APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230038
OBJECTING PARTY: worker
REPRESENTED by: worker representative
RESPONDENT: employer
HEARING: VIDEOCONFERENCE – September 28, 2022
HEARD by: amy woodworth, appeals resolution officer
ADDITIONAL ATTENDEES: observer
ISSUES
The worker is objecting to the following issues:
The decision dated December 20, 2019, where the Return to Work Specialist (RTWS) approved a return to work plan for the Suitable Occupation (SO) of paralegal, NOC 4211.
The decision dated October 30, 2020; where the RTWS amended the return to work plan to assist the worker in finding work outside of the SO.
The decision dated February 23, 2021 where the RTWS confirmed the closure of the return to work plan and that the SO of paralegal remained suitable.
BACKGROUND
On August 6, 2016, this police constable stopped working and reported it was due to workplace harassment, questionable managerial practices, bullying and exposure to trauma.
In a decision dated October 3, 2016, the claim was allowed for Post Traumatic Stress Disorder (PTSD) and Loss of Earnings (LOE) benefits were allowed from August 5, 2016 and ongoing. The worker attended psychological treatment and was determined to have a permanent restriction from returning to a police service environment in relation to their PTSD.
The worker was referred for return to work services to develop a return to work plan to find new employment. During the plan development stage, the worker advised the RTWS they would be relocating to another province due to other circumstances. The worker continued to work with the RTWS and a return to work plan for the SO of paralegal was formulated and confirmed in a decision dated December 20, 2019.
The worker did not start the training as indicated in the plan, as the start date of the program was changed due to enrolment and the covid-19 pandemic restrictions. The worker continued to look for work and eventually secured employment as a private investigator with a new employer. After two to three months, the worker stopped working due to limited hours of work available and lack of support.
In a decision dated October 30, 2020, the RTWS amended the worker’s return to work plan to assist them in finding work outside of the SO of paralegal. The plan included job search training and employment placement services. The worker was not successful in securing employment and in a letter dated February 23, 2021, the RTWS confirmed closure of the worker’s return to work plan and that the SO of paralegal remained suitable.
The worker appealed the RTWS’s decision regarding suitability of the SO and closure of the return to work plan. The worker’s representative requested an oral hearing to resolve the appeal.
AUTHORITY
Operational Policy Manual
Published
19-03-05 Work Transition Plans December 3, 2012
19-03-03 Determining Suitable Occupation July 15, 2011
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that will follow, I do not find in favour of the worker.
Worker Representative’s Position
The worker representative argues that the SO of paralegal was not suitable and they are seeking further return to work services and a re-calculation of LOE benefits. They confirm that WSIB supported the worker in moving to Province B and doing the training there. They note the return to work plan was approved to run from February 2020 to October 15, 2021, and the worker was to be fully supported in that time. They contend that the labour market trends demonstrated a lack of availability of the SO and the suitability was jeopardized when the program did not run. They state that the worker was in weekly contact with the school liaison and the start date of the program continued to be pushed back. They argue that the program did not run as planned due to Covid-19, and the worker looked for employment on their own, outside of the SO. They note that WSIB supported the worker in attaining alternate employment. They acknowledge that the job did not work out due to a lack of work and the worker not being supported well.
They state that following this the WSIB continued to support the worker in searching for alternate employment by offering job search training and employment placement services. They note in a memorandum on file in March 2020, the RTWS advised they would change the SO.
The worker representative confirms, as per the worker’s testimony, they only had experience working as a police officer and the worker made great effort to get back to work. They highlight that covid-19 impacted job availability and additionally affected the worker’s PTSD; however, despite the challenges, they note the worker continued to try to find work.
They argue that the decision dated February 23, 2021, that confirmed the closure of the return to work plan was made eight months prior to when the worker was to have completed the original return to work plan for the SO of paralegal. They argue the SO should have been amended and LOE benefits should not have been affected. They request that return to work services should be re-opened, along with LOE benefits. Alternatively, they state that if paralegal is determined to be suitable then the worker should have entitlement to LOE benefits for the length of the original plan.
Employer’s Position
The employer argues that the policy was appropriately applied in this case. The worker had permanent restrictions and a return to work plan was developed for the SO of paralegal, which aligned with the worker’s transferable skills.
They argue that the worker chose to relocate and to change the SO and was supported in doing that. The worker also chose to begin alternate employment, which demonstrates there was availability of work in the labour market at that time. They further state the worker stopped working partly due to interpersonal issues.
Worker’s Testimony
The worker confirmed they are currently in their mid-fifties and lives in City A, Province B. The worker stated they previously worked for Employer A and they were hired in September 2000. They worked until their retirement on December 31, 2019. They worked as a police constable and sometimes worked as a detective/constable. As a detective, they would be performing robbery investigations, among other duties. Prior to that job, they worked for Employer B, starting in 1987.
They provided details of the claim history from 2016. The worker suffered a mental stress injury with a diagnosis of PTSD. Their permanent limitations prevented them from returning to policing. They had discussions with WSIB about next steps and types of occupations. The worker advised that the RTWS told them about different opportunities and school. They indicated they maintained good communication with the RTWS. At that time, they accepted any type of help as they were dealing with family issues and their mental stress injury.
During the plan development phase, they made the decision to move to Province B, where they were originally from, as they had more family support there and did not have support in Province A. They did advise the RTWS about their plan to move and stated that WSIB approved their move. The worker reported that they discovered a two-year paralegal program at a college in Province B and it was close to where they lived.
During the process of applying to the program, issues came up. They had originally thought they could start the plan in January 2020. The worker was advised the program would be delayed and the worker stated this caused stress, not knowing if or when the program would start. The worker was in touch with the school regularly. They also noted the RTWS was calling regularly and eventually they asked the RTWS to contact the school directly. The worker stated they felt that the school was motivated more financially once they realized the worker was being sponsored by WSIB. By that time, the pandemic was starting and the worker felt unsure about starting the program. They decided not to proceed with the paralegal program, with all of the unknowns. The worker was under the impression that the paralegal program did not start until October 2020, and they believed it was done online, which the worker expressed concern about doing.
The worker testified that they started to try to figure out what they could do and they felt as though WSIB did support them in changing job options. They note that WSIB assisted them in finding work outside of the SO. The worker considered their transferable skills and considered job options as security jobs and legionnaire jobs. They thought the private investigator position would be a good option as you are in a car and working on your own.
The worker did secure a private investigator job with a new employer in May 2020 and advised WSIB. The worker reported that they thought they would get full time hours; however, due to the pandemic there was minimal work. The worker reported it was difficult trying to travel between the provinces, noting the covid-19 restrictions and licensing requirements to work. The application process had been slow and the worker had to complete several hours of training before beginning. They were not paid for the training. They stayed at the job for three to four months and then left due to a lack of hours and feeling unsupported by the company.
They noted that when their employment ended, they contacted WSIB to make them aware. WSIB offered them return to work services with job search training and employment placement services through a service provider. The worker testified that they also performed their own independent job search. They noted that job searching in person was difficult and they continued to try to think of various job options that they would be able to do that would be suitable and long term. They stated that covid-19 restrictions made job searching more challenging and they noted additional challenges in dealing with the pandemic and their PTSD symptoms. They noted that watching people wear masks reminded them of their pre-injury job, and criminals wearing masks when they committed crimes.
The worker confirmed they are currently not working and they continue to look for work.
Was the SO of Paralegal suitable?
Regarding the suitability of the SO of paralegal, I refer to Policy 19-03-03 that defines suitable work as a category of jobs suited to a worker’s transferable skills, that are safe, consistentwith the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings.
Policy 19-03-05 states, the Work Transition (WT) plan outlines the assistance and services a worker requires to enable a return to work with the injury employer in the identified suitable and available work or, if required, to re-enter the labour market in the identified suitable occupation (SO). Generally, a worker is offered one plan which will generally not exceed 3 years in duration.
In this case, I find the SO of paralegal was suitable and as stated in policy 19-03-05, the worker is encouraged to provide input and supporting research in identifying a SO and any suggested plan activities. The worker will be provided with choices regarding specific education/training providers and programs.
The worker did provide input and supporting research in identifying a SO. The worker met and spoke with the RTWS regularly from September 1, 2018 to August 1, 2019 to develop a return to work plan. Because the employer was not able to accommodate the worker, they began concurrent planning and SO development.
The worker underwent a psycho-vocational assessment on November 14, 2018. Following that, the worker met with the RTWS to review potential occupations. The worker expressed interest in investigative work and meditation work and in the interim, they began computer skills training.
In a memorandum on file dated August 29, 2019, the worker reported to the RTWS that they planned to relocate to Province B and had researched a paralegal program at a private college in Province B, which they indicated they were interested in pursuing.
The worker continued to express interest in pursuing the SO of paralegal at a college in Province B. The RTWS advised the worker as indicated in memorandum dated September 24, 2019, that due to the worker moving, which was considered a post-accident change, the SO wages for paralegal in Province A would be used in determining LOE benefits at the end of the return to work plan. As indicated in the memorandum, the worker understood and agreed with this.
The worker demonstrated motivation in pursuing the SO of paralegal. In the memorandum dated September 24, 2019, it was noted, that costs were significantly higher for the paralegal program in Province B, compared to similar programs in Province A. The worker indicated they would not be available to participate in the program in Province A as they had already put their house up for sale and planned to move out of Province A. The worker indicated they were motivated to attend the program in Province B and would plan to live close to the college in order to keep travel costs down.
The plan was researched and developed by both the worker and the RTWS. While the worker submits the program was delayed and therefore not available, I do not concur. The program was delayed or paused, as were many programs due to the circumstances at that time. These circumstances did not only affect the worker, but in fact affected most people. Furthermore, the program did eventually run later in that year. I note in a memorandum on file dated September 29, 2020, the worker was offered an additional opportunity to participate in the approved return to work plan for the SO of paralegal and again they opted not to participate.
The SO of paralegal aligned with the worker’s functional abilities and in a report dated October 2, 2019; the worker’s treating psychologist stated they supported the worker attending school and the choice of paralegal as an occupation. The psycho-vocational assessment maintained that the worker was capable of completing long-term post-secondary programs at the college level, and their transferable skills were in line with the SO of paralegal.
The RTWS identified that the provincial employment prospects according to Government of Canada Job Bank were considered fair and according to Province A Job Profiles were below average provincially. However, they found several job postings for paralegal and related occupations on the Government of Canada Job Bank in the Region A. Furthermore, I note at the time of the plan closure the Province A Job Profiles was considered average. I find this supports the SO was available in the worker’s geographical area. As the worker did not have prior experience as a paralegal, the RTWS appropriately chose entry-level wages for the Region A, which would partially restore the worker’s pre-injury earnings.
Overall, I find the evidence supports the worker actively participated and provided input and research in determining an appropriate SO. For the reasons previously stated, I find the SO of paralegal was suitable.
Plan Amendment
I find it is commendable that the worker was motivated and tried to find work, this was apparent throughout the file and confirmed in the worker’s testimony. As the worker chose not to participate in the return to work plan for the approved SO of paralegal, further return to work services were offered to assist the worker in finding work outside of the SO. I find the amendment to the plan was appropriate as it offered the worker an additional opportunity to secure employment, given that they were no longer interested in pursuing the return to work plan for the approved SO of paralegal.
Return to work plan closure
As stated in policy 19-03-05, generally a worker is offered one plan and in this case the plan was based on the SO of paralegal. While the worker preferred to find other type of employment, the SO of paralegal continued to be the most appropriate as it was suited to the worker’s transferable skills, it was considered safe, consistentwith the worker’s functional abilities, and it could partially restore the worker’s pre-injury earnings. Furthermore, the worker’s level of impairment did not change to facilitate the need for a WT re-assessment or a new SO.
As such, the SO of paralegal remained suitable and while the return to work plan was amended, this was provided as an opportunity to the worker to find work, as they indicated they were no longer interested in pursuing the approved return to work plan. Therefore, I find that LOE benefits were appropriately adjusted at the time the worker completed the amended return to work plan using the entry level wages of the approved SO. If the worker had participated in the approved return to work plan, they would have attained the necessary skills to secure employment in that SO.
The worker’s representative argued that the worker should be entitled to LOE benefits for the length of the original return to work plan; however, I do not agree. The worker chose not to participate in the return to work plan for the SO of paralegal. The worker received full LOE benefits while they participated in the amended plan and once they completed the amended plan and were no longer participating in return to work services, full LOE benefits were appropriately adjusted to partial LOE benefits.
CONCLUSION
In conclusion,
The decision that approved a return to work plan for the Suitable Occupation (SO) of paralegal, NOC 4211 is confirmed.
The decision to amend the return to work plan to assist the worker in finding work outside of the SO is confirmed.
The decision that confirmed the closure of the return to work plan and that the SO of paralegal remained suitable is confirmed.
The worker’s objection is denied.
DATED October 23, 2022
Amy Woodworth
A. Woodworth
Appeals Resolution Officer
Appeals Services Division