WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150017
DECISION DATE:
March 26, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Self-Represented
RESPONDENT:
Employer
REPRESENTED by:
Self-Represented
HEARING:
Hearing in Writing
HEARD by:
F. Pansino, Appeals Resolution Officer
ISSUES
Suitability of identified Suitable Occupation (SO) – shipper/receiver
Payment of partial loss of earnings (LOE) benefits based on deemed post-injury earnings associated with the identified SO,
o from September 13, 2008 to January 15, 2013, and
o from the final LOE review date of August 14, 2013
BACKGROUND
This claim was established with an injury date of August 17, 2007 and as outlined in decision 1647/12 dated October 3, 2012, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) granted initial entitlement on an aggravation basis. The accepted diagnosis was left plantar fasciitis and left posterior tibialis. The nature and duration of benefits was returned to the Workplace Safety and Insurance Board (WSIB) to be determined.
The worker received healthcare, LOE benefits, Work Transition (WT) services and a
3% Non-Economic Loss (NEL) award recognizing permanent left foot impairment.
The worker appealed the decision dated February 27, 2013 in which the Case Manager and
WT Specialist determined the SO of shipper/receiver was suitable for the worker. This determination resulted in the payment of partial LOE benefits reflecting deemed post injury earnings of $16.50 an hour based on full time hours, from September 13, 2008 to December 18, 2012 ongoing to January 15, 2013.
The worker also appealed the decision dated April 16, 2013 in which the WT Specialist outlined the WT plan for the identified SO of shipper/receiver and a further decision dated
August 15, 2013 which granted partial LOE benefits at the final review from August 14, 2013 based on the deemed post injury earnings associated with the identified SO of shipper/receiver.
AUTHORITY
19-03-03 Determining Suitable Occupation
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
18-03-06 Final LOE Benefit Review
ANALYSIS
In making my decision, I considered the evidence on file, the worker’s position and applicable WSIB operational policies.
Worker’s Position
As outlined in the Intent to Object Form dated July 3, 2013 the worker stated as outlined in the Functional Abilities Form (FAF) completed by her doctor, her permanent limitations for her left foot are no prolonged walking and standing. The limitation is up to 100 metres walking and 15 to 30 minutes standing. She confirmed she has prior work experience as a shipper/receiver however her position is this job is not physically suitable because it requires standing and walking for more than 3-4 hours including sorting, picking orders and loading and unloading trucks. She tried to apply for shipper/receiver clerk but that still required walking and standing for prolonged periods of time.
Decisions
I find that the SO of shipper/receiver is not consistent with the worker’s functional abilities and therefore is not suitable.
The SO of customer service representative is well within the worker’s functional abilities and is therefore suitable. The worker accepted a job offer in this SO as of August 14, 2013.
Partial LOE benefits from September 13, 2008 to January 15, 2013 are to be paid on the SO earnings of a customer service representative (entry level wages based on 40 hours week). Partial LOE benefits from the final LOE review date of August 14, 2013 are to be paid based on the worker’s actual earnings of $10.50 an hour based on 40 hours a week as a customer service representative.
WSIB Operational Policies and Evidence Considered
I referenced WSIB operational policy 19-03-03 which states in part;
A SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available with the injury employer or in the labour market…
I referenced WSIB operational policy 18-03-02 which states in part;
If a worker is employed in the identified SO with the injury employer or a new employer, the WSIB uses the worker’s actual earnings to pay LOE benefits, even if the earnings are not consistent with updated labour market wage information… 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 SO 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 unforeseen 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 lower earnings, LOE benefits will be paid at the SO earnings established as part of the WT plan, rather than at actual earnings.
I also referenced WSIB operational policy 18-03-06 which states in part;
In conducting the final LOE review for a worker employed in a suitable occupation (SO) identified job, the WSIB uses the worker’s actual earnings to pay the LOE benefit, even if the earnings are not consistent with recent wage information. The only exception would be where the worker is voluntarily under-employed, see 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review).
I considered the following evidence:
Based on the information on file, the worker reached maximum medical recovery (MMR) as of March 5, 2009 which means, she reached a plateau in her recovery by this date and it was unlikely that there would be any further significant improvement in her work injury. In
February 2013 the worker received a 3% NEL award for the permanent left foot impairment. Based on the most recent Functional Abilities Form (FAF) dated October 5, 2011, the doctor indicated the worker was unable to do jobs that necessitate prolonged standing and walking due to chronic left leg pain and recommended jobs in sitting position. The doctor indicated she could walk up to 100 metres and could stand up to 15 minutes. She also had limitations relating to the number of stairs/ladder she could climb.
On January 25, 2013 the worker had a psycho-vocational assessment. The assessor noted the worker had prior work experience as a shipper/receiver however this job was not identified as a potential SO option.
As documented in the WT Plan Proposal Worksheet dated April 4, 2013, the worker reported she wanted to work in this occupation (shipper/receiver) but was concerned that there was too much standing required and she did not have the computer skills for the positions that allowed for more sedentary duties. The WT Specialist addressed this concern by allowing for basic computer training and The WT Specialist addressed this concern by allowing for basic computer training and informing the worker of the range of positions that fall into this National Occupational Classification (NOC) code.
As outlined in memo 1 dated April 5, 2013, the WT Specialist noted the worker was terminated and provided severance. The injury employer is out of business. He provided the following reasons for determining the worker was capable of performing and employable in NOC 1471– Shippers/Receivers. The worker worked in this SO for eight years from 1994-2002. She was advised to secure work that would allow for less standing and walking in the field. The worker required updated computer skills so a WT plan was developed to allow for computer training, Job Search Training (JST) and Employment Placement Services (EPS) to assist with return to work in shipping/receiving. The WT Specialist noted the variety of different positions within the NOC.
I researched the Career Handbook 2ND Edition (Revised) on the Human Resources and Skills Development Canada website which states the following.
Career Handbook is the counselling component of the National Occupational Classification (NOC) system. The Second Edition reflects the revisions made to the classification system in 2001.
The Career Handbook provides global ratings assigned to occupations to further define skills, worker characteristics and other indicators related to occupations that are important for career exploration and informed career decision-making. This counselling resource is used by a wide range of professionals for many applications, and by individuals engaged in self-directed career planning…
The Career Handbook 2ND Edition (Revised) indicates, shippers and receivers receive and record the movement of parts, supplies, materials equipment and stock to and from an establishment. I note there are a variety of examples of job titles under NOC 1471 which include: billing rate clerk, cargo location clerk, delivery clerk, distribution clerk, export-booking clerk, freight checker, freight receiver, freight receiver clerk, freight receiving clerk, freight shipper, import freight clerk, milk and cream receiver - food and beverage processing, produce shipper, receiver, receiving checker, receiving clerk, receiving clerk for returned merchandise, receiving room clerk, shipper, shipper-receiver, shipping agent, shipping and receiving clerk, shipping clerk, stock handler, stock receiver, supercargo, warehouse receiver, warehouse shipper and warehouse shipping clerk.
The Career Handbook 2ND Edition (Revised) also outlines among other things, the physical activities related to NOC 1471. Body Position is listed under Physical Activities:
1 - standing
2 - standing and/or walking
3 - sitting, standing, walking
4 - other body positions
Shippers/receivers including all the other job titles listed under NOC 1471 are assigned a rating of 4 for Body Position (other body positions). This means work activities involve body postures other than, or in addition to, sitting (1) and standing and /or walking (2) such as bending, stooping, kneeling and crouching.
The evidence on file indicates that, although the worker disagreed with the identified SO of shipper/receiver, she participated in the WT plan from April 22, 2013 to August 14, 2013 and successfully completed it. She did not secure employment in the identified SO but instead she accepted an employment offer as of August 14, 2013 as a customer service representative earning $10.50 an hour based on a 40 hour work week.
According to the Career Handbook 2nd Edition (Revised), customer service representative is listed under the NOC 1453.2 for call centre agents. This NOC is assigned a rating of 1 for Body Position which represents just sitting.
Reasons for Decision
The worker’s permanent limitations related to her work injury include no prolonged standing or walking and more specifically, walking up to 100 metres and standing up to 15 minutes as well as limited stairs/ladder climbing. I note the worker has eight years of prior work experience as a shipper/receiver and therefore has first-hand knowledge of the physical demands related to this job. For this reason, I accept her statement that this job which included sorting, picking, ordering and loading which requires standing and walking for more than 3-4 hours. I note in January 2013 the psycho-vocational assessor did not identify the shipper/receiver job as a potentially suitable occupational option. According to the Career Handbook 2ND Edition (revised), shippers/receivers including all the other job titles listed under NOC 1471 are assigned a Body Position of 4 (other body positions) which means work activities involve body postures other than, or in addition to, sitting and standing and walking, such as bending, stooping, kneeling and crouching. In my view this means, shipper/receivers including all the other job titles listed in NOC 1471 could require all of these physical activities. The WT Specialist noted there is a range of positions listed under NOC 1471 and advised the worker to secure a job within that list that would allow for less standing and walking. I note there is no evidence on file identifying which of other jobs title listed under NOC 1471 are within the worker’s physical limitations. Considering all of these factors, I am not satisfied the physical requirements of a shipper/receiver are within the worker’s functional abilities. Therefore, I conclude the SO of shipper/receiver is not suitable.
According to the Career Handbook 2nd Edition (Revised), the customer service representative job is assigned a body position of 1 which means it involves just sitting. Therefore, in my view this job is well within the worker’s functional limitations. I note this is also consistent with what was recommended by the treating doctor (FAE dated October 5, 2011). I note the worker returned to work on August 14, 2013 immediately after completing the WT plan (which provided her with additional computer skills), as a customer service representative earning $10.50 an hour working 40 hours per week. I am satisfied she is not voluntarily under-employing herself.
Therefore partial LOE benefits from September 13, 2008 to January 15, 2013 are to be paid on the SO earnings of a customer service representative (entry level wages based on 40 hours week). Partial LOE benefits from the final LOE review date of August 14, 2013 are to be paid based on the worker’s actual earnings of $10. 50 an hour based on 40 hours a week as a customer service representative.
CONCLUSION
The SO of shipper/receiver is not consistent with the worker’s functional abilities and therefore is not suitable.
The SO of customer service representative is well within the worker’s functional abilities and is therefore suitable. The worker accepted a job offer in this SO as of August 14, 2013.
Partial LOE benefits from September 13, 2008 to January 15, 2013 are to be paid based on the earnings of a customer service representative (entry level wages based on 40 hours per week). Partial LOE benefits from the final LOE review date of August 14, 2013 are to be paid based on the worker’s actual earnings of $10. 50 an hour based on 40 hours a week as a customer service representative.
The worker’s objection is granted.
DATED March 26, 2015
F. Pansino
Appeals Resolution Officer
Appeals Services Division