DECISION NUMBER: 20240003

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOT PARTICIPATING)

HEARING: HEARING IN WRITING

HEARD by: D. BOWKER, APPEALS RESOLUTION OFFICER

DATED: DECEMBER 20, 2023

ISSUES

The worker is objecting to the claims adjudicator’s decision dated August 2, 2007 that determined the suitable employment or business categories most suitable for the worker were Customer Service in Retail Establishment and Administrative Support Clerk.

BACKGROUND

This assembly-line worker for an automotive manufacturer injured their right shoulder on October 12, 2006. This claim was established for a right shoulder strain injury. The worker did not make a full recovery and received an 11% non-economic loss benefit for the permanent impairment to their right shoulder. This rating was combined with a previous 5% non-economic loss benefit the worker received for their left elbow under a previous claim for a total benefit of 15%.

The employer was unable to provide permanent modified work or suitable alternative employment to the worker. The worker was enrolled in a labour market re-entry (LMR) plan for the purpose of identifying a suitable employment or business and establishing a training program to qualify the worker for employment within that designated field.

The August 2, 2007 decision identified the suitable employment or business categories most suitable for the worker were national occupation classification (NOC) 1453 Customer Service in Retail Establishment or NOC 1441 Administrative Support Clerks. The case manager approved the plan for Customer Service Retail Clerks as there was a greater availability in the general labour market. The plan included 10 weeks of customer service training and 12 weeks work placement with 4 weeks of job search training included in the work placement.

The worker objected to this decision, stating they were more interested in the Administrative Support Clerk category. The case manager’s August 3, 2007 decision approved the labour market re-entry plan for Administrative Support Clerk. The plan included 8 weeks of customer service training, a 28-week office administration program and 12 weeks work placement with 4 weeks of job search training incorporated into the work placement.

The worker completed their LMR plan on September 19, 2008. The final benefit loss of earnings review effective November 1, 2012 based the worker’s loss of earnings benefits to age 65 on the suitable employment or business category for Administrative Support Clerk.

The worker subsequently received an increase in their non-economic loss benefit for their right shoulder following an appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The case manager’s May 4, 2020 decision determined this increase in the non-economic loss benefit did not change the worker’s actual functional abilities and the suitable employment or business category of Administrative Support Clerk remained suitable for the worker.

The worker appealed this decision. The appeals resolution officer’s January 11, 2021 decision found the appropriateness of the LMR plan was not properly before them and their jurisdiction was confined to the worker’s functional abilities relating to the increased non-economic loss benefit. The appeals resolution officer found the suitable employment or business remained appropriate for the worker.

The worker pursued their appeal at the WSIAT. The appeal was adjourned to allow the worker the opportunity to pursue their appeal regarding the appropriateness of the LMR plan with the WSIB.

The objection to the appropriateness of the LMR forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

19-03-03 Determining Suitable and Available Employment or Business, and Earnings

July 3, 2007

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the worker. My reasons for this follows.

The language surrounding return to work programs has changed since the 2007 decision. Labour market re-entry is now referred to as return to work services and a suitable employment or business is known as a suitable occupation. To avoid confusion, I am using the language of the policy and legislation at the time.

Worker Position

The worker representative submits WSIB policies mandate that occupational and non-occupational injuries and conditions be considered when a worker is referred for a labour market re-entry plan.

The representative further submits only the worker’s injuries to their right shoulder and left elbow were considered when the worker was referred for LMR services and the worker’s non-work-related neck, knees, hands, Achilles heel, right elbow and wrist, low back and left upper leg were not considered.

The representative included excerpts from the claim file, a medical summary and a memo derived from an interview with the worker regarding their injuries and conditions.

Employer Position

The employer is not participating in this appeal.

Assessment of the Evidence

Based on my review of the available information and policy 19-03-03 Determining Suitable and Available Employment or Business, I find the LMR plan was suitable for the worker.

According to WSIB policy 19-03-03 Determining Suitable and Available Employment or Business, and Earnings, a suitable and available employment or business (SEB) represents a category of jobs suited to a worker’s transferable skills that are

• safe
• within the worker’s functional abilities
• reduce or eliminate the loss of earnings resulting from the injury
• are achievable after labour market re-entry, and
• are available in the local labour market.

The worker was referred for LMR services on June 15, 2007. The referral identified the following functional limitations based on the November 22, 2006 Regional Evaluation Centre assessment:

• No heavy or repetitive lifting with the left upper extremity
• No repetitive gripping with the left hand
• No heavy or repetitive lifting with the right upper extremity
• No forceful pushing or pulling

The worker was also in receipt of a 5% non-economic loss benefit for a left elbow strain in a previous claim. I note the worker’s permanent functional limitations for both injuries were identified in the referral.

The June 25, 2007 psychovocational assessment noted the worker was interested in retraining but lived in a more isolated area where training opportunities were limited. The worker held a high school diploma and reported experience working in retail and factory positions before they were hired by the employer in 2000. The referral also noted the worker had been performing modified duties to accommodate injuries to their left elbow and knee at the time of their workplace injury.

I note the worker indicated to the assessors their injuries were to their right arm and shoulder, left elbow and left knee. The worker reported undergoing MRIs on their right shoulder, left elbow, left shoulder and spine. They stated they were told they had osteoarthritis in their right shoulder and left rotator cuff tear. The worker advised they experienced daily pain made worse by weather, activities such as shopping and loading the dishwasher and required help from their children to complete chores.

The worker expressed an interest in social work, or positions in phlebotomy or as an ultrasound technician. The worker reported experiencing anxiety when driving on highways and busy roads. The assessment indicated the worker was experiencing a severe level of anxiety and a moderate level of depression. The worker was experiencing difficulties with coping and feeling overwhelmed by their injury.

The assessors observed the worker presented as polite and hard-working. The worker noted they were not feeling as depressed as they had been following their injury and although they did not complain about pain, they were noted to move their right upper arm and shoulder and rub the area with their left hand.

A job readiness or employment program to instruct the worker on application and resume writing, interviewing and job search skills was recommended. The assessment noted the worker would benefit from upgrading their math skills and learning to read more quickly. Barriers identified included the worker’s physical limitations, pain and psychological issues, difficulty with repetitive tasks, a chronic pain disorder, issues related to self-esteem, the worker’s location and their dislike for highway driving.

Suitable employment alternatives recommended for the worker included bookkeeper, clerk, medical laboratory technician, pharmacy assistant, employment counsellor, social worker, and dietary aide, amongst others. The assessors noted the worker had the potential to pursue any of the listed options but their ability might be impacted by the identified barriers.

The worker participated in a functional abilities evaluation on July 1, 2007. The assessors noted the worker was self-limiting and their functional status could not be determined based on the inconsistent efforts demonstrated during the evaluation.

The LMR Plan Proposal Summary dated July 16, 2007 identified Administrative Support Clerks as the appropriate suitable employment or business for the worker as it was within the worker’s functional abilities, fell within their current and potential range of skills, was cost effective and restored the worker’s pre-accident earnings.

The alternate suitable employment or business was NOC 1453 Customer Service Clerks in Retail Establishment. The LMR plan noted that although the worker expressed retraining in the health field, their retraining options were limited to the schools and programs offered in the Stratford area as the worker indicated anxiety about driving to Kitchener or London for training and did not want to drive on busy roads.

The proposal noted the worker was a cooperative but passive participant in the LMR assessment process. The proposal stated the worker conducted research and chose the program and the school for the plan. The proposal further noted, “in preparing an LMR Plan and in accordance with the Ontario Human Rights Code, the provider considers any non-work-related disability, handicap or condition a worker may have”.

On August 2, 2007, the case manager and the worker discussed the LMR plan and the case manager offered psychological supportive counselling to assist the worker with the depression and anxiety identified on the psychovocational assessment. The worker declined, stating they did not think treatment was required at that time. There were no further issues or concerns indicated.

I noted the medical summary the worker representative provided with their submission included clinical notes and diagnostic imaging that pre-dated the workplace injury. This included treatment in 1992 for possible carpal tunnel syndrome, left ankle and foot pain in 2004, the worker’s prior left elbow and shoulder injury and treatment for right elbow, neck and left arm pain in 2006.

The worker representative included a March 6, 2023 letter from the worker’s physician Dr. Kluz noting they did not know the patient in 2007 and were unable to comment on the worker’s foot issues at that time. Dr. Kluz noted the worker reported an injury to left shoulder in 2005 followed by a right shoulder injury in 2006 and ongoing bilateral pain since.

Dr. Kluz further noted the worker reported cervical pain radiating into their shoulders and arms, bilateral rotator cuff tendinitis and left foot and heel pain since 2005. Dr. Kluz confirmed they authored a letter in 2015 confirming the worker would have a difficult time with employment and this opinion remained unchanged.

The worker representative also included medical reports relating to the years following the LMR plan. As this appeal turns on the suitability of the LMR plan at the time it was implemented, my focus is on the worker’s level of impairment at that time.

The contemporaneous claim file evidence at the time the LMR plan was developed does not indicate the worker required limitations for their neck, knees, hands, Achilles heel, right elbow and wrist, low back and left upper leg. While the worker may have been experiencing functional loss in these areas, there is no evidence before me to support these non-occupational conditions should have been included in the labour market re-entry referral or in the development of the plan itself.

The clinical evidence at the time the plan was developed does not support the worker was so disabled they were incapable of participating in LMR services. I note the worker was participating in physiotherapy for their left heel and foot pain in 2007 and reported ongoing pain in their shoulders and elbow. In 2007, the worker had recognized permanent impairments to their shoulder and elbow so this ongoing pain was not unexpected and was accounted for in their permanent functional limitations.

I note the worker did not report limitations due to non-occupational areas of injury during their psychovocational assessment. The worker did not request additional accommodation to the LMR service provider while developing the LMR plan. There is no documentation before me to support the worker was unable to participate in LMR services in August 2007.

I make no findings on the worker’s ability to participate in the years beyond 2007 as the focus of this appeal is the suitability of the LMR plan in August 2007.

The worker objected to the LMR plan approved on August 2, 2007 and the claims adjudicator amended their decision to approve the plan for Administrative Support Clerks, noting that although the Customer Service Clerks in Retail Establishment SEB had more employment opportunities, this was the worker’s preferred SEB.

In a letter dated August 6, 2007, the worker objected in writing to the LMR plan. I find it instructive their rationale for the objection was that they did not agree with the Customer Service plan as they felt they were being treated unfairly and understood they would have the opportunity to re-educate themselves to obtain a job within their restrictions but would not demean them.

In my view, this does not demonstrate the worker felt the plan was unsuitable due to their functional limitations but their feelings around the nature of customer service. The plan was adjusted to accommodate the worker’s preference, even though it offered fewer job opportunities.

I am therefore not persuaded the LMR plan was not appropriate for the worker as it considered the worker’s functional abilities as they were known at the time. There is no evidence to support the worker required accommodation for non-occupational conditions or that these were so disabling the worker was unable to participate in LMR services.

CONCLUSION

The worker’s objection is denied.

DATED DECEMBER 20 2023

D. Bowker Appeals Resolution Officer Appeals Services Division