WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150006 Decision Date: March 30, 2015 Objecting Party: Worker Represented by: Worker Representative Respondent: Employer (not participating) Hearing: Hearing in Writing Heard By: P. Dardarian, Appeals Resolution Officer
ISSUES
- Denial of loss of earnings (LOE) benefits as a result of a work disruption from January 6, 2014 to January 13, 2014
- Sponsorship of the Work Transition (WT) Plan to provide the worker with the skills and services to obtain employment as an Office Clerk, and associated Suitable Occupation (SO) earnings.
BACKGROUND
While performing his regular job duties, which required bending to the right side, this then 43 year-old Production Specialist injured his low back on August 31, 2009.
The worker returned to modified duties on January 26, 2010. It was recognized that the worker had a permanent low back impairment and he received a 15 % non-economic loss benefit on July 4, 2011.
Effective February 22, 2014 the employer was unable to accommodate the worker’s permanent precautions. As a result, LOE benefits were restored and the file was referred for work transition services.
Case Manager’s Decision
On January 30, 2014 the Case Manager (CM) denied entitlement to LOE benefits for a work disruption (WD) that occurred from January 6, 2014 to January 13, 2014. On May 12, 2014 the CM confirmed this decision.
Work Transition Specialist’s Decision
On August 25, 2014 the Work Transition Specialist (WTS) decided that the worker would be sponsored in a WT Plan to provide him with the skills and abilities to obtain employment as an Office Administrator. On October 6, 2014 the WTS confirmed this decision.
The Worker’s Position
The worker and worker representative (WR) submitted:
- The worker’s employability during the January 2014 WD was clearly affected by his work-injury impairment
- The worker had a permanent low back impairment
- At the time of WD, the worker was highly accommodated at the workplace, the employer was unable to accommodate the worker, the worker had limited transferrable skills and the worker was unable to seek alternate employment
- Numerous WSIAT and ARO decisions pertaining to WD issues
- The worker ought to be sponsored in the SO of Accounting Clerk
- Most jobs as an Office Administrator required additional, such as University, education
- Although the worker qualified for some of the job postings, they were not near the median of $20.67 per hour as outlined in the WT Plan
AUTHORITY
The following Operational Policies apply:
- 11-01-03 Merits and Justice
- 15-06-02 Entitlement Following Work Disruptions; Short-term and Long-term layoffs (for decisions made prior to November 1, 2014)
- 19-03-03 Determining Suitable Occupation
- 19-03-05 Work Transition Plans
- 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
1. Denial of LOE benefits from January 6, 2014 to January 13, 2014
I find that the worker is not entitled to LOE benefits from January 6, 2014 to January 13, 2014. The merits and justice policy states that the WSIB shall make its decision based upon the merits and justice of a case and are not bound by legal precedent. The work disruption (WD) policy states that if a worker was not receiving LOE benefits at the time of a short-term layoff, then generally LOE benefits would not be restored.
The WD policy goes on to state that there were exceptions to this rule. However, I do not find that these exceptions would apply in the worker’s case. At the time of the WD, the worker was not in the early phase of his recovery, was not receiving active health care treatment and was not on a graduated return to work program.
I recognize that the worker required a high degree of accommodation and that his impairment was an obstacle to finding alternate employment. However, the WD policy also states that if these were the only factors that were present when the WD occurred and if the layoff was recurring and of very short duration, these workers would not be entitled to LOE benefits.
When reviewing the file, I note that there were three previous occasions when there was a very short WD and in all three previous occasions LOE benefits were not restored. The January 6, 2014 WD affected all non-skilled trades’ employees and as in the previous occasions, was of a very short duration.
I do not find that the worker had met the criteria for entitlement to LOE benefits during the WD from January 6, 2014 to January 13, 2014.
2. Sponsorship of the WT Plan to provide the worker with the skills and services to obtain employment as an Office Clerk, and associated SO earnings.
I find that the SO of an Office Clerk is appropriate. The work re-integration policies state in part: a SO represents a category of jobs that are suited to a worker’s transferable skills that are safe, consistent with his functional abilities, to the extent possible restores his pre-injury earnings, and must be available in the labour market.
Following his work-injury, the worker returned to modified duties on January 26, 2010. In August 2012 the WR contacted the CM and reported a concern regarding the productivity and sustainability of an office job that had been assigned to the worker. As a result of this concern, the CM referred the file to a WTS.
The WTS established that the worker had returned to modified work in the Environmental Department in January 2010. The worker reported that he only had sufficient work to keep him active for 2 ½ hours per shift and for the remainder of the shift he would read the newspaper, use the internet and walk around the plant.
The employer maintained that the job was productive and although temporary, there had not yet been an end date assigned to the modified work. The worker’s duties included the completion and input of audit reports and energy reports, data entry regarding waste management and working on a waste management report.
The employer reported that there were days that the worker did not work as much but there was always additional work that was available. However, the worker never requested additional work, had always worked at his own pace, and had taken a break every 20 minutes or so. As the work was not time sensitive; the worker was never questioned about his volume of work.
On February 14, 2013 the WTS had a telephone conference with the worker and WR. The worker was notified that the office work that the employer had provided since January 2010 was suitable, and that no WT Plan was offered at that time.
At that time the WTS also documented that the worker demonstrated strong administrative skills as he had learned about data entry, workplace audits, basic office procedures such as copying, collating, filing, and had strong computer skills that he utilized at work and also demonstrated while conducting labour market research. The WTS also documented that these considerable transferrable skills and experience could be applied to similar administrative work in the general labour market.
After the employer advised the worker in February 2014 that they were no longer able to provide him with suitable work, he met with the WTS and WR on April 23, 2014. The worker reported that he had worked in the Environmental Department until June 2013 and was then placed in various temporary inspection and general jobs. The worker was asked to consider potential occupations and programs and arrangements were made for him to have an academic assessment.
In follow-up, numerous SOs were discussed, but on July 15, 2014 three SO options were identified. The worker had expressed an interest in becoming employed as an Accounting Clerk. Two of the SOs would have provided him with a three year or a two year Business Administration Accounting Diploma. However, the WTS sponsored the worker to acquire the necessary skills to obtain employment as an Office Administrator. As part of the plan, the worker would attend a 69 week Executive Office Administration program at Sheridan College.
Although the worker had not expressed interest in the SO of Office Administrator at that time, I do note that previously, in February 2013, the worker advised the WTS that he had completed additional labour research and one of the programs he was interested in attending was the Executive Office Administration Diploma program at Sheridan College.
I have recognized that the SO of Office Administrator was selected in part as it utilized and built on the transferrable skills that the worker developed in his three plus years while on modified duties at the employer.
In addition to utilizing and building on the worker’s transferrable skills, I also note that the job duties were sedentary in nature and would provide the worker with the ability to self-pace during standing, sitting and walking tasks. Also, testing demonstrated that the worker had the aptitude to be successful in his WT Plan. A review of the WTS reports to date confirmed that the worker had so far been successful in the completion of this Plan.
Also, WTS research demonstrated that there was good availability in this SO. In sponsoring the worker in this SO, I also find that the worker would restore his pre-injury earnings to a greater extent when compared to the Accounting Clerk SOs.
The LOE Benefit policy states that earnings may be determined when a WT Plan is completed and current wage and labour market information are used to determine those earnings. As the worker’s WT plan has not yet been completed, I cannot make a finding on the SO wages of $20.67 per hour.
However, the SO policy states that if a WT Plan is designed to improve a worker’s existing or transferrable skills, updated mid-level wages are used to determine post-injury earnings. As the WT plan was designed to improve the worker’s existing and transferrable skills, I find it appropriate to use mid-level wages at the completion of his WT plan.
CONCLUSION
The objections are denied.
- The denial of LOE benefits as a result of a work disruption from January 6, 2014 to January 13, 2014 is confirmed.
- The sponsorship of the WT Plan to provide the worker with the skills and services to obtain employment as an Office Clerk is confirmed.
- As the worker had not yet completed his WT Plan, I cannot make a finding on the determined wages of $20.67 per hour. However, as the WT plan was designed to improve the worker’s existing and transferrable skills; I find it appropriate to use mid-level wages at the completion of his WT plan.
DATED March 30, 2015
P. Dardarian Appeals Resolution Officer Appeals Services Division