APPEALS RESOLUTION OFFICER DECISION
decision number:
20230002
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
Amy woodworth, appeals resolution officer
ISSUE
The worker is objecting to the Case Manager’s (CM) decision dated March 31, 2021, where the CM adjusted benefits to partial Loss of Earnings (LOE) benefits based on the expected wages of the Suitable Occupation (SO).
BACKGROUND
On May 29, 2018, this drywall installer injured their left fingers and chest when they were cutting wood with a mini grinder and the grinder got stuck. The worker severed their left ring and small fingers and sustained a contusion injury and laceration to the chest. The worker stopped working following the injury.
The worker underwent surgery on May 29, 2018 for the left fingers. The worker returned to suitable work with the employer on August 13, 2018. On April 9, 2019, it was confirmed the worker was no longer working and the employer was closing. A Return to Work Specialist (RTWS) was engaged to assist the worker in developing a return to work plan in suitable employment.
In a letter dated April 18, 2019, the CM determined the worker had reached maximum medical recovery with a permanent impairment. In September 2019, the worker was granted a 10 percent non-economic loss (NEL) benefit for the work-related permanent impairment.
In a decision dated July 8, 2019, the RTWS confirmed sponsorship in a return to work plan with a SO of retail sales.
In a decision dated March 26, 2021, the RTWS confirmed the worker had successfully completed the return to work plan for the SO of retail sales.
In a letter dated March 31, 2021, the CM noted the successful completion of the return to work plan and the worker’s ability to earn the expected wages of the SO of retail sales. LOE benefits were reduced to partial LOE benefits based on the expected wages of the SO which were $14.25 per hour, 40 hours per week.
The worker representative submitted an Intent to Object Form (ITO) dated April 12, 2021, objecting to the March 31, 2021, decision and the worker’s ability to work. The CM’s decision of March 31, 2021, was re-sent and dated May 25, 2021, and the worker representative objected to the decision of that date in an ITO dated June 1, 2021.
The worker representative completed an Appeal Readiness Form (ARF) dated May 21, 2021, objecting to the March 31, 2021 decision.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
January 2, 2018
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the adjustment to partial LOE benefits based on the expected SO earnings of $14.25 per hour, 40 hours per week is correct.
Position of the parties
The worker representative made a written submission dated September 1, 2021, with regard to the appeal of the decision dated March 31, 2021. The worker representative argued that LOE benefits should not be reduced to partial LOE benefits and the worker should be entitled to full LOE benefits. The worker representative confirmed the worker had not been able to find a job since completing the retraining program. The worker representative referred to a report by the speciality clinic dated June 18, 2021, which acknowledged the number of treatment options the worker had tried, but continued to have pain and ongoing issues.
The worker representative also noted a report by an occupational therapist from the WSIB speciality clinic, regarding the worker’s restrictions with the left hand and indicated that with the restrictions and limited ability to speak English, the worker would not be competitively employable. The worker representative further stated the worker is cooperative and hardworking and did complete the retraining program, and noted the worker underwent various treatments to assist in their recovery and therefore should not be penalized for the inability to return to work due to the injuries.
The employer is not participating in this appeal.
Assessment
The issue before me is the adjustment of the LOE benefit at the closure of the return to work (RTW) plan based on the SO wage of $14.25 per hour, 40 hours per week
In this case, the SO of retail sales was established based on the precautions as outlined in a specialty clinic report dated August 13, 2019, which are as follows:
Fit only for a limited/sedentary-light PDC level for material handling tasks with his left hand; he is at a light medium PDC level for his unaffected right hand
For his left hand, he should avoid any vision-occluded activities, sustained and repetitive gripping and pinching, exposure to vibrational tools and working in environments with extreme temperatures.
Limited use of non-vibration tools due to hypersensitivity of the tips.
Micro breaks and task rotation (1-2 minutes for every 20-30 min work).
Access to glove for warmth as needed.
The worker was provided with upgrading, training on the job and Employment Placement and Retention Services. The worker completed the RTW plan and upon closure, the RTWS confirmed that a review of updated information continued to support the selection of retail sales as a suitable, safe and available SO.
While I appreciate the arguments presented by the worker representative, the worker’s ongoing pain and issues is acknowledged by the acceptance of a permanent impairment and NEL benefit. Further, in the absence of any accepted deterioration or change in the accepted precautions, my decision is limited to the adjustment of the LOE benefit at the closure of the RTW plan.
Policy 18-03-02, indicates the following pertaining to Partial LOE,
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 but are not limited to
workers who return to work at reduced hours or wages, and
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
will not be provided with WR services
remains unemployed at the completion or closure of the WT plan
is underemployed in a job not identified in the SO, or
is voluntarily underemployed in the identified SO
In this case, the worker completed a return to work plan for the accepted SO of retail sales on March 26, 2021. At the end of the plan, the worker had not yet secured any type of employment. Thus, determined earnings associated with the accepted SO were to be used.
Therefore, based on the accepted SO of retail sales, and noting the worker successfully completed the RTW plan, I find the adjustment of the LOE benefit using the identified SO entry level wage of $14.25 per hour, 40 hours per week, was appropriate at the time of the closure of the return to work plan.
CONCLUSION
In conclusion, the decision adjusting the LOE benefit based on the SO wage of $14.25 per hour, 40 hours per week at the closure of the return to work plan is upheld.
The worker’s objection is denied.
DATED December 10, 2021
A. Woodworth
Appeals Resolution Officer
Appeals Services Division