APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20220069
OBJECTING PARTY:
the estate of worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
Dorothy Zaffino, appeals resolution officer
APRIL 20, 2022
ISSUES
The worker’s estate objects to the following case manager (CM) decisions:
January 25, 2021, which denied entitlement to loss of earnings (LOE) benefits for a temporary work disruption beginning March 25, 2020.
June 15, 2021 reconsideration decision, which denied entitlement to LOE benefits following a permanent work disruption beginning June 24, 2020.
BACKGROUND
The claim was allowed for a complex fracture and crush injury involving the left hand and fingers that occurred on October 24, 2017. The worker was on top of the scissor lift when a metal plate lowered and crushed the worker’s left hand. Full LOE benefits were paid from October 25, 2017 until November 8, 2017.
The file was referred for return to work (RTW) services and the worker was accommodated with alternate office administrative duties in August 2018. The worker continued to receive full pre-injury wages.
On March 11, 2019 the worker received a 22% non-economic loss (NEL) award for their permanent left hand impairment.
On March 25, 2020 the worker was temporarily laid off work due to the COVID-19 pandemic.
The worker representative submitted correspondence dated June 15, 2020 requesting entitlement to full LOE benefits as a result of the lay off of March 25, 2020. The worker representative argued the worker was in a substantially accommodated job.
In the decision letter dated January 25, 2021 the CM denied entitlement to full LOE benefits given they found the workers lay off was related to the COVID-19 pandemic. It was determined that at the time of the lay off the worker was not receiving LOE benefits from WSIB for their injuries.
On June 15, 2021 the CM reconsidered the decision dated January 25, 2021 and upheld the decision. They further indicated that given the worker’s temporary lay off went beyond 13 weeks the review of a permanent work disruption was necessary. The CM confirmed the temporary work disruption became permanent as of June 24, 2020. The CM concluded the worker’s pre-injury job was their identified suitable occupation (SO). The SO was general office work. The CM determined the SO was suitable and available in the general labour market. The CM concluded the worker would have acquired the transferable skills that would allow them to obtain such work in the general labour market. Entitlement to partial LOE benefits was granted from June 24, 2020 based on SO wages.
The worker passed away in September 2021. The estate’s objection to the denial of full LOE benefits from the worker’s temporary work disruption and permanent work disruption forms the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
15-06-02 Entitlement Following Temporary Work Disruptions
15-06-03 Entitlement Following Permanent Work Disruptions
November 3, 2014
April 9, 2021
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find in favour of the worker in part. My reasons for this finding are outlined below.
WORKER POSITION
The worker representative provided written submissions dated February 8, 2021 and June 29, 2021 and argue the worker should be entitled to LOE benefits not only during a temporary work disruption, but also a permanent work disruption. They believe that given the worker was laid off for 10-12 months and was unable to perform the essential duties of their pre-injury job as an industrial, commercial and institutional electrician the worker should be entitled to full LOE benefits during their temporary and permanent work disruptions.
The worker representative argued the worker was in a substantially accommodated job.
The worker representative argues the worker’s compensable hand injury prevented them from mitigating their wage loss with other electrical contractors, or pursuing self-employment as a journeyman power line technician and feel the worker’s wage loss is due to their compensable injury.
The worker representative submitted a Worksite Analysis Report dated September 25, 1992 prepared by the ‘WCB’s Construction Division’ which outlined the job duties of a construction electrician. The worker representative confirmed the Electricians Job Demands Analysis is also found in the case record which was prepared for the IBEW by an ergonomist and contains a detailed physical demands analysis including frequency of physical functions and postures required for all aspects of an electrician’s job duties.
They argue the worker could not mitigate their wage loss after the lay off because they were not at full hours, nor cleared to perform their pre-injury work as an electrician. To support their argument they referenced the Collective Bargaining Agreement.
The worker representative also argued policy 19-05-02 (Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements) applies, given the worker was not medically cleared to perform their pre-injury job as an electrician.
In support of this argument they referenced the following in their written submission dated February 9, 2021:
WCB Worksite Analysis for ICI Construction Electrician
Collective Bargaining Agreement (CBA)
WSIAT Decision No. 2392/17.
Lastly, the worker representative submits that policy 11-01-03 (Merits and Justice) is also applicable given the worker could not have mitigated their wage loss in March 2020 and June 2020.
EMPLOYER POSITION
The employer did not provide any submissions for review or consideration.
RELEVANT POLICY
In reviewing the issues on appeal, I had regard for the following applicable policies:
Policy 15-06-02 (Entitlement Following Temporary Work Disruptions) states:
The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a temporary work disruption.
Workers are entitled to additional LOE benefits when evidence indicates
the worker would seek new employment in the general labour market to attempt to restore his/her loss of earnings during the temporary work disruption (i.e., if he/she was not injured), and
the work-related injury/disease impacts the worker’s ability to earn income through new employment.
Principles
The WSIB may provide additional LOE benefits during a temporary work disruption if the worker experiences an additional loss of earnings during this period due to his/her work-related injury/disease.
Purpose
The purpose of this policy is to outline the circumstances under which the WSIB may provide additional LOE benefits to a worker during a temporary work disruption.
Scope
This policy applies to workers who are partially impaired and fit for suitable and available work at, or subsequent to the start of a temporary work disruption.
Layoffs with specific or expected recall dates beyond three months continue to be treated as temporary work disruptions if there is a strong degree of certainty that the recall will occur (e.g., written notice of recall date, employer’s past practices, relationship between employer and employees, unique circumstances).
Re-employment and co-operation obligations
Re-employment and co-operation obligations are generally not an issue when the work disruption involves an entire company.
When the work disruption affects only part of the company, the decision-maker considers whether the employer has met its re-employment and co-operation obligations under 19-02-02, Responsibilities of the Workplace Parties in Work Reintegration. If there is no evidence of an employer breach and the worker has met his/her co-operation obligations, the decision-maker must then determine if the worker’s loss of earnings during the work disruption is due to the work-related impairment.
Maintain current level of LOE benefits
The WSIB generally maintains the LOE benefits the worker was receiving at the start of a temporary work disruption. LOE benefits may be adjusted if the worker’s level of impairment significantly improves or deteriorates during the work disruption.
Pay additional LOE benefits
The WSIB may pay additional LOE benefits when both of the following criteria are met.
1.There is evidence indicating the worker would seek new employment in the general labour market to attempt to restore his/her loss of earnings during a temporary work disruption.(i.e., if he/she was not injured).
Does the worker have a job offer?
Has the worker obtained alternate employment in past work disruptions?
What is the expected employment pattern among other workers of the company affected by the work disruption?
If no prior layoffs, what is the expected or standard pattern of work within the broader industry/business during work disruptions? (i.e., employees generally don’t seek new employment during short holiday shutdowns).
2.The work-related injury/disease impacts the worker’s ability to earn income through new employment.
Is the worker involved in WSIB approved active health care, which requires frequent absences for treatment of the work-related injury/disease?
Was the worker on a graduated return to work plan?
Was the worker performing suitable work that does not exist in the general labour market(i.e., similar work not performed at other companies)?
Exceptions
Additional LOE benefits may be paid if the worker was performing temporary suitable work at the time of the work disruption and would not have been laid off if he/she had been fit for the essential duties of the pre-injury job (e.g., worker is laid off while employees performing the worker’s pre-injury job continue to work during a plant re-tooling).
Policy 15-06-03 (Entitlement Following Permanent Work Disruptions) states:
The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a permanent work disruption.
The WSIB reviews entitlement to additional LOE benefits and return-to-work (RTW) services if a worker is partially impaired and fit for suitable and available work at, or subsequent to, the start of a permanent work disruption.
To determine if the worker’s additional loss of earnings results from their work-related injury/disease, the WSIB identifies a suitable occupation (SO) for the worker and determines if the worker requires WSIB assistance to re-enter the labour market in that so.
Reference to LOE benefits should be read to include wage loss benefits for accidents prior to 1998, including temporary total disability benefits, future economic loss (FEL) supplements, and 147(2) permanent disability supplements.
The WSIB may provide additional benefits following a permanent work disruption if the worker experiences an additional loss of earnings during this period due to their work-related injury/disease.
Purpose
The purpose of this policy is to outline the circumstances under which the WSIB may provide additional benefits to a worker following a permanent work disruption.
Definitions
Permanent work disruptions include:
Layoffs resulting from changes in the availability of work that are due to economic factors and are permanent or expected to last three months or longer (e.g., plant closure, employer has ceased business, corporate reorganization), and
Temporary work disruptions that extend beyond three months or beyond the start of the next season for seasonal layoffs.
Any LOE benefits that become payable when a temporary work disruption becomes permanent are paid prospectively from the date the WSIB determines the work disruption has become permanent.
Layoffs with specific or expected recall dates beyond three months continue to be treated as temporary work disruptions if there is a strong degree of certainty that the recall will occur (e.g., written notice of recall date, employer’s past practices, relationship between employer and employees, unique circumstances).
Re-employment and co-operation obligations
Re-employment and co-operation obligations are generally not an issue when the work disruption involves an entire company.
When the work disruption affects only part of a company, the WSIB considers whether the employer has met their re-employment and co-operation obligations under 19-02-09, re-employment obligations and 19-02-08, RTW co-operation obligations. If there is no evidence of an employer breach and the worker has met their co-operation obligations, the WSIB must then determine if the worker’s loss of earnings during the work disruption is due to the work-related impairment.
Permanent suitable work
If a worker requires permanent suitable work due to the work-related injury/disease at, or subsequent to, the start of the permanent work disruption, the WSIB identifies the worker’s SO in order to determine entitlement to additional LOE benefits and/or return-to-work RTW services.
1. Suitable occupation (SO) previously identified
If a worker previously received or was receiving (RTW) services at the time of the permanent work disruption, a SO would already have been identified for the worker.
If the worker had completed RTW services prior to the permanent work disruption, no additional LOE benefits would be payable as the worker would be considered to be fit to re-enter the labour market in the identified SO.
If the worker was still active with RTW services at the time of the permanent work disruption, full LOE benefits would continue to be paid until the RTW services are completed. If the worker was already active in a RTW plan (with training) designed to facilitate a return to work with the injury employer, the WSIB may have to conduct a review to determine if the plan should be modified.
2. Suitable occupation (SO) is the suitable work performed prior to the work disruption
If the worker’s SO has not previously been identified, the WSIB determines whether the suitable work (if any) the worker was doing at the time of the work disruption is the worker’s SO.
A worker’s SO represents a category of jobs suited to their transferable skills that are safe, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the extent possible.
To determine if the suitable work performed prior to the work disruption is the worker’s SO, the WSIB considers the following factors.
a) Does such work exist in the general labour market?
Tasks
Were tasks and work processes specifically accommodated for the worker’s impairment to the extent they are not likely to exist with or be provided by another employer?
Equipment
Has significant expense and/or effort gone into modifying the work or workplace for the worker?
Productivity
Was the worker performing tasks at lower productivity rate than non-injured workers?
Work schedule
Had the worker returned to work at reduced hours or on a modified shift schedule?
Rate of pay
Was the employer paying a wage for the suitable work that is not representative of actual earning capacity (e.g., full time wages for less than full time or full productivity work)?
The suitable work performed prior to the work disruption is considered to exist in the general labour market if employees at other companies perform similar work, even if there currently are no job vacancies for that type of work in the labour market (i.e., not in demand).
b) Does the worker have the transferable skills/qualifications that would allow them to obtain such work in the general labour market?
(e.g., worker performed suitable office work for the injury employer but may not have the qualifications required by a new employer for such office work.)
c) Do the earnings paid for such work in the general labour market restore the worker’s pre-injury earnings to the extent possible?
If the answer to a, b, and c is yes, the suitable work performed prior to the work disruption is the worker’s SO. The worker has already demonstrated the work-related injury/disease does not prevent them from working in the SO, and therefore any additional loss of earnings would be due to the economic circumstances of the work disruption rather than the work-related injury/disease.
However, additional LOE benefits may be payable if the employer has been paying wages significantly higher than the industry based estimate for that work in the general labour market.
LOE benefits would be calculated based on the difference between the industry-based estimate of the SO earnings and the pre-injury earnings. When considering adjusting benefits, the ‘significance test’ should be applied and no adjustment to the benefit should occur unless the difference is greater than 10%, see 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review).
3. Suitable occupation (SO) to be determined
If the worker’s SO is not identified under 1 or 2, the WSIB determines an appropriate SO for the worker that exists and is in demand in the general labour market following the steps set out in 19-02-10, RTW Assessments and Plans. The worker would be entitled to full LOE benefits while participating in the RTW services identified as being required to assist their return to the general labour market in the identified SO.
Before considering RTW services for workers involved in extended strikes/lockouts or layoffs with specific or expected recall dates that extend beyond three months, the following steps should be completed:
ensure there has been an evaluation of the likelihood of the work disruption being permanent (e.g., employer’s past practices, relationship between employer and employees, unique circumstances), and
assess the likelihood the worker would choose to continue with RTW services even if the work disruption happens to end (e.g., low probability of return to work with the accident employer as the worker now has permanent restrictions that likely cannot be accommodated, or the worker has low seniority).
WSIB identifies a SO under 1, 2, or 3 even if the worker receives a severance/retirement package due to a work disruption as long as they don't have a choice to continue working with the employer.
The WSIB does not provide RTW services if the worker voluntarily chooses to accept a severance/retirement package instead of continuing employment with the employer.
RELEVANT CASE DETAILS
Following the worker’s work-related injury, the worker was referred for RTW services.
In the RTW meeting memo dated August 16, 2018, the employer confirmed their ability to permanently accommodate the worker with alternate office duties. The worker confirmed they did not have any concerns with the current duties they were performing. The alternate office duties consisted of various computer and paperwork within the office setting. The relevant demands listed were lifting and handling light items with one hand and unilateral finger flexion to input information in the computer. The worker was scheduled to resume full time hours effective September 3, 2018.
In the decision letter dated October 18, 2018, the CM determined the worker reached maximum medical recovery as of August 30, 2018, the date of discharge from the Acute/Subacute Treatment Program at Altum Health. The following were the worker’s accepted permanent restrictions:
capable of performing activities with sedentary-light physical demands level
occasional lifting up to 15 pounds, maximum and/or occasionally exerting up to 15 pounds force
capable of material handling up to sedentary light level
will have difficulty with forceful, repetitive and sustained left hand gripping, pinching and fine motor tasks
no climbing ladders at any unprotected heights
no work around high-powered electrical boxes.
The worker representative submitted correspondence dated June 15, 2020 requesting entitlement to full LOE benefits as a result of the lay off of March 25, 2020. The worker representative argued the worker was in a substantially accommodated job.
In a telephone conversation of June 16, 2020 with the CM, the worker confirmed they were laid-off work on March 20, 2020 due to the COVID-19 pandemic. The worker stated they were receiving the Canadian Emergency Response Benefit (CERB) and had not been called back to work to date. The worker was advised they were not entitled to LOE benefits given the lay-off was due to COVID-19 and unrelated to their workplace injury.
In a telephone conversation with the employer on June 22, 2020 and January 15, 2021, the employer confirmed the worker was laid-off work on March 25, 2020, along with all other office staff, as a result of the COVID-19 pandemic and resulting decrease in business. At a later date, the employer determined that due to ongoing changes in the nature of their business, no recall of office staff was expected.
At the time of lay-off, the worker was performing permanent alternative work consisting of office duties.
In the decision letter dated January 25, 2021 the CM denied entitlement to full LOE benefits given they found the workers lay off was related to COVID-19. In addition, at the time of the lay off the worker was not receiving LOE benefits from WSIB for their injuries.
On February 16, 2021 the worker’s representative submitted correspondence outlining the work duties performed by the worker prior to lay off. The following are the job tasks performed by the worker:
provide a list of material in stock and conduct internet research on material safety data sheets (MSDS) and prepare a binder containing MSDS sheets
provide a list of materials and their location in the shop and take photos using a phone camera which was provided to the supervisor. The supervisor would then print the photos and return them to the worker and the worker would obtain the description of the material and attach a photo in the inventory binder.
The worker representative was of the opinion the worker was performing a highly accommodated job.
The CM followed-up with the employer on March 4, 2021 during which time the employer confirmed that office staff in their yyy office were all laid off on March 25, 2020 and have not been recalled. The employer stated their only office and administrative staff were out of the xxx office. The employer indicated that due to the additional lockdown measures introduced in January 2021 they have limited contracts available for bidding and therefore they have no recall for office work at their yyy office. The CM determined that given the worker’s temporary lay off went beyond 13 weeks they would be reviewing the worker’s claim for a permanent work disruption as of June 24, 2020.
In memo dated March 8, 2021, the CM reconsidered the decision dated January 25, 2021 and upheld their decision. The CM concluded the criteria to establish entitlement to benefits had not been met, nor the exception under the policy.
In a separate memo dated March 8, 2021, the CM also concluded entitlement to a permanent work disruption was not in order. The CM determined the work performed by the worker at the time of lay off was suitable and confirmed that office clerk work existed in the general labour market, therefore deeming such work as the worker’s identified SO, NOC 1411. The CM also confirmed the employer continued to pay the worker’s pre-injury earnings of $xx.xx per hour. A review of the Government of Canada job bank indicated the average wages were $xx.xx per hour. Given the employer was paying the worker wages significantly higher than the industry based estimate for the worker’s SO, the CM concluded the worker was entitled to partial LOE benefits as of June 24, 2020 based on the determined SO wages of $xx.xx per hour.
On June 15, 2021 the CM confirmed the reconsideration of decision dated January 25, 2021 and upheld the decision. They further indicated that given the worker’s temporary lay off went beyond 13 weeks a review of a permanent work disruption was necessary. The CM confirmed the temporary work disruption became permanent as of June 24, 2020 given there was no recall date indicated. Further to their review, the CM concluded the worker’s SO of office work was suitable and available in the general labour market. The CM concluded the worker would have acquired the transferable skills that would allow them to obtain such work in the general labour market. Entitlement to partial LOE benefits was granted from June 24, 2020.
As per the Ontario Death Registry Program notice found in memo dated February 3, 2022, the worker’s date of death is September 2021.
ASSESSMENT OF THE EVIDENCE
Entitlement to Temporary Work Disruption
Based on my review of this case and having regard for the requirements under policy 15-06-02 (Entitlement Following Temporary Work Disruptions), I find the worker is not entitled to LOE benefits from March 25, 2020 until June 24, 2020.
Policy 15-06-02 (Entitlement Following Temporary Work Disruptions) cites the WSIB generally maintains the LOE benefits the worker was receiving at the start of a temporary work disruption. LOE benefits may be adjusted if the worker’s level of impairment significantly improves or deteriorates during the work disruption.
The WSIB may pay additional LOE benefits when there is both evidence that
the worker would seek new employment in the general labour market to attempt to restore his/her loss of earnings during a temporary work disruption, and
the work-related injury/disease impacts the worker’s ability to earn income through new employment.
Based on my review, the employer continued to pay the worker their pre-injury earnings up until the date of lay off, March 25, 2020. The file evidence supports the worker was not in receipt of any LOE benefits at the time of lay off.
I find the first criteria has not been met when considering additional LOE benefits given the extraordinary circumstance when the lay-off occurred. The lay-off coincided with and was a direct result of the Covid-19 pandemic, which caused a significant disruption to the Ontario labour market. Covid-19 impacted the general public to the extent that the CERB was made available to essentially all who had a loss of employment income as a result of their workplaces being closed. In my view, the worker’s ability to earn was not adversely impacted by their injury during this period, but rather, due to the pandemic. I find it was specifically due to the Covid-19 pandemic the worker was unable to seek new employment given the labour market was severely impacted during this unprecedented circumstance.
Given both criteria must be met, I find the worker is not entitled to any additional LOE benefits during their temporary work disruption from March 25, 2020 until June 24, 2020.
Further to the worker representative submissions, they argue that policy 11-01-03 (Merits and Justice) is also applicable given the worker could not have mitigated their LOE in March 2020 and June 2020. I do not agree with their position.
In my view the merits are exactly what is envisioned and intended within the applicable policy and have been applied in the manner in which it was written; which in this instance, the WSIB generally maintains the LOE benefits the worker was receiving at the start of a temporary work disruption. In the circumstances of the pandemic, the worker would not seek new employment in the labour market to attempt to restore their earnings. They would apply for and receive CERB, along with many of other Canadians.
My review concludes the worker is not entitled to LOE benefits during their temporary work disruption.
Entitlement to Permanent Work Disruption
For the reasons that follow, I find the worker is entitled to partial LOE benefits from June 24, 2020 until January 16, 2021, based on the ability earn minimum wage.
It is the worker representative’s position that the worker is entitled to full LOE benefits from June 24, 2020 when they were permanently laid off due to the COVID-19 pandemic. I do not agree with their position.
Further, the worker representative substantially argued the worker was unable to perform the essential duties of their pre-injury job as an industrial, commercial and institutional electrician. There is no dispute the worker was not fit for their pre-injury job as an electrician. In support of their position, they referenced policy 19-05-02 02 (Re-employment Obligation in the Construction Industry - Threshold, Duration and Specific Employer Requirements), given they note the worker was not medically cleared to perform their pre-injury job as an electrician. They also referenced WCB Worksite Analysis for ICI Construction Electrician, the Collective Bargaining Agreement (CBA) and WSIAT Decision No. 2392/17. The circumstances of the decision referenced differ greatly, in that the worker was in the ‘early phase of recovery and receiving active health care treatment and performing work that was determined to be unsuitable.
It is evident in the claim file the worker had been permanently accommodated as a result of their work-related injury. Therefore, I place very little weight on the worker’s representative’s argument and supportive documents given the worker’s pre-injury job is not at issue. The applicable work disruption policies do not require a review of the worker’s pre-injury job, but rather a review of the job and work the worker was performing at the time of lay off.
When making my decision, I considered the policy that explains how entitlement is considered following a permanent work disruption.
Policy 15-06-03 (Entitlement Following Permanent Work Disruptions) states that to determine if the worker’s additional loss of earnings results from his/her work-related injury/disease, the decision-maker identifies a suitable occupation (SO) for the worker and determines if the worker requires WSIB assistance to re-enter the labour market in that SO.
Policy 15-06-03 adds:
To determine if the suitable work performed prior to the work disruption is the worker’s SO, the decision-maker considers the following factors.
a) Does such work exist in the general labour market?
b) Does the worker have the transferrable skills/qualifications that would allow him/her to obtain such work in the general labour market?
c) Do the earnings paid for such work in the general labour market restore the worker’s pre-injury earnings to the extent possible?
If the answer to a, b, and c is yes, the suitable work performed prior to the work disruption is the worker’s SO. While I note the operating area’s decision dated June 15, 2021, I do not agree with the conclusions reached.
Based on my review, I find the worker was performing suitable modified work which did not exist in the general labour market given the worker was performing work that was highly accommodated.
While I can appreciate the employer was paying the worker’s pre-injury earnings while they were performing permanent modified work, I find the work performed was very specific to this employer. When reviewing the RTW memo dated August 16, 2018, the worker’s duties consisted of lifting and handling light items with one hand and unilateral finger flexion to input information in the computer. The mere fact that the worker was performing one-handed general office work is a direct example of an extremely accommodated job. As such, I do not feel the worker would have had success in obtaining one-handed office work in the general labour market.
In the worker representative’s correspondence dated February 16, 2021, they provided a brief description regarding the worker’s permanent modified work duties. The following job duties were described:
provide a list of material in stock and conduct internet research on MSDS and prepare a binder containing MSDS sheets
provide a list of materials and their location in the shop and take photos using a phone camera, which was provided to the supervisor. The supervisor would then print the photos and return them to the worker and the worker would obtain the description of the material and attach a photo in the inventory binder.
Noting the above, I find the work offered by the employer is very specific and does not demonstrate the worker would have the overall skills to obtain employment in the general labour market in general office type work.
In reviewing the Statistics Canada website and NOC 1411 for general office support workers, the following are the main duties listed that general office support workers perform:
Prepare correspondence, reports, statements, forms, presentations, applications and other documents from notes or dictaphone
Respond to telephone, in person or electronic enquiries or forward to appropriate person
Provide general information to staff, clients and the public regarding company or program rules, regulations and procedures
Photocopy and collate documents for distribution, mailing and filing
Sort and file documents according to established filing systems, locate and retrieve documents from files as requested and maintain records of filed and removed materials
Maintain and prepare reports from manual or electronic files, inventories, mailing lists and databases
Process incoming and outgoing mail, manually or electronically
Send and receive messages and documents using fax machine or electronic mail
Assist with administrative procedures such as budget submissions, contracts administration and work schedules
Maintain inventory of office supplies, order supplies as required and arrange for servicing of office equipment
May perform basic bookkeeping tasks such as preparing invoices and bank deposits
May sort, process and verify receipts, expenditures, forms and other documents
May organize the flow of work for other office support workers.
While I agree the work provided by the employer was suitable, I find the work performed by the worker was highly accommodated and although the occupations for general office workers may exist in the general labour market the worker’s restrictions require one-handed job duties. Therefore, I do not find it reasonable that the worker would be successful in securing employment in the SO of general office support workers given the worker’s permanent restrictions.
Policy 15-06-03 (Entitlement Following Permanent Work Disruptions) states that additional LOE benefits may be payable if the employer has been paying wages significantly higher than the industry based estimate for that work in the general labour market. LOE benefits would be calculated based on the difference between the industry-based estimate of the SO earnings and the pre-injury earnings.
As stated earlier, although the worker demonstrated the work-related injury/disease did not prevent them from working, I find the office work performed by the worker was highly accommodated and specific to their employer. Therefore, the SO of general office support workers is not suitable given there is insufficient evidence to support the worker had the transferrable skills or qualifications that would allow them to obtain such work in the general labour market. With the limited RTW intervention found in the claim file, I am unable to identify the worker also had the academic requirements to secure employment as a general office support worker. Additionally, the earnings paid for such work in the general labour market would not restore the worker’s pre-injury earnings.
Given the unique circumstances in that the worker could not be re-referred to RTW services, I find the worker is entitled to partial LOE benefits based on minimum wage as the worker demonstrated the ability to work following their workplace injury until the their temporary and permanent work disruption. I find a portion of the worker’s additional LOE’s after the permanent work disruption are a result of the worker’s workplace injury.
Partial LOE benefits are based on the difference between the worker’s pre-injury earnings and minimum wage earnings. These partial LOE benefits are in order from June 24, 2020 until January 16, 2021 when the worker turned 65.
CONCLUSION
The worker’s objection is allowed in part.
I find:
- Entitlement to full LOE benefits during the worker’s temporary work disruption from
March 25, 2020 until June 24, 2020 is denied.
- Full LOE benefits following the permanent work disruption is denied. Partial LOE benefits from June 24, 2020 until January 16, 2021 are to be based on the ability to earn minimum wage working 40 hours per week.
DATED April 20, 2022
Dorothy Zaffino
Appeals Resolution Officer
Appeals Services Division