WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180028
OBJECTING PARTY: Worker
REPRESENTED by: Office of the Worker Advisor
RESPONDENT: Employer (not participating)
HEARING: Oral Hearing – May 8, 2018
HEARD by: Kelly Gordon, Appeals Resolution Officer
Dated: May 15, 2018
ISSUES
The worker, through her representative is objecting to the following decisions made by the Case
Manager (CM):
The June 25, 2010 decision that identified Customer Service Clerk as a Suitable Occupation (SO)
The October 19, 2010 decision that adjusted full loss of earning (LOE) benefits to partial loss of earning (LOE) benefits paid as of October 1, 2010
PRELIMINARY ISSUES
Prior to the start of the hearing, the worker representative confirmed that the date of the decision under appeal on the Appeal Readiness Form (ARF) incorrectly states January 30, 2013. The representative confirmed the decisions to be addressed in this appeal are the June 25, 2010, and the October 19, 2010 decisions.
BACKGROUND
On May 15, 2007, this supervisor slipped and fell while at work and injured her low back. Initial entitlement was allowed for a low back strain, and the worker returned to her regular job duties without losing time from work. On February 16, 2008, the worker suffered a recurrence while at work, and aggravated her low back condition. Between April 2008 and February 2009, the worker was intermittently off of work and performing modified duties. In February 2009, the employer advised the WSIB that they were no longer able to provide the worker with modified duties, and as such, the worker was referred for Labour Market Services (now known as Work Transition Services).
As part of the Labour Market Re-entry (LMR) process, the worker underwent a psycho-vocational assessment on March 9, 2009. The assessment confirmed the worker was suffering from depressive symptoms and the worker was considered not emotionally ready to proceed with retraining. In order to support the worker’s success in LMR, the CM placed the LMR plan on hold in May 2009 and approved psychological counselling sessions for the worker.
On April 13, 2010, the worker was granted a 21 percent non-economic Loss (NEL) award for her low back injury. In May 2010, after participating in psychological treatment, the worker was considered emotionally able to begin the LMR plan.
In the decision dated June 25, 2010, the CM determined that based on the worker’s April 3, 2009 LMR assessment, the SO of Customer Service Clerk was found to be safe and suitable for the worker. The CM approved the LMR plan which included four (4) weeks of job search training and an eight (8) week special work placement. The worker participated in the LMR plan as noted above and the worker completed the LMR plan on September 30, 2010.
In the decision dated October 19, 2010, the CM adjusted the worker’s LOE benefit to be based on the difference between the worker’s pre-injury net average earnings and the projected net average earnings in an entry level position as a Customer Service Clerk. This resulted in the worker receiving partial LOE benefits of $166.78 per week.
The worker representative objected to the decisions dated June 25, 2010, and October 19, 2010. Although the claim was referred to an Appeal Resolution Officer (ARO), the ARO determined that it was not possible to address the issues under appeal without Operations first providing a decision on psychotraumatic disability entitlement. As such, the claim was referred back to Operations on
January 30, 2012. In the decision dated October 22, 2013, the CM denied entitlement to psychotraumatic disability. The worker objected to the CM’s decision and the claim was referred to an ARO who upheld the CM’s decision to deny psychotraumatic disability on March 25, 2014.
The worker representative submitted the Appeal Readiness Form (ARF) dated October 2, 2017, objecting to the suitability of the SO, and the adjustment to partial LOE benefits based on the entry level wages of the SO.
The issues stated above form the basis of this appeal.
AUTHORITY
Operational Policies:
19-03-03 Determining Suitable Occupation
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
ANALYSIS
In arriving at this decision I have carefully considered the information in the claim file, the worker’s testimony, as well as the appropriate Operational Policies.
During the opening statement, the worker representative stated the worker’s testimony will support the Labour Market Re-entry (LMR) plan did not provided the worker with appropriate training to obtain employment as a customer service clerk. As a result, the representative argues the worker has been competitively unemployable and should receive full LOE benefits from September 2010 to age 65. If the worker is not considered competitively unemployable, the worker representative would like the worker to be considered only capable of part time work.
The employer is not participating in this appeal and no submissions have been provided for my consideration.
1) Was the Customer Service Clerk a Suitable Occupation (SO)
For the reasons that follow and having considered all of the evidence, I find Customer Service Clerk (CSC) was not a suitable SO.
During the hearing, the worker representative stated that they would like the SO rescinded. The representative stated the LMR plan did not provide the worker with the appropriate training, and as such at the end of the plan, the worker did not have the requirements necessary to obtain employment as a CSC. Specifically, the representative argues the requirements of a CSC position include a grade 12 education and computer training. The worker was not provided with either. The representative also argues the worker’s physical limitations prevented the worker from obtaining employment as a CSC.
In determining the suitability of the SO, I refer to Policy 19-03-03 (Determining Suitable Occupations), which 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.
The WSIB also 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.
The worker testified that she went to high school until she was 16 years old. The worker stated that although she attempted grade 10, she only completed grade 9. The worker left school and obtained her first job at a dry cleaning company where she worked for approximately one and half years. The worker was then married and left the workforce until she started working with the accident employer when she was 36 years old. The worker worked with the employer for 16 years.
The worker testified that she was hired by the employer to wash dishes and to bake. Over the years, the worker was promoted and held the position of head dietician at the time of the accident. The worker was responsible for supervising approximately 11 utility workers and cooks. The worker was also responsible for cooking, inventory, ordering the food, organizing, and putting away stock and linen. The worker testified that she did not use a computer to do any of her duties.
The worker testified that following her May 15, 2007 workplace back injury, her back restrictions prevented her from using a ladder, twisting or turning, lifting over 10 pounds, and she was unable to stand for long periods. The worker was also only able to lift up to waist height. The worker stated that these restrictions prevented her from performing her regular job duties and as the employer could no longer accommodate her restrictions, she was referred for LMR services.
The evidence on file supports the worker first underwent a psycho-vocational assessment on
March 9, 2009. Based on the information provided in this assessment, the worker had recently suffered the loss of her son and due to symptoms of depression, it was felt the worker was not emotionally prepared to successfully participate in a retraining program. As such, the CM deferred the start of the LMR plan until after the worker received psychological treatment.
In reviewing the LMR information on file, I note that prior to the deferral of the LMR plan, the LMR service provider submitted the April 6, 2009 LMR plan proposal. My review of the LMR plan proposal confirms that based on the current labour market information, geographical concerns, the worker’s physical precautions and pre-accident earnings, the following occupations were identified for consideration: Retail Trade Manager, Customer Service Clerk, and Pharmacy Assistant.
The April 6, 2009 LMR plan proposal also states:
“Customer Service Clerk was also reviewed for suitability and would require the worker to complete academic upgrading, computer training, and some customer service skills training to be successful in this field. Based on the worker’s physical restrictions, limited work history, academic background, the local labour market and variety of barriers, it appears that Customer Service Clerk would be the most suitable occupation at this time.”
The above LMR plan proposal includes the employment requirements for a CSC. In terms of education, computer skills and physical demands, the requirements for a CSC include the following:
Education:
In terms of required education and computer skills, the LMR plan states the following:
“all employers reported a requirement for a high school diploma, with one employer noting only some high school credits required. All, but one employer reported a need for strong computer knowledge such as Windows, Microsoft Office, Electronic Mail and Internet Browser.
Physical Demands:
Employers reported that this occupation involves a variety of sitting, standing and walking tasks, although primarily sitting. Lifting requirements are minimal.
It should be noted here that an LMR Plan Amendment report is on file dated April 19, 2010. This report confirms the worker attended the psychological treatment and the medical hold on the LMR plan was lifted. As such, the worker attended a meeting with the service provided on April 13, 2010 to review and discuss the appropriateness of the April 6, 2009 LMR plan. It was determine that progressing towards employment as a Customer Service Clerk as recommended in the original plan continued to be the safest and most suitable employment option for the worker. The worker also agreed to participate in the LMR plan as recommended. The same plan was put in place with updated dates for completion of each LMR intervention.
The LMR plan proposal included:
- Academic Upgrading from May 10, 2010 to June 30, 2011
The academic training would bring the worker’s academic skills up to a grade 12 level in preparation for the General Education Development (GED) examination. The worker would then be able to write the GED examination to obtain her grade 12 equivalency diploma
- Computer training from July 1, 2011 to July 31, 2011
This training would provide the worker with the required computer skills for entry level positions.
Customer service skills training from August 1, 2011 to December 31, 2011
Job search training from January 1, 2012 to January 31, 2012
In my review of the file, I note a progress report completed by the LMR provider dated June 9, 2010. This report confirms the CM contacted the LMR provider on May 28, 2010 and requested that the LMR provider revise the worker’s LMR addendum report to include additional direct entry positions and job requirements.
The LMR Plan was again amended on June 18, 2010. This LMR amendment states that at the direction of the WSIB CM, the worker’s training program had been adjusted to only include the job search training program and a two month special work placement leading to the employment of a Customer Service Clerk. The academic upgrading to provide the worker with a grade 12 education and the computer training were taken out of the LMR plan.
The worker completed the job search training on July 31, 2010. Based on the LMR progress report dated August 25, 2010, the worker contacted the service provider on August 10, 2010 and advised that she was having difficulty securing a special work placement as many employers are asking for a grade 12 diploma.
The October 1, 2010 LMR completion report confirms the service provider contacted the CM on September 17, 2010, and advised that the worker was unable to secure a special work placement prior to the plan closure, and that all efforts have been put forth between the worker and the job search facilitator. A special placement could not be found due to employers requesting a grade 12 education or equivalency as this was a requirement of the CSC SO. The LMR plan was closed on October 1, 2010.
The worker testified that she was never successful in finding a CSC job and has not worked since February 2009. The worker stated that she sent out many resumes all around the town. The worker went to clothing stores, and grocery stores, as well as other employers; however, the jobs either involved the worker having to perform duties outside of her low back restrictions, or the job required a grade 12 education and computer training.
The worker also testified that even her job with the accident employer required a grade 12 education. The accident employer only hired her without a grade 12 diploma as she had a friend who worked there and helped her to get hired. There was no interview or application involved in obtaining the job with the accident employer.
In my review of the information on file, I refer to the CM’s memorandum dated June 25, 2010. In this memorandum, the CM confirms the LMR plan was approved for a CSC but the plan was only allowed to provide the worker with four (4) weeks of job search training followed by an eight (8) week special work placement. This was also confirmed in the CM’s June 25, 2010 decision. Although the CM confirmed the approval of the CSC SO, no rationale was provided to support why the worker was not approved for academic upgrading and computer training when the LMR assessment confirms that a grade 12 education and computer training are requirements in order to successfully obtain employment in the SO of a CSC.
Based on my assessment of the evidence, I am persuaded to accept that the information provided by the LMR service provider supports the SO of CSC would only be suitable if the worker was provided with academic upgrading that would provide the worker with a grade 12 education. I also find the evidence provided in the requirements for a SO of CSC support that computer skills are a requirement in
obtaining employment as a CSC. This is further evidenced by the fact that the worker and the service provider were not even able to provide the worker with the approved special work placement as an employer could not be found that would provide the worker with a placement without the required education and computer skills. As the LMR assessment confirms these are requirements and the worker was not provided with the required academic upgrading and the computer training, I find the LMR plan was not suitable and the worker was not provided with the necessary skills to obtain employment in the SO of a CSC.
For the reasons noted above, I find the SO of CSC was not suitable.
2) Is the worker entitled to partial LOE benefits as of October 1, 2010
For the reasons that follow, although I find the SO of CSC to be unsuitable, I am unable to make a determination on LOE benefits as of October 1, 2010.
In the decision dated October 19, 2010, the CM determined the worker had the skills to obtain an entry level position as a CSC. As the worker had not secured employment as a CSC, the CM adjusted the worker’s full LOE benefits to partial LOE benefits based on 85 percent of the difference between the
pre-injury earnings and the projected earnings capacity of $10.25 per hour. This resulted in a partial LOE benefit of $166.78 per week.
During the hearing, the worker representative confirmed their objection was to the October 19, 2010 decision that reduced the worker’s full LOE benefits to partial LOE based on the SO of a CSC. The representative stated that while they agree the worker should have been granted a retaining program when the employer was no longer able to accommodate the worker with modified duties, the retraining program approved for the worker was not suitable as the worker was not provided with the skills necessary to obtain employment in the SO. As the worker is now 54 years old, an LMR plan would not be appropriate and as such, the representative argues the worker is competitively unemployable and should be entitled to full LOE benefits from September 2010 to age 65.
To support the representative’s argument, the representative provided two (2) Workplace Safety and Insurance Tribunal (WSIAT) decisions that made determinations on a worker being competitive unemployable.
The concept of being competitively unemployable is a consideration of the cumulative effect of medical, psycho-social and employment market factors related to the workplace injury that would reasonably impact a worker’s ability to obtain and sustain suitable employment. Taking into consideration the actual circumstances of the case, the worker is not required to look for alternate work in the open labour market where he/she would be at a significant disadvantage competing with other able body candidates.
In reviewing the CM’s October 19, 2010 decision, I note the CM did not make a determination on whether the worker was competitively unemployable. The CM only provided the decision that the worker was fit to obtain employment as a CSC and adjusted the worker’s LOE benefits based on this. Although, I find that the SO of CSC was not appropriate, I find it premature at this time to provide a finding on whether the worker is competitively unemployable.
Prior to making a determination on whether the worker is competitively unemployable, I find it would first be necessary to refer to the claim back to Operations in order to determine if a SO without training could be identified for the worker.
For the reasons noted above, although the representative is objecting to the decision to reduce the worker’s benefits to partial LOE, the representative also argues that the worker is competitively unemployable. As such, I find it necessary to refer the claim back to Operations to determine if a direct entry SO without training can be identified. If a direct entry SO can be identified, LOE benefits as of October 1, 2010 are to be determined using the projected earnings capacity of the SO without training.
CONCLUSION
I find the approved LMR plan for the SO of Customer Service Clerk (CSC) was not suitable
I defer the finding on LOE benefits paid as of October 1, 2010 and the determination as to whether the worker is competitively unemployable to Operations to determine if a direct entry SO without training can be identified.
The worker’s objection is allowed in part.
May 15, 2018
Kelly Gordon
Appeals Resolution Officer
Appeals Services