WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180008
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (out of business)
REPRESENTED by: None
ORAL HEARING: February 20, 2018
HEARD by: H. Mohamed, Appeals Resolution Officer
Date of decision: February 28, 2018
ISSUE
The worker objects to the Case Manager’s (CM) decision dated April 16, 2010, which concluded that he was entitled to partial loss of earnings (LOE) benefits from August 2005 to May 2006 based on Suitable Employment or Business (SEB) wages as opposed to actual wages.
BACKGROUND
The history and nature of this claim has been well documented in the numerous Appeals Resolution Officer (ARO) and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions on file; however, a brief overview is warranted to set the issue into context.
The worker, who is now 52-years-old, injured his right shoulder on October 17, 2000, while lifting a box. The worker underwent surgery for a partial rotator cuff repair and was eventually granted a 10% Non-Economic Loss (NEL) award for his right shoulder.
The worker participated in Labour Market Re-entry (LMR) services from October 2002 to January 2003 in the SEB of recording, scheduling and distributing occupations; national occupational classification (NOC) 147. Since the worker was not employed in his SEB upon completion of his program, his LOE benefits were adjusted based on regional entry level SEB wages of $9.81 per hour.
The worker moved to the Toronto area in February 2004, and the CM adjusted the worker’s LOE benefits based on projected Toronto wages of $13.74 per hour.
The worker found employment in his SEB in March 2004 earning $9.81 per hour, and this resulted in his LOE benefits being recalculated based on actual earnings. The worker was however laid off from this job in September 2004 and moved to Brockville in December 2004. The CM however adjusted the worker’s partial LOE benefits back to projected SEB wages for the Toronto region ($13.74 per hour) and not the Brockville area. The worker objected.
The ARO decision dated May 3, 2005, granted the worker’s appeal and concluded that partial ongoing LOE benefits beyond September 2004 should be based on $9.22 per hour, which was the entry-level wage for this SEB in the Brockville/Cornwall/Kingston area.
On August 26, 2005, the worker found employment with an automotive parts company earning $7.75 per hour. The worker continued performing this job until he was terminated sometime in May 2006.
In March 2010, the worker wrote to his CM requesting that his LOE benefits from August 2005 to May 2006 should have been adjusted and paid based on actual wages of $7.75 per hour as opposed to projected SEB wages of $9.22 per hour.
In a decision dated April 16, 2010, The CM determined that since the worker was employed as a driver during this period and not employed in his SEB, partial LOE benefits could only be paid based on projected SEB wages of $9.22 per hour as outlined by the previous ARO.
The worker representative objected to this decision arguing that in addition to driving, the worker performed a number of duties that would fall within the identified SEB and therefore he should be paid LOE benefits based on actual wages.
This issue has now been referred to me for consideration.
AUTHORITY
Operational Policies:
18-03-03 – Reviewing LOE Benefits (Prior to Final Review), dated July 3, 2007
19-03-03 – Determining Suitable and Available Employment or Business, and Earnings
ANALYSIS
For the reasons that follow, I find the worker was not employed in his SEB from August 2005 to May 2006 and is therefore not entitled to an increase in his partial LOE rate based on actual wages. In arriving at this decision, I have considered the worker’s testimony, the representative’s submission, the file record, as well as the relevant sections of the Workplace Safety and Insurance Act (WSIA) and the appropriate Operational Policies.
The worker testified that he found employment with Parts Supply in August 2005. He said he just walked in one day and spoke to the manager and was hired. The worker could not recall what his exact job title was, but he said he would describe his occupation as a warehouse labourer. He never believed that he was hired as a driver, even though he was required to make deliveries. He confirmed that he never received a letter of employment.
I note the worker contacted the adjudicator on September 19, 2005, advising that he had started a new job as a “courier messenger” on August 26, 2005, earning $7.45 per hour (memorandum 95). The same day the worker completed an earnings questionnaire, where he identified his job title as a “courier messenger” and provided a pay stub from his new employer which listed his job title as “driver.”
The worker testified that he could not recall telling the WSIB that he was hired as a courier messenger. He said this was likely the adjudicator’s interpretation of what he did as he would not have described his job in such a way. He could not explain, however, why he documented “courier messenger” on the earnings questionnaire that he signed and completed on
September 19, 2005. The worker representative suggested that once the adjudicator put that title out there, the worker may have sub-consciously stared using it. The worker, however, had no comment as to why the employer’s pay stub noted that he was being paid the rate of a “driver.”
The worker acknowledged that while he spent a lot of time driving in this job, he spent just as much time performing other duties that would fall within his previously trained SEB group of storekeepers and parts clerks. The worker explained there were three (3) full-time and two (2) part-time employees. He confirmed there was one dedicated driver who did all the deliveries to Ottawa and was the only employee who drove 100% of the time and was also provided with a dedicated vehicle. The worker said that he, along with the other two full-time staff, rotated between doing deliveries, receiving shipments of new parts and stocking parts onto the shelves in the warehouse. The three of them would be asked to perform deliveries on a rotating basis and would take one of the company vans as needed. The worker said that on average his day was broken up as follows:
50% driving
30% stocking automotive parts
10% receiving duties
10% other maintenance duties such as cleaning
The worker representative submitted that while the worker may have been classified as a driver, he did perform duties that would fall within NOC 1472 (storekeepers and parts clerks) for nearly half the workday. The representative also referred to the signed statement from a co-worker who confirmed that the worker was also responsible for shipping products with courier companies and this duty would fall within his SEB group. As such, and in keeping with policy 18-03-03, the worker should have been paid partial LOE benefits based on actual wages as opposed to deemed wages.
I have reviewed the statement from the co-worker dated January 3, 2018. The letter states that he worked with the worker from August 2005 to May 2006 and that “one of the duties was to receive and ship supplies with couriers such as XXX couriers.”
Policy 18-03-03 (Reviewing LOE Benefits) states that if a worker has a wage loss upon completion of an LMR plan, the LOE benefit is based on the
- actual earnings of the worker in the SEB-identified job, or
- most recent wage information for the SEB earnings identified in the LMR assessment, if the worker is not working or is working in the SEB but is under-employed.
According to the LMR plan on file, the SEB of recording, scheduling and distributing occupations was deemed the most feasible option for this worker.
As noted in policy 19-03-03, The WSIB uses the national occupational classification (NOC) to help identify a SEB and earnings for a worker. The NOC is a 3-level structure that consists of 26 major groups, 139 minor groups and 522 unit groups. Each group has its own code.
Once the SEB is determined, the post‑injury earnings are determined using wage information for suitable jobs at the unit group level (the 4‑digit NOC code) that the worker has, or can acquire the skill to attain.
In this case, the major group is 14 “Clerical Occupations”, the minor group is 147 “Recording, Scheduling and Distributing Occupations” while the unit groups within this minor group are as follows:
1471 - Shippers and Receivers
1472 - Storekeepers and Parts Clerks
1473 - Production Clerks
1474 - Purchasing and Inventory Clerks
1475 - Dispatchers and Radio Operators
1476 - Transportation Route and Crew Schedulers
According to the file record, the worker was deemed capable of working in all unit groups under the minor group 147 except 1471 (shippers and receivers) which was considered outside of his physical precautions. However, for administrative reasons, the specific unit group approved for the worker was 1472 – storekeepers and parts clerks. This was primarily because the worker had previous work experience working as a parts clerk in a department store.
The worker’s testimony is that he was working not only as a driver but also performed duties that would fall within NOC 1472. The worker, however, acknowledged that the majority of his duties would fall into driving – which comes under NOC 1463 Couriers, Messengers and Door-to-Door Distributors.
Most of the contemporaneous evidence, including the worker’s statement to the WSIB in 2005 and his earnings questionnaire, supports the worker was primarily working as a driver. I do not accept the worker’s testimony that the adjudicator inserted “courier messenger” into memorandum 95 of his own volition, without any input from the worker. I find the more likely explanation to be that the adjudicator simply documented what the worker told him. Furthermore, even when the worker wrote to the adjudicator in March 2010 asking that his LOE benefits from August 2005 to May 2006 be paid on actual wages, he still chose to refer to his job as a “parts courier.”
Other evidence on file also supports that the worker’s primary job duty would be classified as a driver. For instance, the Human Rights Tribunal of Ontario decision dated May 9, 2011, notes the worker was employed as a driver from August 2005 until he was terminated in May 2006. While I acknowledge that the nature of these proceedings did not require the worker to get into any specific details about his job duties, there are still numerous references contained within this decision which provides ample evidence that the worker was hired as a driver. In paragraph 14 and 17, it is noted that the worker would sometimes resist being sent on deliveries when it wasn’t his turn. He was told he would have to accept assignments given to him by the dispatcher. In paragraph 15 the worker received a complaint from the member of the public regarding his unsafe driving. In paragraph 16 it is noted that the worker received a warning from the police due to unsafe driving. There isn’t a single mention of any warehouse or stocking activities in this decision.
The worker’s testimony at the previous WSIAT hearing also supports that he was likely working as a driver. In paragraph 20 of the November 16, 2009, WSIAT decision the following is noted:
He found work in Perth in April 2005 as a courier and worked in this job until April 2006. His earnings at the time were $8.50/hr. (Emphasis added).
While the dates and hourly wage are slightly inaccurate, the worker appears to be referring to his job with Parts Supply which is the subject of this appeal. Hence, all the corroborating evidence seems to support the finding that the worker was more likely than not working as a delivery driver.
The only evidence favouring the worker seems to be his own testimony and the letter from a co-worker, which was faxed to the WSIB by the representative a few weeks prior to the hearing. I note, however, that this letter does not provide any indication as to what percentage of the day was spent shipping and receiving supplies or whether this task was done daily, weekly or monthly. In any case, I have placed less weight on this letter primarily because it was produced almost 13 years after the worker’s termination and I have no independent way of verifying whether this person ever worked for this employer. I note the worker representative did not request this individual be summoned as a witness.
I certainly do not dispute that the worker may have had to perform other duties when he wasn’t driving and these tasks likely included stocking shelves, receiving product, cleaning and general maintenance. However, I do not accept that these were his primary job duties. I did not find the worker’s testimony credible that he was only driving 50% of the time. In my opinion, the worker likely drove a lot more than 50% given that all the evidence mentioned above, including his paystub, points to him being employed as a driver/courier.
According to policy 18-03-03, to be paid LOE benefits based on actual wages a worker has to be “employed” in the trained SEB. I interpret this to mean that the majority of the worker’s job responsibilities should be consistent with the duties outlined in that SEB. In this case, I find the worker’s primary job duty was courier driver and not parts clerk, and therefore, I confirm that the worker’s LOE benefits were appropriately paid based on SEB wages for this period.
CONCLUSION
I find the worker was not employed in his SEB from August 2005 to May 2006, and therefore, his partial LOE benefits cannot be paid based on actual wages.
The worker’s appeal is denied.
DATED: February 28, 2018
Mr. H. Mohamed
Appeals Resolution Officer
Appeals Services Division