DECISION NUMBER:

20230009

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

NOVEMBER 28, 2022

ISSUE

The worker, through their representative, is objecting to the Return-to-Work (RTW) Specialist’s decision of May 3, 2021 (re-issued June 4, 2021) authorizing the suitable occupation (SO) of Customer Service and an associated Work Transition (WT) plan.

BACKGROUND

On June 6, 2019, the worker was performing maintenance duties on a ladder when the roof access suddenly closed, striking the top of the worker’s head. The worker fell to the ground while twisting their left leg and knee. A 13% non-economic loss (NEL) benefit for a total left knee replacement was confirmed on November 27, 2020. A Case Manager’s decision letter dated February 10, 2021 clarified the accepted permanent restrictions for the left knee impairment. The RTW Specialist’s decision letter dated May 3, 2021 authorized the WT plan for the SO of Customer Service (National Occupational Classification, or NOC, 6552) from May 10, 2021 to August 20, 2021 using the wage of $14.25 per hour.

The re-issued letter dated June 4, 2021 provided more details but did not result in any change to either the determined SO or authorized WT plan. The RTW Specialist’s letter of August 23, 2021 documented the successful completion of the WT plan. The Case Manager’s decision letter of August 24, 2021 authorized the adjustment of loss of earnings benefits effective August 21, 2021 using the determined entry-level SO wage over a 40-hour week.

An Appeals Resolution Officer (ARO) decision dated October 8, 2021 confirmed entitlement to the left total knee replacement surgery. The previous ARO determined that the available modified duties with the employer were not suitable. The Appeal Readiness Form signed January 4, 2022 requested that the worker’s objection be addressed as a hearing in writing. The RTW Specialists reconsideration letter of February 10, 2022 did not result in a change of the original decision dated May 3, 2021. The issue is now before me.

AUTHORITY

Operational Policy Manual

Published

19-02-10 RTW Assessments and Plans

November 30, 2020

ANALYSIS

I find that the SO of Customer Service (NOC 6552), the determined wage of $14.25 per hour, and the resulting WT plan of May 10, 2021 to August 20, 2021 are all appropriate. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

The worker representative requests entitlement to full loss of earnings benefits to age 65 on the basis that the SO is not suitable and that the worker turned age 63 at the start of the WT plan.

The argument is presented that the worker does not have the required transferrable skills or academic/educational levels to be competitively employable in the SO. The worker representative notes that there is no psychovocational testing to support the determined SO, and that the worker does not have a grade 12 education as required by most employers.

Employer representative’s position

It is the employer representative’s position that the worker indicated that they did not wish to engage in formal retraining and yet indicated being interested in working beyond ager 65.

The employer representative’s written submission of November 7, 2022 highlights the worker’s indication of a potential job in Quality Control and Customer Care with a home-builder that they feel fully confident that they are able to perform. The written submission points out that the worker agreed to participate in Employment Services

Jurisdiction

I acknowledge that a separate letter from the RTW Specialist dated June 4, 2021 references the worker’s Intent to Object form signed May 27, 2021 and the worker’s objection to the permanent restriction decision letter from the Case Manager dated February 10, 2021. While I confirm that the RTW Specialist’s other letter of June 4, 2021 includes the worker’s permanently restrictions (in contrast to the decision letter of May 3, 2021), the re-issued letter clearly cites the permanent restrictions as being from the Case Manager’s prior decision letter.

I observe that the Case Manager’s decision letter of February 10, 2021 accepts the following permanent restrictions/limitations:

• Able to frequently stand and walk up to 411 metres;

• Can sit, drive a car, take public transit;

• No lifting from floor to waist, ladder climbing, low level work, crouching, or repetitive squatting;

• Stair climb limited to an occasional basis with handrail;

• Able to lift 5 kilograms from waist to shoulder, and above shoulder;

• Able to push/pull up to 10 kilograms; and,

• Able to perform sedentary occupations that avoid prolonged walking, bending, kneeling, squatting, or stairs.

That being said, I find that the decision letter of February 10, 2021 is not properly before me at this time. Therefore, the scope of my decision is limited to the appropriateness of the determined SO and WT plan given the permanent physical limitations accepted by the Case Manager within the decision letter dated February 10, 2021.

Is Customer Service appropriate as a suitable occupation?

I accept that Customer Service, NOC 6552, satisfies the necessary policy criteria of a SO. The worker representative argues that there is a lack of any experience dealing with customer service in the worker’s past employment history. The employer representative requests that the determined SO be confirmed.

Policy 19-02-10, RTW Assessments and Plans, defines the term SO in part as a category of jobs suited to a worker’s transferrable skills that are consistent with the worker’s functional abilities. Factors to consider when determining SO include the worker’s transferrable skills and whether the SO has a reasonable prospect of continuing in the longer term. In particular, policy states that there must be evidence that the SO exists, is available, and is in demand to the extent that the worker has a reasonable prospect of obtaining employment.

Policy 19-02-10 explains that the determined earnings for the SO are an estimate of what the worker is capable of earning when re-entering the labour market in a SO. Entry-level wages are to be used if the worker is entering a new field of employment.

I appreciate that the worker is currently age 64 and that Policy 19-02-10 provides the self-directed transition plan option to workers age 55 and older. However, I find that Policy 19-02-10 does not provide any additional consideration for those age 63 at the time of WT services. Further, I note that the RTW Specialist raises the question of a self-directed WT plan on January 15, 2021. Even so, I note that the resulting WT plan of April 2021 verifies that the worker has not opted for the 12-month self-directed transition plan instead of a WT plan. Additionally, I observe that the WT plan summary of April 26, 2021 documents the worker’s indication of the following:

• That the SO of Customer Service is of greatest interest to them;

• Not being interested in any upskilling/courses or schooling;

• Wishing to secure direct employment;

• Advising the RTW Specialist of expecting an imminent offer within the SO from a company for the position of Quality Control and Customer Care; and,

• Agreeing with the suitability of the potential job, and that it would similar in suitability of many customer service and/or retail jobs (such as at the Home Depot or Lowes) with similar demands/requirements.

Based on this evidence, I am not persuaded that the worker’s age or interest is a barrier to either the determined SO or the authorizing of a WT plan. I must also consider the RTW Specialist’s rationale that a psychovocational assessment was not arranged given the strength of the worker’s resume and expressed desire to secure a position at a particular company in a customer-service type role.

Importantly, I note that the case record contains two job postings from the worker’s geographic area dated February 11, 2022 indicating that the completion of high school is not necessarily a requirement. In fact, the first of the two job postings specifically states that trade experience is an asset. Similarly, the

RTW Specialist documents that the NOC profile for 6552 indicates that a grade 12 education is not always mandatory.

Turning to the worker’s transferrable skills, I accept that the worker’s resume contained within the case record lists several skills which fall directly within the role of customer service. For example, the worker’s experience in day-to-day operations as a wine-making store owner would necessarily involve customer service and dealing directly with the public. The worker’s resume states that they marketed wine at events to both individuals and groups to increase sales revenue. The worker’s employment history also includes more than 20 years of owning a construction company. The associated cover letter from the worker confirms leading construction projects and implementing a follow-up procedure to ensure a great customer experience. I find that the worker’s resume further supports having customer service experience as the worker would develop projects based upon client needs.

In summary, I find that the worker’s age, lack of a grade 12 education, and absence of a psychovocational assessment do not prevent the SO of Customer Service from being appropriate. In addition, I find that the worker possesses the required transferrable skills obtained over a period of many years that are directly applicable to NOC 6552. The RTW Specialist documents that NOC 6552 requires the ability to handle loads of up to five kilograms, perform activities using upper limb co-ordination, and to perform activities while primarily sitting with incidental standing and/or walking. In my view, such physical demands are within the worker’s functional abilities based on the permanent limitations accepted by the Case Manager. With respect to the question of availability, I afford significant weight to the identified job postings for the SO that are within the worker’s geographic area.

For all of the above-noted reasons, I find that Customer Service (NOC 6552) is an available SO that meets the policy requirement of being within worker’s transferrable skills and functional abilities. I further find that there is insufficient evidence that the determined SO does not have a reasonable prospect of continuing in the longer term. Accordingly, I accept that the SO of Customer Service (NOC 6552) is an appropriate SO within the criteria set out under Policy 19-02-10. Finally, there is general agreement that the SO of NOC 6552 represents, at least in part, a new field of employment for the worker. As a consequence, I find that Policy 19-02-10 provides the authorization to set the determined SO earnings at the confirmed entry-level wage of $14.25 per hour.

Is the authorized Work Transition plan appropriate?

It is my opinion that the WT plan for the SO of Customer Service is appropriate.

Policy 19-02-10 verifies that decisions about the services provided to a worker, and their duration, are made based on the individual circumstances of the worker. In some cases, limited services are required. Policy provides the example of identifying a RTW opportunity in the labour market that the worker already has the skills to perform. In such cases, the plan may only consist of job search training and/or employment placement services.

The authorized WT plan began on May 10, 2021 with employment preparation/support followed by employment services/search starting May 31, 2021 until the completion of the plan on August 20, 2021. Based on the evidence outlined above, I accept that the worker did not wish to participate in any formal retraining courses, schooling, or upgrading. I also accept that the worker possesses the necessary transferrable skills for Customer Service-type roles, including with the construction industry and related retail stores such as home renovation retailers and building centres. The employment plan proposal of May 7, 2021 lists job search skills from May 10, 2021 to May 28, 2021, and job development (including

job search tools) from May 24, 2021 to August 20, 2021. As previously discussed, the resulting WT plan lists the intervention of employment services/search as starting on May 31, 2021.

Regardless of the intervention’s actual dates, I find that the required WT services were appropriately limited to job search training and employment services as the worker was independently attempting to secure a position of Quality Control and Customer Care at a particular company. Based on this reasoning, I find that the authorized WT plan is appropriate and is based on the individual circumstances of the worker as required under Policy 19-02-10 as it would allow the worker the option of seeking other employment within the SO.

CONCLUSION

I conclude that the determined suitable occupation (SO) of Customer Service (National Occupational Classification, or NOC, 6552) is appropriate using the entry-level wages of $14.25 per hour.

The authorized Work Transition (WT) plan is confirmed.

The worker is qualified to seek employment as a Customer Service Representative. The request to determine the worker to be unemployable to age 65 is denied.

The worker’s objection is denied.

DATED November 28, 2022

K. MacMillan

Appeals Resolution Officer Appeals Services Division