DECISION NUMBER: 20230024

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOT PARTICIPATING)

HEARING: HEARING IN WRITING

HEARD by: SUJETHRA NADARAJAH, APPEALS RESOLUTION OFFICER

DATED: November 30, 2022

ISSUE

The worker objects to the Case Manager’s (CM) April 13, 2022 decision that determined the worker’s Suitable Occupation (SO) as Other Services Support Occupations.

BACKGROUND

The history and nature of this claim is well documented in prior Appeal Resolution Officer (ARO) and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions. As such, I will only provide a brief history, in order to place the issue under this appeal into context.

On December 13, 2016, this production worker struck their right wrist against a rack. Entitlement was granted for a right wrist strain, tendonitis and ganglion cyst.

The December 23, 2020 WSIAT decision determined the worker had ongoing entitlement to a right wrist injury beyond August 1, 2017 with a Non-Economic Loss (NEL) assessment because the worker permanently aggravated their underlying osteoarthritic condition. The WSIAT also extended entitlement for a left wrist injury as a secondary condition because the worker aggravated their underlying osteoarthritic condition.

The February 11, 2021 implementation letter determined the worker achieved maximum medical recovery (MMR) for their bilateral wrist on May 9, 2017 with a permanent impairment. On February 18, 2021, the worker was granted a five percent Non-economic Loss (NEL) benefit.

The December 7, 2021 ARO decision determined the worker was entitled to partial LOE benefits from October 10, 2017 based on the wages of a SO the worker could perform without training. The operating area was directed to complete a return-to-work assessment and determine a SO the worker could perform without training.

The February 4, 2022 decision determined the SO of Other Services Support Occupations appeared suitable based on the physical demands of the job and the worker’s functional abilities.

The Return-to-Work Specialist (RTWS) completed a Return-to-Work consultation on April 12, 2022 and confirmed the SO of Other Services Support Occupations. The CM in the April 13, 2022 decision accepted the RTWS conclusions.

The worker representative submitted an Intent to Object Form dated April 26, 2022 and on reconsideration, the decision was upheld. On July 15, 2022, the worker representative submitted the Appeal Readiness Form (ARF). The worker’s objection to the identified SO forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

19-02-10 - RTW Assessments and Plans

November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker. As I will explain, the identified SO is appropriate.

In reaching my conclusion, I also reviewed the ARF and April 26, 2022 worker representative’s submission. The representative opined the identified SO is not suitable given the worker’s lack of transferrable skills, lack of experience and a language barrier. They argued instead that the worker is competitively unemployable.

The employer was not a participant in the appeal; thus, no information was submitted for consideration. Policy 19-02-10, RTW Assessments and Plans, states, in part:

To develop a RTW plan (with training), the WSIB generally identifies a SO for the worker. A SO represents a category of jobs suited to a worker’s transferable 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, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.

The WSIB considers a number of factors when determining a SO, including:

• the worker's functional abilities, transferable skills, education, aptitudes and interests
• the worker's work-related and non-work related impairments/disabilities, including non- physical disabilities such as a learning disability, and any other human rights-related accommodation requirements
• the worker's pre-injury earnings and work hours (a worker would not be expected to significantly increase their work hours in the SO)
• labour market trends and the likelihood of the worker being able to secure and maintain employment in the SO
• whether the SO has a reasonable prospect of continuing in the longer term, and
• whether the SO is achievable within a reasonable cost structure.

This policy provides that when a worker is unable to return to their pre-injury job (with or without accommodation), the WSIB reviews return to work opportunities in the labour market. A RTWS works with the worker to create a plan for return to work by identifying a SO, either with the worker’s existing transferrable skills, or with training.

In this case, the accepted permanent restrictions for the worker’s bilateral wrist permanent restrictions include lifting up to 5 lbs. and no repetitive pushing and limited gripping/pinching.

The RTWS completed a Return-to-Work Consultation on April 12, 2022 and noted the worker had limited proficiency in English (the worker was able to communicate simple greetings) and had fluency in Spanish. The worker had completed two years of high school and two years of nursing in Columbia. The worker had taken ESL in Canada for one year. The worker did not possess any computer skills. The worker’s previous employment history included working as a factory labourer, office cleaner and production worker. The worker did not have a valid driver’s license. I place significant weight on the information outlined above as the RTWS gathered the information from a phone interview with the worker, their representative and a Spanish interpreter on March 22, 2022.

The RTWS confirmed the SO of Other Service Support Occupations based on the entry-level wage range because the worker had no direct experience in this field. As per the National Occupational Classification, occupations in this unit group can be beauty salon attendants, funeral home attendants, laundromat attendant, ticket taker, tollbooth attendant, etc. The main job duties can include collecting fees/ticket stubs, providing customer service, escorting individuals, etc.

While I find the worker may not be able to work in all occupations in this unit group, they are able to work in many of the sedentary occupations including tollbooth attendant, laundromat attendant, ticket taker, parking lot attendants. Accordingly, I find this SO and the entry-level wage range suitable given the worker’s permanent precautions for the following reasons:

• the worker possesses the education level required
• on the job training is generally provided for jobs in this unit group
• the physical demands of this job (sitting, upper limb coordination and limited strength with no lifting greater than 5 kg and no repetitive movements of the lower back) are within the worker’s limitations
• the worker possesses the basic English language skills required
• there are no strenuous or complex cognitive demands

In addition, as there are no medical restrictions related to hours of work, I find the worker is capable of working a forty-hour week.

While the representative argued the worker was competitively unemployable, I am bound by the findings of prior ARO and WSIAT decisions in this claim. The ARO of the December 7, 2021 decision found “the worker is not entitled to full LOE benefits under the first criterion in the policy [18-03-02, Payment and Reviewing LOE Benefits] as the evidence supports the worker was capable of performing suitable work from October 10, 2017”. The ARO also concluded “the worker is entitled to partial LOE benefits from October 10, 2017 based on the wages of a SO without training”. Accordingly, I am unable to consider arguments related to the worker being competitively unemployable or the WR’s request for full LOE benefits.

CONCLUSION

The SO of Other Services Support Occupations is confirmed. The worker’s objection is denied.

DATED November 30, 2022

Sujethra Nadarajah Appeals Resolution Officer Appeals Services Division