WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20150043
DECISION DATE: June 4, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: C. Marr, Appeals Resolution Officer
ISSUE
The worker is objecting to the decision regarding the identified suitable occupation (SO) and the rate of her partial loss of earnings (LOE) benefits from March 1, 2013 onward. She is seeking retraining services and partial LOE benefits based on the labour market and potential wages in Jamaica where she resides.
BACKGROUND
On September 3, 2012 this seasonal agricultural worker sustained an injury to her lower back while pushing a heavy dumpster. She was 46 years of age at the time. Initial entitlement to benefits for as low back strain was granted under this claim.
The worker returned to her home country of Jamaica on or around October 4, 2012. She reportedly was repatriated by the Jamaican Liaison Service due to issues with her employment that placed the worker in breach of her employment contract.
The worker continued to have an impairment related to her compensable low back condition and was followed by a specialist in Jamaica. At times it appeared as though her injury would recover so her LOE benefits were closed. As new information was received some of these decisions were reconsidered and periods of LOE benefits were extended retroactively.
The worker was ultimately determined to have a permanent impairment as a result of her compensable low back injury. She was assessed with a nine percent Non-economic Loss (NEL) for this condition.
As the worker had a permanent impairment and was considered to be unable to perform the essential duties of her pre-accident work, a Work Transition (WT) assessment was conducted. With the worker living in Jamaica and reportedly unable to return to Ontario for work, she was unable to participate in the WT assessment or a retraining program, if found to be necessary. Essentially, the purpose of the assessment was to determine a potential SO for the worker to determine if she continued to have a wage loss due to her injury and was entitled to further LOE benefits.
The Work Transition Specialist (WTS) identified the SO of cashiers as being suitable and achievable for the worker. The worker was paid twelve weeks of full LOE to represent the period she would have been eligible for employment placement services and job search training if she were available to participate in these. After this twelve-week period ended on March 1, 2013, her LOE benefits were reduced to reflect the potential SO earnings of $10.25 per hour over a 40 hour work week as explained in correspondence dated May 7, 2014. She has been in receipt of partial LOE benefits since March 1, 2013.
The worker representative’s arguments will be discussed in more detail below. The worker is seeking a WT assessment and LOE benefits based on the worker’s labour market and potential wages in Jamaica where she is residing.
AUTHORITY
WSIB Adjudicative Advice Document: Coverage and entitlement for workers hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program
Operational Policies
12-04-08 Foreign Agricultural Workers
15-06-07 Leaving the Province/Country dated February 15, 2013
15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
19-03-03 Determining Suitable Occupation
19-03-05 Work Transition Plans
ANALYSIS
The worker’s partial loss of earnings (LOE) benefits beyond March 1, 2013 were fairly determined in a manner consistent with WSIB operational policies. There is no basis to support the worker representative’s request to have the worker’s wage loss and LOE benefits be based on the worker’s potential earnings in Jamaica where she resides.
In her submission dated January 14, 2015, the worker representative outlines a detailed argument to support her view that the worker’s ongoing partial LOE benefits should be based on work available to her and what she can earn in Jamaica as she reportedly is not permitted to return to Ontario to work. I shall go through each of the representative’s main points below.
Following the date of accident, the worker was provided with accommodated work duties with the employer for a brief period. On or around October 4, 2012 she was reportedly repatriated to Jamaica and not permitted to return to work in Ontario. Her employment was terminated. The worker is not claiming that the termination was related to the workplace accident and injury or this claim. As she remained disabled from her workplace injury LOE benefits continued to be paid. The periods of LOE were often reviewed and extended retroactively as it took some time to obtain medical documentation from Jamaica.
As the employer was unable to provide the worker with accommodated work duties, a work transition (WT) assessment was performed in order to determine a suitable occupation (SO) for the worker. The worker was unable to participate in this process. The SO of cashiers was identified. The worker was extended full LOE benefits for the twelve-week period that represented the period she would have participated in employment placement services and job search training through the WT plan. Her LOE benefits were than adjusted effective March 1, 2013 to reflect her potential earnings in the SO of $10.25 per hour over a 40 hour work week.
In her submission, the worker representative does not indicate if or why the SO of cashiers is inappropriate for the worker. She states that the worker’s injury precludes her from doing agricultural work or the domestic caretaking jobs she did previously. This has been accepted. She states that there are few “light jobs” that would be suitable for the worker in Jamaica. No evidence is provided to support this. The representative does not propose an alternative SO. I would think that cashier or retail sales positions exist in Jamaica and likely have similar demands and skill requirements as they would in Ontario.
The worker representative argues that Sections 42 and 43 of the Workplace Safety and Insurance Act (the Act), which speak to labour market re-entry (work transition) and LOE benefits do not restrict entitlement based on residency. She also states that WSIB Operational Policies should not limit the scope of entitlement set out in the Act. The purpose of the policies is to provide scope, definition and guidelines as the Act does not specify direction on every scenario. Not every scenario can be outlined in law or policy, but these documents can still provide appropriate guidance. While the Act may not specifically indicate that only the Ontario labour market is considered under Sections 42 and 43, it also does not state that the labour market information from whatever part of the world the worker resides should be used. The operational policies do provide some direction on this, however.
WSIB Operational Policy 19-03-03 Determining Suitable Occupation states in part that when identifying the SO, decision-makers are to have regard for the availability of employment in the SO in the labour market. It states that the local labour market is first examined and if no SOs are available in the local market, “the labour market may be expanded to the extent necessary to identify available SO opportunities.” Labour market information from the federal and provincial governments is used as the primary sources for helping to identify SOs. The worker representative notes that the use of the term “primary” suggests that other sources may be used. If other sources are used it is typically to supplement the material in the primary sources, such as obtaining wage information from actual job postings. This policy does not provide direction for cases where the worker is no longer living in the country. The implication is that Ontario labour market information is used for SO identification.
Other policies do provide some direction for cases where the worker resides out of country. The worker representative points to WSIB Operational Policy 15-06-07 Leaving the Province/Country which states in part that where a worker has relocated permanently, the WSIB may obtain whatever information is necessary in order to review and determine eligibility for further benefits. The Case Manager (CM) did this by obtaining medical information and determining entitlement to health care, Non-economic Loss and LOE benefits accordingly.
Perhaps the most applicable policy for this case, in addition to those regarding LOE benefits in general, is WSIB Operational Policy 15-06-08 Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances. The worker representative argues that this worker’s specific circumstances are not fully addressed in this policy. The representative indicates: “the policy states that benefits can be affected where a worker chooses to permanently relocate for reasons unrelated to the work injury.” Case examples are provided in the policy, but not one specific to migrant workers who are no longer permitted to work in Ontario. The circumstances of this worker’s permanent relocation to Jamaica (if it is considered to be a “relocation” to her home country where she did reside for part of the year in the pre-accident period), do not change the fact that she no longer resides in Ontario.
Policy 15-06-08 states the following:
If a worker permanently relocates to another Canadian province or territory or outside the country before [work reintegration – WR] begins, and it is identified that the injury employer would have been unable to provide suitable work even if the worker had not relocated, where it is possible and practical, the worker may be provided with WR services in the province of residence.
In this case, it was not “possible and practical” to provide the worker with WR services in Jamaica. A Work Transition Specialist (WTS) conducted an assessment without the worker present based on claim file documentation to provide recommendations on what likely would have been the WT plan if the worker remained in Ontario and was available to participate. The policy continues:
For the purpose of determining LOE benefit entitlement, post WT assessment and/or WT plan, the identified SO is based on availability in Ontario’s labour market and earnings based on Ontario wage information.
This policy clearly directs that SO availability and related wage information for determining benefit entitlement be based on information in Ontario for cases where the worker resides out of country, such as in this case.
The worker representative suggests that Adjudicative Advice Document Coverage and entitlement for workers hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program should not be applied as it is inconsistent with the Act. I do not find this to be the case. The advice provided in this document is consistent with policy 15-06-08, which of course is consistent with the legislation.
I note that the worker representative also refers to WSIB Operational Policy 12-04-08 Foreign Agricultural Workers. She states that this policy does not mention limiting entitlement to LOE benefits for migrant workers. This policy provides direction on determining which foreign agricultural workers are covered under the Act, and under which circumstances, for the purpose of establishing initial entitlement to benefits. Issues such as ongoing LOE benefits and WT services are not addressed under this policy, but are under the policies referenced above.
In her submission, the worker representative did not provide any information regarding the worker’s job search activities or employment since she returned to Jamaica. It appears as though she has not worked in any capacity. However, it also appears as though she has not sought employment. She is not totally disabled and incapable of performing suitable work as a result of her compensable injury. There is no evidence to support that the worker has been actively seeking employment in order to mitigate her wage loss.
The decision made regarding this worker’s LOE benefits after March 1, 2013 is fair and consistent with policy. In cases where the worker has relocated out of country, policy directs the decision-maker to determine a SO based on availability in Ontario, and to use Ontario wage information. The SO of cashier is suitable and available in the Ontario labour market. Other similar minimum wage positions also could have been considered. The starting SO wage used to determine the worker’s partial LOE benefits was the minimum wage in Ontario at the time, $10.25 per hour. It is reasonable to expect that the worker would have been able to earn this wage at 40 hours per week had she been able to remain in Ontario to work.
CONCLUSION
The suitable occupation and related wage information used to determine this worker’s ongoing loss of earnings benefits was appropriately based on availability and wages in the Ontario labour market.
The objection is denied.
DATED June 4, 2015
C. Marr Appeals Resolution Officer Appeals Services Division