WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150070
DECISION DATE:
April 1, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (not participating)
HEARING:
Windsor – March 18, 2015
HEARD by:
H. Mohamed, Appeals Resolution Officer
ISSUES
The worker representative on behalf of the worker is objecting to the following decisions:
Denial of a one year extension to the Labour Market Re-entry (LMR) plan
72 months final loss of earnings (LOE) benefit review
BACKGROUND
On October 2, 2006, this now 48 year old robotics operator for a metal stamping company was struck in her back by a bin that was being lifted from behind her by a fork lift driver. The worker was initially diagnosed with a lumbar contusion but this was subsequently changed to include an annular ligament tear at the L5-S1 level. The worker received a 28 per cent non-economic loss (NEL) award for her low back impairment in March 2008.
As the employer was unable to permanently accommodate the worker, a referral for Labour Market Re-entry (LMR) services was made in late 2007 (LMR is now referred to as Work Transition or WT services).
The worker underwent a psycho-vocational assessment in January 2008 and the results confirmed that the worker displayed the intellectual ability to benefit from enrolment in either a college or university program. Given the worker’s pre-accident wages of nearly $24.00 per hour, the Suitable Employment or Business (SEB) of Social Worker (NOC 4152) was chosen as the most appropriate employment option. The worker was approved for a 4-year Bachelor of Social Work (BSW) at the University of Windsor which she started on May 12, 2008. The worker was in agreement with this SEB choice as well as enrolment in full time university.
The operating area approved psychological treatment sessions to help the worker with pain relief strategies and mood stabilization while she participated in the training program. Entitlement to psychotraumatic disability however was denied as per the letter dated October 15, 2010.
In January 2009 the Case Manager (CM) allowed the worker to reduce her course load over the winter months due to increased pain level. In May 2009 the worker requested to drop some of her university courses for a later date due to personal changes in her private life which had resulted in her having more pain. This was approved by the CM however the worker was advised that her plan would not be extended.
In August 2009, the LMR provider contacted the CM and requested on behalf of the worker that she be allowed to continue taking on only two courses per semester. This was verbally denied by the CM as there was no medical information to support a reduced work load. The worker however continued university with a reduced caseload of two to three courses per term as opposed to four or five courses.
By June 2011, the worker had completed only two years of her BSW program even though she had been attending for three years. An additional one year extension was denied as outlined in the letter dated June 23, 2011. The worker switched from her BSW program to a Psychology degree which she successfully graduated from and the SEB was changed to NOC 421 Community and Social Services Workers. The worker’s benefits were reduced effective August 23, 2012 after the completion of the Job Search Training Program based on her ability to earn $15.50 an hour in the SEB of Social Worker. This decision was not objected to.
In October 2012 the worker found employment for 30 hours a week at $11.00 per hour. In the final LOE review decision dated October 9, 2012, the CM concluded that the worker was underemployed and that based on the training she was provided, she should be able to earn $15.50 per hour. The worker objected to this decision.
The worker objects to the denial of the one year extension to her BSW degree program as well as the earnings utilised at the final LOE review.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997
Operational policy:
19-03-03 - Determining Suitable and Available Employment or Business, and Earnings
19-03-05 - LMR plans
19-03-10 - Co-operating in LMR plans
18-03-02 - Payment and Reviewing LOE Benefits (Prior to Final Review)
18-03-06 - Final LOE Benefit Review
EXHIBITS
Exhibit 1 – Internet articles outlining the difficulty of finding high paying jobs with a University degree.
ANALYSIS
In arriving at my decision I have considered the information in the claim file, the worker’s testimony, the submission by the worker’s representative as well as the relevant sections of the Workplace Safety and Insurance Act (the Act) and the appropriate Operational Policies.
- Is the worker entitled to a one year extension to her retraining program?
After carefully weighing the evidence, I believe that it would not be feasible or appropriate at this stage to provide the worker with a one year extension in order for her to complete the BSW program.
The worker testified that she conducted her own research and was very interested in becoming a social worker as it was physically suitable and within her limitations. The worker explained that she went to the academy of learning for some basic upgrading and started her university social work program in April 2008. The worker explained that she took two courses during the intersession (summer) period so that when she started in September she had already had two courses.
The worker explained that the BSW program runs a little differently that other university programs. You have to complete two years of university and then apply to the school of social work and put an application through and then you get selected to enter the BSW program. In the first two years you are essentially learning theory and then you do two years in the BSW program.
The worker explained that a total of 44 courses are required for the BSW program and she needed to complete 20 courses in the first two years. The final year of the BSW program is all practical. The worker explained that only a limited number of courses are available during the summer.
The worker stated that in September 2008 (first semester) she provided a doctor’s note that recommended a lighter course load. In reviewing the file I note that the worker’s family doctor, Dr. ‘O’, completed a medical certificate for the University of Windsor on November 29, 2008 which recommended a lighter course load due to her ongoing low back symptoms. The worker advised that an ergonomic assessment did take place which helped and she also registered with disability services. The worker explained that she was also seeing Dr. ‘D’ for pain management since starting her University program and in the first semester she would see him sometimes twice a week. The main focus of his treatment was pain management and she found this very helpful.
In reviewing the file I note that the LMR progress report dated December 8, 2008 stated that the worker was requesting a lighter caseload as she was experiencing more back pain. The Vocational Consultant (VC) actually advised the worker to look into part-time studies which the worker did and was given a form by the University for her doctor to complete. The worker also discussed part-time studies with the Direct of Social Work at the University. The report notes that the VC spoke with the CM regarding this and was advised by the CM that she would review the medical information and advise accordingly. In memorandum 102, the CM confirms that the worker can have a lighter course load in the winter months and she can make up the courses in the summer time.
In January 2009 she continued with a lighter course load and completed 3 courses and in the spring of 2009 she took another two courses and that summer she stated she asked for some time off because she was moving and needed to pack. The worker denied having any increased pain or emotional issues during this time.
The record shows that the worker contacted her new CM on May 6, 2009 and requested to drop some spring and summer courses due to issues in her private life and this was approved by the CM with the understanding that she pick those courses later in the year. The worker was advised, according to this memorandum, that the plan would not be extended.
In the fall of 2009 she continued with her reduced course load but couldn’t recall any significant events occurring after that other than her continuing with a reduced course load. There is a medical note on file from Dr. O dated August 18, 2009 which recommends that the worker continue with 3 courses from September to April and one course from May to August, “due to medical reasons.”
During the end of 2009 there were discussions occurring between the CM, Manager and the employer representative with respect to the worker’s ongoing treatment with Dr. D, the cost of the worker’s LMR plan and why the worker needed to be in such a program. The worker was made aware of these discussions during the conversation with the CM on November 1, 2009. During this conversation the CM documented that she advised the worker that she was never approved for part-time studies and she needed to resume a full course load and that no extensions to the plan will be approved should she fail to complete the program within the allotted time frame.
The LMR progress report dated January 22, 2010 notes the worker was only taking 3 courses and would not be able to complete the plan on time. The CM spoke with the worker regarding this on January 19, 2010. Subsequent LMR reports mention the same thing; however, I do not see any memorandums from the CM addressing this issue or any communication between the CM and the worker until the end of 2010. It is only in October 2010 that the CM questions the worker’s continued part time study and asks the VC to conduct a review to see if the plan is still feasible and also to research other SEB options if the worker were to switch to a 3 year bachelor degree.
In March 2011, the CM asked the VC to submit an amendment to the LMR plan which subsequently indicated that the worker would require a one year extension to complete the BSW program. By June 2011, it was noted that the worker could transition into a 3 year psychology degree and this would make her employable in NOC 421 Community and Social Services Workers. This change was approved by the CM. The worker testified that she had secured a place in the school of social work by August 2011 but at this point she was advised that the WSIB would not allow the one year extension to the plan and she would have to complete a 3 year psychology program. The worker explained she was very upset with this decision and felt she was misled. She stated that she was always assured since she was doing well and getting excellent grades that sponsorship in the plan would continue but when she was advised that she was not going to get an extension she felt as though she was left out to dry.
I questioned the worker about a number of memorandums on file, such as the memorandum dated May 6, 2009 and November 3, 2009, where she was told that the plan would not be extended and that she was expected to attend school full time. The worker advised that although she did have conversations with the CM, she was never told that her plan would not be extended. She was told that she needed to make up for all the courses which she always did.
The worker testified that she successfully completed the psychology degree program and also fully participated in the Job Search Training Program (JSTP). She stated that she sent out a number of resumes through various channels including the internet but was unable to secure a single interview.
The representative submitted that the new CM who took over the file in 2009 was under the impression that part-time studies had not been approved but to some extent they were approved by the previous CM and lack of clarity around this has complicated this issue. Memorandum 96 mentions that the worker was having problems with full time studies and in memorandum 102 the CM approved a reduced course load. She notes that the VC was also under the impression that the worker was studying part-time and so there was a disconnect between the CM and the VC. She argued that what prompted a further scrutiny was the involvement of the employer representative around the fall of 2009. She argued that the worker was succeeding and doing well in her courses and should have been granted the extension. She stated that the worker loved the program and tried very hard to get this done within the 4 year time frame but she was unsuccessful. She noted that the scheduling never changed to full-time so the worker continued with part-time studies.
I do agree with the representative for the most part as it does appear that there was a clear breakdown in communication with respect to this issue. I note that the CM never sent a letter in over two years advising the worker of her expectations in the plan and nor did she ever clarify the restrictions provided by Dr. O with regards to part-time studies. By 2010 when the whole thing came to a head it was already too late at that point to salvage the BSW plan.
Communication issues notwithstanding, I do not accept the worker’s testimony that she was not aware that the LMR plan would not be extended. As outlined in various memorandums of file (memorandums dated May 6, 2009, November 3, 2009 and January 19, 2010) the worker was made aware of her need to increase her course load and I cannot accept that in all these documented conversations, the worker was never advised that her plan would not be extended. In fact, as early as January 2010 (memorandum 131) the worker asked if it was possible to switch to the 3 year bachelor program at the University and was told by the CM to research this. This is contrary to the worker’s testimony that the whole thing came as a surprise to her in August 2011.
It is also worth noting that the worker was having personal issues that were impacting her ability to fully participate in full time studies. As documented in the May 6, 2009 memorandum the worker asked to drop courses due to personal issues. In memorandum 115 the Nurse confirms with Dr. D that the worker had to take some time off due to stressors and coping. The January 31, 2011 LMR progress report notes on page 3 that the worker attributed her low grades to, “significant stress associated with the break down of her marriage in December 2010 and her subsequent move to another residence.”
Given the totality of the evidence, I do not believe a one year extension to the plan will serve any purpose at this point. The worker has now been out of school for nearly three years and the feasibility of her going back to University to complete the BSW program is questionable. The reality is that this program is quite popular and even if I were to approve the extension, there is no guarantee whether she would be accepted in the program at this stage given her lower marks in the final year or that she would be able to complete the program in the one year period. Considering that the worker has already obtained a degree in psychology, I am unable to grant the one year extension to the worker’s plan.
- Were the appropriate wages utilised at the final LOE review decision?
I am persuaded on a balance of probabilities that the worker’s LOE benefits at the final LOE review should be based on her ability to earn $11.00 per hour at 40 hours a week to age 65.
According to the Human Resources Development Canada website, social and community service workers (NOC 421) administer and implement a variety of social assistance programs and community services, and assist clients to deal with personal and social problems. They are employed by social service and government agencies, mental health agencies, group homes, shelters, substance abuse centres, school boards, correctional facilities and other establishments.
In terms of educational requirements, the website notes that completion of a college or university program in social work, child and youth care, psychology or other social science or health-related discipline is usually required. Previous work experience in a social service environment as a volunteer or in a support capacity may replace formal education requirements for some occupations in this unit group. Social service workers may be required to be a member of a provincial regulatory body in some provinces.
The website lists the following job duties that people employed in this SEB usually perform:
Review client background information, interview clients to obtain case history and prepare intake reports
Assess clients' relevant skill strengths and needs
Assist clients to sort out options and develop plans of action while providing necessary support and assistance
Assess and investigate eligibility for social benefits
Refer clients to other social services or assist clients in locating and utilizing community resources including legal, medical and financial assistance, housing, employment, transportation, day care and other services
Counsel clients living in group homes and half-way houses, supervise their activities and assist in pre-release and release planning
Participate in the selection and admission of clients to appropriate programs
Implement life skills workshops, substance abuse treatment programs, behaviour management programs, youth services programs and other community and social service programs under the supervision of social services or health care professionals
Meet with clients to assess their progress, give support and discuss any difficulties or problems
Assist in evaluating the effectiveness of treatment programs by tracking clients' behavioural changes and responses to interventions
Advise and aid recipients of social assistance and pensions
Provide crisis intervention and emergency shelter services
Implement and organize the delivery of specific services within the community
Maintain contact with other social service agencies and health care providers involved with clients to provide information and obtain feedback on clients' overall progress
Co-ordinate the volunteer activities of human service agencies, health care facilities and arts and sports organizations
May maintain program statistics for purposes of evaluation and research
May supervise social service support workers and volunteers.
The representative submitted that the worker completed university with a psychology degree. She argued that it is a well-known fact that graduates are having a great deal of difficulty finding employment paying more than minimum wages with a basic university degree. She provided a couple of internet articles supporting this position (filed as exhibit 1). She stated that although the worker has previous work experience, she cannot apply to these jobs due to her restrictions. She has no experience in counselling but despite this she did find a job in October 2011 as a Life Skills Co-ordinator earning $11.00 per hour but the operating area felt that the worker was under-employed. She argued that these wages should have been utilised at the final review.
The worker advised following the completion of her plan she found employment as a Life Skills Co-ordinator. She explained she found the job through a friend. She stated that she worked with the owner’s brother who had mental difficulties and had recently lost his father. She stated that her job required some bereavement counselling as well helping him cope with loss of a parent, teaching him how to cook and how be more independent. The worker advised she was employed for approximately 3 months before she voluntarily left because the client was actually becoming dependent on her as opposed to becoming independent. The worker confirmed that her reason for leaving that job had nothing to do with her low back injury. Since leaving that job she has not been able to find work even though she advised that she has looked for work.
When asked specifically about how many jobs she has applied to through newspaper and internet job postings, she indicated about 30-40 per year. She said that the majority of her job searching is done through networking. She advised she volunteers at a number of places including her church and a local school. She stated that she no longer owns a motor vehicle and is reliant on friends and taxi’s to get around. She stated that she cannot take a bus due to her low back issues and advised that she has a medical note from her family doctor regarding this. The worker advised that she is looking for work regularly but it is getting challenging considering she no longer has a car. The worker advised that she has prior experience working as a cashier but has not looked for cashier work as she feels that it requires frequent bending and twisting and this would be contrary to her restrictions. When I asked how she would get around if she found a job, she said she would probably have friends drop her or take a taxi.
Policy 18-03-06 states the following:
The SO-identified earnings for the purposes of locking in the LOE benefit until age 65 are based on the available wage information as of the WT plan completion date. Where the final review occurs before the worker is able to find a job, if the WSIB originally used:
- entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the LOE benefit. This generally occurs if the WT plan was designed to provide the worker with new skills or if the worker would have entered a new field…
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.
In this case, the worker did find employment on October 1, 2011 as a Life Skills Co-ordinator and according to the job description provided by the new employer the specific skills required in this position were to empower a mentally challenged individual by teaching homemaking, life skills, provide companionship, and assist with shopping and teaching healthy nutritional habits. The educational requirements were some university credentials preferably a psychology degree.
The Work Transition Specialist (WTS) reviewed the job description provided by the worker in the Work Transition Plan Closure Summary report dated October 1, 2012. The WTS noted that in her opinion the job duties were more consistent with a personal support worker (PSW) position (NOC 6471) and not the SEB the worker trained for.
In reviewing the description of this job as outlined above, I respectfully disagree with the WTS and feel that, although there were some elements of the job that overlapped into the role of a PSW, the job duties did indicate that the purpose was to assist and empower the client to become more independent. Most PSW’s are employed to assist clients with eating, cooking, bathing and cleaning however the worker testified that this was not her role. She was not physically cooking or cleaning for the client and her role involved teaching the client to become more independent. In my view, the description the worker provided falls within the job description of a life skill instructor which is an actual job title used as an example in the aforestated website.
Policy 18-03-02 defines underemployment as follows:
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.
In accepting that the worker had only just completed the LMR program, that she had no experience in the SEB and had made sincere attempts to find employment in the SEB, I find the worker used her newly acquired skills, training and networking abilities to maximize her post injury earnings. The fact that these wages were lower than the deemed SEB wages of $15.50 per hour is only of marginal relevance since in my opinion the worker was employed in her SEB at the time of the final review and therefore actual wages should have been utilised as stipulated by policy.
Having considered the worker’s testimony, and given the worker’s transferable skills, personal and vocational characteristics, work history, assessment findings, and compensable condition, she would be able to secure full time employment at $11 per hour. According to the worker’s testimony although the job she secured lasted less than three months, the job itself was suitable and her reason for leaving had nothing to do with her back injury. As such, I see no reason why the worker could not find similar employment in the local labour market.
As per the above noted policy, the worker’s LOE benefits effective the date of the lock-in should be based on her actual wages of $11.00 per hour at 40 hours a week to age 65.
CONCLUSION
Based on the forgoing reasons, I conclude the following:
The worker is not entitled to a one year extension to her retraining program.
The worker was not under-employed at the time of her final review and therefore her benefits should be based on her actual wages of $11.00 per hour at 40 hours a week.
The worker’s objection is allowed in part.
DATED: April 1, 2015
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division