APPEALS RESOLUTION OFFICER DECISION
decision NUMBER:
20230106
OBJECTING PARTY:
REPRESENTED by:
EMPLOYER
EMPLOYER REPRESENTATIVE
RESPONDENT:
REPRESENTED by:
WORKER
WORKER REPRESENTATIVE
HEARING:
videoconference hearing
HEARD by:
S. Vagadia, appeals resolution officer
june 22, 2023
ISSUES
The employer objects to the following decisions:
A Case Manager’s (CM) April 7, 2022 reconsideration decision that granted entitlement to an exacerbation to the worker’s pre-existing osteoarthritis (OA).
A CM’s January 6, 2021 decision that found the worker had a permanent impairment.
A Clinical Specialist’s January 19, 2021 decision that granted an 8% non-economic loss (NEL) award for the right knee.
Decisions from a Return to Work Specialist (RTWS) and CM dated April 7 and 21, 2021 that granted a RTW plan in the suitable occupation (SO) of General Office Worker with an entry-level wage.
BACKGROUND
On February 17, 2020, the then 59 year old cook experienced right knee pain. The worker attributed her injury to turning while placing a heavy pot on a stove. She stated she twisted her right knee. The employer objected to the claim.
An Eligibility Adjudicator’s (EA) March 30, 2020 decision found entitlement to a right knee sprain was in order. The decision also granted loss of earnings (LOE) benefits from February 28, 2020.
A CM’s October 8, 2020 decision expanded entitlement to include a right knee osteochondral defect along the lateral femoral condyle as well as an exacerbation to the worker’s pre-existing OA.
A CM’s November 25, 2020 decision granted the employer 50% cost relief under the second injury and enhancement fund (SIEF). However, a November 27, 2020 reconsideration from the CM noted the employer was in Schedule 2. Therefore, they were not entitled to cost relief under the SIEF policy and it was rescinded.
A CM’s January 6, 2021 decision found the worker achieved maximum medical recovery (MMR) on December 10, 2020 and a permanent impairment was envisioned. The worker received an 8% NEL award on January 19, 2021 for her right knee.
Decisions from the RTWS and CM dated April 7 and 21, 2021 confirmed the worker was sponsored in a RTW plan. The SO was General Office Worker at an entry-level wage.
In September of 2021, the worker moved to a new province and her RTW plan was put on hold from September 21 to October 8, 2021.
Decisions from the RTWS and CM dated November 16 and 29, 2021 confirmed the worker successfully completed her RTW plan. The worker did not secure employment and LOE benefits were reduced by the entry-level wage in the SO ($14.35 per hour). The decision took effect November 15, 2021.
A RTWS March 11, 2022 reconsideration decision (due to an employer objection) confirmed the SO as well as the use of an entry-level wage.
A CM’s April 7, 2022 reconsideration decision (due to an employer objection) rescinded entitlement to the osteochondral defect along the lateral femoral condyle. Entitlement to a permanent exacerbation to the worker’s pre-existing OA remained in order, as did the NEL award.
A CM’s February 22, 2023 decision adjusted the worker’s LOE benefits by the updated entry-level wage in the SO ($18.03 per hour). The decision took effect February 17, 2023.
AUTHORITY
Operational Policy Manual
Published
11-01-01 Adjudicative Process
11-01-05 Determining Permanent Impairment
18-05-03 Determining the Degree of Permanent Impairment
19-02-10 RTW Assessments and Plans
November 3, 2008
November 3, 2014
November 3, 2014
November 30, 2020
ANALYSIS
Worker testimony
The worker reviewed her education. She obtained a university degree (Bachelor of Science) in 1996 and a one-week Industrial Relations certificate in 2006. She also took a course on “death investigation”.
The worker reviewed her job duties as a cook for the employer. She was hired in 2012 in a permanent role. She always loved cooking; it was a passion of hers. From 2008 to 2012, she worked as a cook (part-time / relief) for different companies. She reviewed the general physical demands of the job. This included standing, walking, and stair and ladder climbing as well as lifting. She worked for 30 days straight and then had 30 days off. She enjoyed travelling during her off periods. She also stayed active by going to a gym and using the treadmill and bike. She had no problems with her knee until the workplace accident.
The worker reviewed the workplace accident. There were actually two incidents and two reports were completed. She managed as best as she could afterwards. It was challenging. Her knee was very swollen. She took medication, used ice and a bandage.
The worker reviewed her previous jobs with other employers. She was briefly employed (less than one year) at a lab in the Country A doing cancer research (her partner at the time lived in the Country A). For a few months, she also performed alcohol and drug screening at worksites.
She then worked as a medical examiner / deputy coroner in the Country A for 4 to 5 years. She was 1 of 3 successful applicants (there were about 100 applications). She had the required education for that field given her course/seminar work. She was eventually promoted to the lead investigator. She worked in the sheriff’s office with associated agencies. The job involved investigating deaths and included interviewing people and reviewing crime scenes. She also prepared bodies for autopsies (which were conducted by doctors). The worker had to leave the job when her work visa expired. She also noted her personal relationship in the Country A had ended and she had to look after her elderly parents back home in Canada.
Upon her return to Canada, the worker worked at a hospital lab for a few months. She then secured a job as an Executive Director at a health centre for 1 year (earning about $60,000) and then a mental health clinic for 5 years (earning about $80,000 per year). Her job included negotiating contracts with the union. The position was very stressful because she had to deal with a Board of Directors that had a history of wrongfully dismissing executive directors. The worker had an assistant who did all of the computer work. She was only responsible for replying to emails. The worker stated she was wrongfully dismissed from her job. She looked for other jobs in the public sector and then secured her position as a cook.
The worker was asked about an August 2020 flare up. She indicated it was not the result of anything specific. She was trying to get back to her pre-injury level and her knee flared. Memos dated November 9 and 12, 2020 were noted. They spoke of a flare up in pain during a work hardening program and something occurring over the weekend to cause deterioration to her condition. The worker indicated this was due to her increasing her steps as part of her work hardening (pushing herself). Nothing else happened.
The worker discussed her retraining plan and the office admin SO. It was noted other SO options were suggested (such as a 911 operator or dispatcher). However, the worker selected the office admin position given her age, medical restrictions, and the fact that it was not as stressful. The plan provided course work and computer upskilling, which she successfully completed.
It was noted the psycho-vocational assessment listed a variety of jobs. The worker was asked if the WSIB discussed these options with her. She stated a few but not all. Many required significant upskilling. It was her understanding that only 1 year of training was approved. The worker also confirmed she did not want to return to a stressful job given her pervious bad experiences (prior to working as a cook).
The worker noted she moved to a different province towards the end of her retraining plan. She completed the remaining 3 to 4 weeks in her plan after she moved (it was online). She looked for work in the new province upon the completion of her plan but was unsuccessful in securing a job. She also took additional courses and seminars (career counselling etc.). The worker stated her lack of experience in office administration was a barrier. She was asked whether her previous employment history would count for anything. She did not know but thought it would (but not much). She then raised concerns about not being computer savvy. Her previous skills / experience were outdated and she did not qualify for such work anymore. In addition, such jobs today required technology skills that she did not possess. The worker also questioned her ability to secure management jobs given her age and the fact that she had not worked in such a role since 2006 / 2007.
Today she still takes cortisone injections for her right knee and occasionally wears a knee brace. She has no problems with her left knee. She enjoys light yard work but is unable to do it every day.
Analysis
- Entitlement to an exacerbation to the worker’s pre-existing OA
Employer representative submission:
The findings from the initial orthopaedic assessment dated March 3, 2020 were not significant and the specialist concluded further testing was not required. This supported the workplace injury was not a significant contributing factor.
The worker incurred deterioration to her underlying OA after she recovered from her compensable injury. The deterioration was not the responsibility of this claim. It had its own path. The pre-existing condition overwhelmed the compensable strain.
Worker representative submission:
- All of the medical evidence from the treating healthcare professionals, including two specialists indicated the workplace accident caused deterioration to (exacerbated) the worker’s pre-existing OA. More weight should be placed on those opinions than the view provided by the employer’s medical consultant (MC).
I find initial entitlement to an exacerbation to the worker’s OA is in order. I note policy 11-01-01 in arriving at my decision. It in part speaks to the concept of “compatibility”, meaning evidence of a causal relationship between a diagnosis and accident history.
In this case, there is clear evidence of a pre-existing degenerative condition. For example, a February 20, 2020 x-ray of the right knee noted mild OA. This was also noted in a June 3, 2020 MRI. The first medical indication that the workplace accident exacerbated the worker’s pre-existing OA was in a June 9, 2020 specialty clinic assessment. Although the worker made significant gains, she still had stiffness and swelling in her knee and difficulty navigating stairs. It was felt that in addition to the knee sprain, the accident caused a flare up in symptoms associated with the OA, making it work-related.
In response to the specialty clinic opinion, the employer requested an MC review. The September 1, 2021 review noted the medical evidence on file, including the initial orthopaedic opinion that found minimal findings. The MC indicated imaging reports (the x-ray and MRI) confirmed the worker had severe degenerative arthritic changes that could cause significant pain with movement. It was also noted the worker improved somewhat with cortisone injections, suggesting flare-ups were mostly inflammatory in nature. This meant the worker’s symptoms were due to her OA, which was not work-related.
Given the conflicting medical opinions, the operating area referred the claim to another MC for their view. The April 5, 2022 review concluded that although the worker had pre-existing, non-work-related OA, it was likely exacerbated by the workplace accident.
I concur with the April 5, 2022 MC opinion. In my view, the workplace accident was a significant contributing factor for the deterioration to the worker’s pre-existing asymptomatic OA. It is worth noting the September 1, 2021 opinion did not speak to whether it was likely the workplace accident exacerbated the pre-existing OA. In addition, I note there were no discrepancies with the accident history as suggested in the report (granted the documentary evidence was initially confusing). There were two separate incidents:
On February 17, 2020, while transferring a heavy pot from a counter to a stovetop, the worker pivoted on her right knee and over-extended.
Then on February 19, 2020, while still injured, she stepped over a galley doorsill and landed onto an angled rubber safety ramp at an awkward angle, further aggravating her injury.
Policy 11-01-01 states initial entitlement is in order if a diagnosis is medically compatible with an accident history. I find there is a causal relationship between the above accident histories and the diagnosed exacerbation to the pre-existing OA in the right knee. Entitlement is confirmed accordingly.
- Entitlement to a permanent impairment
Employer representative submission:
The June 9, 2020 specialty clinic assessment confirmed the worker’s compensable injury significantly improved. She had little pain or discomfort and a normal gait.
The July 13, 2020 physiotherapy report supported the worker achieved MMR with little evidence of a permanent impairment.
Alternatively, the worker achieved MMR by the August 6, 2020 specialty clinic assessment. Her condition improved dramatically by this time, both subjectively and objectively. The knee was stable, there was no effusion, and her gait was normal. The worker was cleared to resume her regular duties following a short work hardening program.
There was then a significant gap in medical attention. The next medical evidence was not until October of 2020, when a physiotherapist saw the worker and reported new symptoms, the etiology of which was unclear.
The deterioration occurred gradually and was not due to the acute injury accepted in this claim, which resolved in the summer of 2020. The deterioration was due to the worker’s pre-existing degenerative condition. It (the non-work-related deterioration) did not resolve but the compensable injury did.
The worker was therefore not entitled to a work-related permanent impairment. Opinions suggesting otherwise did not understand or acknowledge the facts of the case. The worker recovered remarkably well from the compensable injury. She then incurred a gradual deterioration to her pre-existing condition. This was not due to the workplace accident or injury.
Worker representative submission:
The medical evidence supported the worker had a work-related permanent impairment. She performed a physically demanding job prior to her injury and engaged in activities such as working out at a gym. All of this permanently changed after the accident. It caused a permanent deterioration to her asymptomatic OA.
WSIAT decisions supporting this view were noted.
The August 6, 2020 specialty clinic assessment did not find the worker achieved MMR. To the contrary, they noted ongoing limitations / flare-ups due to the permanent compensable exacerbation.
I find the worker sustained a permanent deterioration to her pre-existing OA due to the workplace accident. I note policy 11-01-05 in arriving at my decision. I will first speak to the MMR date. It is defined as the date a worker’s recovery plateaued and further significant improvement is unlikely. Decision-makers consider whether:
Recent clinical evidence indicates any change in the work-related injury.
The worker is receiving or will receive treatment that is likely to improve the work-related injury.
The worker is receiving treatment or using medication to maintain the current level of recovery.
The employer representative submitted the worker achieved MMR in June or July of 2020 or at the latest, by August 6, 2020. The worker representative concurred with the operating area’s view that MMR was not achieved until December 10, 2020.
In reviewing the medical evidence and memos on file, I note the following:
The June 9, 2020 specialty clinic report confirmed the worker had significantly improved. There was minimal pain or discomfort. However, she continued to have stiffness and swelling as well as difficulty navigating stairs. They recommended four additional weeks of physiotherapy treatment.
A July 9, 2020 memo indicated the worker began a work hardening program. A cortisone injection the previous month was helpful. The Nurse Consultant was not sure whether the work hardening program was recommended by the specialty clinic. This was to be reviewed upon receipt of their next report.
A July 13, 2020 Program of Care (POC) report completed by a physiotherapist recommended four additional weeks of treatment. They indicated the worker’s pain and swelling had improved but there were signs of giving way when fatigued. They also provided the following findings. The worker had an ability to:
o lift up to 40 pounds, but slower than usual
o step over doorways but slowly and not repetitively
o navigate short flights of stairs but only 4 times in 8 hours
o Weight bear but only for 2 hours before requiring a break
An August 6, 2020 update from the specialty clinic noted significant improvement following a cortisone injection. The worker was quite pleased. There were only mild weakness and endurance limitations. Her tolerance for activities improved dramatically. Her gait was normal, there was no effusion, and her knee was stable. However, she was not cleared to resume her pre-injury job duties. The specialty clinic confirmed their recommendation for a work hardening program. They also noted the possibility of ongoing mild symptoms.
As outlined in a September 28, 2020 memo, there was miscommunication surrounding the worker’s entitlement to additional treatment. The physiotherapist had not treated the worker since August 25, 2020. The Nurse Consultant confirmed additional treatment was in order.
The physiotherapy clinic then completed an initial assessment report as well as a WSIB Form 8 on October 2, 2020:
o The report spoke of a flare up (increased pain and swelling) at the end of August 2020 due to significant walking. I note this was when treatment stopped. It was suggested there was weight gain (I assume due to inactivity related to the flare up) but the worker no longer had swelling or gait issues.
o The Form 8 spoke of progressive deconditioning the past 6 weeks and an inability to weight bear for an extended period.
A November 9, 2020 memo (a Monday) noted increased pain due to the work hardening program. The worker was scheduled for another cortisone injection. A November 12, 2020 memo from the RTWS noted a conversation with the physiotherapist. Treatment was going well until the worker sustained a deterioration on the weekend. She had difficulty weight bearing and her knee was swollen. In her testimony at the hearing, the worker confirmed there was no new incident. The flare up was due to her performing her work hardening activities.
A November 20, 2020 specialist’s report indicated the worker was given another cortisone injection. They discussed the prospect of increased inflammation due to increased activity protocols.
Lastly, a December 10, 2020 specialty clinic report noted the worker significantly improved following a June 2020 cortisone injection. This led to the work hardening recommendation. However, the worker’s condition deteriorated while performing activities related to that program. A further injection only resulted in marginal improvement. A full recovery was no longer envisioned.
Although the worker’s condition improved in the summer of 2020, further significant improvement was still expected. Specific limitations were noted in the physiotherapist’s July 13, 2020 report and further treatment (the work hardening program) was recommended in August of 2020. In my view, the worker’s recovery had not plateaued at that time. Unfortunately, the additional treatment resulted in deterioration to the worker’s condition. I find this is the responsibility of this claim. A cortisone injection in November of 2020 (that had worked so well in June of 2020) was now of limited benefit and by December 10, 2020 the specialty clinic concluded the worker achieved MMR.
Based on the above assessment, I find MMR was not achieved until December 10, 2020. It was only at that point that further significant improvement was found to be unlikely. I note only maintenance medication was recommended at that time, which is in line with the guidance provided in policy 11-01-05.
I next turn to whether the worker had a permanent impairment. Policy 11-01-05 states a work-related impairment is considered permanent when it continues to exist after MMR has been reached. In this case, the December 10, 2020 specialty clinic report concluded the worker permanently exacerbated her OA due to the workplace accident. This view was echoed by the April 5, 2022 MC review. Given my decision that the worker’s OA was exacerbated by the workplace accident and given medical evidence confirming this deterioration was permanent, I conclude a permanent impairment was established.
- The 8% NEL award
Employer representative submission:
There was no entitlement to the osteochondral defect along the lateral femoral condyle. This fact was not acknowledged in the NEL assessment. The NEL quantum should be recalculated to omit this non-work-related degenerative condition (as per Table 40 of Guides).
Alternatively, policy 18-05-03 could be used in the calculation to offset the worker’s pre-existing degenerative condition.
Worker representative submission:
The NEL quantum appropriately reflected the nature and scope of the worker’s permanent impairment.
The permanent deterioration to the worker’s arthritis was work-related. This, not the osteochondral defect, was recognized in Table 40 of the Guides.
Policy 18-05-03 could not be used in this case, as the worker did not meet the requirements of the policy. She had an asymptomatic pre-existing condition.
I find the NEL quantum was correctly determined. I note the following in arriving at my decision.
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Associations Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
In this case, I find no evidence to suggest the rescinded entitlement (the osteochondral defect) was a factor in the determination of the NEL quantum. Rather, the 8% award was based on the worker’s range of motion (ROM) and arthritis, which I confirmed was permanently exacerbated due to the workplace accident.
Policy 18-05-03 provides guidance when determining the impact of a pre-existing condition on a NEL benefit. It states:
To factor out a pre-existing condition, it must be established that it is contributing to the degree of impairment to the same area of the body as the work-related permanent impairment.
To establish this, the evidence must show that the pre-existing condition, on its own, would result in an impairment rating. The pre-existing existing condition does not need to have produced periods of impairment or disease requiring health care, or have caused a disruption in employment, in order to factor out its rating from the total impairment rating.
If it is established that a pre-existing condition is contributing to the degree of total impairment to the same area of the body, the decision-maker:
rates the total impairment to the area according to the prescribed rating schedule
determines the rating for the pre-existing condition according to the prescribed rating schedule, and
subtracts the rating for the pre-existing condition from the total impairment rating to get the rating for the new work-related impairment.
If the pre-existing condition cannot be rated according to the prescribed rating schedule, the medical significance of the pre-existing condition is determined based on the clinical evidence and the decision-maker reduces the total impairment rating of the area according to the determination. If the significance of the pre-existing condition is:
minor, there is no reduction
moderate, there is a 25% reduction
major, there is a 50% reduction.
I note the worker was awarded a 10% rating as referenced in Table 40 of the Guides. This was for “arthritis due to any cause including trauma; chondromalacia”. The NEL decision actually did recognize the worker’s pre-existing arthritis. Given the pre-existing condition could not be specifically rated according to the prescribed schedule, the NEL Clinical Specialist instead determined its medical significance based on the clinical evidence on file. In this regard, the imaging results (such as the March 16, 2020 x-ray) were noted as was the fact that the worker did not require medical treatment for the knee prior to the workplace accident.
Based on the above review, the NEL Clinical Specialist concluded the pre-existing condition was minor. Accordingly, as per policy 18-05-03, there was no reduction. I concur with this view. I find the medical significance of the worker’s pre-existing OA was minor. In support of my conclusion, I note the following medical evidence:
A February 20, 2020 x-ray noted mild OA / degenerative changes.
A March 16, 2020 x-ray noted mild degenerative changes.
A June 3, 2020 MRI noted mild to moderate degenerative changes.
In summary, I find the NEL quantum was accurately determined. It recognized the worker had a minor pre-existing condition, which meant there was no reduction to her benefit.
- The RTW plan and SO of General Office Worker
Employer representative submission:
Although a worker’s input is required when determining a SO, this does not mean they get to select whatever they like. There is an expectation that it is done within a reasonable cost structure.
In this case, the worker had an impressive resume and high academic qualifications that made her qualified for a variety of jobs that were within her permanent restrictions.
Her education included a Bachelor of Science in Biology, an Industrial Relation Certificate, and a Master of Medical Legal Death Investigator Degree.
Her work experience included being a supervisor in an office setting, an Executive Director for the Ministry of Health, and a Medical Legal Death Investigator.
Her aptitude was average to above average during testing.
This leads one to question whether any RTW assistance was necessary following the injury.
The worker already possessed the skills and ability to pursue direct-entry SOs paying minimum wage without the WSIB’s assistance. At the very least, the worker’s ability to secure median wages in the chosen SO should have been recognized given her significant education, experience, and work history.
WSIB assistance should have leveraged the worker’s previous jobs and education. This approach would have resulted in the worker’s ability to secure a higher paying job. She was “under employed” in the SO she selected. It was not a financially responsible option.
For example, the worker’s view that she did not want a “management job” was not a reason to ignore such opportunities. The SO of Senior Manager (health, education, social and community services) should have been considered.
The employer should not be held financially responsible for preferences that had nothing to do with the workplace injury. A cost effective / reasonable cost structure was a requirement of every RTW plan.
The worker’s pre-existing computer knowledge was unclear. In a January 15, 2021 memo, it was noted she owned an IPAD. Her daughter had a computer but the worker was unable to use it because her daughter needed it for her job (she worked from home). There was no suggestion that the worker was unable to operate the computer.
The psycho-vocational assessment provided 18 options, the majority of which resulted in greater earnings potential with some training (many only one year). The biological technologist job was another example. It was unclear why these options were not explored more fully, other than the worker’s decision that she wanted a low paying, stress-free job.
Worker representative submission:
Weight should be placed on the psycho-vocational findings and conclusions, which was authored by experts in the field.
They were aware of the worker’s restrictions, her work experience, and education. With this in mind, they determined the best / most realistic SO.
Given the significant gap in the worker’s education and prior work experience (she worked as a cook since 2008) she did not possess the necessary qualifications to work in the SOs proposed by the employer representative. They all required significant upskilling.
The WSIB also had to consider the worker’s stress tolerance and her choice not to work in such environments. This included management positions.
Today’s work environment was very different from the one the worker worked in 15 plus years ago. Add to that her permanent injury and age, she was only marginally employable in a basic office environment performing basic functions.
The SO was in part selected because of the worker’s limited computer skills, even with retraining. An ability to participate in an online meeting did not mean she had the necessary computer skills to perform a job.
Given the worker’s age, her obsolete work experience, and unrelated education, the use of an entry-level wage in the SO was appropriate.
The RTW experts recommended the best plan and SO for the worker; their conclusions should be given significant weight.
I find the SO was appropriately determined. However, I find the worker was able to earn a mid-level wage upon the completion of her RTW plan. The partial LOE benefits paid in the claim from November 15, 2021 are to be adjusted accordingly, with the overpayment being made non-recoverable. I note the following in arriving at my decision.
Policy 19-02-10 provides guidance when determining a SO. Required factors for consideration include:
the worker's functional abilities, transferable skills, education, aptitudes and interests
the worker's work-related and non-work related impairments/disabilities, including non-physical disabilities such as a learning disability, and any other human rights-related accommodation requirements
the worker's pre-injury earnings and work hours (a worker would not be expected to significantly increase their work hours in the SO)
labour market trends and the likelihood of the worker being able to secure and maintain employment in the SO
whether the SO has a reasonable prospect of continuing in the longer term, and
whether the SO is achievable within a reasonable cost structure.
The January 29, 2021 psycho-vocational assessment noted the worker’s education. This included the following:
A university degree in biology in 1996
An Industrial Relations certificate in 2006
A Master of Medical Legal Death Investigator Degree (from Country A)
The assessment also noted her prior employment. This included the following:
An Executive Director with the Ministry of Health
An Executive Director of “North of Superior Programs”
A Medical Legal Death Investigator / Deputy Coroner (in Country A)
It was noted the worker stated she had below average computer skills and was self-taught.
In a March 10, 2021 memo, the RTWS discussed possible SO options with the worker. This included a supervisory role in the food industry or office type work.
An April 1, 2021 memo from the RTWS outlined why some SO options were not accepted. For example:
“Health Policy, Researchers, Consultants and Program Officers” was not suitable given the worker’s certification was from the Country A and therefore not accepted in Canada.
The worker was not interested in Customer Service and voiced a concern about the functional demands.
Payroll Administration did not interest the worker given the length of the training program.
Ultimately, the SO of General Office Support Worker (NOC 1411) was selected. This was because it interested the worker and utilized her transferable skills. However, her office experience was quite dated and she had limited computer skills. Therefore, a short-term computer-training program (6 weeks) and an office administration course (17 weeks) were recommended.
I note the worker had an extensive educational background and an even more impressive work history that included two senior executive positions. Her duties in those positions included:
Overseeing staff such as physicians, nurses, and social workers
Overseeing satellite offices
Budgeting
Overseeing day-to-day operations
Working with different committees and ministries
With the above in mind, I can appreciate the employer representative’s concern why a supervisory or management SO was not pursued. Aside from the worker’s lack of interest (and of more significance) was the lack of recent experience. This “gap” was found to be an obstacle that would likely require a more extensive retraining plan to overcome. Given the worker’s age (she was 61 in 2021) the feasibility of significant retraining was questionable. Similarly, although the worker had a “science / medical” background, some of her qualifications were not accepted in Canada, again requiring extensive training to make other SO options feasible.
With the above in mind, I am satisfied the SO of General Office Support Worker struck the right balance and was in line with the requirements of policy 19-02-10. However, I have a concern with the conclusion that the worker was only capable of securing an entry-level wage upon the completion of her RTW plan.
In this regard, I note policy 19-02-10 states the earnings for the SO are an estimate of what the worker is capable of earning when re-entering the labour market in a SO. They are established based on whether the RTW plan (with training):
involves the worker acquiring a new skill set or entering a new field. If this is the case, updated entry-level wages are used to determine post-injury earnings, or
is designed to improve the worker’s existing or transferable job skills. If this is the case, updated mid-level wages are used to determine post-injury earnings.
The RTWS recommended the use of an entry-level wage. The worker’s past managerial experience in an office setting was recognized. However, given the time that had elapsed since she was employed in that setting and given her lack of proficient computer skills, the use of a median wage was not recommended. The memo also stated that the worker’s transferrable skills, combined with her training, may / would likely result in the ability to earn a median wage in the SO before the worker retired. The RTWS reconsidered and confirmed the decision in a March 11, 2022 memo.
The key in determining which wage to use is based on what we mean by “acquiring a new skill set / entering a new field” versus “improving a worker’s existing or transferable job skills”. In this regard, I first note some of the potential job duties associated with the SO. They are, as per the labour market data:
Respond to telephone, in person or electronic enquiries or forward to appropriate person
Prepare correspondence, reports, statements, forms, presentations, applications and other documents
Process incoming and outgoing mail, manually or electronically
Photocopy and collate documents for distribution, mailing and filing
Send and receive messages and documents using fax machine or electronic mail
Maintain inventory of office supplies, order supplies as required and arrange for servicing of office equipment
Assist in preparing meeting agendas, attend meetings, and record minutes
Assist with administrative procedures such as budget submissions, contracts administration and work schedules
May sort, process and verify receipts, expenditures, forms and other documents
May organize the flow of work for other office support workers
May perform basic bookkeeping tasks such as preparing invoices and bank deposits.
These type of tasks would certainly be considered “new skills” or a “new field” for someone who only worked as a cook. In such a scenario, the expectation of only an entry-level wage would be entirely appropriate. However, I find that not to be the case in this claim. Granted the worker had not worked in the field since approximately 2007 (about 13 years before the workplace accident). However, the significance of her transferable skills was, in my view, underestimated by the operating area. The worker led, for many years, organizations that included multiple professional disciplines. She was responsible for the day-to-day operations, including budgeting, interactions with unions, and working with various committees and ministries. The suggestion that these acquired job skills where no longer of relevance is difficult for me to agree with given the scope and magnitude of the worker’s professional experiences before she chose to become a cook.
I agree there were technological advancements since 2008. I also note the worker had limited computer skills. However, we were not dealing with a SO that required significant computer knowledge. The fact that computer upskilling only involved 6 weeks of training supports this assertion. In my view, the training was designed to improve the worker’s existing and transferable skills. I find the same holds true for the office administration course.
In summary, it is difficult for me to concur with the view that a worker, employed as the leader of two health organizations over many years (until she chose to change career paths) is considered only capable of earning an entry-level wage in the SO because she was not employed in that setting for about 13 years prior to the workplace accident. Rather, I find the view that the worker was able to earn a median wage in the SO was a more accurate estimate of her earnings capacity upon the completion of her RTW plan. This is because the worker was not entering an entirely new field or acquiring an entirely new skills set. Rather, I find the worker was provided a RTW plan (with training) that improved on her already considerable existing / transferable job skills.
CONCLUSION
As outlined in the above decision I conclude:
Entitlement to an exacerbation to the worker’s pre-existing OA is confirmed.
Entitlement to a permanent impairment is confirmed.
Entitlement to an 8% NEL award is confirmed.
The SO of General Office Worker is confirmed. However, the worker was able to earn a median wage in the SO. Partial LOE benefits are to be adjusted accordingly from November 15, 2021, with the resulting overpayment made non-recoverable.
The employer’s objection is allowed in part.
DATED June 22, 2023
S. Vagadia
Appeals Resolution Officer
Appeals Services Division