WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
claim: 20172033
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer (not participating)
REPRESENTED by: Consulting Firm
ORAL HEARING: Toronto, Ontario
HEARD by: H. Mohamed, Appeals Resolution Officer
ADDITIONAL ATTENDEES: Observer
Decision Date: October 31, 2017
ISSUES
The worker representative on behalf of the worker objects to the following decisions:
The decision dated March 14, 2017 which concluded the worker was not a student at the time of the accident and therefore his earnings basis was correctly based on his status as a full time permanent worker.
The decision dated September 7, 2016 which deemed the worker capable of participating in Work Transition (WT) services in the Suitable Occupation (SO) of security guard.
The decision dated January 10, 2017 which adjusted the worker’s Loss of Earnings (LOE) benefits upon completion of the WT plan based on SO wages.
The decision dated May 31, 2017 which denied the worker a permanent impairment for his psychotraumatic disability.
Prior to the start of the hearing the worker representative chose to withdraw the objection regarding the NEL quantum.
BACKGROUND
On July 7, 2015, this then 34 year old labourer for a meat processing company was placing a stopper into a machine when his non-dominant left hand got pulled in, resulting in an amputation of his four fingers and the tip of his thumb. The worker required immediate revision amputation surgery and underwent further excision and revision surgery on November 25, 2015.
The worker had started full-time employment with the employer on February 16, 2015 and was earning $12.00 an hour at the time of the accident. The worker was paid full LOE benefits from the date of accident based on these wages.
The worker was assessed at the WSIB Speciality Clinic on August 4, 2015 where he was diagnosed with amputation of left D2 through D5 at the metacarpophalangeal joints (MCP) and the tip of the left thumb. The treatment team recommended a psychological assessment given the worker’s reported symptoms of flashbacks and nightmares.
Following a concurrent mood assessment on August 12, 2015 the worker was diagnosed with post-traumatic stress disorder (PTSD) and an adjustment disorder with depressed mood. Psychological treatment was recommended and approved by the Operating Area.
The worker was officially discharged by the hand specialist on January 20, 2016 with permanent left hand restrictions. The worker also completed the hand therapy program by March 2016. The Operating Area accepted a permanent impairment and granted the worker a 41% NEL award for his left hand. This was confirmed in the decision dated June 1, 2016.
The worker was referred for Work Transition (WT) services and participated in a psychovocational assessment where a number of Suitable Occupations (SO) were identified for the worker. The worker initially expressed an interest in a few different SO’s including firefighter however they were deemed outside his physical restrictions. In the end, the SO of security guard was suggested as being the best option and the worker was sponsored in this SO as outlined in the decision letter dated September 7, 2016. The worker has objected to this decision.
The worker was successful in obtaining his security licence and commenced Job Search Training (JST) on October 3, 2016 followed by Employment Placement and Retention Services (EPRS). The worker completed the WT plan on January 6, 2017, and as outlined in the decision dated January 10, 2017, the worker’s LOE benefits were adjusted based on SO wages of $11.40 per hour effective January 9, 2017. The worker objects to this decision.
In December 2016, the worker representative requested the worker’s earnings basis be recalculated to reflect he was a student at the time of the accident. The representative argued that while the worker was working in a full time job at the time of injury, he was saving money to complete a college program in fire services.
In the decision dated March 14, 2017, the Case Manager (CM) concluded there was no evidence to support the worker was registered in any educational program at the time of the injury and therefore could not be considered a student. The worker objects to this decision.
Finally, in a decision dated May 31, 2017, the CM concluded that the worker had recovered from his psychological impairment and was not entitled to a permanent impairment. The worker objects to this decision also.
The worker’s objection to these four decisions made by the Operating Area forms the basis for this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997 – Section 2
Operational policy:
11-01-05 - Determining Permanent Impairment
15-04-02 - Psychotraumatic Disability
18-03-02 - Payment and Reviewing LOE Benefits (Prior to Final Review)
19-03-03 - Determining Suitable Occupations
19-03-05 - Work Transition Plans
ANALYSIS
In arriving at my decision I have considered the information in the claim file, the submissions by the worker’s representative, the worker’s testimony as well as the relevant sections of the WSIA and the appropriate Operational Policies.
- Was the worker a student at the time of the accident?
For the reasons that follow, I find the worker was not a student at the time of his injury and therefore his earnings basis has been appropriately based on his employment pattern of a full time permanent worker.
The worker representative submitted the worker should be deemed a student given that he had previously attended school in order to find employment as a firefighter and had only been working so that he could save enough money in order to go back to college and complete his program. The representative claimed that a number of Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions had concluded that workers who took time off between semesters to work in order to finance their education had demonstrated “intent” to resume schooling and should therefore be classified as students. The representative acknowledged the worker was not registered in any college program at the time of the accident however he had “intent” to resume schooling in the very near future. As such, he asked the worker’s earnings basis be calculated on the basis of him being a student.
The worker testified that after graduating high school in 2000 he joined the armed forces until 2002 as an infantry soldier. After working a few general labour type jobs he started with an employer in 2005 as a care and maintenance specialist. His job entailed cleaning and maintaining firefighter’s gears and he did this for between 15-30 hours a week. He confirmed he was paid around $12.00 an hour.
The worker said he went to college in 2006-2007 and enrolled in a two year program in law and security but left after one year because he failed some courses. He said he did not go back to complete the second year as he was discouraged by his marks and also had a young child. The worker said he took an Ontario Student Assistance Program (OSAP) loan to pay for the program. The worker testified that after leaving the program in 2007 he owed approximately $11,000 to OSAP and was only able to pay back a small portion of this.
The worker said after 2007 he started working at the prior employer again and remained employed with them until 2012 when he decided he wanted to go back to college. He applied for the pre-service fire program at Seneca College which would allow him to apply for work at any fire department.
The worker started the Seneca College program in September 2012 and applied for an OSAP loan again. He said he was allowed to start the semester even though the loan hadn’t been approved however by the end of the semester he was told that OSAP had rejected his application because he had defaulted on his previous OSAP loan. The worker acknowledged he failed three courses (out of six) that first semester but was hoping to take them the following semester. He was unable to start the second semester in January 2013 due to lack of OSAP funding.
The worker said his plan was to work and save up enough money so that he could go back and complete the program. His aim was to work for approximately a year and recommence the program in January 2014. The worker however testified he did not go back in January 2014 or January 2015 because he was “making money” and was trying to look into alternative avenues of becoming a firefighter without schooling. The worker said he has friends who are firefighters and they suggested he start applying directly to different fire departments in different cities. In late 2014 the worker said he applied to the City Fire Department during their recruitment drive and took the testing in April 2015. The worker said following the test he never heard back from them and assumed he likely failed to meet their entry requirements. The worker said thousands of people apply during these recruitment drives and it is very difficult to get in this way.
The worker said after failing the aptitude test his plan was to continue applying to different fire departments and also to re-start his program at Seneca College. He said his “hope” was that he would start schooling in either September 2015 or January 2016. In terms of financing, he said he had already saved up approximately $2500 and since his wife was also working he felt he would have been able to pay for the course without requiring OSAP. He subsequently got injured in July 2015 and did not go back to college.
The worker testified he began working for the accident employer as a labourer in February 2015 after he was laid off from his prior job. The worker said he saw a posting in the newspaper and applied. He was working on a full time basis at the time of his injury.
The worker representative submitted that the 2013 OSAP records show the worker owed them $7140 and was therefore ineligible for further financing. As such, he was not able to continue his Seneca College program in January 2013. The worker’s plan was to apply to different fire departments and try to get in directly with them or return to school after saving enough money. The evidence shows he did apply to the City and went through testing with them in April 2015 – just three months before his accident. While he agreed the worker was not enrolled in any educational program at the time of the accident, his intention was to recommence his college program either in September 2015 or January 2016.
In considering the worker’s testimony and the representative’s submission I certainly do not dispute the worker attended Seneca College in September 2012 and completed one semester in the pre-service fire program. I also accept that had the worker not been declined OSAP funding, he likely would have continued with his program in January 2013. I am however not persuaded by the worker’s testimony, and nor does the evidence support, that he intended to go back to school to finish his program in either September 2015 or January 2016.
Section 2 of the WSIA provides the following definition of a student:
“Student” means a person who is pursuing formal education as a full-time of part-time student and is employed by an employer for the purposes of the employer’s industry, although not as a learner or apprentice.
Since the worker acknowledged he was not enrolled in any college program at the time of the workplace accident, the key issue that needs to be determined in this appeal is whether the worker’s actions prior to the accident provide sufficient proof that he was “pursuing formal education”. The representative’s position is the worker had formed “intent” of going back to school and this is sufficient to classify him as a student. The representative has relied on three WSIAT decisions to support this position.
In WSIAT decision 2727/01, the panel found that the worker was a “student” despite taking a year off from her studies. I note however the panel arrived at this conclusion on the basis that the worker “was registered to attend a course of full-time study at York University at the time of her accident in May 1998.”
In WSIAT decision 1896/05, the panel accepted the worker was a student given that she had injured herself on the last day of her summer job. The panel noted “the worker was a high school graduate who was working at a summer job, indeed on her last day, at the time of the accident. The evidence indicates that although the worker had not yet been accepted into a post-secondary education course of study at the time of the August 2002 accident, she had planned on starting such a course of study in January of 2003 and she had applied for academic upgrading courses which would have occurred from September 2002 to January 2003.
Finally, in WSIAT decision 956/01 the vice-chair noted the worker had emigrated from Egypt with two university degrees and had worked in the legal department of a construction company and as a magazine journalist in his home country. After arriving in Canada in 1989 he was told by the University of Toronto that he needed English upgrading to qualify for admission. The worker started taking English classes while working concurrently at a fast food restaurant where he ended up sustaining a workplace injury. The panel found that the worker was a “student” given that he was involved in upgrading in order to qualify for university admission. The vice-chair went on to conclude that given the worker’s background, extensive education and qualifications, the worker would have been a qualified professional after his graduation from a Canadian university.
Having had the opportunity of reviewing all three WSIAT decisions, I find it was a little more than just “intent” that persuaded the tribunal to classify these workers as students. In the first WSIAT case the worker was actually “registered” to attend school at the time of the accident. In the second case the worker was working a summer job and had “applied” for academic upgrading courses prior to her accident and in the last WSIAT case the worker was taking English upgrading classes at the time of the accident. Hence in all three cases it was not “intent” alone that led the tribunal to change a worker’s classification from worker to student.
In the present case, the worker was not employed in a temporary summer job at the time of injury and nor had he just recently completed high school whereby one could draw a reasonable inference that he was likely to resume some sort of educational program. The worker had last attended college in December 2012 and had stopped attending due to a lack of funding. Between January 2013 and July 2015 – a period of over two and a half years – the worker did not enrol or register in any full time or part time educational program. Unlike the situation in WSIAT decision 2727/01 where the worker took a year off from schooling, I find a two and a half year gap to be a significant amount of time to be classified as a “break.”
The worker’s own testimony was that after 2013 he started looking for alternative ways of becoming a firefighter. The worker evidently realised he did not require a college course to be employed as a firefighter and started applying directly to different fire departments looking for employment opportunities. The worker eventually paid an application fee in late 2014 and was invited to write an aptitude test with the City in May 2015. As such, I find it is highly unlikely that he had any intentions of going back to school to fulfil his ambition.
This raises an important question as to whether being motivated to become a firefighter and actively seeking employment with various fire departments constitutes evidence of “pursuing formal education.” While the representative did not direct me to any WSIAT case law where someone was classified as a “student” based on the fact they were actively seeking employment in their field of choice, I was able to find one WSIAT decision that addressed this very issue.
In WSIAT decision 2274/10 the worker was also employed as a full time labourer when he sustained an eye injury in August 2008. Just eight (8) months prior to his accident, the worker had successfully completed a police foundations diploma program and at the time of the injury he was involved in the recruitment process with a local police force. He had completed five of the seven phases of the recruitment process. Phase six of the recruitment process involved a background check, which was underway at the time of his workplace injury. The worker requested that he be considered a “student” as opposed to a worker on the basis that he was actively involved in seeking employment as a police officer. In denying the worker’s appeal, the vice-chair noted the following:
In my view, the notion of compensating a student for injury following the completion of an educational program and/or during a subsequent hiring recruitment process on the basis of the exceptional circumstances set out in the legislation and policy is inconsistent with the requirement of the definition of student in section 2 of the WSIA. To conclude that benefits are payable during a post-educational period of recruitment would result in an outcome that the legislation and the Board, in my view, has not anticipated. The effect of such a decision would be to permit any worker who has finished an educational program to collect benefits using a projected wage rate in his or her field for an injury that occurred beyond the completion of a formal education. It would constitute a basis for entitlement that is not considered by the legislation and the Board of not only additional and significant cost consequences, but also situations in which the accurate calculation of entitlement benefits could be unmanageably complex. (Emphasis in the original).
I agree with the vice-chair’s rationale and find the worker’s activities of trying to secure employment as a firefighter would not fall under the umbrella of “pursuing formal education.” While I have no doubt the worker was motivated to seek employment as a firefighter at the time of his injury, his motivation alone is not sufficient enough to classify him as a “student” within the definition prescribed under section 2 of the WSIA.
For the foregoing reasons, I find the worker was not a student at the time of the accident and was appropriately classified as a worker.
- Is the SO of security guard suitable for the worker?
In considering the evidence, I find the SO of security guard to be both suitable and available for the worker. Furthermore, I find the worker has the skills and abilities to be employed in this SO. My reasons for arriving at this conclusion are outlined below.
The representative’s essential argument was the worker should have been provided a more extensive WT plan. He noted the worker was initially advised he would be able to attend a public college program in security administration to be a security guard but then the WTS changed her mind and placed the worker into a private college instead. He felt this was motivated by the worker’s relatively low wages.
The representative acknowledged that in theory the WSIB gave the worker the necessary skills and training to be able to find entry level employment as a security guard which would likely restore his pre-accident wages of $12.00 an hour. However they did not do a good job of treating the worker given that he continued to have a mental block which caused him not able to be fully engaged in the WT process. He argued the worker’s psychological issues made it difficult for the worker to formulate plans and to get himself focused and perhaps a more formal schooling program would give him an opportunity to be more focused and have a higher degree of self-respect. He acknowledged the worker was not fully engaged in the WT process however the worker was not being un-cooperative for the sake of being un-cooperative but rather there were psychological issues that likely prevented him from being fully engaged. He requested the worker be sent back for further WT services and be provided an opportunity to attend a lengthier public college program.
The worker testified that he wanted to pick a different SO but the WSIB essentially forced him into the SO of security guard. He said he offered a few suggestions but these were not accepted. He later conceded some of these suggestions were simply not suitable. When he finally agreed to security guard, he thought he would be sent to Durham College for a one year program but instead he was sent to a private college and received a one week course. He said he was motivated to find work but agreed that perhaps he was not fully engaged. During questioning he was asked about the numerous references in the claim file about not returning calls and not wanting to attend interviews. The worker said that he did return calls but acknowledged that sometimes he would not do it right away. He denied not attending interviews and said he did everything that was asked of him.
Since completing WT services, the worker said he has looked for security jobs approximately two times a day but he has never managed to get an interview. He said he is currently employed as a crossing guard for the city of XX and started this job in June 2017. He said he works approximately 12 hours a week and earns $15.00 an hour but did not work during the summer months. He started again in September. The worker said he did not keep a list of all the security jobs he applied for since April 2017 even though he was told to do so by his representative. He said he just wasn’t thinking straight.
Later on during questioning from me, the worker said he only looked for security jobs for the first few months after his WT plan ended in January 2017 and then started looking for alternative employment outside his SO. He said he looked for driving job as well as courier jobs. He said driving jobs have interested him and he has no restrictions with driving.
The worker said if his appeal were successful he would be interested in going to Fleming College to take a two year program in fisheries and wildlife studies. He said he likes to work outdoors with animals. He would also be willing to take a two year program in law and security administration at Durham College as an alternative option so that he could find employment with Canadian border services. The worker later conceded that border patrol work would likely not be suitable for him given his left hand impairment.
As I will discuss below, the worker’s testimony that he was “forced” to accept the SO of security guard is not entirely accurate.
Given the worker had a high school diploma and was functioning at a grade 12 level in English and math, the psychovocational assessment report provided the following list of jobs the worker could consider without any training:
Production Clerks (production coordinator, scheduler)
Cashiers (box office cashier, self-service gas bar cashier)
Other elemental sales occupations (telephone salesperson)
Taxi and Limousine Driver
Delivery and Courier Service Driver
The report also provided an extensive list of SO’s the worker could consider with some training. These included automotive service adviser, purchasing & inventory clerk, dispatchers, animal care workers, bus driver or train operator and security guard.
Following the psycho-vocational assessment the worker was given ample time to research the multitude of SO option’s identified and to provide his input as to which specific option he would be interested in. This is in keeping with policy 19-03-05 (Work Transition Plans) which states the WSIB develops a WT plan in partnership with a worker and his representative and the worker is encouraged to provide input and supporting research in identifying a SO and any suggested plan activities.
At the meeting on June 6, 2016 the worker was provided a list of potential SO options and the worker expressed an interest in Inspectors in Public and Environmental Health (NOC 2263) and was told to conduct further research. The WTS also stated that she would research this option also. I note this SO option was not raised by the worker again.
At the June 16, 2016 meeting the worker provided four options for consideration. They included culinary jobs, border patrol, graphic designer and production clerk. The first option was ruled out as it was unsuitable but the worker was told the other three options were suitable and he was asked to conduct further research. The worker however told the WTS on June 30, 2016 that he “didn’t have time” to look into those SO options. The WTS reminded the worker that he needed to be more involved in SO planning.
According to the July 7, 2016 WTS memorandum, the WTS had done her own research based on what the worker had previously suggested and she concluded that both graphic design and production clerk were suitable however the border patrol position may require relocation anywhere in Canada and she wanted to know if the worker would be willing to consider that. A message was left for the worker to call back.
The worker did not return the WTS calls and a letter had to be sent on July 11, 2016. The worker subsequently advised he would be willing to relocate for the border patrol job and the WTS said she would look into this option further. The worker said he would look into the production clerk and graphic design jobs. The worker was again reminded about the importance of being active in the SO planning process.
On July 19, 2016 the worker said he still wasn’t sure which SO to go with and maintained that his passion lied with working as a firefighter even though he was told this was not a suitable option. The WTS advised that upon further research the SO of border patrol was not physically suitable and was therefore ruled out.
At the July 27, 2016 meeting the worker presented the option of animal care/vet assistant however this was deemed unsuitable. The worker also presented employment option within the forestry industry but there was no job availability in this area. Fire protection was again identified by the worker and he was told that he needed to be more specific as to which program and career path he was interested in. Dispatcher was the only option that appeared suitable and the WTS advised she would look into this further. In a subsequent discussion on August 10, 2016 the worker confirmed that he could not find any SO’s that were fire protection related.
On August 15, 2016 the worker representative’s office advised the WTS the worker was interested in locomotive engineer. The WTS advised that since the worker had no train conductor or operator experience, this SO would not be a feasible option. The representative’s office advised they would try to look in to further SO options with the worker.
At the August 17, 2016 meeting, the worker conceded that he had no further SO suggestions. It was therefore at this point that the WTS put forward two choices for the worker to consider – security guard and production clerk. The WTS notes in her memorandum the worker was happy with both options but preferred security guard as he had previously completed a 1 year college program in Law and Security Administration. The worker said the program had focused on security guard training and he found this enjoyable. The worker said he would call local colleges to see if there was availability to start a program in September 2016. The next memorandum dated August 18, 2016 notes how eager the worker was regarding this program. He applied to the programs online, submitted the application fee and also sent in his transcripts.
So contrary to the worker’s testimony, he was not “forced” in to the security guard option. Rather, the worker was unable to come up with a suitable career option despite being given a significant amount of time to conduct his own research. The worker’s spouse, mother-in-law and representative were all involved in assisting the worker in identifying a suitable option but they were unable to identify anything that was both suitable and had employment prospects. When security guard was presented, the worker seemed all too happy with this option so long as he was provided the opportunity to attend a public college. When he was told this was not required, he became disinterested in the SO. According to the National Occupational Classification (NOC) guide, the worker does not require a public college diploma to work as a security guard.
In reviewing the WTS memorandums, I note the worker was very difficult to reach and despite leaving numerous messages he would frequently not return calls until days later. This was also noted by the CM – see memorandum 65, 68, 83 and 90. At the hearing the worker was questioned about his issues with returning calls and his response was he usually returned calls within a day. The file record does not support this.
The SO of Security Guard (NOC 6541) was subsequently approved and the plan included:
1 week training (40 hours) in Security Officer Course
JST for 2 weeks
EPRS for 10 weeks
The worker testified he was upset at not being sponsored in a one year security program at Durham College which he was initially led to believe would be accepted. Instead the WTS told him that they would only offer him a private college option. The worker testified he was eventually sent to a one week security guard course which he passed without any issues. The worker could not answer whether attending a private college as opposed to Durham College would make any significant impact in his prospects of finding work as a security guard.
Once the worker entered the JST and EPRS phase of the plan, the evidence indicates he was not very motivated in finding employment. This may have been driven in part by the fact that he was told to go to a private college as opposed to the college of his choice. There are numerous references in the WT section of the claim file that question the worker’s overall motivation.
The WTS memorandum A0011 notes the worker passed the security course with 96% but a placement was not discussed as he was “in a hurry to leave.” Similarly the JST report notes that while the worker completed all tasks including a resume and cover letter, he was absent on both days that he was scheduled to conduct a mock interview.
The WTS memorandum A0027 notes the worker was not meeting the target of applying to 10 jobs per week. The following memorandum (A0028) notes both the placement service co-ordinator and centre for security training had been unable to get a hold of the worker as he was not returning their calls.
The Five Week EPRS report notes there were issues with the worker returning phone calls and emails. They had emailed the worker a job lead for a Front Desk Agent (which did not require the security licence in hand) but the worker did not show any diligence in applying for this job stating he wanted to wait for his actual licence to arrive before engaging in an “aggressive job search.”
The same report notes the worker was given information about an upcoming job fair on November 19, 2016 but his only response was he would “try to make it” as he had other commitments. The report notes the worker provided no evidence of independent job search and there was a lack of motivation and commitment from the worker. At the hearing the worker said he had a personal commitment that day which he could not get out of.
The WTS memorandum A0043 notes the worker was contacted by two potential employers but he forgot to call one back and the other he declined to meet because the hours of work were from 1-9pm. At the hearing the worker said he could not recall this incident but said he would have no issues working 1-9pm.
According to WTS memorandum A0046 dated December 13, 2016, the EPRS coordinator had set up a job lead with an employer however the worker said he was not ready to start working yet. The potential employer said they were able to accommodate all types of injuries however the worker said he would think about it but never called the employer back. At the hearing the worker said he couldn’t recall this incident and had nothing further to add.
The WTS memorandum A0050 dated December 19, 2016 notes the worker’s biggest concern was that potential employers were 20-30 minutes away from his home and felt this was too far for him to travel. He also said he had to attend up to three (3) medical appointments a week and this would mean that he would not be able to commit to full time employment. He was advised by the WTS that he should schedule his medical appointments after work hours and if he has an interview that happens to be on the same day as a medical appointment he should reschedule the interview date.
At the hearing the worker was asked which specific medical appointments he was referring to. The worker said he was attending psychological treatments every Tuesday in Toronto and was also attending physiotherapy treatments at Altum Health once a week. With respect to the driving issue he said his wife was working at this time and she required the car so he had to take public transport. In reviewing the file record I note the worker was discharged from physiotherapy in March 2016 and was not attending any physiotherapy appointments at that time. Furthermore the worker had no psychological appointments in December 2016.
The worker was also questioned about the employment placement report which noted he would not always return calls and questioned his motivation as he had declined some interviews. The worker responded that he did try to call them back but acknowledged there were times he may not have returned calls until the “last minute.” The worker said that as far as he is concerned he was being cooperative but just found the whole process draining. He said he did not decline any interviews despite documentary evidence to the contrary.
The representative chalked up the worker’s lack of engagement to his psychological issues. While I accept that psychological issues may have played a small factor in the worker’s overall motivation, I find that not returning phone calls and not wanting to attend interviews cannot all be attributed to psychological issues. There are numerous references in the file that indicate the worker fairly busy with his son’s baseball activities which took up almost four evenings a week and the weekends were occupied with soccer (memorandum 50). I note his wife was in the last stages of her pregnancy in November and December 2016 so it is just as likely that this may have also played a factor in his motivation. Finally, the worker had testified that his wife needed the car for work which meant he was forced to take public transport. Not having a car likely made it difficult to fully engage in the interview process.
Furthermore, none of the psychological reports on file indicate the worker was becoming distant or withdrawing from his family and friends which are usually the telltale signs of disengagement. At no point did the psychologist or psychiatrist suggest the worker stop attending WT activities or that the WT activities be placed on hold.
It is worth emphasizing that motivation and attendance issues have been present from early on in the claim and are not something that just propped up during the WT process. The psychological reports on file note the worker was frequently absent from treatment. According to memorandum 46, the occupational therapist advised the CM the worker was not only would he not attend treatment sessions, he would not call to cancel his appointment and they were not able to reach him by phone. Memorandum 51 notes the worker did not attend his psychological session on February 16, 2016 but the very next memorandum states the worker was busy “driving his family around” and “attending activities with his son.” Even in August 2016 when psychological treatment sessions were restarted at the worker’s request, the psychologist noted the worker continued to have “similar problematic attendance issues.” Hence, in my opinion it would be a gross oversimplification to attribute the worker’s lack of engagement and motivation to his psychological problems only.
In summary, I find the worker was given ample opportunity to participate in the SO selection process and the SO of security guard was selected with the worker’s approval. The worker became disengaged once he was told he would not be going to a public college. Numerous memorandums on file indicate the worker had a real issue with communicating in a timely manner with the CM, WTS and external service providers. The evidence shows the worker was reminded multiple times of the importance of maintaining communication with the WSIB. A number of employment opportunities were available for the worker to take advantage of during the EPRS stage but he showed little motivation and did not attend a single interview.
Turning to the actual SO of security guard itself, I find this SO is both suitable and available for the worker.
Policy 19-03-03 (Determining Suitable Occupations), defines a SO as follows:
A SO represents a category of jobs suited to a worker’s transferable skills that are safe,
consistent with 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.
In determining the suitability of a SO, the WSIB considers the worker’s functional abilities; employment-related aptitudes, abilities and interests; labour market trends, and the likelihood of the worker being able to secure and maintain work within the occupation with another employer.
With respect to earnings, I find security guard meets the criteria of restoring the worker’s pre-injury earnings. Since the worker’s pre-accident earnings were only $12.00 an hour, I find that this SO has the ability to fully restore his wage loss.
I also find the SO is physically suitable for the worker. Dr. Von Schroeder discharged the worker in January 2016 as noted in the Altum Health report dated January 22, 2016. He noted the worker could use the left hand as an assist only as tolerated and his right hand was functioning at a sedentary level. The Altum Health physiotherapy discharge report dated
March 14, 2016 noted the worker had demonstrated excellent improvement during the post-surgical program with respect to strength and tolerance for functional abilities. The therapist concluded the worker was able to use his left hand as an assist only due to the amputation of all his digits and would have limitations with gripping and pinching activities. The above restrictions were accepted by the Operating Area and the worker was referred for a NEL assessment and went on to receive a 41% NEL award in May 2016.
I note neither the worker nor the representative took any issue with the accepted precautions outlined by Dr. Von Schroeder and the physiotherapist.
At the hearing the worker confirmed he was provided with a functional prosthesis as opposed to an aesthetic one. The worker said it was not perfect but it allowed him to open doors and allowed him to grip certain things with it if he needed to. He said he doesn’t wear it every day. In reviewing the Sunnybrook Hospital reports regarding the prosthesis I note the worker was very happy with the device and the technologist noted the fitting was excellent and the worker was able to use the prosthesis for its intended purpose.
The position of security guard is rated at “light” strength in the NOC Career Handbook. Body position is described as “Other Body Positions” and strength is listed as “light.” While I agree that the job demands of a bouncer or body guard would be a lot different from a night guard or gate attendant, in my opinion a lot of the jobs within this SO category would be suitable for the worker from a physical standpoint.
Finally, I find the worker has the skills and aptitude to be employed in this SO. According to the NOC guide, the worker only requires a high school diploma to work in this field. This is further supported by the labour market research conducted by the WTS as noted in the “SO Availability and Wage Report.” This report provides a list of sample job postings. For instance of page 6 there is a job posting for night guard which pays $12.00 an hour and requires no degree, certification or diploma. On page 7-8 there is a listing looking for 10 security guards with no experience required and the only requirement is a high school diploma and security licence. The worker therefore clearly has the skills and education to be employed in an entry level security guard position.
Having considered the evidence in totality, I find the SO of security guard is both suitable and available for the worker and therefore the worker is not entitled to another WT plan.
- Were benefits appropriately reduced following the completion of WT services?
I find that the worker’s benefits were appropriately reduced based on SO wages of $11.40 per hour.
Policy 18-02-03 states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of
- the day on which the worker’s loss of earnings ceases
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
- two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
- the day on which the worker is no longer impaired as a result of the injury.
The policy goes on to state the following which is relevant to this case:
Earnings may be determined when it is decided that a worker will not be provided with WR (work reintegration) services, or a work transition (WT) plan is completed/closed. Those earnings are determined using the identified suitable occupation (SO) which are determined using current wage and labour market information. The LOE benefit is based on 85% of the difference between the worker’s pre-injury NAE (net average earnings) and the determined post-injury NAE. If the worker obtains a job in the identified SO, the WSIB generally uses the actual employment earnings to calculate the partial LOE benefit.
Since the worker successfully completed his WT plan, the policy dictates that the worker’s benefits be adjusted based on identified SO wages based on current labour market information. The WTS indicated that entry level wages in this SO were $11.40 per hour and therefore LOE benefits were adjusted based on this hourly rate.
Since no submissions were made regarding the entry level wage determined by the WTS, I concur with the decision made by the Operating Area to reduce the worker’s LOE benefits based on these wages.
- Does the worker have entitlement to a permanent psychotraumatic disability?
Based on the information before me, I find there is no evidence to support a permanent psychological impairment at this time. Should the worker provide additional psychological reports to the Operating Area for consideration, this decision can be revisited by the CM.
The worker representative submitted the medical information on file does not support the worker has completely recovered from his PTSD and adjustment disorder. The representative pointed out the last psychological report on file from Dr. Oosterhoff does not state the worker has fully recovered. The representative stated the worker should be referred back to see a psychiatrist.
Entitlement to PTSD and adjustment disorder with depressed mood was accepted in this claim and the worker was treated by Dr. Oosterhoff, psychologist from August 25, 2015 for approximately 8 sessions. The reports note that attendance was a significant issue.
In his discharge report dated March 29, 2016, Dr. Oosterhoff noted that by the end of treatment the worker had “demonstrated greater effort overtime to attend and participate in therapy.” The report notes the worker continued to experience significant intermittent frustration with functional challenges and variable family support. He notes the worker’s PTSD and adjustment disorder were in partial remission and continue on an improving course. He felt this improving trend would continue however the worker was seen to be vulnerable to worsening mood and trauma symptoms. He felt the worker would have a psychological restriction of not being able to work with the accident employer. His prognosis however was “guardedly optimistic.”
Following the psychovocational assessment in April 2016, the worker asked if he could be seen by Dr. Oosterhoff again. This was approved by the CM.
According to Dr. Oosterhoff’s August 12, 2016 report, the worker attended four sessions since being re-referred (June 13, 27, July 11 and August 8, 2016). Dr. Oosterhoff notes that while the worker had shown some interest in treatment “he has demonstrated similar problematic attendance issues which have been repeatedly discussed with him.” His plan was to continue with the current course of treatment to facilitate symptom moderation and adjustment.
The worker was subsequently discharged on September 16, 2016 noting he had made some improvement in attendance but remained frustrated and angry with reported issues with claims, uncertain future, company resentment and previous court proceedings. He felt the worker’s prognosis was guarded. According to memorandum A0015, Dr. Oosterhoff felt the worker should be seen by another psychologist for a second opinion.
The worker was assessed by Dr. Svihra (psychiatrist) and Dr. Cheng (psychologist) on
November 28, 2016. They both provided a diagnosis of major depressive disorder, moderate and PTSD, mild to moderate. They recommended 12 psychological sessions and five to six psychiatric treatment sessions. The worker was also prescribed zopiclone for sleep issues and sertraline to address his symptoms of PTSD and depression.
At the follow-up psychiatric assessment on January 9, 2017, Dr. Svihra noted the worker reported an improvement in his mood since the last assessment in November 2016. He said some days were better than others and he was enjoying coaching baseball. The worker said sleep was good with zopiclone but he often forgets to take it. The worker reported no recent nightmares and said his anxiety levels had improved. He reported a decrease in frequency of intrusive images. Dr. Svihra noted the worker was taking medications sporadically and was advised to take his medications more consistently. The worker was told to restart sertraline on a regular basis for one week at 40 mg daily then increase to 100 mg daily.
In his last report dated February 27, 2017, Dr. Svihra noted the worker was not taking zopiclone regularly as he needed to be awake to help with childcare at night. The worker advised his wife had given birth to a baby girl on February 1, 2017. The worker said he was feeling in good spirits the last three weeks and his energy level was okay. He said his concentration was good and his appetite was fine. The worker reported no recent nightmares and a decrease in intrusive thoughts about the accident. The worker said he “felt positive about the future.” Dr. Svihra noted the worker was doing well and was reporting minimal depressive symptoms “and his symptoms of PTSD have diminished.” The worker was told to continue with 100 mg of sertraline daily.
The worker was asked to follow up with Dr. Svihra in five weeks however the worker did not see him again.
Dr. Oosterhoff’s report of April 11, 2017 notes the worker attended four treatment sessions and that while the worker showed “some interest” in treatment, “he demonstrated, similar to past treatment interventions, variable attendance.” The worker attributed his attendance issues to being increasingly busy with a new child, looking for work and the beginning of baseball season for himself and competitive league for his son. The worker said he was “managing fine” and said he was “doing better.” The worker suggested that treatment be cancelled as he was likely going to continue missing sessions and this may cause problems with his claim and his lawyer. Dr. Oosterhoff notes the worker had much less resentment and anger compared to when last seen and that over the four sessions there was no acute stress or distress observed or reported. He goes on to state:
Symptomatically the variable mood and stress symptoms secondary to adjustment challenges, future uncertainty and intermittent claims conflict have reportedly abated. Positively he continues with his family involvement, persists with physical adjustment with progress noted, and relays looking for work efforts, albeit with little success to date.
Dr. Oosterhoff discharged the worker from treatment and noted that diagnostically PTSD and adjustment disorder had moderated and are “on an improving course, and are in partial remission.” He notes the improving trend may continue depending on recovery and retraining directions, but there remains a risk for symptom exacerbation with recovery or related stress. He felt the worker’s prognosis was “guardedly optimistic.”
The worker representative submitted a letter to the CM on May 8, 2017 confirming the worker was of the opinion that he no longer needed psychological treatment. The letter states both the worker and Dr. Oosterhoff agreed that should the worker require assistance in the future, he would contact him directly.
At the hearing the worker testified that he last saw his psychologist in April 2017 and at the time of discharge he did feel he had improved and felt like he could cope. He said that as time has gone on he feels that he is struggling psychologically. When asked specifically what he was struggling with, his response was he still gets angry very quickly. He did not describe any PTSD symptoms such as nightmares or flashbacks. There was no indication from the worker’s testimony that he had contacted Dr. Oosterhoff after being discharged or that he was taking the medications prescribed by Dr. Svihra.
According to Policy 15-04-02 psychotraumatic disability/impairment is considered to be a temporary condition and only in exceptional circumstances is this type of disability/impairment accepted as a permanent condition.
The WSIA defines “impairment” and “permanent impairment” as follows:
“Impairment” means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss; “Permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery. Maximum medical recovery (MMR) means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.
Policy 11-01-05 (Determining Permanent Impairment) states that in order to determine that a permanent impairment exists, the decision-maker must confirm that MMR has been reached, there is evidence of an ongoing impairment exists, and the ongoing impairment is a result of the work-related injury/disease.
Having considered all the facts before me, I find the evidence does not support the worker has a permanent psychological impairment at this time. The reports from Dr. Svihra and Dr. Oosterhoff indicate there has been a significant improvement in the worker’s psychological symptoms, with almost complete resolution of his PTSD symptoms. Since the worker decided to stop treatment prematurely and has not contacted Dr. Oosterhoff since being discharged, the only conclusion I can draw is the worker does not have a permanent impairment and has likely reached MMR on the date he was discharged. Neither Dr. Svihra nor Dr. Oosterhoff indicated in their reports that the worker would be left with a permanent psychological impairment.
The representative submitted the worker was likely an “under-reporter” of symptoms and asked that I direct the Operating Area to refer the worker back to see Dr. Oosterhoff given his testimony was that he continues to experience some psychological symptoms. Firstly, there is no evidence of the worker being an “under-reporter” of symptoms. Psychologists and psychiatrists are well trained to detect under and over reporting and therefore I would expect to see some mention of this in their respective reports had this been the case. Secondly, I see no point in having the worker go back to Dr. Oosterhoff at this time given that he has seen him on three separate occasions and was discharged each time with attendance issues. There is of course nothing preventing the worker from having his family physician refer him to either a psychiatrist or psychologist in the local community if he feels he requires further treatment.
I agree with the representative that the last report from Dr. Oosterhoff does not unequivocally state that the worker has fully recovered from his psychological condition. Given the nature of the organic injuries, I find there is a possibility the worker may have periods of exacerbation and may require further psychological treatment in the future. If the worker feels he would benefit from further treatment then the first step should be to discuss this with his family doctor who may either decide to manage his symptoms pharmacologically or refer him to a psychologist or psychiatrist. There is no requirement for the worker to be seen at Altum Health for psychological treatment.
Should the worker decide to see another psychiatrist/psychologist, the reports should be submitted directly to the Operating Area for review. Any new findings made with respect to those reports would constitute new decisions. My decision to deny a permanent psychological impairment at this time, does not bar the operating area from reconsidering this matter upon receipt of any new information.
CONCLUSION
Based on the foregoing reasons I conclude:
The worker was not a “student” at the time of the accident and his earnings basis was correctly determined based on his full time employment as a general labourer.
The SO of security guards (NOC 6541) is both suitable and available for the worker.
The worker’s LOE benefits were appropriately reduced based on SO wages following completion of the WT plan in January 2017.
The current medical evidence on file does not support entitlement to a permanent impairment for psychotraumatic disability. However, should the worker seek further psychological/psychiatric treatment in the community, these reports should be reviewed by the Operating Area in order to determine if further treatment for the work related PTSD and adjustment disorder is warranted and the issue of a permanent impairment would need to be revisited. Any subsequent findings made by the Operating Area following this review would constitute new decisions which would be subject to the usual time limit provisions.
The worker’s objection is denied.
DATED: October 31, 2017
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division