Worker v. Employer, 2018 CanLII 116932

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20180051

OBJECTING PARTY: Worker

REPRESENTED by: Worker Rep

RESPONDENT: Employer (Out of Business)

HEARING: Oral Hearing on August 9, 2018

HEARD by: S. Johnson, Appeals Resolution Officer

DATE: August 17, 2018

ISSUE

The worker objects to the Case Manager’s (CM) decision letter dated January 3, 2018 that concluded the worker’s loss of earnings (LOE) benefits as of the deferred final LOE benefit review date on December 15, 2006 is to be based on her ability to earn $7.45 per hour for a 37.50 hour work week in the suitable occupation (SO) (formerly suitable employment or business [SEB]) of a Cashier (NOC 6611).

In preliminary oral hearing discussions the worker representative pointed out there is a discrepancy regarding the worker’s earnings basis on her last employment date on December 16, 2006 that suggests she was earning a significantly lower hourly wage than her earnings as of the work incident on June 14, 1999. I confirmed this issue is not properly before me and will not be considered in this review. I recommended the worker representative pursue clarification of the worker’s earnings basis at the Operating Area for review and consideration.

BACKGROUND

On June 14, 1999 this health care aide attempted to transfer an aggressive resident from a wheel chair to a geriatric chair with the use of a pelvic restraint device. In the course of this activity the worker experienced additional pressure in her lower back region. She reported the incident immediately to her employer and she received first medical treatment on June 15, 1999. In the Physician’s First Report (Form 8) dated June 15, 1999 the physician diagnosed the worker with mechanical lower back pain. Conservative medical treatment was prescribed that included rest, ice, lumbar spine x-rays, physiotherapy and Ibuprofen.

The Operating Area allowed initial entitlement to the worker’s lower back strain injury. The worker returned to work to modified duties at full hours on July 6, 1999.

The worker’s case maintained a dormant status until October 5, 2000 at which time she reported she stopped working on September 26, 2000 due to a recurrence of her work-related lower back injury arising from the work incident of June 14, 1999. The Operating Area listed the worker’s case for a full field investigation to obtain all medical and other evidence during the continuity period from July 1999 to the recurrence date on September 26, 2000. Entitlement to the payment of LOE benefits was denied for the recurrence of September 26, 2000 as there was little clinical objective medical evidence to support the worker was totally disabled.

The Operating Area determined the worker reached maximum medical recovery (MMR) for her work-related lower back injury on January 23, 2001 with evidence of a permanent impairment. In the Non-Economic Loss (NEL) Evaluation report dated August 24, 2005 the NEL Clinical Specialist concluded a 29 per cent NEL benefit was granted for the permanent impairment in the worker’s work-related lower back injury. The accepted diagnosis for NEL rating purposes was mechanical lower back pain and a lumbar strain on a backdrop of degenerative disc disease.

On October 27, 2004 the employer contacted the Operating Area to request assistance with providing the worker with ongoing permanent suitable work duties to accommodate the permanent functional restrictions for her work-related lower back injury (Memo 23). The employer was unable to provide the worker with suitable work duties. The Operating Area offered the worker Labour Market Re-entry (LMR) Services to assist with her return to the labour market. The SO of a Retail Sales Clerk (NOC 6421) was approved (Memo 32). On August 29, 2005 the Return to Work (RTW) Advisor concluded the SO of a Retail Sales Clerk (NOC 6421) was unsuitable due to the prolonged standing requirements (Memo 42). The RTW Advisor recommended the alternative SO of a Cashier (NOC 6611) as it would better accommodate both the worker’s work-related lower back and non-work related bilateral knee and bilateral hip conditions. The worker’s LMR plan was adjusted to include the following amendments:

• Extension of mathematical academic upgrading from April 6, 2005 to September 16, 2005

• Computer training from September 17, 2005 to November 11, 2005

• Eight week co-operative placement from November 14, 2005 to February 3, 2006

• Four week job search training program (JSTP) from February 6, 2006 to March 3, 2006

On November 29, 2005 the worker’s union representative contacted the Operating Area to report mediation negotiations were being undertaken with the employer in an attempt to provide the worker with suitable work duties (Memo 46). On December 14, 2005 the Acclaim representative contacted the Operating Area to report the worker accepted an employment opportunity with the employer to commence on January 23, 2006 (Memo 46). The worker’s LMR plan was closed based on her return to work with the employer. The worker did not complete the co-operative placement and four week JSTP training portion of her LMR plan at the time of the official closure of LMR Services.

On January 23, 2006 the worker returned to work with the employer to the alternative job of an activity aide. She participated in an orientation session from January 23, 2006 to January 30, 2006. Effective January 30, 2006 the worker commenced full-time work hours (37.5 hours per week) in the job of an activity aide.

On December 15, 2006 the worker stopped working to undergo non-work related right knee total replacement surgery.

The worker’s case maintained a dormant status from the date she stopped working to undergo right knee total replacement surgery on December 15, 2006 to September 12, 2012.

On September 12, 2012 the worker representative requested entitlement to the worker’s bilateral hip and bilateral knee conditions as secondary conditions arising from her work-related lower back injury. Entitlement to the worker’s bilateral hip and bilateral knee conditions as secondary conditions arising from her work-related lower back injury was denied at several levels of appeal summarized below:

• The CM’s decision letter dated January 31, 2013

• The Appeals Resolution Officer’s (ARO) decision dated March 24, 2014

• The Workplace Safety and Insurance Appeals Tribunal’s (WSIAT) decision dated February 9, 2017

In a fax dated October 11, 2016 the worker representative requested a review of the worker’s LOE benefits. In this fax the worker representative submits the worker has been unemployable due to her significant lower back injury for which a 29 per cent NEL benefit was granted. In a case review dated November 28, 2017 (Memo A0014) the Director concluded the final review of this worker’s LOE benefits were to be reconsidered according to Section 121 of the Workplace Safety and Insurance Act (WSIA) and the Operational Policy Manual (OPM) Document No. 11-01-03 – Merits and Justice.

In a decision letter dated January 3, 2018 the CM concluded the worker’s LOE benefits as of the deferred final LOE benefit review date on December 15, 2006 would be adjusted based on her ability to earn $7.45 per hour for a 37.50 hour work week in the SO of a Cashier (NOC 6611).

This is the issue for determination.

AUTHORITY

WSIB Operational Policy Manual Document No:

19-03-03 – Determining Suitable Occupation

18-03-06 – Final LOE Benefit Review

15-06-08 – Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances

Section 44 – Workplace Safety and Insurance Act

ANALYSIS

I have carefully considered the claim file information, relevant policy, legislation, and testimony provided by the worker and her representative at the oral hearing on August 9, 2018 in reaching this decision.

Adjustment of LOE Benefits as of Deferred Final Review Date on December 15, 2006

I find the worker is entitled to the payment of full LOE benefits as of the deferred final LOE benefit review date on December 15, 2006 to the age of 65.

Worker Representative Submissions:

The worker representative contends this worker is competitively unemployable and the SO of a Cashier (NOC 6611) is unsuitable for her work-related lower back impairment. In support of this finding the worker representative contends the Board had previously determined the SO of a Retail Sales Clerk (NOC 6421) was unsuitable. The worker representative did not dispute this finding. Where the worker representative disagrees is the physical descriptors for the SO of a Cashier (NOC 6611) mirror the physical descriptors for the SO of a Retail Sales Clerk (NOC 6421). The worker representative relied upon the valid labour market research information that documented the physical descriptors for the SO of a Cashier (NOC 6611) are actually heavier than the SO of a Retail Sales Clerk (NOC 6421) and requires more standing and heavier lifting.

The essence of the worker representative’s position is this worker is competitively unemployable and ought rightly to be entitled to the payment of full LOE benefits from the deferred final LOE benefit review date on December 15, 2006 to the age of 65. The worker representative relied upon the worker’s evidence obtained through extensive testimony at this oral hearing that is not contradicted anywhere in the case record. The worker has received notice of approval for her entitlement to Canada Pension Plan (CPP) disability benefits that concluded she was severely disabled. Although the wording in this legislative body is different than the Board’s legislation, the worker representative highlighted the issue is the same regarding a person’s employability.

The issue to be resolved is whether the worker was capable of working in the SO of a Cashier (NOC 6611) as of the deferred final LOE benefit review date on December 15, 2006.

Final LOE Benefit Review Deferral Date of December 15, 2006:

I first considered whether the deferral of the final LOE benefit review date on December 15, 2006 met the legal requirements of the Workplace Safety and Insurance Act (WSIA) and Board policies.

The OPM Document No. 18-03-06 – Final LOE Benefit Review – sets out the exception criteria to defer the final LOE benefit review at the time the 72-month period is reached if the worker is co-operating in:

• health care measures the WSIB considers appropriate

• WR activities with the injury employer, or

• a WT program for re-entry into the labour market.

I find the exception criteria legislated under Section 44(2.1)(b) of the WSIA and the OPM Document No. 18-03-06 – Final LOE Benefit Review – have been met. In reaching this finding I completed a review of the timeline of the key events in this worker’s case summarized below:

• On October 27, 2004 the employer contacted the Operating Area to report they were unable to provide the worker with suitable work duties to accommodate the permanent functional restrictions for her work-related lower back injury.

• LMR Services were initiated with the worker on October 27, 2004.

• The worker’s final LOE benefit review date was originally scheduled for June 15, 2005.

• The final LOE benefit review on June 15, 2005 was deferred as the worker was participating in the Board-approved LMR plan for the SO of a Cashier (NOC 6611).

• The worker’s LMR plan was closed on January 23, 2006 due to successful mediation with the worker and the employer that led to a return to work to alternative duties as an activity aide.

• The worker did not complete the co-operative placement and job search training components of her LMR plan at the time LMR Services were officially closed on January 23, 2006.

• The worker commenced early and safe return to work (ESRTW) activities with her employer on January 23, 2006 in the activity aide job at a wage loss.

• The Operating Area allowed entitlement to the payment of partial LOE benefits from January 23, 2006 to December 15, 2006 based on the worker’s participation in the ESRTW program with the employer.

• On December 15, 2006 the worker stopped working to undergo non-work related right knee total replacement surgery.

• On December 15, 2006 the Operating Area completed the final review of the worker’s LOE benefits.

On the basis of the above sequence of events I find the evidence shows the worker’s case met the exception criteria legislated under Section 44(2.1)(b) of the WSIA. Bill 179, the Government Efficiency Act, amended sections of the WSIA pertaining to the final review for LOE benefits. The legislation states the Board may review the payments more than 72 months after the date of the worker’s injury if the worker was provided with a labour market re-entry plan that:

• began on or after November 26, 2002, or

• is ongoing as of November 26, 2002, and

• is not completed by the 72^nd month post-injury.

In the case before me, this worker’s LMR plan commenced after November 26, 2002 and was not completed by the 72^nd month post-injury on June 15, 2005. In reaching this finding I relied upon the following:

• The Operating Area started the LMR process eight months prior to the final LOE benefit review date on June 15, 2005.

• The worker was actively participating in a Board-approved LMR as of the 72^nd month post-injury date on June 15, 2005.

I accept there was a legitimate bona-fide good faith LMR process in place at the time the worker’s final LOE benefit review date was scheduled to occur on June 15, 2005.

I also agree with the worker representative’s position this worker was still participating in ESRTW activities at the time she returned to work with her employer on January 23, 2006 to the alternative job of an activity aide. I find the worker’s return to work to the activity aide job with her employer on January 23, 2006 is an extension of her Board-approved LMR plan that was ongoing and not completed by the 72^nd month post-injury. This worker’s uninterrupted transition from her Board-approved LMR plan to her ESRTW plan with her employer is equivalent to the employment-related activities in an LMR plan work trial or work placement program.

I find the deferral of the worker’s final LOE benefit review date to December 15, 2006 is correct and in compliance with section 44(2.1)(b) of the WSIA and the OPM Document No. 18-03-06 – Final LOE Benefit Review.

LMR/ESRTW Activities October 27, 2004 to December 15, 2006:

I then considered the worker’s vocational activities during the period of time she participated in both her Board-approved LMR plan for the SO of a Cashier (NOC 6611) and her ESRTW plan as an activity aide with the employer.

On direct questioning by the worker representative and the ARO the worker detailed with particularity her participation in the co-operative placement portion of her LMR plan for the SO of a Cashier (NOC 6611) summarized below:

• She never performed any cashier duties or any cashier-related duties.

• There was another person at the front desk reception area who handled the transactions.

• She worked in the kitchen during the entire period of time she participated in her co-operative work placement performing food preparation tasks such as cutting up food and baking.

• She had a stool that she could alternate her body positions from sitting to standing to walking while she worked in the kitchen.

• She was unable to stand for any extended periods of time due to her work-related lower back condition.

• She was told by the WSIB her SO was changed from a Retail Sales Clerk (NOC 6421) to the SO of a Cashier (NOC 6611) and she had no input on this change in SOs.

The worker’s evidence is consistent with the vocational evidence. In support of this finding I accord the greatest amount of weight to the following vocational reporting documents:

• In the Career Essentials Inc. report dated November 29, 2005 the Co-op Advisor documented the worker approached her supervisor on November 22, 2005 with concerns that she was still not trained on the cash register. The Co-op Advisor contacted the worker who reported she was enjoying herself at the placement, it was not what she had expected and that she was not receiving any training as a cashier. The worker was advised she would be receiving cash register training at a later date.

• In the Career Essentials Inc. report dated December 23, 2005 the Co-op Advisor documented the worker was happy there and she enjoyed working in the kitchen as an extra hand.

I did not overlook the Career Essentials Inc. final report dated January 24, 2006 that documented the worker reported she enjoyed her work as a cashier at the host placement employer. The worker disputes this finding and advised it is not an accurate reflection of the reality of the work duties she performed while she attended the placement. The worker stated she worked in the kitchen exclusively and was not provided with any cashier or cashier-related tasks during the period of time she attended the placement. I accept the worker’s evidence as it is consistent with the contemporaneous vocational reporting documents prepared by the Co-op Advisor on November 29, 2005 and on December 23, 2005. In both these reports the Co-op Advisor documented the worker’s expressed concerns regarding the absence of cashier duties and training.

I had regard for the worker’s ESRTW activities during the period of time she participated in the return to work plan with her employer in the activity aide job function from January 23, 2006 to December 15, 2006. There is no dispute the activity aide job function has been determined to be unsuitable. In reaching this finding I relied upon the CM’s decision letter dated January 3, 2018 that documented the ergonomic assessment report dated February 21, 2007 concluded the activity aide job function was not suitable as it was not in keeping with the worker’s permanent functional restrictions for her work-related lower back injury. There is no need to revisit previously resolved matters.

In her testimony the worker described the work duties she performed as an activity aide with the employer from January 23, 2006 to December 15, 2006 that included supervising the residents, performing shaving tasks in the morning, taking the residents to the activity room (dining room), pushing wheelchairs, walking constantly to supervise the residents in the activity room, taking the residents back to their rooms, setting up the activity room, handling the nourishment cart to provide juices and snacks to the residents and assisting feeding the residents during breakfast and lunch hours. The work duties were not sedentary in nature and she did not have the opportunity to sit, stand and walk as needed. This was not the case.

Despite the finding the activity aide job function was subsequently determined to be unsuitable by the employer vis-à-vis the ergonomic assessment in February 2007, the worker representative contends this is a motivated worker who co-operated in all aspects of her LMR and ESRTW activities in an attempt to return to gainful employment. I agree with this position.

I had the benefit of this worker’s extensive sworn testimony about the nature and the characteristics of the work duties she performed as an activity aide during the period from January 23, 2006 to December 15, 2006. This evidence is consistent with the employer’s Assessment of Accommodation Options report dated November 22, 2005 that concluded the activity aide job function is unsuitable based on the physical demand requirements that included lifting, carrying, standing and walking on a continuous basis throughout the course of a full work shift. In this report the assessor concluded the worker was unable to perform the essential tasks of this position and there are no accommodations or modifications that can be considered to allow the worker to function in this position.

Suitability of SO of Cashier (NOC 6611) as of Deferral Date for Final LOE Benefit Review on December 15, 2006:

I find the SO of a Cashier (NOC 6611) is unsuitable as of the deferral date for the final review of the worker’s LOE benefits on December 15, 2006.

The OPM Document No. 19-03-03 – Determining Suitable Occupation – states that a SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available with the injury employer or in the labour market.

The worker representative submits the SO of a Cashier (NOC 6611) is unsuitable based on several factors that include the worker’s permanent functional restrictions for her work-related lower back impairment for which a 29 per cent NEL benefit was granted, the worker’s limited education at a Grade 6 level and her deficits with mathematical calculations. It was highlighted the Operating Area’s decision to amend the worker’s LMR plan from the SO of a Retail Sales Clerk (NOC 6421) to the SO of a Cashier (NOC 6611) supports this finding. Simply put, the physical demands and descriptors for both these occupations are identical. On this basis the worker representative contends it stands to reason the SO of a Cashier (NOC 6611) is also unsuitable. I agree.

In reaching this finding, I had regard for the worker’s personal and vocational characteristics. In the LMR Plan Proposal Report dated January 6, 2005 the vocational consultant documented the following:

• The worker has been employed as a personal care worker her entire working career since 1983 until the work incident of June 14, 1999.

• She completed Grade 6 and she never returned to school.

• She attempted an upgrading course at Cambrian College yet she was unable to complete the program.

• She completed the Health Care Aide course in 1990 (6 month program).

• She has a First Aid/CPR certificate.

• She has no other apprentices, no computer skills and she does not have a home computer.

• Her maximum level of academic achievement would be Grade 8 and any upgrading past this level is unrealistic.

• Her general verbal ability falls in the low average range and is consistent with her abilities and aptitudes profile.

• She has significantly weaker verbal skills and she will have more difficulty and become more frustrated with verbally based academic and work tasks.

In my view, the SO of a Cashier (NOC 6611) involves verbally based work tasks in a wide range of customer–related activities. I am persuaded by this evidence the worker’s potential to be frustrated with verbally based work tasks in this industry does not weigh in favour of suitability. This worker has spent her entire working career as a personal care worker. Her highest level of education is Grade 6. The academic achievement test findings support the worker’s low average range was in keeping with her past training and work history. In her testimony the worker confirmed she has never worked in a customer service industry such as a cashier or retail environment, she has limited computer knowledge and she cannot divide past two numbers.

The worker’s evidence is consistent with the vocational reporting documents. I find it significant that as of the worker’s final academic progress report dated November 11, 2005 the worker’s applied math increased to a Level 6.1 and her combined math increased to a Level 5.9. This worker participated in an exclusive mathematics training program with a one-on-one tutor for approximately six months from July 2005 to November 11, 2005. The computer portion of this worker’s training program was cancelled to allow her to focus on her mathematics upgrading skills. Despite this extensive training program, the worker was still unable to increase her mathematical abilities beyond a Grade 6 level.

Based on the totality of the evidence before me, I am persuaded this worker’s personal and vocational characteristics did not make her an attractive candidate for a reasonable prospect of obtaining employment in the SO of a Cashier (NOC 6611) in her local labour market. In support of this finding I relied upon the valid reliable labour market resource information from the National Occupational Classification (NOC) published 2006 that details with particularity the main duties and educational requirements for the SO of a Cashier (NOC 6611) as follows:

• Greet customers
• Establish or identify price of goods, services or admission and tabulate total payment required using electronic or other cash register, optical price scanner or other equipment
• Weigh produce and bulk foods
• Receive and process payments by cash, cheque, credit card or automatic debit
• Wrap or place merchandise in bags
• Provide information to customers
• Assist sports spectators and theatre patrons with seat selection
• Calculate foreign currency exchange
• Calculate total payments received at end of work shift and reconcile with total sales
• May accept reservations and take-out orders
• May also stock shelves and clean check-out counter area
• Some secondary school education is required

In my view, there is little opportunity to bring this worker’s personal and vocational characteristics into alignment with the basic main duties and educational requirements for the SO of a Cashier (NOC 6611). The primary job duties and educational requirements include mathematical skills to perform pricing, scanning, processing payments, calculating payments and some secondary school education. The reality of this worker’s situation is well-documented in the vocational reports that demonstrated a legacy of challenges she experienced with her mathematical skills to the extent she required extensive one-on-one mathematical tutoring only to achieve a level that she already completed (Grade 6) prior to commencing the LMR plan. While the LMR plan for the SO of a Cashier (NOC 6611) may have appeared suitable and appropriate at the start of the program in 2004, the reality of this worker’s situation is that it was no longer suitable by the time her LOE benefits were reviewed as of the deferred final review date on December 15, 2006. Simply put, this worker was not equipped to find employment in the SO of a Cashier (NOC 6611) as she had the same skill level both before and after the LMR plan.

I then considered the valid labour market resource information from the NOC published 2006 that provides the physical descriptors for the SO of a Cashier (NOC 6611) as follows:

• Body Position (3) – Sitting, Standing, Walking – this level involves work activities in combinations and varying degrees of sitting and standing and/or walking that include teaching students through lectures, discussions, audio-visual presentation and field studies, assessing land values for taxation purposes, ensuring that systems and equipment are operating efficiently on job sites, supervising and coordinating the activities of workers who cut or stitch fabric, fur or leather garments.

• Limb Co-ordination (1) – Upper Limb Co-ordination – work activities involve co-ordination of upper limbs. Examples include keyboarding, performing maintenance services such as oil changes, lubrications and tune-ups, operating video cameras and instructing students in sign language.

• Strength (2) – Light – work activities involve handling loads of 5 kilograms to 10 kilograms that include repairing soles, heels and other parts of footwear, filing materials in drawers, cabinets and storage boxes, preparing and cooking meals and repairing painting and artifacts.

I am of the view there is little opportunity to bring the physical descriptors for the SO of a Cashier (NOC 6611) into alignment with the worker’s permanent functional restrictions for her work-related lower back impairment. The worker’s permanent functional restrictions include no lifting, no prolonged sitting, no prolonged standing and no prolonged walking (Memo 15). I find the worker representative’s argument persuasive regarding the suitability of the SO of a Cashier (NOC 6611) in comparison to the SO of a Retail Sales Clerk (NOC 6421) that was determined to be unsuitable by the Operating Area and necessitated the LMR plan amendment in 2005. In reaching this finding I completed a comparative analysis of the physical descriptors for the SO of a Retail Sales Clerk (NOC 6421) and the SO of a Cashier (NOC 6611) documented in the NOC 2006 and summarized below:

Retail Sales Clerk (NOC 6421)

Cashier (NOC 6611)

Body Position – 2

Body Position – 3

Limb Co-ordination – 1

Limb Co-ordination – 1

Strength – 2

Strength – 2

I am unable to reconcile how the SO of a Cashier (NOC 6611) was determined to be more suitable than the SO of a Retail Sales Clerk (NOC 6421) based on the identical limb co-ordination requirements, the identical strength requirements and body positions that involve more complex body postures and movements, greater standing, walking and sitting in varying degrees. In reaching this finding I relied upon the RTW Advisor’s initial assessment report dated August 29, 2005 (Memo 42). In this review the RTW Advisor expressed reservations about the SO of a Retail Sales Clerk (NOC 6421) as this SO had “a great deal of standing.” I am persuaded by this evidence the SO of a Cashier (NOC 6611) would have even more standing given the greater body positions documented in the NOC 2006 physical descriptors.

I also had regard for the availability of the SO of a Cashier (NOC 6611) in the context of the threshold criteria in the OPM Document No. 19-03-03 – Determining Suitable Occupation – that sets out the SO must be available with the injury employer or in the local labour market. This policy goes on to state a local labour market is not limited to a particular city or town but also comprises any surrounding areas to which the worker might reasonably commute. In order to identify a reasonable commuting distance for a SO the WSIB takes into consideration the following factors which include but are not limited to:

• The worker’s commuting pattern in the pre-injury job

• The expected travel requirements of the SO, and

• The extent of the worker’s permanent impairment and any limitations on the worker being able to travel

If there are no SOs in the local labour market, the labour market may be expanded to the extent necessary to identify available SO opportunities.

I find this criterion has not been met as of the deferred final LOE benefit review date on December 15, 2006. In reaching this finding I accord the greatest amount of weight to the LMR Addendum Report dated August 31, 2005 that documented the following:

• There were only five positions in the worker’s local labour market.

• Two of these potential employers were surveyed by the vocational consultant. The physical demands included sitting, standing, walking and lifting 10 to 12 pounds. The candidate will be responsible for processing money, cheques, credit and debit payments as well as operate the cash register. Both these employer had no current vacancies.

• The 2001 to 2007 labour market conditions projected for this SO is poor and the chances of finding work is rated as poor since employment opportunities and earnings both are at below levels.

It is significant one of the potential host employers for the worker’s co-operative placement was unable to provide the worker with a placement due to her permanent functional restrictions for her work-related lower back injury. In the Final Co-operative Monitoring Report dated January 24, 2006 the Centre Manager documented the worker was not offered a position at Science North as they felt she would not be able to do the job considering her physical limitations.

I find the SO of a Cashier (NOC 6611) is unsuitable as the threshold criterion regarding availability has not been met in accordance with the approved definition of a local labour market detailed in the OPM Document No. 19-03-03 – Determining Suitable Employment. I am persuaded by the weight of the vocational reporting documents there were no suitable and available openings for the worker in the SO of a Cashier (NOC 6611) at the time of the deferred final LOE benefit review date on December 15, 2006 or in the projected future.

I acknowledge the worker’s case was not reviewed for consideration of employment opportunities beyond her local labour market at the time her case was closed by the Operating Area in 2007. Despite this fact, given the SO of a Cashier (NOC 6611) was a direct-entry occupation with an expected minimum wage earnings basis, I find the expectation for this worker to relocate and/or commute outside of her local labour market for a minimum wage job that is rated as poor for finding work is not reasonable.

I accept the worker’s testimony and her strong commitment and motivation to remain at work since the work incident of June 15, 1999. This is not in dispute and well-documented in the case record. In her testimony this worker did not attempt to either over-emphasize her disabilities or minimize her abilities. Rather, this worker openly testified about her persistence and self-determination in trying to remain at work in a meaningful capacity and within her permanent functional restrictions for her work-related lower back injury.

With the benefit of retroactive adjudication, it is clear the LMR and ESRTW process in this worker’s case was hampered by several factors that included the early closure of LMR Services in January 23, 2006 to accommodate the employer’s ESRTW plan, the lack of appropriate training to provide the worker with the necessary skills in the LMR plan for the SO of a Cashier (NOC 6611) and the absence of a further review of the SO of a Cashier (NOC 6611) at the time of the closure of LMR Services to determine whether it continued to remain a suitable, available and viable employment opportunity in the worker’s local labour market.

I did not overlook the worker’s non-work related right knee total replacement surgery on

December 15, 2006.

The OPM Document No. 15-06-08 – Adjusting Benefits Due to Post-accident, Non-work-related Change in Circumstances – states in cases where a post-accident, non-work related change in circumstances occurs after a deferral of the final review but prior to completion of WR, the decision-maker will determine when the worker will resume those activities. This policy goes on to state that in cases where a worker is only temporarily unable to participate in WR (e.g. up to 4 weeks, please refer to “Temporary Impact” section earlier in the policy), full benefits should be maintained. The final review will be conducted after WR is completed.

I am of the view there is little evidence to suggest this worker had prospects for a successful return to the labour market due to her work-related lower back impairment at the time she underwent non-work related right knee surgery on December 15, 2006. In reaching this finding I relied upon the following facts:

• I have determined the SO of a Cashier (NOC 6611) to be unsuitable and not available in the worker’s local labour market region before her non-work related right knee surgery on December 15, 2006.

• There is little evidence to suggest the non-work related right knee surgery interfered with the worker’s level of recovery from her work-related lower back impairment.

• This worker had already plateaued in her recovery from her work-related lower back injury when she achieved MMR on January 23, 2001 with no further significant improvement anticipated (Memo 16).

• In the NEL Evaluation Report dated August 24, 2005 a 29 per cent NEL benefit processed for the permanent impairment in the worker’s work-related back region.

I find there is little evidence to persuade me this worker would likely have been unable to return to any type of work as a result of the right knee surgery on its own merits and regardless of her work-related lower back impairment. In my view, the worker’s right knee surgery was a temporary situation with no complex medical recovery treatment plans. In support of this finding I accord the greatest amount of weight to the worker’s evidence. In her testimony the worker described she has undergone previous surgeries that included left hip surgery in 2003 and right hip surgery in 2005. She successfully returned to work to full regular duties following her left hip surgery in 2003 and she actively participated in her LMR plan activities during the period of time she underwent total right hip replacement surgery on April 6, 2005.

The worker’s evidence is consistent with the medical and vocational evidence. In the operative report dated April 6, 2005 this worker underwent non-work related total right hip replacement surgery due to end stage osteoarthritis. I find it significant this surgery did not interfere with the worker’s LMR plan activities. In the vocational reporting documents submitted to the case, the worker continued to participate in her school studies at home and with the assistance of tutoring from her instructor until she was able to attend the program following her post-operative recovery. The worker still completed her assignments and she did not experience any delays, amendments or extensions of her LMR plan. This is not the case.

I have already found the SO of a Cashier (NOC 6611) was unsuitable just prior to the worker’s non-work related right knee surgery on December 15, 2006. There is no need to revisit previously resolved matters. Since I have found the right knee surgery on December 15, 2006 was not an intervening cause, it follows the worker’s prospects for a successful return to the labour market immediately following her non-work related right knee surgery on December 15, 2006 was still as a result of her work-related lower back injury arising from the work incident of June 15, 1999.

After reviewing the facts and evidence in this case, I accept the cumulative effects of the several factors in this worker’s case establish there was no prospect for her to return to the labour market in the SO of a Cashier (NOC 6611) since December 15, 2006. These factors include:

• The worker’s low education level (Grade 6) both before and after the closure of LMR Services that confirmed she did not become literate and capable of performing mathematical computations.

• The absence of any cashier-related training activities.

• The worker’s deficits in mathematical calculations (unable to divide two numbers).

• The worker’s career history as a personal aide worker dating back to 1983.

• The absence of any cashier or retail sales related experience requiring social skills in sales, mathematical calculations and cashier duties.

• The absence of computer skills.

• The physical descriptors for the SO of a Cashier (NOC 6611) exceed the worker’s permanent functional restrictions for her work-related lower back injury that include no lifting, no prolonged standing, no prolonged sitting and no prolonged walking.

• The lack of available employment opportunities for the SO of a Cashier (NOC 6611) in the worker’s local labour market due to the low wages.

• The poor projected employment prospect from 2001 to 2007 for the SO of a Cashier (NOC 6611) in the worker’s local labour market since employment opportunities and wages are both below levels.

I am persuaded this worker was and remained motivated to work up to December 15, 2006 but for her work-related lower back impairment. This worker has a solid work record prior to her work incident of June 15, 1999. She participated in her Board-approved LMR plan to the best of her abilities that included a work trial as an activity aide with her employer. In my view, at the time the worker’s LMR plan was closed on January 23, 2006 I find this worker gained no appreciable new skills in this program and she had the same skill level as she had when she started the program. Simply put, nothing changed during the worker’s vocational reporting period from the date LMR Services commenced on October 27, 2004 to the date LMR Services were closed on January 23, 2006.

I draw no negative inference from the worker’s evidence regarding her lack of self-directed vocational activities following her last employment date on December 15, 2006. This worker has made several genuine attempts to return to work and she participated in all of her expected obligations and responsibilities in both her LMR and ESRTW plans. In my view, these efforts attest to her motivation to work and do not reflect her actual ability to secure and maintain employment.

I find the SO of a Cashier (NOC 6611) is unsuitable as the threshold criteria in the OPM Document No. 19-03-03 – Determining Suitable Occupation – have not been met as it is not within the worker’s permanent functional restrictions for her work-related lower back injury, it is unavailable in her local labour market and there were no realistic prospects for this worker to return to the labour market due to the permanent impairment arising from her work-related lower back injury. On this basis, the worker is entitled to the payment of full LOE benefits as of the deferred final LOE benefit review date from December 15, 2006 to the age of 65

CONCLUSION

I conclude the SO of a Cashier (NOC 6611) is unsuitable and the worker is entitled to the payment of full LOE benefits from the date of the deferred final LOE benefit review date on December 15, 2006 to the age of 65.

The worker’s objection is allowed.

DATED August 17, 2018

S. Johnson

Appeals Resolution Officer

Appeals Services Division