DECISION NUMBER:
20220075
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
J.L. HUGHSON, APPEALS RESOLUTION OFFICER
DATED:
MAY 4, 2022
ISSUES
The worker is objecting to the Case Manager’s (CM) final 72-month lock-in decision dated September 23, 2021, which determined the worker’s partial LOE benefits were locked in effective
September 24, 2021, to age 65 based upon the updated median-level wages of their suitable occupation (SO).
BACKGROUND
The Appeals Resolution Officer’s (ARO) decision dated July 10, 2021, provides a thorough history of the claim. Therefore, I will not repeat it all here. In brief, on September 24, 2015, this right-hand dominant Production Team Member for an automotive manufacturer reported a gradual onset of right elbow pain as a result of a change in their job duties. The worker’s claim was allowed for initial entitlement to benefits for right lateral epicondylitis. In the CM’s decision dated May 16, 2016, they accepted entitlement to benefits for radial collateral ligament tear, tearing of the common extensor tendon and tendinopathy.
As determined by the CM in their decision of August 26, 2016, the worker reached maximum medical recovery (MMR) with a permanent impairment for their right elbow injury as of August 2, 2016. The CM also accepted permanent restrictions. On January 16, 2017, the worker was awarded a 4% non- economic loss (NEL) benefit in recognition of their right elbow permanent impairment.
On May 3, 2017, the Work Transition Specialist (WTS) accepted the SO of Law Clerk (NOC 4211). The worker’s WT Plan was scheduled to begin on May 1, 2017, and end on August 9, 2019, however, it ended early after the worker found full-time employment as a Legal Assistant on May 28, 2019.
In the CM’s decision dated August 1, 2019, they adjusted the worker’s LOE benefits from full to partial based upon the worker’s actual earnings in their new employment. At the time of the CM’s annual review decision dated September 26, 2019, they noted that the worker’s actual income had not changed, and therefore the worker’s partial LOE benefits were unchanged.
The worker was no longer employed as a Legal Assistant as of May 6, 2020, but found new employment on June 23, 2020, working part time in a reception/administrative type of job. In the CM’s decision letter dated August 10, 2020, they determined that the worker’s SO was actually Legal Assistant and not Law Clerk, as the training the worker received during their WT plan was more in line with a Legal Assistant than a Law Clerk. From May 6, 2020, to June 23, 2020, the time period when the worker was not employed, the CM determined the worker’s partial LOE benefits would be based upon the projected entry-level earnings of the SO, $xx.xx per hour, 40 hours per week. From June 23, 2020, the CM determined that the worker was under-employed in their new job, and noted that the worker’s partial LOE benefits would continue to be based upon the projected earnings of the SO.
The CM conducted an annual review of the worker’s LOE benefits and issued a decision letter dated September 30, 2020. They determined that there was no change to the worker’s circumstances and therefore their LOE benefit remained unchanged.
In the CM’s 72-month LOE lock-in decision dated September 23, 2021, the worker’s partial LOE benefits were adjusted based on the median-level SO wage, from September 24, 2021, to age 65.
The worker objects to the decision dated September 23, 2021, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
18-03-06 Final LOE Benefit Review
April 9, 2021
The above-noted policy versions were in effect as of the date of the decision under appeal.
ANALYSIS
I find the worker remains entitled to partial LOE benefits from the date of the final LOE lock in, September 24 2021, to age 65, based upon the determined earnings of $xx.xx per hour, 40 hours per week. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the worker’s representative (WR) contended that the worker’s claim should be allowed for full LOE benefits as the worker is totally disabled. Although the WR indicated this, the issue of the worker’s level of impairment is not before me. Therefore, I make no finding on the worker’s level of impairment.
The employer did not indicate they would participate in this appeal, and did not provide a submission on this issue.
In order to determine the correct rate of the worker’s partial LOE benefits from September 24, 2021, to age 65, I must consider policy 18-03-06, Final LOE Benefit Review. This policy states in part, that if the worker has co-operated in a RTW plan (with training) and returns to work in a job not identified in the SO, the WSIB uses actual employment earnings if the WSIB is satisfied the earnings:
come reasonably close to the SO-identified earnings, and
represent the same or similar future earnings potential.
However, the WSIB uses updated wage information and the amount an experienced worker would earn in the identified SO if the worker:
has never returned to work despite being able to do so and has chosen not to co-operate in their RTW activities, assessment, plan etc., or
returned to work, but is voluntarily under-employed.
As noted in a memo dated May 26, 2020, the worker advised that they had quit their job with the law firm where they worked as a Legal Assistant due to issues with their supervisor. However, in
a memo dated May 28, 2020, the worker provided additional details. The worker stated that they quit because the firm added another lawyer to the worker’s workload a few months before, and the worker could not keep up with the extra work physically or mentally. The worker went on to say that, due to Covid-19 restrictions, the employer could not hire anyone else to assist with the workload.
The worker was unemployed from May 6, 2020, to June 23, 2020. As documented in a memo dated August 10, 2020, the worker advised on June 23, 2020, that they had taken a part-time job, working 15 to 16 hours per week and earning $xx.xx per hour in a reception/administrative job. As noted in a memo dated June 7, 2021, the worker advised the CM that they were working as a receptionist at a health clinic and were working partial hours, as they “haven’t found [a] full time job yet.”
The definition of “voluntarily under-employed” is not given within policy 18-03-06. Instead, policy 18-03-06 directs the reader to policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) for additional information. The concept of underemployed is described in policy 18-03-02, in part, as
A worker is considered to be underemployed when employed in a way that does not make full use of the worker’s abilities, skills, and training in mitigating the loss of earnings resulting from the work-related injury/disease (e.g., employed in the identified SO at reduced hours, employed in a lesser paying job not identified in the SO).
The worker’s employment as of the date of the final review is not within the identified SO. I have reviewed the worker’s paystubs for pay periods from April 1, 2021, to May 15, 2021. These indicate that the worker worked an average of 15 hours per week, earning $xx.xx per hour. I find the worker was voluntarily underemployed at the time of the final review. The worker was working in a job that was not within the identified SO, at reduced hours, and did not make full use of their skills, abilities, and training received during the WT plan.
As the worker had returned to work, but was voluntarily under-employed at the time of the annual review, policy 18-03-06 directs that updated wage information for an experienced worker within the SO be used in order to calculate the worker’s ongoing partial LOE benefits. Policy 18-03-06 allows decision-makers to consider additional factors when selecting earnings to reflect those of an experienced worker. This policy states, in part, that the WSIB considers factors like
the age of the worker (movement into the high-end wages may take many years)
level of education and training provided by a RTW plan
the nature of the job (e.g., in some jobs, few workers are able to earn the high-end wages), and
any other information that may identify wage levels (e.g., job rate).
There is no direct correlation in policy 18-03-06 between the categories of an experienced worker and high-level wages. Instead, policy 18-03-06 defines the earnings of an experienced worker as those most likely achieved by those workers in the SO that had a full experience doing the job (i.e., had several
years of experience in the job). Given this, median- or high-level wages may be appropriate, as they may both reflect a worker with several years of experience.
The worker did not have any experience within their SO, and did not have any SO-related education prior to their WT plan. As noted in the Work Transition Specialist Initial Interview report, dated June 9, 2016, the worker reported having a high school diploma, and had taken management training courses while working for a prior employer. Before working for the injury employer, the worker was a district manager for a retail store, and a manager of a video store. The worker was 43 as of the date of the final review, which gives the worker less time to gain the skills and experience required for high-level wages.
Given the above, I agree with the CM that the appropriate wage to be used at the time of the final LOE lock-in review is median level, as this more closely matches the worker’s specific circumstances. As noted in a memo dated September 21, 2021, the median wage for the SO of Legal Assistant in Ontario at that time was $xx.xx. Therefore, the worker remains entitled to partial LOE benefits from September 24, 2021, to age 65, based upon the updated median-level wage of $xx.xx per hour, 40 hours per week.
CONCLUSION
The worker’s objection is denied.
The worker’s claim remains allowed for partial LOE benefits, which is locked-in effective
September 24, 2021, to age 65, based upon the determined SO earnings of $xx.xx per hour, 40 hours per week.
DATED May 4, 2022
J.L. Hughson
Appeals Resolution Officer Appeals Services Division