APPEALS RESOLUTION OFFICER DECISION
decision number:
20220127
OBJECTING PARTY:
Worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (Not participating)
HEARING:
HEARING IN WRITING
HEARD by:
stephanie waters, appeals resolution officer
ISSUES
The worker objects to two Case Manager (CM) decisions made in their claim, both dated April 1, 2022. These decisions:
- Denied entitlement to a Non-Economic Loss (NEL) redetermination for the worker’s lower back permanent impairment;
- Determined the worker was partially impaired from April 26, 2016 to January 24, 2020 (when the worker reached age 65) and the suitable occupation (SO) of electronics assembler was suitable;
- Denied a full Future Economic Loss (FEL) benefit from December 30, 2016 to February 1, 2020 based on SO wages of $11.25 per hour, 40 hours per week.
BACKGROUND
Appeals Resolution Officers (AROs) and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) provided detailed summaries of the worker’s claim in prior decisions on file. I will only provide a brief summary relevant to the issues in dispute to avoid repetition.
The worker’s date of hire was October 19, 1982. On November 5, 1991 while working as a welder, this now 67-year-old worker was pushing a piece of iron weighing approximately 50kg when they felt an onset of lower back and left leg pain. The worker received entitlement for a lower back and left hip strain as well as temporary total disability benefits.
The operating area later extended entitlement to include an L4-L5 disc herniation and a related discectomy on March 2, 1992. The worker returned to work with the employer at a wage loss in January 1993 and the worker received a FEL benefit at the initial (D1) FEL determination. By January 1995, the worker had restored their wages and was granted a sustainable award at the first (R1) FEL review. The sustainable award was confirmed at the final (R2) FEL review.
The worker had another lower back surgery on December 10, 2014, including an L4-L5 decompression neurolysis, L5 root mobilization, L5-S1 fusion with total discectomy, and bilateral decompression. The WSIAT extended entitlement to include L5-S1 degenerative changes in a decision of May 22, 2018. An ARO granted temporary psychotraumatic disability entitlement for chronic adjustment disorder from September 10, 2015 until the ARO determined this condition resolved on January 5, 2016.
The worker was referred for Work Transition (WT) services after their 2014 surgery because a return to work with the accident employer was not possible. On April 26, 2016, the WT Specialist approved a WT plan for the SO of electronics assembler. The worker successfully completed the WT plan on December 30, 2016. The worker was paid supplemental FEL benefits from December 10, 2014 to December 30, 2016.
On July 27, 2018, the CM adjusted the worker’s FEL benefit effective December 30, 2016 based on their ability to earn $11.25 per hour working 40 hours per week in the SO. This resulted in a partial FEL benefit of $1,823.26 per month. This benefit was paid until the worker turned 65. The July 27, 2018 decision was reconsidered in the current decision under appeal (April 1, 2022) at the direction of another ARO.
The worker received a 23% NEL benefit for their lower back permanent impairment in December 1993. The NEL benefit was increased to 32% in June 2020. In November 2021, the worker’s representative requested a NEL redetermination which was denied in the decision of April 1, 2022. The CM explained clinical evidence did not describe a deterioration of the worker’s lower back injury.
The worker’s representative objected to both April 1, 2022 decisions and submitted an Appeal Readiness Form.
AUTHORITY
Operational Policy Manual
Published
18-04-20 Final FEL Benefit Review
18-05-09 NEL Redeterminations
19-02-10 RTW Assessments and Plans
April 9, 2021
February 1, 2018
November 30, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find:
- The worker is not entitled to a NEL redetermination for their lower back permanent impairment;
- The worker was partially impaired and the SO of electronics assembler was suitable from April 26, 2016 to January 24, 2020;
- The FEL benefit was appropriately paid based on entry-level SO wages from December 30, 2016 to February 1, 2020.
The worker’s appeal is denied.
Worker’s Position
It is the worker representative’s position that the worker is entitled to a redetermination of their NEL benefit. The worker’s representative argued new medical evidence from the specialist and a recent MRI report clearly demonstrate degenerative changes compatible with the accident entitlement in this claim, and supports the worker’s lower back significantly worsened.
It is the worker representative’s position that the worker is not competitively employable in any capacity and the SO of electronics assembler was not suitable following the closure of the WT plan. The representative argued the worker is not employable due to severe physical limitations, a compensable psychological condition, a lack of transferable skills, a significant language barrier, minimal training through the WT plan, barriers that affected the worker’s ability to engage in the WT plan, and the length of time out of the workforce. The representative noted the worker’s family doctor supported the worker’s application for Canada Pension Plan Disability (CPP-D) benefits, which were granted as of May 2016.
Employer’s Position
The employer is out of business, and they are not participating in the appeal.
Assessment of Entitlement
- I find the worker is not entitled to a NEL redetermination for their lower back permanent impairment.
It is the worker representative’s position that the worker is entitled to a NEL redetermination for their lower back. Information on file does not support this position. When making my decision, I considered the policy that explains when entitlement to a NEL redetermination may be granted. Policy 18-05-09 (NEL Redeterminations) states the WSIB may consider a worker’s request for a redetermination of their existing NEL benefit provided that:
o The worker’s degree of permanent impairment was previously determined to be greater than zero
o 12 months have passed since the worker’s last NEL decision
o The work-related condition has deteriorated significantly and permanently since the last NEL determination, and
o The deterioration is work-related.
Policy 18-05-09 (NEL Redeterminations) explains that the most recent clinical findings for the body part for which a NEL redetermination is being requested are compared with the clinical condition of the body part at the time of the last NEL determination to evaluate whether there is evidence of a significant deterioration.
Clinical evidence used for the June 1, 2020 NEL redetermination.
The NEL Clinical Specialist increased the worker’s NEL benefit to 32% based on a permanent worsening date of January 23, 2019. They considered the operative reports from the worker’s surgeries in
March 1992 and December 2014. The NEL Clinical Specialist also considered the most recent MRI of the worker’s lower back at the time (April 30, 2016), and range of motion findings provided by a specialist on January 23, 2019.
The April 30, 2016 MRI identified interval fusion of the L4-S1 level, small right lateral recess disc protrusion at L2-L3 (previously labelled L3-L4) causing right lateral recess narrowing, left neural foramina stenosis at L4-S1 secondary to posterior vertebral body lipping and facet joint hypertrophy, and mildly narrowed right neural foramina.
On January 23, 2019, the treating physiatrist indicated the worker had ongoing lower back pain radiating into both lower extremities, which was aggravated by prolonged sitting, standing, bending forward, and walking. The physiatrist listed the worker’s lower back range of motion as 7 degrees of flexion, 0 degrees of extension, and 5 degrees of bilateral lateral flexion.
Recent clinical findings for the worker’s lower back.
An MRI on October 25, 2021 identified a stable disc bulge and focal right protrusion at L2-L3, stable angulation of the traversing left L4 nerve root secondary to facet arthropathy at L3-L4, and moderate left neural foraminal stenosis and narrowing of the left lateral recess at L4-S1. The MRI report stated imaging showed a similar appearance of the worker’s lower back when compared to the April 30, 2016 MRI.
On November 17, 2021, the treating physiatrist stated the worker’s back pain was aggravated with prolonged sitting, standing, bending forward, and walking. The worker reported a significant worsening of lower back pain with the onset of cold and humid weather. The physiatrist indicated the worker’s lower back range of motion was less than 5 degrees flexion, 0 degrees extension, and less than 5 degrees of lateral flexion bilaterally. The physiatrist stated the October 2021 MRI was not significantly different when compared to the April 2016 MRI, but indicated the worker’s chronic lower back pain significantly progressed.
During follow-up assessments on April 19, 2022 and July 14, 2022, the physiatrist indicated the worker had ongoing lower back pain and difficulty with prolonged sitting, standing, walking, and forward bending. The physiatrist did not document updated range of motion findings within these reports.
I find the worker is not entitled to a NEL redetermination for their lower back permanent impairment.
The worker’s representative argued that recent medical reports clearly supports the worker’s lower back condition significantly worsened. I am unable to accept this argument because I find recent clinical findings do not demonstrate evidence of a significant deterioration of the worker’s lower back condition.
I understand the physiatrist stated the worker’s lower back pain had progressed and worsened in November 2021. However, the worker and physiatrist related the worker’s significantly worsening back pain to a change in weather. Pain levels are not a factor I can consider; instead, I must make my decision based on objective clinical findings.
The physiatrist indicated that the worker’s lower back range of motion worsened by 2 degrees for flexion and remained approximately the same for extension (0 degrees) and lateral flexion (5 degrees bilaterally) between January 2019 and November 2021. A difference of 2 degrees in one range of motion finding does not demonstrate a significant or measurable deterioration. Additionally, the physiatrist confirmed the MRI imaging of the worker’s back was not significantly different between April 2016 and October 2021.
I find recent clinical findings demonstrate the worker’s lower back condition remained relatively consistent since the last NEL determination, with the exception of the worker’s subjective reports of pain. I find there is insufficient medical evidence to establish the worker’s compensable lower back condition significantly
and permanently deteriorated since the last NEL determination in June 2020. As such, I find the worker is not entitled to a NEL redetermination for their lower back.
- I find the worker was partially impaired and the SO of electronics assembler was suitable from April 26, 2016 to January 24, 2020.
It is the worker representative’s position that the worker is not competitively employable, and the SO of electronics assembler was not suitable. Information on file does not support this position. When making my decision, I considered the policy that defines a SO.
Policy 19-02-10 (RTW Assessments and Plans) defines a suitable occupation (SO) as a category of jobs suited to a worker's transferable skills that are:
o safe,
o consistent with the worker’s functional abilities,
o restores the worker’s pre-injury earnings to the extent possible, and
o available, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
For the reasons that follow, I find the SO of electronics assembler is suited to the worker’s transferable skills, is safe and consistent with the worker’s functional abilities, restores the worker’s pre-injury earnings to the extent possible, and is available in the labour market. I will review each requirement in order and address the worker representative’s arguments regarding the worker’s level of impairment and the suitability of the SO.
I find the SO is suited to the worker’s transferable skills.
In April 2016, the WT Specialist documented that the National Occupational Classification Career Handbook indicated the main duties for the SO includes assembling and fabricating electronic equipment, parts, and components. In February 2021, a Return to Work Specialist listed that work in the SO usually requires completion of secondary school and usually includes on-the-job training.
The worker’s representative argued the worker is not employable due to a lack of transferable skills. Information on file does not support this argument. The worker participated in a psycho-vocational assessment (PVA) in February 2016. The psychologist and psychological associate documented that the worker completed grade 5 in Italy. The worker had a “G” class driver’s license and a stick welding ticket but did not have computer skills at the time of the PVA. The worker indicated they primarily worked as a welder in Italy and Canada for many years.
The PVA assessors indicated the worker’s pre-injury work gave them compiling skills for accumulating information and carrying out a prescribed action in relation to information, and precision working skills for using the body and/or equipment to move, guide, place, install, or interface with objects to attain specifications and precise standards. When speaking with the WT Specialist in March 2016, the worker confirmed the SO of electronics assembler was similar to their previous work and that they may be able to do this type of position.
Although the PVA assessors acknowledged the worker had limited transferable skills, they suggested the worker could use their knowledge, technical abilities, and hands-on skills related to welding, as well as their interest in occupations with a realistic component, for the SO of other assemblers including electronics assemblers. The assessors indicated the worker would not require additional training or education to pursue this SO, but recommended English as a Second Language (ESL) and computer skills training to improve the worker’s employability for this type of work.
I placed significant weight on, and accepted, the PVA assessors’ conclusion that the worker had the education, relevant work experience, and transferable skills they could apply to work in the identified SO. The assessors had the opportunity to reach their conclusions after assessing the worker in person for two days and considering the worker’s abilities and limitations holistically. As such, I am unable to accept the worker representative’s argument that the worker was unemployable due to a lack of transferable skills.
The worker’s representative argued the worker is not employable due to a significant language barrier. I am unable to accept this argument because documentation on file shows the worker successfully participated in ESL training to improve their English skills. The PVA assessors and WT Specialist confirmed the worker is fluent in Italian, with English as their second language. The PVA assessors recommended the worker complete ESL training to pursue work in the SO.
The worker participated in ESL training from May 9, 2016 to September 16, 2016 for four to six hours per day. At the end of these 19 weeks, the ESL trainers documented that the worker successfully achieved all training targets for speaking, listening, reading, and writing and improved their overall English skills.
The trainers stated that by the end of ESL training, the worker demonstrated good listening skills, improved oral communication skills, significantly improved reading ability and comprehension, and notable improvement with writing. Considering the above, I find the worker successfully completed the recommended ESL training that improved their English language skills and increased their employability.
The worker’s representative argued the worker is not employable due to barriers that affected the worker’s ability to engage in the WT plan. The representative listed these barriers as difficulties with language, retaining information, limited literacy skills, very basic math, and no computer skills. Despite the worker representative’s argument, the worker successfully participated in and completed all aspects of their WT plan. This included ESL training, computer skills training, job search training, and employment placement services. Some of the WT plan training also improved upon the worker’s barriers related to language, literacy, and computers. As such, I do not find these barriers identified by the worker’s representative make the worker completely unemployable or unable to pursue work in the SO.
The worker’s representative argued the worker is not employable due to minimal training through the WT plan and the worker’s length of time out of the workforce. As mentioned previously, the PVA assessors indicated the worker could pursue the SO of other assemblers including electronics assemblers without additional training despite the worker’s length of time away from work. The assessors only recommended ESL and computer skills training for work requiring conversational English or computer use to further improve the worker’s employability. The worker successfully completed the recommended ESL and computer training as part of the WT plan. Policy 19-02-10 does not require the WSIB to continuously update or maintain a worker’s skill set should the worker’s skills become outdated after the conclusion of a WT plan. It is the personal responsibility and obligation of every individual to maintain their qualifications despite being out of the workforce for a period of time.
I find the SO is suited to the worker’s transferable skills because I am satisfied the worker had the education and skills from previous work experience and WT plan training to pursue work in the SO.
I find the SO is safe and consistent with the worker’s functional abilities.
The worker’s representative argued the worker is not employable due to severe physical limitations and a compensable psychological condition. To support their position, the worker’s representative noted the
family doctor assisted with the worker’s CPP-D benefit application. I am unable to accept the worker representative’s argument because I find the balance of evidence demonstrates the worker was partially impaired and capable of some work from April 26, 2016 until January 24, 2020.
In February 2021, the Return to Work Specialist documented the physical activities and requirements for the SO listed by the Career Handbook. Work activities in the SO primarily involve sitting, with standing and walking being incidental to the work performed. Work activities involve upper limb co-ordination and limited strength to handle loads up to 5kg. Hearing is limited to short and infrequent verbal interactions to perform the work.
During an assessment on December 17, 2015, an SC orthopaedic spine surgeon and physiotherapist concluded the worker was able to work at a sedentary physical demand capacity with the following functional limitations due to their compensable lower back condition:
o No repetitive lifting
o No repetitive, sustained or end reaching of flexion, extension or rotation.
Within a treatment discharge report on February 4, 2016, an SC physiotherapist and kinesiologist confirmed the worker was capable of sedentary work. The clinicians recommended that the worker limit kneeling to a rare basis and avoid low-level crouching duties.
An ARO determined the worker’s lower back permanently worsened on January 23, 2019. The physiatrist indicated that the worker had reduced lower back range of motion on this day. They also stated the worker had limitations for prolonged sitting, standing, forward bending, and walking. The physiatrist confirmed the worker’s lower back range of motion remained reduced, and these functional limitations persisted in future medical reports including the most recent report of July 14, 2022. The physiatrist stated the worker had difficulty bearing weight on their right foot due to an injury unrelated to this claim that occurred in 2004.
I understand the physiatrist stated on multiple occasions that the worker is unable to return to gainful employment. However, the physiatrist did not provide a rationale to explain why the worker’s lower back and right foot limitations make them unable to perform any work, including sedentary work as determined by the SC clinicians. There is no evidence that work in the SO would require repetitive lifting, lifting over 5kg of weight, prolonged standing or walking, kneeling or crouching, or repetitive or sustained flexion/bending forward, extension, or rotation of the worker’s lower back. There is also insufficient evidence that the worker would be unable to change positions and take micro breaks as needed to avoid prolonged sitting while performing work duties in the SO.
Regarding the worker’s psychological condition, I am bound by the previous ARO’s finding that the worker’s compensable psychological injury of chronic adjustment disorder resolved by January 5, 2016. During the PVA in February 2016, the worker did not report being disabled from participating in a return- to-work plan from a psychological perspective. The worker also indicated that returning to a routine may be emotionally therapeutic.
A psychiatrist assessed the worker and provided a report on April 7, 2016. The psychiatrist diagnosed the worker with somatoform pain disorder with physical and emotional disturbances and recommended counselling. The psychiatrist did not document any psychological restrictions for work and stated the worker had good judgement and no cognitive impairment.
I find the physical requirements for the SO are within the worker’s functional abilities and limitations for their compensable and non-compensable injuries and impairments. Additionally, an ARO determined the worker’s compensable psychological condition resolved by January 2016, and there is insufficient evidence that the worker’s current psychological condition makes them unable to perform any work. Although the family doctor supported the worker’s CPP-D application, receipt of CPP-D benefits itself does not definitively demonstrate a worker is incapable of some level of participation in the workforce. This is noting the criteria used to consider entitlement to CPP-D benefits differ from the criteria used to determine employability and wage loss benefits under the Workplace Safety and Insurance Act.
I considered the worker’s conditions and limitations holistically and determined the SO is safe and consistent with the worker’s functional abilities.
I find the SO would restore the worker’s pre-injury earnings to the extent possible.
Policy 19-02-10 (RTW Assessments and Plans) states that earnings for the SO are an estimate of what the worker is capable of earning when re-entering the labour market in a SO. The policy explains that if the return-to-work plan (with training) involves the worker acquiring a new skill set or entering a new field, updated entry-level wages are used to determine post-injury earnings.
In April 2016, the WT Specialist documented that the Government of Canada Job Bank listed the wages in the SO ranged between $11.25 per hour (low, entry-level wage), $13.00 per hour (median wage), and
$26.00 per hour (high wage) for the worker’s local region of Toronto. The WT Specialist recommended using entry-level wages because the worker had limited experience in the area of assembly and would be entering a new field in the SO of electronics assembler.
The WT Specialist documented that the worker’s gross escalated pre-injury earnings were $21.24 per hour working 40 hours per week. Earning entry-level SO wages of $11.25 per hour would partially, but not fully, restore the worker’s pre-injury earnings. The WT Specialist indicated this was the best option available to restore some of the worker’s earnings given their limitations and retraining capabilities.
Noting this, I find the SO would restore the worker’s pre-injury earnings to the extent possible.
I find the SO is available in the general labour market.
In April 2016, the WT Specialist documented the employment outlook for work in this SO indicated limited labour market availability in the future, but recent job postings demonstrated adequate availability in the current market. The WT Specialist added that the worker’s retraining timelines would allow the worker to enter the labour market within a short period and take advantage of the current availability of work in the SO.
The WT Specialist completed another review in October 2016 after the worker upgraded their English skills. The WT Specialist documented that current job postings indicated good availability of occupations within the identified SO, and it was reasonable the worker could secure work in the SO at entry-level now that the worker upgraded their English skills to a marketable level.
I find there is insufficient evidence to show any substantial change in the availability of work in the SO since the availability information provided by the WT Specialist documented above. I find the balance of evidence on file establishes jobs in the SO were available on an ongoing basis in the general labour market since at least 2016.
In conclusion, I find the SO of electronics assembler to be suitable. This is because I find work in the SO is suited to the worker’s transferable skills, safe and consistent with the worker’s functional abilities,
available in the general labour market, and would restore the worker’s pre-injury earnings to the extent possible.
- I find the FEL benefit was appropriately paid based on entry-level SO wages from December 30, 2016 to February 1, 2020.
For the reasons that follow, I find the worker’s FEL benefit was appropriately paid based on entry-level SO wages.
Policy 18-04-20 (Final FEL Benefit Review) states the WSIB may review the FEL benefit after the 60- month post-initial FEL determination if the worker suffers a significant deterioration in their work-related condition.
Policy 18-04-20 adds that if the FEL benefit review occurs before the worker finds a job, the WSIB uses the available wage information for the identified SO as of the completion date for the return-to-work plan (with training). If the WSIB originally used entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the FEL benefit.
An ARO determined the worker’s lower back condition significantly deteriorated on January 23, 2019. The worker’s lower back NEL benefit increased to 32% on June 1, 2020 as a result. However, although these circumstances grant the authority to review the worker’s FEL benefit, I do not find a change is appropriate for the FEL benefit paid from December 30, 2016 to February 1, 2020. I previously determined the worker was partially impaired and capable of earning entry-level wages in the SO of electronics assembler during this period. As such, I find the worker’s FEL benefit was appropriately paid based on entry-level SO wages at the completion of the WT/return-to-work plan until the worker reached the age of 65 in accordance with Policy 18-04-20.
CONCLUSION
I find:
The worker is not entitled to a NEL redetermination for their lower back permanent impairment;
The worker was partially impaired and the SO of electronics assembler was suitable from April 26, 2016 to January 24, 2020;
The FEL benefit was appropriately paid based on entry-level SO wages from December 30, 2016 to February 1, 2020.
The worker’s appeal is denied.
DATED October 27, 2022
Stephanie Waters
Appeals Resolution Officer
Appeals Services Division