DECISION NUMBER:
20220126
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
NOT REPRESENTED, NOT PARTICIPATING
HEARING:
HEARING IN WRITING
HEARD by:
D. PEDDLE, APPEALS RESOLUTION OFFICER
DATED: SEPTEMBER 14, 2002
ISSUE
The worker objects to the following:
The Work Transition Specialist’s (WTS) June 13, 2011 decision determining that Safety Coordinators (Construction Inspectors), National Occupation Classification (NOC) 2264 was a suitable occupation (SO).
The Case Manager’s (CM) September 15, 2014 decision recalculating the worker’s long-term average earnings rate (LTR) and adjusting the loss of earnings (LOE) weekly benefit rate to $315.48 as of July 2, 2009.
The CM’s February 6, 2015 final LOE review decision determining the worker’s LOE would be locked- in at a weekly rate of $308.11 from February 10, 2015 until age 65.
BACKGROUND
The history of this claim is well documented in previous Appeals Resolution Officers’ (ARO) decisions and will not be repeated in detail here. Briefly, the worker was injured on February 10, 2009 when lifting a coil of wire from the ground into their truck. Initial entitlement to benefits was accepted for their neck and left shoulder injuries. Unfortunately, their neck injury became permanent. It was rated with a 14 percent non- economic loss (NEL) quantum, and maximum medical recovery was achieved as of March 21, 2011.
The worker was unable to resume pre-injury employment and they were sponsored with a work transition (WT) plan. On June 13, 2011, the WTS determined that Safety Coordinators (Construction Inspectors), NOC 2264 was a SO for the worker. The worker objects to this decision.
On September 15, 2014 after reviewing pre-injury earnings information, the CM determined the worker’s pre-injury employment pattern was non-permanent, recalculated the worker’s LTR as a result, and adjusted the weekly LOE benefit rate to $315.48 as of July 2, 2009. The worker objects to this decision.
On February 6, 2015, the CM conducted a final LOE benefit review and determined LOE would be locked- in until age 65 at a weekly rate of $308.11 based on the worker’s 2013 annual earnings of $32,872.00. The worker objects to this decision.
AUTHORITY
Operational Policy Manual
Published
18-03-06 Final LOE Benefit Review
January 2, 2015
19-03-03 Determining Suitable Occupation December 1, 2010 18-02-04 Determining Long-term Average Earnings: Workers in Non-permanent February 15, 2013 Employment
ANALYSIS
I carefully considered all available information, legislation and relevant operational policies in reaching this decision. I conclude that Safety Coordinators (Construction Inspectors), NOC 2264 is a SO for the worker. Their LTR and weekly LOE benefit rate were appropriately adjusted as of July 2, 2009. Their final LOE weekly benefit rate was accurately calculated as $308.11 effective February 10, 2015. My rationale follows.
Preliminary Issue
The worker objected to the NEL Clinical Specialist’s January 17, 2012 decision determining their cervical impairment was to be rated as a four percent NEL quantum and the matter was referred to the Appeals Services Division. In the interim, an August 14, 2022 reconsideration increased the NEL to 14 percent. Consequently, the worker’s four percent NEL determined on January 17, 2012 is no longer extant and no longer before me.
Worker’s Position
The worker representative’s Appeal Readiness Form and cover letter dated March 30, 2022 object to the above-noted issues under appeal, but do not explain why they consider the decisions inaccurate, nor reference supportive documents. Their July 27, 2022 correspondence provides rationale exclusive to the NEL decision, which is no longer before me. Their October 19, 2020 correspondence regarding appeals time limits states the worker objected to the RTW process and their partial LOE rate, when they discussed these issues under memo nos. 86, 88, 99, and 104; although the LOE rate was corrected. They also noted memo no. 101 wherein the worker reported feeling their job was unsafe and beyond their restrictions one year after the WTS’ SO decision.
Employer’s Position
The employer is not participating in this appeal and there is no clear indication of their position in the file.
Evidence and Analysis - SO Suitability
Pursuant to operational policy 19-03-03 Determining Suitable Occupation, SOs are determined when workplace parties have been unsuccessful in arranging suitable and sustainable work. The WSIB provides a WT assessment in order to determine a SO that is available in the labour market and has regard for the following:
the worker’s functional abilities
the worker’s employment-related aptitudes, abilities, and interests
labour market trends, and the worker’s ability to secure and maintain employment in the SO
consideration of any pre-existing non-work-related conditions, in accordance with Human Rights
The WTS’ June 13, 2011 decision determined that Safety Coordinators (Construction Inspectors), NOC 2264 was a SO for this worker. Afterwards, the worker completed the WT plan and obtained employment as a Construction Supervisor as of February 13, 2012.
The worker objected to the suitability of this SO and their representative highlighted memo no. 101 dated April 16, 2012 wherein the worker reported feeling the job was unsafe and beyond their restrictions, two months after securing employment as a Construction Supervisor.
Indeed, memo no. 101 dated April 16, 2012 states the worker parted ways with a recent employer as they felt conditions were unsafe and they were working beyond their restrictions. While no details were provided, I infer their concerns pertained exclusively to that particular employer as the memo further states the worker secured full-time employment with a different employer as a Health and Safety Representative earning
$32,000.00 per annum as of April 16, 2012, and the ensuing records do not mention suitability concerns. Moreover, Statistics Canada lists Safety Officers as an example of the job titles under NOC 2264, indicating the worker was still employed in their SO.
The next file entry was one year later, when the worker called and reported they remained employed under memo no. 102 dated January 8, 2013. They did not express any employment-related concerns.
Memo no. 113 dated January 21, 2015 states the worker remained employed as a Safety Officer, working in their SO earning $32,000.00 per annum. They also reported not looking up or down for prolonged periods due to their neck impairment, and noted hand numbness for which they do not have entitlement. They did not express any concerns with their employment, but rather reported it was good and they did not want to remain at home with cabin fever.
The worker’s representative submitted June 22, 2020 correspondence stating the worker ceased working in August 2016 due to a material change (deterioration) with respect to their cervical impairment.
The foregoing records indicate the worker performed full-time employment in their SO from February 13, 2012 until August 2016, when they ceased working due to a claimed material change that is not before me. As the worker performed full-time employment in this SO for four and a half years after the WTS’ decision, they demonstrated that the SO was available in the labour market, within their functional abilities, within their employment-related aptitudes, abilities, and interests and that they were able to secure and maintain employment in this SO. Furthermore, they explicitly reported their SO was good three years into their employment. Consequently, I find that the SO was suitable.
In summary, I conclude that Safety Coordinators (Construction Inspectors), NOC 2264 was a SO for the worker as it represents a category of jobs consistent with the aforementioned criteria under operational policy 19-03-03.
Recalculation of LTR and LOE as of July 2, 2009
Operational policy 18-02-04 Determining Long-term Average Earnings: Workers in Non-permanent Employment states earnings for a worker in non-permanent employment typically fluctuate as the worker moves from job to job, has periods of unemployment, or experiences periods of higher or lower earnings.
Therefore, it is likely that a worker's long-term average earnings will be different from short-term average earnings. Since it would be unfair to continue paying a worker's LOE benefits based on short-term average earnings, the decision-maker automatically recalculates the average earnings to long-term average earnings. LOE benefits are paid based on the worker's long-term average earnings from the beginning of the 13th week of LOE benefits.
On September 15, 2014, the CM issued a decision explaining that the worker’s pre-injury earnings basis had been adjusted in accordance with the worker’s pre-injury earnings information, non-permanent employment pattern, and operational policy 18-02-04.
Although the worker objected to this decision, it resulted in a greater amount of LOE than previously paid; their weekly LOE rate increased from $305.53 to $315.48 and they received 269 weeks’ arrears payments totaling $2,873.88. The recalculation took effect as of July 2, 2009, 13 weeks from the date LOE began, pursuant to operational policy 18-02-04. It is unclear why they view the CM’s decision as adverse.
The CM’s September 15, 2014 decision was based in part on a Payment Specialist’s detailed review and calculations completed under memo no. 111 dated September 11, 2014. I reviewed their calculations, found no errors, and concur that the worker’s pre-injury employment pattern was non-permanent in nature. Consequently, I affirm the CM’s September 15, 2014 decision adjusting the worker’s LTR and increasing their weekly LOE benefit rate to $315.48.
In summary, I conclude that the worker’s LTR and weekly LOE benefit rate were appropriately adjusted as of July 2, 2009 to reflect their non-permanent employment pattern and pre-injury earnings information pursuant to operational policy 18-02-04. It would have been unfair to continue paying them based on short- term average earnings that were lower than and did not reflect their long-term earnings capacity.
Final LOE Benefit Review
Operational policy 18-03-06 Final LOE Benefit Review outlines when and how the final LOE benefit review is conducted, and when and how exceptional cases are reviewed after the 72-month post-injury review period expires.
Except where noted, the final LOE benefit review must occur before the end of the 72nd month post-injury. In preparation, the decision-maker initiates a review at 67 months post-injury by requesting that the worker provide information relating to their:
earnings/income including Canada/Quebec Pension Plan (CPP/QPP) disability benefits paid because of the work-related injury/disease, see 18-01-13, Calculating CPP/QPP Offsets from FEL/LOE Benefits
employment status, and
health (medical) status.
If a worker is employed in a SO, the WSIB uses the worker’s actual employment earnings to pay the LOE benefit, even if the earnings are not consistent with the most recent labour market wage information for the SO. The only exception would be where the worker is voluntarily under-employed.
Given the worker was injured on February 10, 2009, their 72-month post-injury review period expired as of February 10, 2015. Under memo no. 113 dated January 21, 2015 in preparation for the final LOE review, the CM spoke with the worker who reported working in their SO full-time earning approximately $32,000.00 per annum. While 2014 earnings were not on file given the deadline for filing was later in the year, a 2013
T4 confirmed annual earnings of $32,872.32, which the CM utilized when adjusting the worker’s final weekly LOE benefit rate to $308.11 as of February 10, 2015, although I note they omitted an inconsequential 32 cents from the worker’s T4.
As the CM utilized actual earnings from the worker’s SO as directed under operational policy 18-03-06, and I find no flaw in their decision-making process, I affirm their February 6, 2015 decision.
In summary, I conclude that the worker’s final weekly LOE benefit rate was appropriately determined based on annual earnings of $32,872.32 when the 72-month post-injury review period expired on February 10, 2015 in accordance with operational policy 18-03-06. This yielded weekly LOE payments of $308.11.
CONCLUSION
The worker’s objection is denied.
Safety Coordinators (Construction Inspectors), NOC 2264 was a SO for the worker.
Their LTR and weekly LOE benefit rate were appropriately adjusted as of July 2, 2009.
Their final weekly LOE benefit rate was appropriately calculated to be $308.11 as of February 10, 2015.
Dated September 14, 2022
D. Peddle
Appeals Resolution Officer Appeals Services Division