Worker v. Employer, 2022 CanLII 135044

20230034

worker

REPRESENTED by:

EMPLOYER – not participating

HEARD by:

c. marr, appeals resolution officer

DATED:

DECEMBER 15, 2022

ISSUES

The worker is objecting to the following decisions:

The identified suitable occupation (SO) of Administrative Assistants for the worker’s work transition (WT) program, dated April 6, 2020 and May 27, 2020.
The adjustment to the worker’s loss or earnings (LOE) benefits following the completion of their WT program, dated March 29, 2021.

BACKGROUND

This truck driver was injured in a motor vehicle accident (MVA) that occurred on April 18, 2012. They were granted entitlement to benefits for a neck injury and a concussion. They were 50 years of age at the time.

In a decision dated July 4, 2017, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) determined that the worker has a permanent impairment as a result of an aggravation of their pre-existing cervical spine degenerative disc disease (DDD) and their compensable post-concussion syndrome. The worker was granted a Non-economic Loss (NEL) assessment and further LOE benefits, the nature and duration of which was to be determined by the WSIB.

The worker was determined to have achieved maximum medical recovery (MMR) from their injuries by December 3, 2012. They were assessed with an eighteen percent NEL.

The worker was working at the time of the WSIAT hearing. They subsequently stopped working. Full LOE benefits were restored in February 2018. WT services were initiated. The WT program was disrupted by the worker’s reported increase in symptoms.

Following a multi-disciplinary assessment over several months in 2019, further treatment was recommended for the worker. The worker declined to participate in the treatment. They expressed a willingness to return to a WT program.

As outlined in correspondence dated April 6, 2020, the worker was sponsored in a retraining program designed to provide them with the skills and ability to be employable in the SO of Administrative Assistants. It was anticipated that the worker would have a wage loss at the conclusion of the program. They were notified of the potential quantum of any future LOE benefits.

The plan was revised at various times, including on May 27, 2020. The SO goal remained the same.

The worker successfully completed the WT plan. They remained unemployed at the time. Their LOE benefits were adjusted to reflect their potential starting wages in the SO of $15.00 per hour over a 40-hour work week, as per correspondence dated March 29, 2021. This was the final review of the worker’s LOE benefits and the partial LOE benefit rate was locked-in until the worker turns 65 years of age.

Worker’s Position

The worker representative argues in part that the worker is totally disabled due to their work-related injuries and unable to work in any capacity, even on a part-time basis. They did not raise specific issue with the suitability or availability of the SO or the effectiveness of the WT program. They are seeking full LOE benefits for the worker until they turn 65 years of age.

AUTHORITY

Operational Policies

Published

18-03-06 Final LOE Benefit Review 19-02-10 RTW Assessments and Plans

April 9, 2021 November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that the worker is not totally disabled as a result of their compensable injuries and is fit to work in the identified suitable occupation (SO) on a full-time basis.

This worker was injured in a motor vehicle accident (MVA) that occurred on April 18, 2012. They sustained a concussion and a neck injury.

In a decision dated July 4, 2017, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) determined that the worker permanently aggravated their cervical spine degenerative disc disease (DDD) in the workplace accident. The WSIAT also found that the worker had a permanent impairment due to post-concussion syndrome, which included symptoms of headaches, dizziness, vertigo, nausea and blurred vision. The worker was granted a Non-economic Loss (NEL) assessment and further loss of earnings (LOE) benefits, the nature and duration of which were to be determined by the WSIB. The worker was working part-time in construction at the time of the March 1, 2017 WSIAT hearing.

It was determined that the worker achieved maximum medical recovery (MMR) for their injuries by December 3, 2012. They were assessed with an eighteen percent NEL for their concussion and cervical spine impairment. The NEL rating does not reflect total disability, in my opinion.

In their submission dated September 26, 2022, the worker representative notes that the worker had to stop working in construction in 2017. The worker’s doctor expressed that the worker was unable to work at that time. It was accepted that the worker’s condition had worsened as they were granted full LOE benefits effective February 2018. Prior to this, the worker was paid partial LOE benefits as they were working or considered to be fit to work.

The worker representative’s primary position is that the worker is totally disabled as a result of their compensable injuries and is unable to work in any capacity, even on a part-time basis. They note that the worker had frequent absences during their WT program and that the worker was recently approved for Canada Pension Plan (CPP) disability benefits.

Work transition (WT) services were initiated in early 2018. Progress in the WT process was frustrated by the worker’s reported symptoms. WT services were placed on hold and the worker was referred to the Neurology Specialty Program for a multidisciplinary assessment. The worker was evaluated by a neurologist, occupational therapist, neuro-ophthalmologist, psychiatrist and underwent a neurotology evaluation over several months in 2019. The reports from these experts are extensive and detailed.

In summary, the worker was diagnosed with a whiplash injury. There was no evidence to support that they had a traumatic brain injury. The worker had episodic tension-type headaches. They did not have post-traumatic benign positional vertigo. The worker’s reported “non-specific visual disturbances” had no apparent relationship to the workplace accident and injury. The worker’s reported photosensitivity was atypical for post-trauma. The worker’s major depressive disorder or adjustment disorder was resolved or in remission. A somatic symptom disorder could not be ruled out. The worker’s reported issues with short-term memory were not attributable to the work-related injuries. The worker was expected to make a full functional recovery. Treatment through the Specialty Program was recommended, with a goal of better preparing the worker for vocational retraining. However, the team at the Specialty Program expressed, “there is no identifiable basis as to why [the worker] could not succeed in a vocational retraining program and a subsequent return to work (RTW).”

The worker declined to participate in the treatment program. Many dates to attend were offered to the worker between December 2019 and March 2020. They said that they were busy with personal issues for eight weeks. They then reported that they were moving and could not consider participating until April 2020. Ultimately, the worker said that they did not believe that they would benefit from the treatment program and wanted to proceed with WT planning.

The medical evidence does not support the worker representative’s position that the worker is totally disabled from working. Regardless of whether they were approved for CPP disability benefits, my assessment of the medical evidence that is before me is that it rather strongly supports that the worker is not significantly impaired from their compensable injuries. The team at the Specialty Program reviewed the available medical reports, thoroughly assessed the worker, and considered their subjective complaints. They declared that the worker was fit to work with restrictions on driving a transport truck, being in unrestrained heights and probably working around heavy machinery. The subjective symptoms reported by the worker and accepted by the WSIAT do not prevent the worker from working in any capacity.

There is no medical reporting in the claim file subsequent to the Specialty Program evaluations.

The worker representative also argues in part that the worker had many absences from their WT program, stating that this shows that the worker is unable to sustain employment. Some of the periods of absence referenced by the representative pre-date the iteration of the WT plan that is before me, and the assessments at the Specialty Program through which the worker was found to be fit to participate and to work. A number of the worker’s absences from the WT program were unrelated to their compensable injuries. They had other illnesses, personal issues, such as their spouse’s health issues and a sick dog, and at least one time reported that they were helping a friend with some renovations, limiting their activity in the plan. When the worker did state that they missed class or meetings due to their work-related conditions, they did not provide medical documentation to support this. I do not accept that the worker’s attendance issues were reflective of their ability to complete the retraining program, which they did, or sustain employment within the recommendations from the Specialty Program. The worker did settle into the retraining program and frequently reported that they were managing well.

The worker representative did not raise specific issue with the identified SO for the WT plan, or the components of the retraining program. WSIB Operational Policy 19-02-10 RTW Assessments and Plans describes a SO as follows:

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 SO of Administrative Assistants was identified for the worker. This was based on testing and assessments performed on the worker, research completed by the Return to Work Specialist (RTWS), and input from the worker. The SO is within the restrictions for the worker’s injuries. They had the aptitude to complete the program, and were able to do so. In addition, the worker was interested in working in this SO. It was their preferred choice.

The plan consisted of a certificate program relevant to the SO, employment placement services and job search training. The RTWS determined that this was what the worker required to be employable in the SO in an entry-level position. The worker successfully completed the training. While the worker did not secure a position, there were opportunities available. The claim file documentation indicates that the worker was not particularly active when it came to applying to job postings.

The final review of the worker’s loss of earnings (LOE) benefits was deferred as the worker was participating in the WT process or their medical rehabilitation. Policy 18-03-06 Final LOE Benefit Review states that in cases where the deferral was due to the worker participating in a WT program with retraining, the review must take place within 30 days of plan completion.

When determining a worker’s entitlement to LOE benefits following the completion of a WT program, the policy states:

If the final review occurs before the worker returns to employment, the WSIB uses the available wage information for the identified SO as of the completion date of the RTW 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 LOE benefit. This generally occurs if the plan was designed to provide the worker with new skills or if the worker would have entered a new field, or
mid-range wages to determine the post-injury earnings, updated mid-range wages are used. This generally occurs if the plan was designed to improve a worker’s existing or transferable job skills, see 19-02-10, RTW Assessments and Plans.

The worker did not have previous experience working in the SO or a comparable field. The WT plan was designed to give them new skills. The RTWS determined that the average starting wage in the SO in the worker’s geographic area was $15.00 per hour. The worker representative did not present any evidence or argument as to whether this wage was unrealistic. Note that the minimum wage in Ontario at the time of the final LOE benefit review was $14.25 per hour. The starting SO wage was not much higher than the minimum wage. As per policy 18-03-06, the worker is entitled to partial LOE benefits based on their ability to earn $15.00 per hour over a 40-hour work week in the SO. These partial LOE benefits are locked-in until the worker turns 65 years of age.

CONCLUSION

The worker is not totally disabled as a result of their compensable injuries. They are fit to work and have the skills and ability to work in the SO of Administrative Assistants, earning $15.00 per hour over a 40-hour work week.
The partial LOE benefits based on these potential earnings are locked-in until the worker turns 65 years of age.

The objection is denied.

DATED December 15, 2022

C. Marr

Appeals Resolution Officer

Appeals Services Division