. The worker completed the LMR plan by obtaining permanent employment in the approved SEB through a work placement. While projected wages had been set at $10.15 an hour the worker obtained employment earning $13.00 an hour.
The worker worked from September 2007 to June 2008 and left this employment reporting she was unable to continue. She found retail sales employment in October 2008.
The final 72 month Loss of Earnings (LOE) review effective November 1, 2009 concluded while there was a continuing wage loss in the current employment the worker had the capacity to restore her pre-injury earnings in the WSIB approved SEB, and discontinued LOE benefits.
AUTHORITY
18-03-03 - Loss of Earnings (LOE) - Reviewing LOE Benefits
18-03-06 – Final LOE Benefit Review
19-03-03 – Work Reintegration - Determining Suitable Occupation
RESOLUTION METHOD AND PROCESS
The worker representative agreed to proceed to a decision based on the evidence and submissions on record and the argument provided.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
Submissions
The worker reports she left the job she was on as it was extremely repetitive and aggravated her compensable injury. She suggests this was not suitable employment and caused her further harm. She suggests she is not under-employing herself and requests partial LOE benefits based on the SEB target wage of $10.15 an hour.
The worker representative suggests the appropriate SEB is retail sales with projected wages at minimum wage as even within this SEB there are many jobs which would not be suitable
Analysis
In assessing the appeal it is first necessary to determine whether the approved SEB of pharmacy assistant was appropriate. If the SEB remains appropriate projected earnings must be based on this occupation. Should it be accepted the SEB was not appropriate an alternative SEB may be considered and the associated projected earnings determined. The worker position is that not only was the work not physically appropriate but that the training provided was not sufficient to make her employable in the general labour market. Based on the final LOE review date of November 1, 2009 the specific issue requires a determination of the earnings capacity as of that date. While the review date may be extended when a worker is engaged in work transition activities there is no evidence on record which in my view would support an extension of the review date. The primary question is therefore “What was the worker’s capacity to earn as of November 1, 2009?”
I note the compensable entitlement is for bilateral epicondylitis with permanent medical precautions of lifting more than 5 lbs and avoiding repetitive lifting, twisting, and gripping. The final LMR plan identified the approved SEB as pharmacy assistant (NOC 3414) with the worker to attend a 1 year pharmacy technician program beginning August 2006 and a projected wage of $10.15 an hour. Upon completing the program the worker participated in a work placement through the training college and on September 25, 2007 she obtained full-time employment in the approved SEB with the placement employer earning $13.00 an hour.
In March 2008 the worker request for the WSIB to pay for a pharmacy technician exam allowing her to obtain employment in a hospital setting was denied. The worker also reported the current employment was causing increased hand pain and inquired what would happen if she quit. June 13, 2008 the worker reported she stopped working as the repetitive duties were aggravating her condition. In November 2008 she reported having obtained part-time retail sales employment earning $8.25 an hour. In December 2008 she noted most pharmacy technician jobs were part time, she quit her previous job as it was not suitable, and it had been her understanding the WSIB would top up her earnings to full-time.
In assessing the available evidence I note a number of relevant issues. The worker has reported she stopped work as a result of the duties being unsuitable and aggravating her condition. While based on the worker reporting the work would appear to exceed the medical precautions associated with the compensable condition the worker managed to perform this work from September 2007 to June 2008 and provided no medical reporting to support deterioration in the condition. A further apparent barrier is the worker request for payment for an exam allowing her to obtain employment in hospital settings. While I would accept the absence of this qualification would reduce the opportunity for employment the record does not indicate whether the worker obtained this qualification or not.
While based on the worker statement I can in principle accept the particular employment the worker had obtained exceeded the recognized restrictions I do not consider the evidence to support the conclusion all employment as a pharmacy technician would by extension be unsuitable. As well, while the worker argued many pharmacy jobs are part-time the job she did hold for some 9 months was apparently full-time. As the worker did not obtain further employment in the approved SEB I do not find the evidence supports the argument only part-time work is available in the labour market. Additionally, given appropriate work I am satisfied the worker would be capable of full-time employment. Based on this conclusion I am satisfied it is appropriate to consider any LOE benefit entitlement based on full-time employment in the approved SEB. While I accept the actual work performed may not have been suitable given that this employment was within the SEB and within the earnings range for the occupation identified on record I am also satisfied it would not be appropriate to base any projected wage on less than $13.00 an hour.
While I accept $13.00 an hour as an appropriate base line there remains the issue as to whether the use of average earnings for the purposes of the final LOE review is appropriate. The relevant policy allows the WSIB to adjust the final LOE earnings to that of an experienced worker when a worker has returned to work, but is voluntarily underemployed. While in this instance the worker was previously employed in the approved SEB but at the time of the final review was employed in an alternative SEB I do accept the worker position the specific employment in the approved SEB may not have been suitable. Having accepted the specific employment was of questionable suitability, the approved SEB involved a change in occupations for the worker, and noting the indication the worker required additional qualifications for employment in a hospital setting (which I consider probable to carry a higher wage profile than in a retail pharmacy) I find it appropriate to base the projected wage on the worker’s actual earnings from employment in the approved SO. For the purposes of this decision I find the most appropriate conclusion is to treat the worker as if she had obtained employment in the approved SEB and base the final LOE benefit on actual earnings from employment in the approved SEB. On this basis the projected LOE benefit would be based on projected actual LOE wages of $13.00 an hour on a full-time basis.
CONCLUSION
The objection is allowed in part.
The operations division is directed to adjust the final LOE benefit review to process partial LOE based on projected wages of $13.00 an hour.
DATED September 28, 2011
M. Evans
Appeals Resolution Officer
Appeals Branch