APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20210028
OBJECTING PARTY:
worker
REPRESENTED by:
WORKer representative
RESPONDENT:
employer
REPRESENTED by:
employer representative
HEARING:
HEARING IN WRITING
HEARD by:
brian smith, appeals resolution officer
ISSUES
The worker objects to the Case Manager’s decision dated March 8, 2021 that determined the suitable occupation of Retail Salesperson (NOC 6421) is appropriate.
BACKGROUND
On January 21, 2018, the worker slipped on the stairs and fell. The accident was reported right away, the worker sought medical attention at Urgent Care Clinics and was diagnosed with bruised ribs.
On January 23, 2018, the worker sought medical attention at General Hospital and was diagnosed with a back strain.
On January 23, 2018, the claim was electronically adjudicated and allowed for an upper back and lower back injury.
On March 7, 2019, in memo A0010, a Case Manager expanded initial entitlement to include a left rib fracture. However, no formal letter confirming the decision was issued.
On March 14, 2019, a Case Manager granted entitlement to full loss of earnings benefits effective January 21, 2019.
On April 2, 2019, claim XXXXXXXX for Hand Arm Vibration Syndrome was registered for the worker.
On June 5, 2019, the worker met with the employer and a Workplace Safety and Insurance Board Return to Work Specialist to review return to work opportunities. A modified job as a delivery driver beginning June 10, 2019 was agreed upon. Subsequent to the meeting, the worker was assessed by their physiotherapist, who recommended that the worker return to work at four-hour shifts three times per week for at least two weeks.
On June 12, 2019, another meeting was held with the employer and the Workplace Safety and Insurance Board Return to Work Specialist and it was agreed that the worker would return to work at four hours per day three days per week.
On November 13, 2019, the worker attended a pain consult with Dr. Cook, who recommended that before administering a steroid injection, more conservative measures should be attempted. Accordingly, the worker was prescribed Tylenol and advised to follow up with their family doctor for a trial of Cymbalta.
On December 6, 2019, claim YYYYYYYY was registered for thoracic outlet syndrome.
The worker took a vacation from February 5, 2020 to February 27, 2020 and was expected to return to work on March 4, 2020. However, upon their return, the employer requested that they not return to work due to the emerging COVID-19 pandemic.
On April 15, 2020, the worker was assessed at the Back and Neck Specialty program and the assessors concluded that the worker had permanent restrictions of limited bending and twisting through the mid-back to the occasional level. The worker was to limit overhead and at shoulder level activity with both arms to the occasional level. The worker was to perform unloaded ladder climbing only, limit pushing and pulling with both arms to the light level, have no repetitive lifting, limit lifting from the floor to the waist to 20 pounds with both arms, limit lifting from the waist to the shoulder to10 pounds with both arms and be given frequent micro breaks as needed.
The assessment also noted that if return to work at the accident employer is available then the worker should begin at four hours per day, three days per week and progress as tolerated. The report also noted that the worker may not be able to return to full hours.
On April 28, 2020, the worker met with the employer and the Workplace Safety and Insurance Board Return to Work Specialist. It was determined that the worker had been performing general labour work and that the work was suitable. It was agreed that the worker would continue this work at four hours per day for three days a week.
On June 16, 2020, a Non Economic Loss Clinical Specialist determined that a 2% whole person impairment was appropriate for the worker’s 10th rib fracture. When combined with the worker’s 20% NEL benefit from claim XXXXXXXX totalled 22%.
On July 17, 2020, the employer informed the worker that they could not accommodate their permanent restrictions and the worker’s last day would be July 31, 2020.
On October 29, 2020, a Case Manager confirmed that the worker had reached maximum medical recovery with an ongoing impairment and was entitled to full loss of earnings benefits from August 1, 2020.
On March 8, 2021, a Return to Work Specialist sponsored the worker in a Work Transition plan for the suitable occupation (SO) of Retail Salesperson (NOC 6421). The plan included six weeks of computer skills training and essential skills training and 12 weeks of employment services.
The worker began the training on April 5, 2021 and participated fully until May 14, 2021.
On May 18, 2021, the worker spoke to the Return to Work Specialist and indicated that they were no longer interested in completing the work transition plan.
On May 28, 2021, a Return to Work Specialist determined that the worker had successfully completed their plan for the SO of Retail Salesperson (NOC 6421) and that entry-level wages would be used to determine the worker’s post- injury earnings. The entry-level SO wage identified is $14.25 an hour based on the low wage in the Job Bank in the Town Region.
On August 12, 2021, a Case Manager determined that the worker was entitled to partial loss of earnings benefits of $706.04 biweekly.
The worker is appealing the Case Manager’s decision dated March 8, 2021 that determined the suitable occupation of Retail Salesperson is appropriate.
The worker’s representative has submitted an Appeal Readiness Form and the claim was forwarded to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
19-02-10 RTW Assessments and Plans
November 30, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the SO of Retail Salesperson is suitable for the worker’s accepted restrictions at part time hours.
The worker’s representative contends that the Work Transition Plan is not appropriate, as the worker’s complete restrictions, including those from a concurrent claim, were not appropriately considered. The representative submits that no SO is the appropriate plan. The worker’s representative submits that in the alternative, the available medical information indicates that the worker is only capable of working 12 hours per week.
Further, the employer submits that the worker should be entitled to the option for workers 55 and older.
The employer’s representative submits that the appeal should be denied. The representative submits that the worker’s restriction for 12 hours of work per week were specific to the accident employer and did not consider the chosen SO.
With respect to the option for workers 55 and older, the worker’s representative notes that this was not considered at all. Since no consideration for this option was made at the operations level, the issue is not properly before me and I make no findings of fact regarding the older worker option.
Policy 19-02-10 RTW Assessments and Plans says that when a worker suffers a work-related injury/disease, the workplace parties (worker and injury employer) work together with the WSIB to enable the worker's return to work.
If there are challenges that impact the worker's return to work that the workplace parties cannot resolve on their own, the WSIB conducts a return-to-work (RTW) assessment.
Following the RTW assessment, if necessary, the WSIB develops a RTW plan that outlines the assistance and services the worker requires to enable their return to work with the injury employer or in the labour market.
The WSIB conducts the RTW assessment and develops the RTW plan in collaboration with the workplace parties/authorized representatives and, where necessary, the worker's treating health professional.
The policy goes on to say that to develop a RTW plan (with training), the WSIB generally identifies a SO for the worker. 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, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
The WSIB makes every effort to provide the worker with effective and meaningful input and choice when determining a SO. For example, the worker is encouraged to suggest possible SOs and provide any supporting research.
The WSIB considers a number of factors when determining a SO, including:
the worker's functional abilities, transferable skills, education, aptitudes and interests
the worker's work-related and non-work related impairments/disabilities, including non-physical disabilities such as a learning disability, and any other human rights-related accommodation requirements
the worker's pre-injury earnings and work hours (a worker would not be expected to significantly increase their work hours in the SO)
labour market trends and the likelihood of the worker being able to secure and maintain employment in the SO
whether the SO has a reasonable prospect of continuing in the longer term, and
whether the SO is achievable within a reasonable cost structure.
In some cases, the WSIB may determine that no SO is appropriate for the worker based on various factors, including those listed above.
Looking more closely at the criteria to determine whether the SO of Retail Salesperson is suitable, I have considered the following
Functional Abilities
In this case, the worker’s accepted permanent restrictions were outlined in the April 15, 2020 Back and Neck Specialty Clinic report. The restrictions are to
Limit bending and twisting through the midback to the occasional level
Limit overhead and at shoulder level activity work with both arms to the occasional level
unloaded ladder climbing only
limit pushing and pulling with both arms to the light level
no repetitive lifting
limit lifting from the floor to the waist to 20 pounds with both arms
limit lifting from the waist to the shoulder to 10 pounds with both arms
allow for frequent micro breaks to manage symptoms as needed
If return to work at the accident employer is available, begin at four hours per day, 3 days per week and progress as tolerated.
I also considered the Case Manager’s review in memo A0139 that included restrictions for the worker’s hand arm vibration syndrome that noted all precautions should be taken when using vibratory tools, including good tool maintenance, obtaining tools with anti vibration mechanisms/design, applying as a loose a grip as is practicable, and taking frequent short breaks or task rotation to reduce exposure. Using anti-vibration gloves, having regard for appropriate clothing to maintain warm core body temperature, which can reduce blanching symptoms
I note that the NOC Career Handbook indicates that the physical demands of NOC 6421 involve work activities that primarily involve standing or walking. Strength requirements are light and may require handling loads of five kilograms but less than ten kilograms. I have also considered that these requirements are a general description of the expectations for Retail Salespersons. I also note that no additional accommodations are required to make the SO suitable for the worker. Accordingly, I find that the SO of Retail Salesperson is physically suitable for the worker.
Looking at the worker’s capacity to perform the SO of Retail Salesperson for 40 hours per week, I have also considered the reports from the Back and Neck Specialty Program. The April 15, 2020 report recommends that the worker return to work at part-time hours of four hours per day at three hours per week. I note that the recommendation also suggests that the worker gradually increase those hours, but also points out that this may not be possible.
I recognize that this return to work schedule originated with the worker’s physiotherapist on a June 10, 2019 functional abilities form, but at the subsequent assessments at the Back and Neck Specialty Program on August 27, 2019, September 17, 2019, November 11, 2019 and December 16, 2019, no other recommendation was provided.
I would also point out that the Back and Neck Specialty program report on December 16, 2019 noted that return to work restrictions would be updated by the treating therapist.
Concerning the employer’s representative suggestion that the return to work recommendations were specifically for the accident employer, I respectfully disagree. The role of the assessors at the Back and Neck Specialty Program is to provide return to work restrictions with respect to the worker’s work-related and non-work related conditions. There is no obligation or expectation that return to work restrictions for a specific employer will or should be provided. Consequently, in my view the return to work restrictions provided on April 15, 2020 are not specific to the accident employer.
The case record indicates that the worker attempted a return to work on June 10, 2019 at eight hours per day as a driver but he could not tolerate the full day and the worker’s hours were subsequently adjusted. In my review of the available medical information and return to work recommendations, there is no evidence of a recommendation for the worker to return to full time hours.
Considering that the medical recommendations on file support that the worker is only capable of a return to work at 12 hours per week and no information to support that the worker is capable of more than the 12 hours, I find that, on the balance of probabilities the worker’s capacity for work is decreased and the worker is limited to part-time hours of 12 hours per week.
Transferable skills
The NOC Career Handbook indicates that completion of secondary school may be required and a university degree or college diploma may be required by some employers. Specific subject matter courses or training may be required and demonstrated sales ability and product knowledge are usually required for retail salespersons who sell complex or valuable merchandise, such as automobiles, antiques or computers.
The worker underwent a Psycho-Vocational Assessment on December 2, 2020 and December 3, 2020. I note that the return to work restrictions considered in the assessment included those from the worker’s concurrent HAVS claim.
The report indicated that the worker had transferable skills for Data (Analyzing), People (Speaking) Things (Setting up), working with people, oral communication, time management, problem solving, logical thinking, working with his hands, supervising skills and leadership skills.
The worker tested in the average range for word reading, sentence comprehension, spelling and reading composite and the low range in math computation.
The assessment indicated that the worker prefers hands-on/technical work that involves supervisory or managerial positions, as well as jobs that allow him to work with people in business or helping situations.
The assessment concluded that the worker would be capable of pursuing up to long term post-secondary programs or entry-level employment opportunities. Accordingly, the occupations of Dispatchers (NOC 1525), Cashiers (NOC 6611) Operators and Attendants in Amusement, Recreation and Sport (NOC 6722) were recommended.
I have not ignored that the report also noted that based on his psychological profile it was advisable for the worker to undergo psychological treatment. I do not find that this renders the SO unsuitable. In my view, advisable suggests that psychological treatment would help improve the employability of the worker, but it was not required. Therefore, the worker not being referred for a psychological assessment does not make the SO unsuitable.
Considering the results of the Psycho Vocational Assessments as well as the worker’s employment and education history, I find that the worker’s tested and reported aptitudes, meet the requirements of the SO.
Availability in the Labour Market
The Return to Work Specialist memo A0139 and the SO Profile report note that the Government of Canada Job Bank indicates a fair employment outlook in the London region for the 2019-2021 period. Provincially, the outlook was found to be below average.
The report noted that the relatively younger workforce, coupled with lower skill requirements, and prevalence of part-time work associated with this occupation will create ongoing replacement needs for new employees. I also note that of the 11 job postings provided, only two of the positions required prior sales experience.
As such, I find that the SO of Retail Salesperson remains available in the worker’s local labour market.
Pre-Existing Conditions
I note that there are no non-work related pre-existing conditions that would preclude the worker from being employed in the SO.
Based on the accepted restrictions, the Psycho Vocational assessments and the Government of Canada job bank employment outlook, I find that the SO of Retail Salesperson is a suitable occupation for the worker.
CONCLUSION
The SO of Retail Salesperson (NOC 6421) is suitable for the worker at 12 hours per week.
The worker’s objection is allowed in part.
DATED October 26, 2021
Brian Smith
Appeals Resolution Officer
Appeals Services Division