APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220045
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER – NOT PARTICIPATING
HEARING:
HEARING IN WRITING
HEARD by:
D. GOWANLOCK, APPEALS RESOLUTION OFFICER
ISSUE
The worker is objecting to the Case Manager decision dated July 27, 2021 confirming the payment of a partial loss of earnings benefit as at the closure of the Return to Work (RTW) plan based on the earnings of the Suitable Occupation (SO) Horticulture Technician/Specialist and full time (40) hours.
BACKGROUND
According to the Employer’s Report of Injury – Form 7, the worker was hired in January of 2016. On May 12, 2016, the worker was measuring a wall to install brackets when a shelving bracket overhead collapsed causing a 2 foot by 6 foot board (8 feet long) and contents to fall onto the worker, injuring his right shoulder and elbow. The worker sought medical attention and returned to modified work.
On May 18, 2016, initial entitlement was confirmed for a right shoulder and elbow soft tissue injury.
The receipt of diagnostic testing and in particular an ultrasound of the right shoulder confirmed a full thickness tear of the posterior fibres of the supraspinatus tendon and the anterior fibres of the infraspinatus tendon with mild tendon refraction. A Health Professional’s Report – Form 8 dated June 22, 2016 confirms a right shoulder rotator cuff tear and tendinitis of the right elbow.
In October of 2016, the worker was assessed at the WSIB Shoulder and Elbow Program. The worker was considered to be partially recovered and restrictions were provided for return to work.
The February 21, 2017 Shoulder and Elbow Program report confirms ongoing right shoulder impairment and the need for right shoulder arthroscopy surgery including debridement, acromioplasty, bursectomy, and mini open rotator cuff repair with possible biceps tenodesis.
On May 2, 2017, the worker underwent surgical repair of the right shoulder, accepted as being within the scope of the case.
Subsequent to surgery and during the recovery process, the employer confirmed that they were unable to provide the worker with suitable modified work. As a result, the worker was the referred for Work Transition (WT) services for monitoring and future planning. An interim WT plan was created to allow the worker to participate in an introductory computer training program.
In September of 2017, the worker advised the Work Transition Specialist (WTS) that he was unable to participate in WT activities due to a non-occupational condition. On March 2, 2018 WT activities were reactivated.
In April of 2018, the worker representative contacted WSIB on behalf of the worker asking for entitlement to psychological treatment given the worker’s anger over his situation. A psychological assessment and treatment was subsequently approved.
The Community Mental Health Program (CMHP) Assessment Form dated May 28, 2018 provides a DSM diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.
In a memo dated May 30, 2018, the Case Manager confirms maximum medical recovery (MMR) for the right shoulder as of April 18, 2018. A permanent impairment was evident for the right shoulder based on a traumatic full thickness rotator cuff tear involving the supraspinatus and infraspinatus, with associated shoulder impingement.
In June of 2018, it was determined that the employer was unable to provide the worker with permanent suitable work. In September of 2018, a meeting was held to determine a suitable occupation (SO) for the worker. The worker expressed interest in the Greenhouse Technician Diploma program with co-op.
On October 1, 2018, the worker’s right shoulder was rated and an 11% whole person impairment, Non- Economic Loss (NEL) benefit was confirmed.
In a letter dated October 9, 2018, the worker was advised that temporary entitlement to Psychotraumatic Disability was allowed. The worker continued to participate in psychological treatment.
In May of 2019, a WT Plan was prepared for the SO of Landscape and Horticultural Technicians and Specialists. The WT plan included a one year college vocational program, job search training and job placement. The scheduled end date of the program was July 23, 2021.
On May 9, 2019, the Return to Work Specialist (RTWS) wrote to the worker confirming the SO of Horticulture Technician/Specialist and the associated WT Plan.
In a letter dated July 27, 2021, the Case Manager wrote to the worker confirming the closure of the WT Plan and the adjustment of the worker’s loss of earnings benefit to reflect the earnings of the SO of Horticultural Technician/Specialist, $X.XX per hour and 40 hours a week.
The WT Plan Closure Summary Report dated August 27, 2021 notes that at closure, the worker was considered to be employable in his SO.
The worker objects to the July 27, 2021 decision.
AUTHORITY
Operational Policy Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) April 9, 2021
ANALYSIS
In my review, I have had regard for the case file documentation, relevant policy, legislation and the submissions put forth by the worker representative with respect to the issue. I have considered all the evidence and the following is a summary of my decision.
Worker Representative Submission
The worker representative provided an Appeal Readiness Form dated October 5, 2021 on behalf of the worker. According to the worker representative, the worker is not capable of working full time hours.
In the submission dated March 16, 2022, the worker representative argues that the worker is incapable of working and earning $XXX.XX per week. Medical on file supports that the worker is currently unemployable. Reference is made to the psychological report dated September 27, 2021 as well as the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision YYYY/YY and the definition of “competitively unemployable”. The representative is requesting that WSIB render the worker unemployable from 2021 for several reasons.
In the alternative, the worker maybe considered employable on a part time basis, consistent with his capabilities and providing he obtain a very sympathetic employer who would allow for a very flexible schedule, low productivity along with significant accommodations in the workplace.
Issue: Ability to work full time hours and the partial loss of earnings benefit as of July 24, 2021
I find that the worker is capable of working full time, 40 hours a week and remains entitled to a partial loss of earnings benefit based on SO earnings. I arrived at this decision based on the following:
Policy
Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) stats in part:
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process
Workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits.
Examples include but are not limited to:
workers who return to work at reduced hours or wages, and
workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre- injury average earnings.
Case Details
The worker representative, in the submission dated March 16, 2022 argues that the worker is competitively unem