WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180034
OBJECTING PARTY: Worker
REPRESENTED by: Paralegal
RESPONDENT: Employer (not participating)
HEARING: April 25, 2018 Toronto, Ontario
HEARD by: K. Gowans, Appeals Resolution Officer
DATED: May 24, 2018
ISSUES
The worker objects to:
(1) The denial of entitlement to chronic pain disability (CPD) as outlined in the Case Manager (CM) decision dated January 23, 2018;
(2) The closure of Work Transition (WT) services and subsequent reduction in loss of earnings (LOE) benefits from full to partial effective June 20, 2017 based on projected wages in the Suitable Occupation (SO) of Customer Service Clerk, NOC 1453 as outlined in the WT Specialist decision dated March 23, 2018 and the CM decisions dated June 20, 2017, July 10, 2017and September 29, 2017.
BACKGROUND
The history of this claim has been documented in several prior Appeals Resolution Officer (ARO) decisions on file and therefore will not be repeated. However, to summarize, this then 57 year old accounts payable clerk claimed on May 28, 2014 to have developed right arm pain while processing invoices to meet a deadline. Initial entitlement in the claim was accepted for right thumb, right wrist, right hand, right arm and right shoulder injuries as noted in the ARO decision dated May 29, 2015.
In November 2015, entitlement was extended to include psychotraumatic disability on a temporary basis. In April 2016 the worker was granted a 7 percent non-economic loss (NEL) benefit for the residual permanent impairment (PI) affecting her right upper extremity.
In the ARO decision dated August 26, 2016, the denial of continuing psychotraumatic disability entitlement, including entitlement to a PI was confirmed. However, the decision accepted that the worker was entitled to Work Transition (WT) assistance.
In the WT Specialist decision dated March 23, 2017, the Suitable Occupation (SO) of Customer Service Clerk was identified as being appropriate for the worker to pursue. The letter went on to confirm that a WT plan was going to be provided to the worker and was to run from March 27, 2017 to November 3, 2017.
In the letter dated June 20, 2017, the CM determined that WT services were being closed due to the worker’s non co-operation in the WT plan. The letter also confirmed that the worker’s LOE benefits were being reduced from full to partial effective July 10, 2017 based on an ability to earn projected SO wages of $11.40 per hour, 40 hours per week. The determination of partial impairment was confirmed in the CM letter dated September 29, 2017.
The worker subsequently claimed entitlement to chronic pain disability (CPD) in the claim. This request was considered, but denied, in the CM correspondence dated January 23, 2018.
The worker disagrees with the above noted decisions and has brought the case forward to the Appeals Services Division for further consideration. Of note, prior to the hearing the worker representative withdrew the worker’s objection to the denial of entitlement to a secondary accident she claimed occurred on May 26, 2017.
The representative clarified that the worker is essentially claiming to be unemployable subsequent to July 10, 2017 and that she has developed a CPD condition in relation to the compensable accident.
AUTHORITY
Policy Document : 15-04-03 Chronic Pain Disability (CPD)
Policy Document : 18-03-02 Payment and Reviewing LOE Benefits (Prior to the Final Review) [document dated July 15, 2011]
Policy Document : 19-03-03 Determining Suitable Occupation
Policy Document : 19-03-05 Work Transition Plans
ANALYSIS
Issue 1: CPD Entitlement
The WSIB policy relating to entitlement to CPD, found in document 15-04-03, notes, in part:
Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of post-traumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the WSIB's policy on that organic or psychiatric condition. If, however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder or conversion disorder) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy.
In order for entitlement to CPD to be accepted, the following five criteria are required to be met:
(1) A work related injury occurred;
(2) Chronic pain is caused by the injury;
(3) The pain persists 6 or more months beyond the usual healing time of the injury;
(4) The degree of pain is inconsistent with organic findings;
(5) The chronic pain impairs earnings capacity.
Of note, when determining whether a worker’s chronic pain is caused by the injury, the policy elaborates that there must be subjective or objective medical or non-medical evidence of the worker's continuous, consistent, and genuine pain since the time of the injury.
In this case, the worker completed a Worker’s Report of Injury (Form 6) identifying the date of injury as being May 28, 2014. In addition to describing a swollen right arm due to repetitive computer duties, she also identified having “severe lower back pain”.
The Employer’s Report of Accidental Injury (Form 7) confirmed complaints related to the right arm but made no mention of lower back symptoms.
In memo#1, the worker indicated that she was unclear as to how her injuries occurred. She described the areas of pain as being the lower back, the entire right upper extremity and the right ankle.
In a follow-up call to the worker (memo#3), the worker described “experiencing swelling in the majority of her body, specifically her right arm”. Initial entitlement was denied on the basis that the worker “could not identify a specific incident or any changes in her job duties on May 28, 2014”.
The Health Professional’s Report (Form 8) completed on May 31, 2014 diagnosed the worker with a “R wrist and shoulder strain due to repetitive injury”. There was no reference to a low back or right ankle injury. X-rays taken on May 31, 2014 revealed mild degenerative changes in the right AC joint.
A June 9, 2014 ultrasound of both shoulders was reported as being normal, while an ultrasound of the right wrist was suggestive of tendinopathy.
A June 9, 2014 functional abilities form (FAF) completed by the family doctor, Dr. Awan identified continued swelling of the right arm, but also referenced “complaints of lower back pain” which she felt was likely a strain. A July 19, 2014 lumbar spine x-ray identified minor spur formation at L3 and L4 without disc narrowing. There was narrowing of the facet joints at L4-5 and L5-S1.
The worker saw orthopaedic surgeon, Dr. Wong, on November 19, 2014. He noted the worker’s complaints remained limited to the right upper extremity. He reviewed the right shoulder x-ray and confirmed that it showed an anterior acromial spur. He felt that the worker’s shoulder complaints were resulting from outlet impingement.
A February 17, 2015 MRI scan of the right hand revealed edema around the first metacarpal.
The worker saw plastic surgeon Dr. Madronich on March 23, 2015. He noted the worker complained of severe right wrist pain with reduced movement. On examination, the sensory exam was normal, albeit with a reduced range of motion (ROM) in the wrist. He felt that the worker had De Quervain’s tenosynovitis and suggested she undergo physiotherapy treatment.
A May 4, 2015 report from a health and rehabilitation physician, Dr. Bui confirmed that the worker’s complaints remained limited to the right upper extremity, radiating into the neck and upper back. He noted that the complaints were associated with the repetitive duties the worker performed and had been present for about 2 years prior to the onset of the claim in 2014.
A cervical spine x-ray dated May 4, 2015 revealed mild degenerative disc disease from C4-C6 with mild spondylosis.
The May 29, 2015 ARO decision accepted initial entitlement to injuries affecting the right thumb, right wrist, right hand, right arm and right shoulder. Of note, the ARO commented that in addition to the above noted areas of injury, the worker had also requested entitlement be accepted for the low back, left foot and left ankle. However, prior to the onset of the hearing, the worker representative withdrew the request for entitlement to the low back, left ankle and left foot pending the receipt of additional medical information relating to these areas.
EMG studies performed on July 6, 2015 were reported as abnormal, with evidence of distal median nerve neuropathy (carpal tunnel syndrome) on the right. Clinically, the worker was diagnosed with cumulative trauma disorders including De Quervain’s tenosynovitis, overuse tendinosis and carpal tunnel syndrome, all on the right.
The worker was assessed by orthopaedic surgeon, Dr. Von Schroeder, at the Altum Health Hand and Wrist Clinic on August 19, 2015. The worker reported having constant pain in the first dorsal compartment of the right wrist as well as edema in the radial aspect of the right wrist. She also experienced pain in the right wrist and thumb with any pinching and gripping activities. There was also tingling present in the thumb, index, long and ring fingers of the right hand. Dr. Von Schroeder diagnosed the worker with right thumb CMC joint pain and De Quervain’s tenosynovitis. It was recommended that the worker participate in a Function and Pain Program (FPP). Workplace restrictions were provided to allow the worker to return to sedentary level work.
The worker was also seen at the WSIB Shoulder Specialty Clinic on August 24, 2015 by orthopaedic surgeon Dr. Lobo. At that time, the worker described constant, but localized, pain around the right shoulder, into the right side of her neck, down her right arm and into her right wrist and hand. The worker described having suffered a prior occupational injury in 2012 where she slipped and fell down some stairs injuring her lower back, ankles and knees. Of note, a WSIB claim was established for a March 12, 2012 accident however ongoing entitlement beyond April 2012 has not been accepted.
On examination, Dr. Lobo noted that there was a significant degree of guarding and resistance on attempts at range of motion (ROM). Testing revealed a high level of perceived disability, including anxiety and depression. It was felt that there was a significant degree of psychological issues impacting on the worker and her ability to return to work. She reportedly demonstrated “a significant degree of non-organic pain and emotionality on examination”. The occupational diagnosis provided was right shoulder/elbow myofascial pain. It was felt that the worker had achieved a partial recovery with temporary restrictions provided.
An FPP consult report dated August 27, 2015 noted that the worker presented with complaints of constant pain throughout the right upper extremity with the exception of the ulnar two digits. The worker reported having significant pain in her right upper extremity on a constant basis. The worker was diagnosed with a Pain Disorder with both Psychological Factors and a General Medical Condition as well as a Major Depressive Disorder.
A psychological assessment report from the Shoulder Speciality Clinic dated September 24, 2015 diagnosed the worker with a Pain Disorder with both Psychological Factors and a General Medical Condition as well as an Adjustment Disorder with Depressed Mood. While the worker complained of pain in her right upper extremity, the assessors recorded that “there was little pain behaviour observed throughout the interview”.
An FPP progress report dated October 20, 2015 noted that the worker was responding well to treatment with less guarding of the right hand being observed by the assessors. An FPP progress report dated November 10, 2015 confirmed continued improvement in the worker’s pain presentation with a demonstrated ability to use the right hand to cut, peel and wash vegetables with no difficulty.
A Hand Clinic follow-up report dated November 16, 2015 confirmed the ongoing diagnoses as being right thumb CMC joint pain and De Quervain’s tenosynovitis. It was felt that the worker was capable of working in sedentary employment with the attending physician recommending that the worker use her hand as much as possible.
The FPP discharge report dated December 3, 2015 provided a final diagnosis of Pain Disorder with Psychological Factors and a General Medical Condition as well as a Major Depressive Disorder, in partial remission. The report identified that the worker “reported significant improvement in mood since initiating the program, increasing her social activity multiple times per week… and being happy, as well as learning several pain management skills”.
The Hand and Wrist Specialty Clinic discharge report dated February 16, 2016 noted that “the client’s moving two-point discrimination was tested in the right thumb to small finger and was inconsistent in all digits”. Dr. Von Schroeder opined that the worker had achieved maximum medical recovery (MMR) for the hand injury and was capable of performing sedentary level work on a permanent basis. The working diagnoses of right D1 CMC joint pain, De Quervain’s tenosynovitis and carpal tunnel syndrome remained the same.
Dr. Awan completed a FAF on March 29, 2016 indicating that the worker had “low mood today” due to her functional limitations and inability to help with her elderly parents.
On April 25, 2016 the worker was assessed with a 7 percent non-economic loss (NEL) benefit for the right thumb, wrist and shoulder injuries. The maximum medical recovery (MMR) date was identified as being the dated of the Specialty Clinic closure report, February 16, 2016.
On May 17, 2016 the worker was seen for a psychiatric assessment by psychiatrist, Dr. Dhaliwal. He indicated that the worker was referred to him by Dr. Awan due to “decreased mood and crying spell (sic) getting worse from past six months and more”. He noted that she presented with depression of mood, crying spells, decreased focus and concentration, decreased appetite, thoughts of suicide, increased anxiety, poor sleep, poor social life and poor activities of daily living (ADLs).
He diagnosed her with depression secondary to pain. He noted that the increased pain levels lead to increased depression. He also felt that she was suffering from an Adjustment Disorder.
The August 26, 2016 ARO decision lead to the denial of continuing psychotraumatic disability entitlement however granted the worker entitlement to WT services.
A September 7, 2016 report from Dr. Dhaliwal noted that “diagnosis is depression and pain”. He felt the worker required continuing psychotropic medications. He indicated that the worker advised “she cannot open a bottle with her hand” which I find is inconsistent with the reporting from the FPP in 2015.
In FAF reports from Dr. Awan dated October 8, 2016 and December 19, 2016 she recorded that the worker was “unable to return to work” although given the nature of the FAF report, no details as to why she could not work were given. Similar notations were given in the FAF’s completed on January 16, 2017 and February 11, 2017.
On March 23, 2017, Dr. Awan reported that the worker “is currently ill with acute medical reasons. She is being followed closely. She will be unable to attend any training programs until she recovers from acute symptoms”. No medical reasons or explanation of the “acute symptoms” were given.
On April 1, 2017 Dr. Awan suggested that the worker was only able to attend retraining sessions twice per week “due to ongoing medical reasons”.
On April 5, 2017 Dr. Dhaliwal wrote that the worker’s father passed away and as such she hadn’t been seen since September 2016. He noted that the worker’s hand weakness continued and that her “mind runs too fast”.
On April 20, 2017 Dr. Awan reiterated her statement that the worker was unable to attend retraining sessions more than twice per week, “due to ongoing medical reasons”. She based this on the worker’s right upper extremity complaints and her “current mental health status”.
In Dr. Awan’s clinical note dated June 1, 2017, she documented the worker’s claimed fall while riding on a bus. As was noted earlier in this decision, the worker withdrew her objection to the denial of a second accident while participating in WT services. Dr. Awan wrote that the worker was riding a bus and holding onto a grab bar with her left arm. Apparently the bus “was fast” and she fell on “R side of arm, neck and shoulder”. Notably, at the hearing, the worker testified that when she fell, it was on her left side. Dr. Awan also indicated that the worker was very stressed with “depression severe lately”. The worker felt that “her life has been turned upside down since her injury”.
On June 17, 2017 Dr. Awan wrote that “due to psychological stress induced by functional loss post injury and anxiety due to recent fall” that further retraining for the worker “will not be successful”. Since this report, Dr. Awan has maintained that the worker is unable to return to work in any capacity.
On December 5, 2017, Dr. Dhaliwal wrote that “subjectively, she [the worker] has depression”. His closing diagnosis was “depression”.
On October 12, 2017, the CM carried out marked life disruption (MLD) enquiries as noted in memo#A0107 on file. The worker advised that she no longer does any household duties, which have now been taken over exclusively by her husband. She estimated that she only has a 10 minute sitting tolerance as well as a 10 minute standing tolerance. She described needing assistance with showering, and that her daughter helps her wash her hair once a week.
She confirmed that she has not made any attempts to return to work as she feels unable to work in any capacity due to her pain. When asked what she does for fun, the worker responded “nothing after the injury”. This, however, is inconsistent with the reporting from the FPP which said she significantly increased her social activity after participating in the program and was much happier.
The CM review for CPD entitlement is outlined in memo#A0114 on file dated January 23, 2018. The CM summarized the medical reporting on file as well as had regard for the MLD review. She accepted that the first, third and fifth criterion of the CPD policy had been met. However, she concluded that the second criterion was not met due to the fact that the worker’s pain complaints also included pain in her neck and back, for which entitlement has not been accepted. She also felt that criterion four was not met given that the degree of pain in her right upper extremity was consistent with the organic findings on file and 7 percent NEL benefit.
At the hearing, the worker confirmed that she feels incapable of working due to the pain she experiences in her right upper extremity. She became emotional when describing how her employer dismissed her after she reported her injury. She feels betrayed by the employer and remains upset by how they treated her given that she was a good employee and was doing double the work she was supposed to be doing when the injury occurred.
When asked about her pain, she said it initially would “come and go” but now is constant. Prior to the accident she described doing all of the domestic household chores. Since the accident, she has been unable to help out around the house. She stated that her husband changed his work hours from daytime to afternoons (3-11pm) in order to help her around the house.
She describes being very limited in her ability to cook or clean and only uses the microwave to heat up things such as tea and soup.
She stated that she no longer goes out socially as she feels ashamed of her condition. She gave up her driver’s license as she no longer wants to drive. (She confirmed that it was not taken away by her doctor).
With respect to retraining, she testified that she tried her best but found it difficult to take the bus to school as it involved 2 buses and between 1 to 1 ½ hours to commute. She also described falling on the bus on May 26, 2017 at which time she stated that she hurt her left side, her back and her knee. Again, I note that the medical reporting on file suggests that the worker claimed to injure her right side when she fell.
She consistently talked about being depressed and anxious about her future. She confirmed that she does not feel employable and states that she does not know of any job she could perform. She confirmed that she was recently granted entitlement to Canada Disability Pension (CDP) benefits from the Federal Government.
The worker representative submitted that the worker has developed a CPD condition in relation to the injury and seeks extended entitlement on this basis. He feels that the worker’s pain and depression essentially render her unemployable in the labour market. He referenced several medical reports which identified the worker as being depressed as well as having right upper extremity pain. He noted that Dr. Awan has consistently reported that the worker is incapable of working due to her mental health and ongoing pain. This, he submits, was supported by the worker’s inability to go to school more than 2 days per week.
He confirmed that the worker is not seeking entitlement to a new SO or a new WT plan as she remains incapable of working in any capacity. He therefore submits that the worker should be granted extended entitlement to CPD and should be granted full LOE benefits subsequent to July 10, 2017. In the alternative, he submits that the worker’s LOE benefit subsequent to July 10, 2017 should be based on part time earnings.
Assessment
When I assess all of the available information in the claim file, I find that there is no basis to accept extended entitlement to CPD.
In reaching this conclusion, I agree with the CM’s conclusion that criterion 2 and 4 of the CPD policy have not been met. From the beginning of the claim, the worker herself reported (on her Form 6) having severe low back pain even though a claim for back entitlement has not been made.
Initial x-rays of the right shoulder revealed mild degenerative changes in the AC joint. An early ultrasound of the right wrist revealed tendinopathy.
Dr. Wong, an orthopaedic surgeon, noted that the worker had a right shoulder acromial spur and diagnosed her with the organic diagnosis of outlet impingement. A February 2105 MRI scan of the hand revealed organic evidence of edema in the first metacarpal.
Many of the worker’s treating physicians have consistently diagnosed the worker organically with De Quervain’s tenosynovitis as well as there being diagnostic evidence of carpal tunnel syndrome in the right upper extremity.
Cervical spine x-rays from July 2015 revealed mild degenerative disc disease from C4-C6 with mild spondylosis.
The Hand Clinic Specialist, Dr. Von Schroeder consistently provided organic diagnoses including right CMC joint pain and De Quervain’s tenosynovitis. He also identified medically inconsistent findings when examining the worker’s hand movements, which questions the genuineness of the worker’s pain complaints.
The FPP reporting indicates that the worker responded well to the treatment she received and demonstrated less guarding of her right arm/hand. It was identified that the worker demonstrated an ability to use her right hand on a functional basis by being able to wash, cut and peel vegetables without difficulty. I find that this is inconsistent with the worker’s statements that she is unable to perform any function around the house and needs considerable assistance from her husband and children. In fact, the FPP discharge report confirmed a significant improvement in mood and activity given that the worker had increased her social efforts considerably. This also is inconsistent with the worker’s testimony that she stopped going out socially subsequent to the accident.
Given the predominantly organic diagnoses for all areas of impairment (hand, wrist and shoulder) as well as the inconsistencies described in the various medical reports on file, I confirm the CM conclusion that criterion 2 and 4 of the CPD policy have not been met. As such, the request for extended entitlement to CPD remains denied.
Issue 2 : Employability and LOE Entitlement Subsequent to July 10, 2017
For the reasons set out below, I find that the SO of Customer Service Clerk, NOC 1453, is suitable for the worker to perform given her vocational profile. I also find that the worker’s LOE benefits were appropriately reduced from full to partial effective July 10, 2017 based on projected wages of $11.40 per hour on a full time basis.
As was noted earlier in this decision, entitlement to WT services was granted in the prior ARO decision dated August 26, 2016. The WT specialist conducted an initial phone interview with the worker on October 11, 2016. It was confirmed that the worker has an accounting diploma from Seneca College and was fluent in 2 languages, English and Urdu. She had been steadily employed in the accounting field from 1992 until her termination from the accident employer in July 2014.
In an undated WTS consultation memo on file, it was identified that in addition to the worker’s prior accounting experience, she has also worked as a customer service representative at a bank as well as an accounts payable/payroll clerk. She completed a Grade 12 education in Pakistan and completed academic upgrading in math and English in Toronto between 1988 and 1989.
A psycho-vocational assessment was conducted on November 22, 2016. In the report, dated November 29, 2016, it was confirmed that the worker’s past experience included working in payroll, accounts payable, human resources/receptionist, customer service representative and factory labourer.
Psychometric testing identified that “significant psychological barriers” were present for which treatment was recommended. I note that notwithstanding the fact that continuing psychotraumatic disability entitlement had been denied, the worker continued to be treated by her consultant psychiatrist, Dr. Dhaliwal.
Based on the results of the testing, the assessors opined that the worker was best suited for employment that did not require formal retraining although it was recommended that the worker receive a period of English as a Second Language (ESL) training and academic upgrading before looking for direct entry employment. Potential SO targets were identified, including the SO of Customer Service Clerk.
The worker met with the WT Specialist, along with her representative, on December 8, 2016. They reviewed the psycho-vocational assessment report and it was agreed that the SO of Customer Service Clerk was suitable and the most appropriate SO to pursue. It was identified that possible positions included working in sales, at a car rental facility or in a bank. This would allow for opportunities to change positioning as well as minimizing typing and filing duties.
The WT plan proposal from March 2017 identified that the worker’s transferable skills in accounting, administrative work and customer service areas made the SO of Customer Service Clerk the most appropriate option for the worker to pursue. To enhance the worker’s employability, the WT plan was to include 10 weeks of academic upgrading, followed by a 6 week customer service training program. The worker would then be provided with a job search training program (JSTP) followed by 4 weeks of work placement services and 10 weeks of employment placement services. The plan was to run from March 20, 2017 to October 27, 2017.
By April 2017, the worker was reporting an inability to attend school on a daily basis. The report from Dr. Awan dated April 1, 2017 suggested that the worker could only attend school 2 days per week “due to ongoing medical reasons”. There were no objective medical findings provided to support the request for part time upgrading.
The worker continued to miss time from upgrading prompting the CM to issue a non-cooperation letter to the worker on May 5, 2017. The letter warned the worker of the consequence of not participating in the WT plan, which included reducing the worker’s LOE benefits should she continue to miss time from school.
In June 2017 the worker spoke with the WT specialist (memo A0080 dated June 14, 2017) and confirmed that she did not feel capable of attending school fulltime, did not feel capable of taking public transit and felt that she was unemployable. WT services were subsequently closed as the worker stopped attending the academic upgrading.
The CM accepted that the worker remained employable in the identified SO of Customer Service Clerk, NOC 1453 on a fulltime basis. It was determined that the worker’s partial LOE benefit payable effective July 10, 2017 would be based on projected minimum wages of $11.40 per hour in the SO.
As has already been noted in this decision, the worker testified at the hearing that she feels unemployable due to her physical and emotional state. Of note, continuing psychological entitlement has been denied in the claim, as has CPD entitlement.
The worker representative submits that the worker is unemployable and should receive full LOE benefits. In the alternative, he submits that the partial LOE benefit should be based on part time hours in the SO.
Operational Policy 19-03-03 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.
With respect to part time hours, policy 19-03-03 states:
In cases where a worker was working full-time hours prior to the accident, but a return to full-time hours is not feasible due to the work-related injury, consideration may be given to a SO with part-time hours.
Part-time employment may be appropriate in cases where a worker is assessed as having only partial work capacity. Identifying a SO with part-time work hours may be the best WR option in cases where a worker has the skills and knowledge to do a part-time job with the pre-injury employer or a new employer.
Part-time employment may also be appropriate in cases where a worker is working part- time hours while at the same time receiving WT training on a part-time basis, with a view to providing the worker with skills to work full-time.
Policy 19-03-05 states that a WT plan is closed and the worker’s benefits are adjusted accordingly when the worker fails to participate in the development of the WT plan or the completion of WT plan activities.
Policy 18-03-02 notes that workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. Examples include workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
Determined earnings are the earnings associated with the identified SO, and are based on current labour market wage information. The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker remains unemployed at the completion or closure of the WT plan.
Assessment
When I assess all of the available information in the claim file I find that the worker is employable in the SO of Customer Service Clerk, NOC 1453, on a full time basis, earning projected wages of $11.40 per hour.
In reaching this conclusion, I note that the worker is presently in receipt of a 7 percent NEL benefit for her right upper extremity. She has been cleared by the treating specialists at the FPP and WSIB Hand and Shoulder Clinics to return to sedentary employment. She has also been encouraged to use the right upper extremity as much as possible.
Following the allowance of WT services, a psychovocational assessment confirmed that the worker had considerable transferable skills given her prior experience in the accounting and customer service fields. She was provided with a WT plan that consisted of academic upgrading, a customer service training course, a job search training program (JSTP) and placement services designed to enhance her employment opportunities in the SO of Customer Service Clerk, NOC 1453.
I accept that the variability contained within the SO of Customer Service Clerk is physically suitable for the worker to perform given her right upper extremity limitations. In addition, she has transferable skills in this area which further enhances her employability in the SO.
I accept that the WT plan was appropriate for the worker to pursue and that she voluntarily chose to discontinue the program in June 2017 before it was completed. Thus, it is appropriate to adjust the worker’s LOE benefits effective July 10, 2017 to reflect the projected earnings of $11.40 per hour in the identified SO.
Regarding the worker’s alternative argument that the partial LOE benefit should be based on part time earnings, I find no objective evidence on file to support this conclusion. The worker was employed on a full time basis before her injury and there has been no objective information sent to file to suggest that she is only capable of part time employment. Given that the SO is sedentary in nature, I accept that it is physically suitable on a full time basis.
As such, the worker’s appeal is denied.
CONCLUSION
(1) The worker’s request for CPD entitlement is denied.
(2) The worker’s objection to the suitability of the Customer Service Clerk SO, the WT plan and the reduction in LOE benefits effective July 10, 2017 is denied. I find that the worker’s LOE benefit rate subsequent to July 10, 2017 was appropriately established using projected wages of $11.40 per hour, on a full time 40 hour per week basis, in the identified SO.
DATED May 24, 2018
K. Gowans
Appeals Resolution Officer
Appeals Services Division