Worker v. Employer, 2022 CanLII 121843

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER:

20220141

OBJECTING PARTY:

worker

REPRESENTED by:

worker representative

RESPONDENT:

employer (inactive)

HEARING:

VIDEOCONFERENCE

HEARD by: l. mansueti, appeals resolution officer

DATED: october 18, 2022

ISSUES

The worker objects to:

1. The Case Manager (CM) decision dated August 6, 2013 communicating her non-earning periods would not be excluded from the long-term recalculation of her loss of earnings (LOE) benefit rate.

2. The CM decision dated October 8, 2013 communicating the worker is partially impaired and capable of working within a sedentary physical demand level including the operation of a personal vehicle.

3. The CM decision dated December 11, 2013 communicating the worker’s co-operation obligations in light the approval of a Work Transition (WT) plan for the suitable occupation (SO) of Customer Service Representative.

4. The CM decision dated January 8, 2014 communicating the closure of WT services and an adjustment to her LOE benefit rate based on SO-determined potential wages due to a finding of non-co-operation.

BACKGROUND

On December 14, 2008, the worker sustained multiple injuries as a result of being involved in a motor vehicle accident (MVA) involving 5 tractor trailers wherein her truck was rear-ended while stopped on Highway X-XX in the United States. She was working as a Tractor Trailer Driver at the time of the accident, and had worked with the employer for approximately 4 years. A signed Election Form was submitted to the record wherein the worker elected to claim benefits under the Workplace Safety and Insurance Board (WSIB) insurance plan. The worker is right hand dominant.

Entitlement was initially accepted for the left thumb/wrist scaphoid fracture, right ankle sprain and body contusions. The worker received LOE benefits effective December 15, 2008. In March 2010, secondary entitlement was granted for bilateral carpal tunnel syndrome. The worker was referred for Work Reintegration (WR) services in April 2011. She was determined to have a permanent impairment (PI) of the left thumb/wrist injury. In February 2012, the worker received an 11 per cent non-economic loss (NEL) benefit in recognition of the left thumb/wrist PI.

The worker was determined to have a permanent employment pattern with variable earnings, thus a long-term recalculation was completed in January 2013. The worker requested a review of the long-term rate, citing a minimum of 14 days should be factored out of the recalculation period as there were occasions where she could not work due to truck repairs and unpaid vacation time. The decision letter dated August 6, 2013 communicated the worker’s long-term rate remained unchanged, citing the non-earning periods in question would not be excluded from the long-term recalculation.

The worker indicated she was totally disabled and unable to work or drive on account of her compensable injuries following multiple surgeries. The decision letter dated October 8, 2013 communicated the worker was partially impaired and capable of working within a sedentary physical demand level including the operation of a personal vehicle. The worker indicated she would not be participating in a WT plan. The decision letter dated December 11, 2013 communicated a WT plan was approved for the SO of Customer Service Representative, and outlined the co-operation obligations as well as the associated penalties for non-cooperation. The worker did not participate in the WT plan. The decision letter dated January 8, 2014 communicated the closure of WR services and an adjustment to her LOE benefit rate based on SO-determined potential wages due to a finding of non-cooperation.

Entitlement was subsequently expanded to include a permanent aggravation of osteoarthritis (OA) of the right wrist, for which the NEL quantum increased to 14 per cent in June 2014.

The worker objected to the decisions dated August 6, 2013, October 8, 2013, December 11, 2013 and January 8, 2014; and these are now before the Appeals Services Division.

AUTHORITY

Section 40, 42, 43, 44, 53 and 86 of the Workplace Safety and Insurance Act, 1997, as amended

Operational Policy Manual

Published

18-02-03 Determining Long-term Average Earnings: Workers in Permanent Employment 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-01 Work Reintegration Principles, Concepts, and Definitions 19-02-02 Responsibilities of the Workplace Parties in Work Reintegration 19-03-03 Determining Suitable Occupation 19-03-05 Work Transition Plans

February 15, 2013 July 15, 2011 December 3, 2012 July 15, 2011 December 3, 2012 December 3, 2012

ANALYSIS

I have carefully considered all of the available information, testimony, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the long-term recalculation remains in order, the worker was partially impaired and capable of working within a sedentary physical demand level including the operation of a personal vehicle for short distances only with limited exposure to repetitive sustained gripping, the SO of Customer Service Representative is not suitable, the finding of non-cooperation is rescinded, and the worker is entitled to full LOE benefits from December 20, 2013.

1. Long-Term Recalculation

Operational policy 18-02-03 indicates a worker’s average earnings are recalculated to long-term average earnings if the decision-maker determines that it is unfair to continue paying LOE benefits based on the short-term average earnings. Workers in permanent employment may include workers whose salary is based solely on commissions or drivers paid per mileage driven. LOE benefits are paid based on the worker’s long-term average earnings from the beginning of the 13th week of LOE benefits.

At the time of injury, the worker was employed as a Tractor Trailer Driver on a permanent full-time basis. The worker had worked with the employer since November 2004, and earned variable earnings ($0.xx per mile). Initially, the worker was paid LOE benefits based on her short-term average earnings, which was an average of her earnings in the 4 weeks prior to the accident date. The worker testified she earned vacation pay as a percentage on each trip, and received a vacation pay lump sum from her employer when she asked for it. She stated that in 2008 she took time off for vacation and was not paid for the time off from work.

I agree a long-term recalculation was in order given the worker’s permanent employment pattern with variable earnings and the fact LOE benefits were paid beyond 12 weeks. The policy indicates that for workers in a permanent employment pattern, the long-term average earnings are based on the employment earnings in the 12 months before the injury, or a lesser period. The recalculation period may be shortened by a break in the employment pattern.

In this case, the recalculation period was determined to be January 1, 2008 to December 14, 2008 inclusive. A long-term recalculation was completed based on the earnings information submitted to the record in the form of the worker’s 2008 Income Tax Option C printout. It was noted the worker’s long-term recalculation resulted in a decrease in her LOE benefit rate, as her long-term average earnings were less than her short-term average earnings.

The worker submitted the recalculation period included approximately 14 days the worker was available to work but was not paid due to truck breakdowns and had 3 weeks of unpaid vacation. The worker indicated these non-earnings periods ought to be factored out.

The policy indicates permanent employment may involve occasional short-term layoffs or non-earning periods such as shortages of work, plant shutdowns during holidays, retooling, strikes, or lockouts. Such temporary layoffs or non-earning periods do not reflect a break a break in the employment pattern. A non-earning period is the time during which the worker was not earning due to layoff, contract termination, illness, or leave of absence. In this case, there is no evidence of a break in the employment pattern. The question to be determined is whether the non-earning periods ought to be factored out of the long-term recalculation period.

Based on the evidence before me, I find the worker’s non-earning periods are part of her employment pattern. The policy indicates non-earning periods that are part of the employment pattern such as layoffs and contract terminations are factored into the recalculation. Non-earning periods that are not part of the employment pattern are factored out. These include:

• Parental/maternity leaves
• Unpaid periods of injury or illness
• Periods of injury or illness for the worker received long-term disability benefits
• Periods of injury or illness for which the worker received workplace insurance benefits or benefits from another insurance plan
• Periods of full-time schooling
• Unpaid leaves of absence
• Periods of incarceration
• Periods on social assistance benefits
• Strikes/lockouts
• Unpaid periods of absence due to jury duty, spouse’s or children’s illnesses, funerals, dentist, or doctor appointments.

The decision-maker may require the worker to provide documentation with respect to non-earning periods.

In review of the facts of this case, I find the worker’s non-earning periods were correctly factored into the long-term recalculation, as these are part of the worker’s employment pattern. There is no evidence to support the worker experienced any non-earning periods that were not part of her regular employment pattern. As such, I find the worker’s long-term recalculation was calculated correctly and remains in order.

2. Level of Impairment

Through tearful testimony, the worker recounted the details of the MVA on December 14, 2008. The worker and her spouse managed to exit the transport truck with the assistance of a Volunteer Firefighter. The worker noticed there was something wrong with her left hand right away. An ambulance took the worker to a local hospital and she was diagnosed with a fracture involving the left first metacarpal. The worker was casted and referred back to Ontario. The worker underwent an open-reduction internal fixation of the left thumb metacarpal fracture (Bennett’s fracture) on January 2, 2009. The worker experienced sharp pain in the ulnar aspect of the hand and wrist and intermittent pain at the site of repair post-surgery. In February 2009, the worker was referred for occupational therapy. In March 2009, it was discovered the worker also had a scaphoid fracture, which had gone untreated. The alignment of the thumb metacarpal was poor, thus surgery was booked for March 5, 2009 with the intention of fixating the scaphoid fracture and possibly re-aligning the thumb metacarpal.

The worker continued to experience chronic left wrist pain primarily involving the base of the thumb. On September 18, 2009, the worker underwent surgery involving a wrist joint debridement and synovectomy base of the left thumb. On November 20, 2009, the worker underwent an interpositional arthroplasty of the left thumb basal joint. On December 16, 2009, the worker underwent an electromyography which showed evidence of bilateral mild to moderate CTS, mild right ulnar nerve entrapment at the elbow, and early right C6 denervation consistent with radiculopathy. On March 12, 2010, the worker underwent revision of arthroplasty following traumatic fusion of the thumb.

In March 2010 it was determined that the base of the worker’s left thumb had auto-fused with the surrounding bones. On March 12, 2010, the worker underwent surgery to release the fusion of the base of the thumb and remove the synovial tissue. The worker participated in therapy at the Hand and Upper Limb Rehabilitation from March to November 2010. She continued to report pain in the base of the thumb and over the proximal phalanx of the thumb with palpation and with any significant hand activity. The worker demonstrated she was able to handle small objects, such as coins, pins, and small cubes, with ease between the thumb, index and long fingers, and did not complain of pain or display any pain behaviours during fine motor tasks with the left hand. The worker was recommended to participate in a Functional Capacity Assessment.

J. Mazzuchin, Occupational Therapist (OT) who was involved in the worker’s treatment, provided a report dated January 16, 2012 indicating the worker was last seen in clinic on November 23, 2010. At the time an assessment of the worker’s functional abilities including pushing, pulling, and carrying was never completed. The OT provided the worker’s left thumb and wrist restrictions based on their professional opinion for the purpose of establishing a WT plan, which were as follows:

• Occasional use of vibrating hand tools
• Pushing/pulling as tolerated up to 50lbs.
• No climbing ladders
• Carrying up to 20lbs with both hands and 10lbs with left hand occasionally
• Limit lifting to 20lbs on an occasional basis
• Avoid repetitive grasping with the left hand on an occasional basis
• Left-sided handling and grasping abilities may diminish in cold environments
• Limit left handed handling of light weight objects to occasional
• No limitation for keyboarding

The worker underwent a right hand x-ray on March 15, 2012, which showed evidence of moderate scaphoid trapezium, first carpometacarpal (CMC) joint OA, and minimal OA at the distal interphalangeal joints. In March 2012, the worker underwent carpal tunnel release surgery on the right side. The worker testified she developed sepsis subsequent to this surgery. In addition, the worker’s left hand had not recovered, thus she experienced ongoing pain and discomfort in both hands.

The worker was referred to the WSIB Hand & Wrist Specialty Program for a comprehensive assessment. On June 20, 2012 Dr. B. Graham, Orthopaedic Surgeon, and K. Chan, OT, assessed the worker. The worker reported having a pain at the base of the right and left thumb, numbness in the entire left hand, and a “pins and needles” sensation to light touch, particularly the right first, third, and fourth digits. The worker also reported weakness in the left wrist with poor opposition of the left thumb and poor fine motor skills. Dr. Graham surmised the worker had a complex problem affecting both hands. The persistent left hand symptoms of pain appeared to be emanating from degenerative OA changes at the peritrapezial joints. Dr. Graham recommended a suspension arthroplasty surgery with a resection of the trapezium and support of the first metacarpal with the flexor carpi radialis tendon. With respect to the right hand, the symptoms of pain at the base of the thumb were likely due to OA. The worker was recommended to undergo a suspension arthroplasty combined with a resection of the proximal one half of the trapezoid to decompress the scaphotrapezoid joint. Dr. Graham predicted the worker would achieve a full resolution of pain in both hands. The worker was recommended to splint both thumbs while awaiting surgery. Dr. Graham indicated the worker did not have any functional capacity in either upper extremity at present; although he was guardedly optimistic these symptoms could be addressed with surgery. Dr. Graham predicted the worker could return to a “very viable level of function at some point in the future, but I would reckon that this could take as long as a year from now.”

On September 27, 2012, Dr. Graham reassessed the worker with M. Alvares, Physiotherapist. The worker indicated the thumb splints were helpful in allowing her to accomplish some activities of daily living, although she continued to be troubled by significant pain at the base of both thumbs. Dr. Graham indicated the splinting was an effective symptomatic treatment; however, the worker would likely benefit from a suspension arthroplasty, especially in the symptomatic left thumb. Dr. Graham surmised a similar operative approach in the right hand would be required in the future. The report indicated the worker was capable of only a sedentary level of activity with both hands.

On October 5, 2012, the worker underwent left hand revision arthroplasty, trapeziometacarpal joint, and partial excision of the left trapezoid. On October 24, 2012, the worker returned to see Dr. Graham. The worker reported her symptoms of pain were addressed by surgical intervention. The worker also reported an improvement in right hand symptoms, although she continued to have pain at the base of the right thumb, which was attributable to OA of the trapeziometacarpal joint. The worker was recommended to be placed in a forearm based thumb spica splint and commence active range of motion (ROM) exercises in 1 week. Dr. Graham indicated the worker was capable of sedentary-level activity with both hands.

The worker was referred to the WSIB Surgical Specialty Program for post-surgical treatment. The worker commenced treatment on November 1, 2012. The worker testified that when she commenced treatment, she drove there on 2 occasions, which was approximately a 55-minute drive from her home. She stated her home was in a remote location, and it required her to drive on a hilly, curvy, gravel road for 10km that was not maintained in the wintertime. The worker indicated she attempted to drive to post-surgical treatment for 2 days, but it became apparent gripping the steering wheel for the long drive increased her pain levels considerably, and she would be unable to participate in any of the physiotherapy exercises because her hands were worn out from the drive. The worker requested taxi services, which was approved under her claim for the duration of her physiotherapy treatment.

While in physiotherapy treatment, the worker reported having pain in the left thumb radiating into the carpal tunnel to mid-forearm, “pins and needles” sensation in the first and third digits on the left hand, pain in the left CMC joint, and bilateral hand weakness. On November 21, 2012, the worker was advised to discontinue splinting on the left side and focus on strengthening. The progress report dated November 28, 2012 indicated the worker demonstrated excellent attendance with good effort. The worker continued to present with limitations, pain, hypersensitivity, decreased sensation, decreased ROM and decreased grip and pinch strength. Several return to work barriers or reasons for prolonged recovery included her multiple surgeries, time off since the injury, bilateral hand symptoms and diagnoses, past history of depression and anxiety, and inability to meet job demands involving repetitive and sustained gripping, pinching, and movement in the hand and wrist as well as exposure to some vibration and frequent lifting. The worker was determined to be unfit to return to work in any capacity due to her current impairments.

Dr. Graham reassessed the worker on January 16, 2013. The worker reported she was not making excellent progress in treatment. She continued to report ongoing symptoms of pain in the right hand, decreased grip strength on the left side, and numbness in the left thumb after driving approximately 30 minutes. Dr. Graham recommended the worker continue with her strengthening program, at which time she could return to all of her pre-injury activities. With respect to the right hand, Dr. Graham indicated the sensory symptoms have essentially cleared as expected. The worker would continue to have ongoing symptoms of pain at the base of the thumb until she underwent reconstructive surgery. Dr. Graham indicated there did not appear to be any need for specific restrictions in relation to the right hand at that time.

On February 21, 2013, Dr. Graham reassessed the worker. The worker had been fully relieved of symptoms of pain at the base of the left thumb, although she continued to have scattered symptoms of pain elsewhere in the hand, which were likely attributable to early changes of OA. The worker also presented with pain in the right thumb and volar wrist. Dr. Graham recommended the worker undergo a suspension arthroplasty on the right thumb, and the worker consented to this procedure. With respect to the worker’s functional abilities, Dr. Graham indicated there were no medical restrictions to be observed. Dr. Graham indicated the worker’s functional restrictions would be outlined by her treating therapist at the conclusion of treatment.

The worker was discharged from post-operative treatment on March 8, 2013. The report indicated the worker achieved minimal progress in treatment despite good attendance and effort. The worker’s progress was in keeping with her history of multiple surgeries, bilateral symptoms, time since the initial injury, and reported high levels of pain. The worker was determined to be fit to perform duties within the sedentary-level physical demands. It was noted the worker did not appear to be capable of returning to her pre-injury truck-driving job. The following permanent restrictions were identified:

• Bilateral lifting on a rare basis up to 5lbs.
• Front carrying on a rare to occasional basis up to 6lbs.
• Limit exposure to repetitive sustained gripping and wrist rotation to a rare basis.
• Allow for completion at a self-paced rate with rest breaks as needed.
• No exposure to vibration in the hand and wrist.

It was noted the worker declined to participate in the static push and pull testing due to high levels of reported pain and numbness in the hands bilaterally. Some standardized tests for non-material handling were not completed due to reports of pain.

On March 24, 2013, the worker underwent a suspension arthroplasty of the right thumb and excision of right trapezoid. Dr. Graham assessed the worker post-surgery on June 19, 2013. A long custom thumb spica orthosis was recommended, as well as post-operative therapy. The worker reported having left thumb and wrist pain due to overuse and limited ROM of the right thumb. Dr. Graham indicated the worker was capable of working within a sedentary-level physical demand level with the right upper extremity.

The worker commenced post-surgical treatment at xx Health on July 2, 2013. The worker presented with constant pain in the right thumb, which had been decreasing since surgery. She also reported sharp pain in the left thumb with movement, and stiffness along the radial aspect of the left hand. The worker expressed an interest in returning to suitable employment and independently participate in previously enjoyed activities and self-care tasks. The worker attended therapy on a daily basis.

The post-surgical treatment report dated August 14, 2013 indicated the worker continued to experience sharp, shooting right thumb pain as well as cramping and aching. Upon examination, the passive mobility of the reconstructed joint was completely normal and there was no tenderness to palpation over the joint. The majority of her discomfort appeared to be in the right thenar eminence, which was moderately atrophied, consistent with long standing disuse. The OT surmised the worker’s problem was related to poor strength and endurance in the right thenar eminence. The worker was strongly recommended to persist with a strengthening program. With respect to the worker’s functional status and work restrictions, the OT stated, in part:

At the present time she is capable of, at least, a sedentary level of activity with the right hand but I expect that her functional capacity will improve beyond this.

Some concern about her ability to drive has also been raised. As far as I am concerned, there is no danger to her hands in driving a car. I am not certain whether or not she would be safe from the point of view of the public, but I am not in a position to really make a judgement as far as this is concerned.

There is no contraindication to using her hands for functional or therapeutic activities.

The worker was discharged from the post-surgical treatment program on September 12, 2013. The worker continued to report experiencing sharp, shooting, achy pain in the right CMC joint, constant tingling in the radial aspect of the right wrist, thumb and thenar eminence, constant numbness in the dorsal aspect of the right thumb, numbness in the right hand with gripping, and sharp pain in the left thumb with lifting, pinching, and twisting motions. The report indicated the worker was interested in returning to work in suitable employment, and would like to independently participate in her previously enjoyed activities such as washing and styling her hair, kitchen work, and gardening. As part of the discharge process, functional testing was completed by the team Kinesiologist. The worker’s functional abilities were as follows:

• No waist to floor lifting
• No waist to crown lifting
• No front carry beyond 5lbs on a rare basis; allow for completion at a self-paced rate and rest breaks as needed
• Limit static pushing to a rare basis requiring no more than 5lbs of force
• Limit static pulling to a rare basis requiring no more than 10lbs of force
• Elevated work to be completed on an occasional basis; allow for positional changes and rest breaks as needed
• Based on observation, the client would benefit from self-pacing during any sustained finger/handling tasks

As per the Physical Demand Classification (PDC), “sedentary work” is defined as occasional lifting up to 10lbs maximum, occasionally exerting up to 10lbs of force or frequent exerting a negligible amount of force to lift, carry, push, pull or move objects such as dockets, ledgers or small tools. Sedentary work primarily involves sitting, but may also involve an occasional amount of brief walking and standing in order to carry out job duties. The discharge report indicated the worker did not meet sedentary-level maximums as per the PDC. It was recommended the worker participate in a return to work plan with the goal of employment within her restrictions as well as avoid exposure to vibration to the upper extremities bilaterally. The worker was recommended to follow-up with Dr. Graham in October 2013; however, there is no report of a visit in the record.

Operational policy 19-02-01 states, in part:

Treating health professionals support WR by, among other activities, providing functional abilities information. Where recovery barriers are identified in any phase of a case (with a focus on identifying barriers in the early stages of a case), the WSIB will proactively obtain medical support (such as the Regional Evaluation Centers and Specialty Clinics) to address the recovery barrier in discussion with the worker’s treating health professional.

The record indicated the worker received care and treatment from various Specialty Programs, which aimed to promote recovery and assist with addressing return to work barriers. The medical evidence in the record supports the worker was partially impaired as a result of her compensable injuries. The worker testified she continued to experience ongoing pain and limitations with her hands when she participates in any tasks involving lifting, pinching, or gripping. The worker advanced she has modified her daily care and household cleaning routines as not to overuse her hands. She reported she learned to rotate between tasks, takes breaks to allow her hands a chance to rest, and changed her footwear and clothing to avoid tying laces, and handling zippers and buttons. The worker does not dispute she has functionality of her hands. The recovery barrier in this case is in keeping with her ability to safely operate a motor vehicle.

The worker testified she experienced difficulties with driving subsequent to her work accident. She described an occasion wherein she needed to change lanes, oversteered, and ended up on a sidewalk due to having a lack of feeling in her hands and an insufficient grip on the wheel. She indicated the difficult aspects of driving involve gripping and turning the steering wheel for lengthy periods of time. If she is to drive on a long distance with no intersections, she could manage this task with alternating her grip between her right and left hand on the steering wheel. The worker indicated she does not feel safe driving, and avoids it as much as possible. The worker testified she continues to hold a valid driver’s license, citing it is an important piece of identification, and she wanted to retain in in the event she had to drive in an emergency situation. The worker indicated her driver’s license was never suspended or revoked; however, her driving class was downgraded from an AZ to C. She indicated in the last 2 years, she drove on 2 occasions; both driving trips were of 15-minute duration.

The worker indicated she discussed her driving difficulties with Dr. Graham, who advised the worker to have the Ministry of Transportation (MOT) determine her fitness to drive. The worker was under the impression Dr. Graham would initiate a referral to MOT; however, this does not appear to be the case. The worker indicated she did have the opportunity to discuss her driving difficulties with her family doctor, Dr. A. Nkut, because he had passed away in November 2013, around the time her driving became an issue. The worker indicated she did not have a family doctor for approximately 2 years.

In review of the evidence before me, I accepted the worker was partially impaired and capable of working within a sedentary physical demands level. With respect to the worker’s ability to safely operate a motor vehicle, the OT indicated there was no danger to her hands in driving a car; however, it was noted no comment could be provided whether or not she would be safe from the point of view of the public. Given the worker’s testimony that she ended up on a sidewalk when making a left turn because she could not feel her hands gripping the wheel, leads me to find there is an inherent safety risk owing to the compensable impairment. I accept the worker was capable of operating a motor vehicle; however, it appears her ability to drive was limited to short trips with limited exposure to repetitive sustained gripping.

3. WT Plan Approval

In January 2012, the worker met with the Return to Work (RTW) Specialist for an initial interview. It was noted the worker was bilingual. She was fluent in English and French, including speaking, reading and writing. Her previous employment was in keeping with long-haul truck driving. She held a valid driver’s licence; however, she was no longer able to drive transport trucks on account of her compensable impairment. She indicated she continued to drive her personal vehicle for short distances only. The worker had a Grade 12 Diploma and a Computer Science Diploma from the 1970s. Prior to working as a Tractor Trailer Driver, she worked as a Computer Programmer for 25 years. She indicated she had superior computer competencies regarding hardware, software and applications. The worker’s WT plan was placed on hold several times while the worker underwent compensable surgeries. It was determined the worker was unable to return to work in her pre-injury employment given the extent of her permanent impairments and associated permanent restrictions. In September 2013, the worker was approved to participate in a WT plan for the SO of Customer Service Representative. The RTW Specialist noted the employment opportunities in the worker’s geographic location were fair. It was also noted the worker may need some assistive devices or special accommodations depending on the type of work she performed. It was also noted the worker may not be employable in all occupations within the job category; and an effort would need to be made to target specific positions and employers. The WT plan consisted of job search training, volunteer placement search, monitoring volunteer placement, and job coach services.

Operational policy 19-03-03 indicates a SO represents a category of jobs suited to a worker’s transferrable 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.

The worker does not dispute the suitability of the SO per se; rather she indicated she was unable to participate in a WT plan because her compensable impairment prevented her from driving the long distance to YYYY to attend the WT program or even potential employment, a driving distance of 45 minutes to 1 hour. The worker submitted she was unable to participate in a WT program because she resided in a remote area, could not drive, and did not have access to public transportation. The worker indicated it was a 20-minute drive in the summer and a 35-minute drive in the winter on a dirt road to reach bus service from her residence. It is noted the RTW Specialist made efforts to mitigate the driving barrier in that they recommended the worker try wearing anti-vibration gloves while driving. The worker indicated the anti-vibration gloves were not helpful. She reported the gloves were too stiff and did not help with sustained gripping. The worker is of the position she is able to work within her restrictions; however, her inability to drive on account of her bilateral hand impairment prevented her from doing so.

With respect to the worker’s driving capacity, operational policy 19-02-01 states, in part:

When considering whether an offer of work is suitable, the workplace parties and the WSIB consider whether the work is safe, i.e., whether

• The worker poses a health or safety risk to the worker (e.g., should not cause re-injury or a new injury), to co-workers, or to third parties
• The work is performed at a worksite that is covered by either the Occupational Health and Safety Act (OHSA) or the Canada Labour Code, and the worker has the functional ability to travel safely to and from the proposed worksite.

In this case, the worker’s participation in a WT plan involved travelling to XXXX. At the time the WT plan was being developed, the worker was xx years of age, residing in a remote area outside of XXXX, with functional limitations involving both hands, no access to public transportation nearby, and a limited ability to drive long distances and maintain repetitive sustained gripping of a steering wheel. While I agree the SO of Customer Service Representative is within the worker’s functional restrictions, I have placed significant weight on the worker’s inability to safely travel to and from WR services as well as potential employment. It is noted the worker holds a valid driver’s license and did not have her driver’s license suspended or revoked at any time. The worker indicated she avoided driving post-accident due to safety concerns with gripping the steering wheel for sustained periods, which resulted in unsafe maneuvers as described in the aforementioned section of this decision. The evidence in the record indicates the worker advised the RTW Specialist on October 2, 2013 she planned to see her family doctor to obtain documentation to support her inability to work; however, no such documentation was submitted to the record as the worker’s family doctor passed away shortly thereafter. While it is noted the worker’s driving capacity was never formally assessed, I find there is sufficient clinical evidence in the record to support the worker required self-pacing for sustained finger/handling tasks and was to limit exposure to repetitive sustained gripping, which could reasonably be applied to operating a motor vehicle for a 55-minute driving trip. Given the facts and circumstances of this case, I find there is sufficient evidence to support the worker’s inability to safely travel to XXXX was in fact the major barrier prohibiting her from participating in a WT plan in an otherwise suitable SO. In summation, I find the selected SO Customer Service Representative is ultimately not suitable on the basis the worker had a limited ability to safely travel to and from the proposed site for WR services in XXXX.

4. Finding of Non-Cooperation, Closure of WR Services

The worker was determined to be un-cooperative in WR services on the basis she did not participate in the WT plan. The worker declined to participate in the WT plan due to barriers regarding driving, ongoing pain and only having a partial work capacity. The worker’s LOE benefits were reduced by 50 per cent effective December 20, 2013.

Operational policy 19-02-02 states, in part:

Disputes over job suitability are not acts of non-co-operation, nor is non-co-operation meant to apply to workers who raise a health and safety concern under the Occupational Health and Safety Act (OHSA) or the Canada Labour Code.

In this case, the worker raised a health and safety concern with respect to driving to attend the WT program in XXXX. The worker maintained she was unable to grip the steering wheel for sustained periods and could not drive on dirt roads due to vibration.

I find the worker’s dispute regarding safely travelling to XXXX to attend a WT program is not an act of non-co-operation. It is noted the worker declined the opportunity to participate in a WT plan; however, I do not agree she had any obligation to participate in WR services if she did not want to. As such, the finding of non-co-operation and any associated non-co-operation penalties applied in this case are rescinded.

Operational policy 19-03-05 states, in part:

The purpose of a WT plan is to assist the worker to obtain the skills needed to overcome a work-related permanent impairment and return to a SO. The WSIB does not offer a WT plan if it would not reasonably increase the worker’s prospects for employment in a SO.

In this case, a WT plan was not appropriate as a suitable SO could not be identified owing to the fact the worker did not have the functional ability to safely travel to XXXX from her residence. I do not accept a WT plan is in order, as it would not have reasonably increased her prospects for employment in a SO. In reaching this conclusion, I have considered the following factors:

• The worker resided in YYYY, a remote area that is 55-minute drive outside of Greater XXXX, with no access to public transportation nearby, and gravel roads that were not maintained in the wintertime.
• The worker had limitations for repetitive sustained gripping and wrist rotation to a rare basis, she required self-pacing for finger/handling tasks, and she was to avoid exposure to vibration in the hand and wrist, all of which had a direct impact on her ability to safely operate a motor vehicle for long distances.
• The worker had permanent bilateral compensable hand injuries and permanent restrictions.
• The worker was 62 years of age at the time the WT plan was being developed.
• The worker would be entering a new field acquiring new skills.

The worker testified she moved to XXXX in July 2021; however, at the time the WT plan was being developed, she was still residing in YYYY.

Based on the foregoing, in the absence of identifying a suitable SO and WT plan the worker could safely participate in as per the notable barriers with safe travel, I find the worker continued to have a full loss of earnings. In accordance with operational policy 18-03-02, I accept the worker is entitled to full LOE benefits effective December 20, 2013.

CONCLUSION

I conclude:

1. The long-term recalculation was calculated correctly and remains in order.

2. The worker is partially impaired and capable of working within a sedentary physical demand level and is able to operate a motor vehicle for short distances only with limited exposure to repetitive sustained gripping.

3. The SO of Customer Service Representative is not suitable.

4. The finding of non-co-operation and any associated non-co-operation penalties are rescinded. The worker is entitled to full LOE benefits from December 20, 2013.

The worker’s objection is allowed in part.

DATED October 18, 2022

L. Mansueti Appeals Resolution Officer Appeals Services Division