WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20190095
OBJECTING PARTY: Worker REPRESENTED by: Worker Representative
OBJECTING PARTY: Employer REPRESENTED by: Employer Representative
HEARING: Hearing in Writing HEARD by: H. Shaw, Appeals Resolution Officer DATED: Aug 30, 2019
ISSUES
This is a dual objection by the worker and employer.
The worker is objecting to:
The suitability of the suitable occupation (SO) of Dispatcher, NOC 1525, as determined in the Return to Work Specialist (RTWS) decision of November 20, 2018; and
The Case Manager decision of April 8, 2019, which paid partial loss of earnings (LOE) benefits from March 18, 2019, at the end of the Work Transition (WT) plan, based on the worker’s ability to earn $14.00 per hour in the SO.
The employer is objecting to:
- The quantum of relief under the Second Injury and Enhancement Fund (SIEF), which was determined to be 25% in the Case Manager decision of January 22, 2019.
BACKGROUND
The worker was employed as a truck driver. On October 6, 2016, at age 50, he sustained a low back strain and an L5-S1 disc herniation from driving over a pot hole.
He was paid full LOE benefits from October 17, 2016 to March 24, 2017. His employment was terminated in March 2017. As of March 24, 2017, it was determined the worker was not co-operating with the recommended health care treatment. LOE benefits were reduced from March 24, 2017 to April 4, 2017 and completely suspended from April 4, 2017 to November 20, 2017. Full LOE benefits were restored as of November 20, 2017 when the worker began participating with an assessment at the Back and Neck Specialty Clinic. Full LOE benefits continued until March 18, 2019 while he was participating in health care treatment and return to work services.
The worker was considered to have reached maximum medical recovery as of July 17, 2018. On July 11, 2019 he was rated with a 9% non-economic loss (NEL) benefit for mechanical low back pain and leg pain secondary to a central disc herniation.
The worker also had a previous NEL benefit of 24% for a cervical and mid-thoracic sprain in a claim from March 2003.
In the decision of November 20, 2018, the worker was sponsored in a WT plan. The recommended SO was Dispatcher, NOC 1525. The plan involved job search training and placement services. He completed the WT plan on March 15, 2019. The Case Manager decision of April 8, 2019 determined that effective March 18, 2019, the worker would be paid partial LOE benefits based on his ability to earn $14.00 per hour for full time employment in the Dispatcher SO.
The employer requested entitlement to SIEF relief. SIEF was denied on June 11, 2018. The decision was reconsidered on January 22, 2019 and the employer was granted 25% SIEF relief based on a moderately severe accident and a pre-existing condition that was minor in significance.
AUTHORITY
Operational Policy
19-03-03 Determining Suitable Occupation
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
14-05-03 Second Injury and Enhancement Fund (SIEF)
ANALYSIS
The worker representative provided an Appeal Readiness Form dated April 24, 2019. They are seeking full loss of earnings benefits from the closure of the WT plan, claiming work is not available in the SO. They also assert there was a lack of training.
The employer representative did not provide any submissions on the issue of SO suitability or LOE benefits.
SO Suitability
I find the Dispatcher SO is suitable.
According to operational policy 19-03-03, 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’s functional abilities for the low back injury were determined in a Functional Abilities Evaluation on September 17, 2018. The worker was considered capable of working at a light physical demands level, with occasional lifting up to 20 lbs or frequent lifting or carrying up to 10 lbs. A job is in the light category when it requires frequent-constant walking or standing or when it involves sitting most of the time. No sitting limitation was identified for the worker but there was a recommendation to take rest breaks for positional changes as needed.
Permanent limitations for the cervical and thoracic sprain under the prior claim were: avoid heavy lifting, pushing or pulling, activities at or above shoulder level, repetitive or stressful movements of the neck and sudden twisting of the neck.
Based on the WT Plan Proposal, jobs in the Dispatcher SO require only light strength and involve sitting. I find this is within the worker’s limitations for his low back, cervical and thoracic spine, as he could incorporate positional changes as needed.
The Appeal Readiness Form also suggested that the worker’s training did not adequately prepare him for work in the SO, but the argument was not specifically explained. Noting the worker’s past experience with driving trucks, he had general knowledge of the transportation industry. Dispatcher was also his preferred SO, according to the WT Plan Proposal. A psychovocational assessment on February 7, 2018 also identified the Dispatcher SO as matching the worker’s transferrable skills and aptitudes. Any skills gaps could have been addressed through training on the job, if he had fully participated in the extended placement services. Based on the above, I find the Dispatcher SO is suited to the worker’s transferable skills and the level of training was appropriate.
The worker’s main objection to the suitability of the SO seems to be lack of availability. He maintained he could not look for work outside of his community of Blind River, a small town in northern Ontario.
According to operational policy 19-03-03, when determining the availability of the SO, the WSIB will consider SO’s in both the local labour market and broader labour market. 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.
According to the WT plan proposal, the employment outlook was fair for Dispatchers in Ontario and in the Northeast region.
In a discussion with the RTWS on January 24, 2019, the extended placement provider indicated the worker was not willing to consider positions outside Blind River. According to reports from the placement service provider, the worker contacted only two trucking companies in the Blind River area regarding employment opportunities. The worker indicated to the service provider that he did not want to relocate from Blind River because his wife had an excellent job and they owned their home. The placement provider found a potential dispatcher position in Sault Ste. Marie but the worker said it was too far to drive.
In my view, the worker’s refusal to search outside his community of Blind River was not consistent with his accepted functional abilities. He was accustomed to having to commute outside of Blind River in his pre-injury job. Although the worker’s restrictions did not permit a return to work as a long-haul truck driver, he had no specific driving restrictions. A medical report from the worker’s doctor dated June 25, 2019 indicated the worker was able to drive short distances, but the time period or distance was not specified. A longer drive to work could be broken up to allow a stretch break if necessary. I find his position that he could not look for work outside Blind River was a self-imposed limitation that unreasonably limited his opportunity to find employment. Aside from contacting two local companies during the extended placement portion of his WT plan, no information has been provided to demonstrate he has made efforts to find work. Based on the lack of information regarding job search efforts by the worker, I accept the information provided by the RTWS that the SO was available in the worker’s local and broader labour market.
Because the medical evidence supports that the worker is capable of work within his restrictions, the Dispatcher SO is consistent with the worker’s transferable skills and functional abilities, and is available in the local or broader labour market, I find the SO is suitable.
Payment of Partial LOE
I find LOE benefits were appropriately paid.
According to operational policy 18-03-02, determined earnings are the earnings associated with the identified SO, and are based on current labour market wage information. The WSIB bases post-injury earnings on determined earnings where a worker remains unemployed at the completion or closure of the WT plan.
The medical evidence supports the worker is capable of working within his restrictions and as explained above, I find the Dispatcher SO is suitable. Noting he was unemployed at the end of the WT plan, I find it was appropriate to pay partial LOE benefits based on determined earnings in the SO. I also find it was appropriate to pay partial LOE benefits based on the worker’s ability to find full time work at the minimum wage of $14.00 per hour, noting he was seeking work in a new field.
SIEF
I find the employer is entitled to 50% SIEF relief.
The employer representative provided an Appeal Readiness Form dated May 1, 2019. In his submission of January 4, 2019, the employer representative argued that the worker had a significant longstanding low back condition. He noted an MRI from October 2001 that showed disc space narrowing and desiccation at L5-S1 with a diffuse disc bulge. He also referenced a report dated December 19, 2001 that identified a five year history of low back pain. He suggested there should be 90% to 100% SIEF relief based on a minor accident and a pre-existing condition that was major in significance.
The worker representative did not provide any submissions on the issue of SIEF relief.
According to Operational Policy 14-05-03, if a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF. Both physical and psychological disabilities are included.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
Severity of Accident:
I find the accident was minor in severity.
The operational policy directs the severity of the accident is evaluated in terms of the accident history including the following components:
- mechanics (lift, push, pull, fall, blow, etc.)
- position (kneeling, standing, sitting, squatting, bending, etc.)
- environment (lighting, temperature, weather conditions, terrain, etc.).
The severity of the accident history is defined as follows:
- Minor: expected to cause non-disabling or minor disabling injury
- Moderate: expected to cause disabling injury
- Major: expected to cause serious disability probable permanent disability.
According to the accident history provided by the worker, he was driving on a gravel road and drove over a pot hole. It was filled with rainwater, so he could not judge the depth of the hole, but it was deep enough that his seat hit the bottom on the air ride suspension.
The Case Manager found the accident to be moderate in severity, noting the worker experienced a sudden and unexpected jolt to the body that could reasonably be expected to cause a disabling injury.
I am not satisfied that the accident would be expected to cause a disabling injury. Although the worker experienced a sudden jolt when he hit the pothole, driving over a pothole would not be an unusual occurrence for a truck driver. The worker did not initially think the incident was particularly significant, as he did not report it immediately to the employer. Although the accident was sufficient to cause the worker’s low back injury, I am not persuaded that a disabling injury would have been expected.
I consider the accident to be minor in severity because it would have been expected to cause a non-disabling or minor disabling injury.
Significance of Pre-existing Condition:
I find the pre-existing condition was minor in significance.
When reviewing the medical and other information present in the claim file, the decision maker considers whether the information suggests that a pre-existing condition is present and whether it:
- contributed to the work-related accident, or
- prolonged or enhanced the work-related disability.
If it is likely that such circumstances exist, a recommendation to apply the SIEF is made, as well as the rate at which to do so. The medical significance of a condition is assessed in terms of the extent that it makes the worker liable to develop a disability of greater severity than a normal person. An associated pre-accident disability may not exist.
The employer representative pointed out that an MRI in October 2001 showed disc space narrowing and desiccation at L5-S1 with a diffuse disc bulge and that the worker had a five year history of low back pain at that time.
Although the worker had a history of low back pain, the MRI of the worker’s low back on December 12, 2016 still showed only mild degenerative changes in the lumbar spine with some disc desiccation at L5-S1. There is no indication the low back pain caused him significant restrictions or prevented him from working as a truck driver until he had this workplace accident.
Noting the presence of minor degenerative changes, I find the pre-existing condition was minor in significance. I also find it prolonged or enhanced the claim, noting the worker was not able to return to his pre-injury job and developed a permanent impairment.
Based on an accident that was minor in severity and a minor pre-existing condition, the operational policy directs 50% SIEF relief.
CONCLUSION
I conclude:
The SO of Dispatcher is suitable and available.
Partial LOE benefits were appropriately paid from March 18, 2019 based on the worker’s ability to earn $14.00 per hour in full time employment in the SO.
The employer is entitled to 50% SIEF relief.
The worker’s objection is denied.
The employer’s objection is allowed in part.
DATED: August 30, 2019
Helen Shaw
Appeals Resolution Officer
Appeals Services Division