WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180021
OBJECTING PARTY: Worker
REPRESENTED BY: Worker Adviser
RESPONDENT: Corporation (not participating)
HEARING: Hearing in Writing
HEARD BY: Corrado Cirinna, Appeals Resolution Officer
DATED: May 11, 2018
ISSUES
The worker objects to the decision of the case manager dated September 28, 2016 regarding the suitable occupation (SO) that was selected.
The worker objects to the decision of the case manager dated July 25, 2017 which reduces loss of earnings (LOE) benefits as of May 27, 2017 based on her ability to obtain employment in the identified SO earning $14.85 per hour for a 40 hour work week.
The worker has also completed an intent to object (ITO) form dated April 9, 2018 regarding an objection to the decision of the case manager dated March 27, 2018. This decision relates to the quantum of LOE benefits at the time of the final (72 month) review. Since this decision is closely aligned with, and directly relates to one of the issues that I am already addressing, it will form part of this decision.
BACKGROUND
The worker was employed as a weld production associate and worked with the accident employer since September 2010. On April 16, 2012, she injured her lower back lifting 10 lb. parts from a bin on the floor. The initial diagnosis was a low back strain. The worker was able to continue working as the employer provided suitable work accommodations.
The worker was assessed at a Regional Evaluation Centre (REC) in July 2012 due to ongoing symptoms. The September 7, 2012 REC report suggested the worker would make a full recovery within four weeks. In May 2014, the worker was permanently laid off as the employer could no longer accommodate her with modified work. Ongoing entitlement following layoff was denied as the worker was considered to have made a full recovery from her low back injury. An Appeals Resolution Officer (ARO) decision on September 18, 2014 confirmed full recovery as of October 5, 2012.
In a decision dated December 30, 2015, the Workplace Safety Insurance Appeals Tribunal (WSIAT) determined the worker had not made a full recovery from the workplace injury and had a permanent impairment. The worker has since been granted a 16% non-economic loss (NEL) award for the permanent impairment to her low back.
Based on the WSIAT decision that found the worker had a permanent impairment, it was determined she would require assistance to re-enter the workforce and was therefore referred for work transition (WT) services. A SO of Dispatchers (NOC 1525) was selected and the worker successfully completed a 12 week Transportation Operations and Dispatching retraining program at a private vocational school, followed by a 10 week placement assistance program.
At the conclusion of the WT program, the worker remained unemployed, and partial LOE benefits were based on her ability to achieve earnings of $14.85 per hour for a 40 hour work week as of May 27, 2017.
At the time of the final LOE benefit review in April 2018, the case manager used updated earnings for the SO in the worker's geographic area, which were $14 per hour for a 40 hour work week
Other Claim
Claim xxxxxxxx was established with an accident date of November 16, 2005 when the worker injured her left shoulder.
Although it appears there was a minimal amount of time missed from work as a result of this injury, the worker was acknowledged to have a permanent impairment and was granted a 7% NEL award in December 2006.
AUTHORITY
19-02-01 Work Reintegration Principles, Concepts, and Definitions
19-03-03 Determining Suitable Occupation
18-03-02 Payment and Review of LOE Benefits
18-03-06 Final Review of LOE Benefits
ANALYSIS
In arriving at my decision, I had regard for all of the information contained in the file including the written submission from the worker’s representative dated April 19, 2018. It is essentially the position of the representative that the worker does not have the necessary skills and ability to obtain and sustain meaningful employment in the identified suitable occupation. It is his position that based on her overall personal and vocational profile, for all intents and purposes, the worker has zero earnings potential and should therefore be granted full LOE benefits until age 65.
Decision
The suitable occupation of dispatcher is physically suitable and the worker has been provided with the necessary skills to pursue employment within this field.
Partial loss of earnings benefits as of May 27, 2017, are to be based on the worker’s ability to achieve earnings of $12 per hour in the identified SO.
As there has been no significant change in the worker’s circumstances since May 2017, the projected earnings used at the time of the final LOE benefit review in April 2018 ($14.00 hr) which reflect the current Ontario minimum wage, are appropriate.
Reasons for the Decision
Operational policy 19-02-01 defines suitable work as safe, productive, consistent with theworker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings. Based on my review and assessment of the NOC Career Handbook, the duties and physical demands of jobs within the SO of Dispatcher are sedentary in nature and do not exceed the worker’s physical restrictions for both her low back and her non dominant left shoulder (from previous claim).
Policy 19-02-01 defines employability as a worker having the necessary skill and training to be capable of obtaining and performing employment on a regular basis in the labour market. The worker has been provided with the necessary skills and training to pursue employment within the identified SO. I note that she was apparently enthusiastic about pursuing this SO and successfully completed the retraining program with very high marks. Also, the psycho vocational assessment report dated August 5, 2016 indicates the worker's full scale IQ was in the low average range and she displayed average to high average performance on key measures of nonverbal reasoning, working memory, and processing speed on intelligence testing. This suggested that she had the potential to pursue a retraining program at the community college level. Therefore, the worker appears to have had the vocational aptitude to successfully complete the retraining program that she received.
Despite the assertions of the representative that the worker is unable to return to work in any capacity, the medical reporting does not support this positon. In fact, the medical reports clearly suggest the worker was capable of returning to some type of physically suitable employment. The March 9, 2015 report from specialist Dr. Tyson states that based on his impression, she was capable of doing sedentary work with the exclusion of any repetitive bending, lifting and twisting activities. He suggests that the worker be referred for a functional abilities evaluation (FAE) to better determine physical tolerances.
The worker attended a two-day FAE in May 2015. This report looked at the worker’s ability to return to her pre-injury employment. The assessment found that although she could not return to her pre injury job duties of Welding Production Associate, she was capable of performing modified duties that included limited walking, sitting, standing and limited lifting, carrying, pushing, and pulling of no more than 10 pounds. She was not considered capable of performing any jobs that involve stooping, bending, squatting, or kneeling. There is no medical documentation since then to suggest the worker’s condition has significantly deteriorated, or that she can no longer return to work in any capacity.
When assessing this worker’s overall ability to work, I also had regard for the fact that despite her ongoing low back symptoms and the presence of a PI in her non-dominant left shoulder, the worker demonstrated an ability to continue working for approximately 2 years following the workplace injury in suitable modified duties. It was not until the employer indicated it could no longer accommodate the worker's restrictions that she stopped working, and presumably she would have remained at employed if the workplace accommodations continued to exist.
The written submission from the worker’s representative suggests the worker had expressed concerns about her ability to pursue the selected SO and her ability to return to any type of employment. I note however that information in the file suggests otherwise. For example page 3 of the WT Plan Proposal indicates the worker had reported being; "highly interested in pursuing the Transportations Operations and Dispatching Diploma program at the Automotive Training Institute in Cambridge, to acquire the skills and qualifications to work in the SO.”
The worker received WSIB sponsorship in a 20 week Transportations Operations and Dispatch Diploma program at the Canadian Automotive Training Centre in Cambridge. This was followed by a 10 week employment placement/job search assistance program. Although the WT program was not extensive, by all accounts the worker acquired sufficient skills training to work within the identified SO.
• Policy document 18-03-02 states in part that if a worker remains unemployed at the completion of the WT plan, the LOE benefits are paid using the earnings the worker would earn if employed in the SO that was specified in the WT plan. This is what occurred at the conclusion of the WT program in May 2017, and LOE benefits were based on entry level earnings for the worker’s geographic area. Although it is unfortunate that the worker was unable to find employment, the WT process had run its course and the worker did have the necessary skills to re-enter the workforce in the SO of Dispatcher.
I note the Government of Canada Job Bank (www.jobbank.gc.ca) indicates the short term outlook for this SO in the worker’s geographic area was “fair” for the period from 2015 to 2017. Although this limited number of job opportunities may represent some challenges in terms of entering this field, I am satisfied that jobs continued to remain available.
In terms of the wage data that was used, I note the wages for the worker’s geographic area (outlined in memo A012) were somewhat of an anomaly, and overall for the province of Ontario the low end (10th percentile) of the earnings was listed as $13 per hour rather than $14.85 that was used to determine the worker’s partial LOE benefits. When considering the limited outlook in terms of the job prospects as well was the worker’s overall personal and vocational profile, I find that projected earnings of $12 per hour would be more realistic for this worker at the completion of the WT program.
The policy relating to final review of LOE benefits states in part that when a final review takes place, the SO identified earnings for the purposes of locking in the LOE benefit until age 65 are based on the available wage information as of the WT plan completion date. Where the final review occurs before the worker is able to find a job, if the WSIB originally used entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the benefit. This generally occurs if the WT plan was designed to provide the worker with new skills or if the worker would have entered a new field. In this case, at the final review of LOE benefits, the case manager utilized updated entry-level earnings which were determined to be $14 per hour. It is worth noting this also represents the current Ontario minimum wage. Therefore, having concluded that the SO is suitable and the worker has acquired the necessary skills to return to work in this field, earnings of $14 per hour are appropriate given the fact that this is the legislated minimum wage in the province of Ontario as of January 1, 2018.
CONCLUSION
Based on my review and assessment of all the available information, I have arrived at the following conclusions;
The suitable occupation of Dispatcher (NOC 1525) is physically suitable and the worker has been provided with the necessary skills to pursue employment within this field.
Partial loss of earnings benefits as of May 27, 2017, are to be based on the worker’s ability to achieve earnings of $12 per hour in this SO.
There has been no indication of a significant change in the worker’s medical circumstances since May 2017. Therefore, the projected earnings used at the time of the final LOE benefit review in April 2018 ($14.00 hr), which reflect the current Ontario minimum wage, are appropriate.
The worker’s objection is allowed in part.
DATED May 11, 2018
Corrado Cirinna
Appeals Resolution Officer
Appeals Services Division