DECISION NUMBER: 20230097

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER

REPRESENTED by: EMPLOYER REPRESENTATIVE

HEARING: TELECONFERENCE – JULY 19, 2023

HEARD by: M. RODRIGUES, APPEALS RESOLUTION OFFICER

ADDITIONAL ATTENDEES: OBSERVER – WORKER REPRESENTATIVE RESOURCE PERSON

DATED: JULY 26, 2023

ISSUES

The worker, through his representative, is objecting to the case manager’s decision of July 29, 2021 that determined the following:

1. The suitable occupation (SO) of Sales and Account Representative, Wholesales Trade, Non- Technical (Sales and Account Representative) was suitable.

2. The denial of entitlement to loss of earnings (LOE) benefits following the permanent work disruption of May 22, 2020.

BACKGROUND

A prior Appeals Resolution Officer decision of March 18, 2021 has thoroughly documented the claim history and has no bearing on the current issues under appeal in this claim. As such, I will only provide a brief history in order to place the issue for this appeal into context.

On January 5, 2017, this transport driver was prying open a jammed door on a trailer, when he slipped on ice and hyperextended his low back. Initial entitlement was accepted for health care benefits for an L4-L5 facet sprain/strain. The worker returned to modified duties. A permanent impairment was later accepted and on June 18, 2018, the worker received a 7% non-economic loss (NEL) benefit.

There was no further claim activity until March 2021. The worker informed the WSIB he was permanently laid off on May 22, 2020 due to a shortage of work. At the time of the layoff, the worker was performing permanently accommodated work as a safety trainer. In April 2021, the case manager determined the workplace injury affected the worker’s ability to return to regular duties. The claim was referred to the return-to-work specialist (RTWS) to establish a SO.

In a decision letter of July 29, 2021, the case manager found the direct-entry SO of Sales and Account Representative was suitable at median-level wages. This exceeded the worker’s pre-injury earnings. The case manager determined the LOE at the time of the permanent work disruption resulted from an employment situation and not the workplace injury and associated clinical restrictions. Entitlement to LOE benefit following the permanent work disruption of May 22, 2020 was denied. The decision was reconsidered on January 19, 2022, but the original decision was upheld.

The worker objects to the decision dated July 29, 2021 and the issues were referred to the Appeals Services Division for further consideration.

AUTHORITY

Operational Policy Manual Published

15-06-03 Entitlement Following Permanent Work Disruptions April 9, 2021

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) January 2, 2018

19-02-10 RTW Assessments and Plans November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the SO of Sales and Account Representative is suitable. I find entitlement to partial LOE benefits is in order from May 22, 2020 based on the entry-level SO wages for the SO of Sales and Account Representative at full-time hours. The nature and duration of benefits that flows from this decision is remitted back to the operating area for further adjudication and is subject to the usual rights of appeal. The worker’s objection is allowed in part.

Worker testimony

During the oral hearing, the worker gave relevant sworn in testimony about his age, education, employment history in the oil and gas industry and his employment history from 2003. He provided information concerning the work performed prior to the 2017 workplace accident, modified duties after the 2017 workplace accident, layoff and applying for jobs, and RTW services and the identified SO.

Age

The worker confirmed being in his late fifties when he sustained a work-related injury in January 2017. When he was laid off work in March 2020, he was in his early sixties. At the time of the case manager’s decision of July 2021, the worker was in his early sixties.

Education

The worker finished high school. He also took some engineering courses pertaining to the oil and gas industry. The worker confirmed his primary language is English, but he can speak conversational Arabic and French as well.

Employment history in the oil and gas industry

The worker started working at age 17. He was going to university, but took a year off. The worker was employed as a wire line helper and was promoted to wire line operator. He then worked in a supervisory position in City X, Province X. The worker explained the work he performed in the wire line industry. It involved running piano wire off the spool on the truck, putting gauges on the wire into the spool and lowering it into the ground. This included manipulating equipment into the hole, with moving the spool up and down where the wire was wrapped. Tension and pressure control was also involved.

The worker was then sent to City Y, Province X, where he would retrieve equipment lost down the well. It involved running the same wire down the well. The work also included temperature and pressure surveys, along with the use of mechanical equipment. The worker indicated the duties were more on the manual side of things and did not involve sales work. The duties also included drill stem testing, which consisted of running tools down tubes in the well. A pressure test would be completed and then the drill stem testing. The worker performed these duties for five- to seven-years.

The worker confirmed working in the oil and gas industry from 1976. He then asked for a sales position in 1980 or 1981. The worker went back and forth between the field and sales, working primarily in sales after that. The job duties involved technical sales. He needed to prove he had more experience that his competitor and more of a technical sales advantage. The worker was familiar with the machinery in the oil and gas industry. There were different practices for each – oil and gas. A person needed to have an understanding about metal energy, engineering, porosity and so on.

The worker began working in City Z in 1985 in sales. He became an international sales manager and travelled the world. He worked in City Z two-and-a-half years. It took over one-and-a-half years to negotiate with a company in Country A. The worker was asked to move and he moved to Country B in 1993. He worked at two different companies while there.

The worker was then transferred to Country C, where he educated others on the product line. He was then asked to take over operations in Country W. The worker was transferred to Country D. He was then asked to return to Canada. The company asked him to return to Canada, but he declined. He left the company in 2003.

When speaking about the oil and gas industry, the worker said specific knowledge was required. He explained the difference between upstream and downstream within the industry. Working upstream involved drilling and completing the wells on a bare piece of land, bringing it to the surface. Whereas, working downstream involved refinery work. The worker confirmed he did not perform downstream work.

Employment history from 2003

In 2003, the worker and his family moved to Country V. He stayed there for five-years performing charity and aid work. This involved helping to bring food and water to those displaced. He set up an aid charity, which set up vans in displacement camps, to render aid and support to people. The worker created a back-to-work program. He gave an example where fisherman were interviewed and their fishing gear was replaced. The worker also set up an English as a Second Language program. His spouse set up a ‘Work for Widows’ program, where his family sold products made to the Western market.

In 2007, the worker and his family returned to Canada. He purchased a hotel in Province Y, renovated and ran it for five-years. Unfortunately, a fire occurred and the worker was involved in litigation for the hotel. He was unable to work during that time due to the litigation.

The worker subsequently returned to Province Z as the litigation wrapped up. Then he applied for jobs at a home improvement retail store and transportation and logistics company, but received no calls. He was watching television one day and became interested in a career in trucking. The worker went to trucking school and obtained his certification. He noted the course cost him around $8,000.00. Upon graduation, the worker contacted five trucking companies, but settled on the employer.

The worker was asked by his representative why he did not return to a career in the oil and gas industry at that time. He stated that industry was in Province X. While he wanted to return to that industry, the worker noted the head offices were in other parts of the world. His contacts in the domestic portion of the industry had moved on. The worker’s contacts were mainly international. He noted that relationships and technical acumen were important for that industry.

Work performed prior to the 2017 workplace accident

Prior to the workplace accident, the worker was a truck driver with a dedicated route from City B, to City A, to State X. He then asked for day work. This consisted of driving to certain points and across various distances during the day. The worker performed these duties for several months. He then asked for a trainer position, which consisted of him being a passenger in the truck and observing the new driver. This position paid more. He attended courses in working at heights and trained his co-workers on it. He performed training work until the workplace accident.

Modified duties after the 2017 workplace accident

Following the workplace accident, the worker confirmed the employer accommodated him until the layoff in 2020. At first, the worker was shuffling papers. Then he helped in the yard, directing trucks to back into a spot. The worker was performing exam work, which consisted of rating a driver while they drove a specific route. He also helped in the maintenance department.

The worker was also selected to train, learning about overhead crane work and working at heights. After the training, he returned to the employer to train drivers and the maintenance staff. The worker trained drivers how to use the ISAAC trucking system.

Layoff and applying for jobs

The worker stated the employer terminated the employment of anyone performing modified duties in 2020. He was unsure if others, co-workers who were not on modified duties, had their employment terminated. The worker confirmed receiving a standard severance package.

Following the layoff, the worker applied to four- or five-trucking companies for jobs in training and driver retention. He did this because he was performing these duties prior to his layoff. However, the worker received no calls. He has not returned to the workforce since his layoff. The worker received the Canada Emergency Response Benefit during the COVID-19 pandemic and then employment insurance, which ended a while ago. He did not recall applying for Canada Pension Plan benefits. The worker noted his spouse was employed and they lived off that money.

RTW services and identified SO

The worker recalled speaking with the RTWS one time on the phone. They discussed his past employment history, why he chose to work in the trucking industry and if he was tech savvy. The worker said he was not tech savvy because he can only email, but cannot complete spreadsheets. He said the RTWS may have told him about the SO of Sales and Account Representative, but cannot confirm it.

The worker noted the RTWS offered no options to him, nor helped him find employment. He confirmed not applying for any jobs in the identified SO. The worker attempted to find work in training, but was unable to do so. He had never worked in the identified SO or retail and marketing. The worker reiterated he never did anything having to do with retail sales in his life, nor understood anything about it. He noted the RTWS did not identify jobs that he could apply for in the SO. The worker stated the experience needed for the SO was to be a people person and grow into the positions. He indicated being unable to tell the difference with Levi’s or Gucci jeans.

Worker position

The worker representative argued the worker’s past work experience was specialized. There was no opportunity for the worker to secure employment in the identified SO, nor was there any work available. The worker’s age affected his ability to find work and he opined the worker was competitively unemployable. The representative requested entitlement to full LOE benefits from May 22, 2020 due to the worker’s lack of transferrable skills, age and restrictions. He contends the secondary SO of Customer Service was not physically suitable, given the worker’s age. In the alternative, the representative stated the worker was only capable of earning entry-level wages at part-time hours.

Employer position

The employer, nor their representative, participated in this appeal, or provided any submissions for my review.

Policy

The WSIB generally maintains the loss of earnings (LOE) benefits the worker was receiving at the start of a permanent work disruption. This is outlined in policy 15-06-03 (Entitlement Following Permanent Work Disruptions). Permanent work disruptions, in part, 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.

The WSIB reviews entitlement to additional LOE benefits and 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, the WSIB identifies a SO for the worker and determines if the worker requires WSIB assistance to re-enter the labour market in that 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.

Workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits.

This is detailed in policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)). The policy states the amount of a partial LOE benefit is 85 per cent of the difference between a worker's pre-injury net average earnings (NAE) and the NAE a worker earns or is able to earn in suitable and available employment or business after the injury (post-injury earnings). Post-injury earnings may be based on either actual employment earnings or determined earnings.

To develop a RTW plan (with training), the WSIB generally identifies a SO for the worker. This is outlined in policy 19-02-10 (RTW Assessments and Plans). A SO represents a category of jobs suited to a worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and that to the extent possible, restores the worker’s pre-injury earnings. The SO must be available, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation. The WSIB considers a number of factors when determining a SO, including:

• 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

Findings

I find the available evidence supports the work disruption of May 22, 2020 was permanent. This is substantiated by the termination letter of the same date and the worker’s testimony. Initially, the layoff was temporary based on the correspondence of March 25, 2020. Subsequently, the worker was permanently laid off and received a severance package.

In this claim, the worker was not in receipt of LOE benefits at the start of the work disruption. There is no discrepancy in the type of work duties the worker was performing at the start of the permanent work disruption. He testified performing modified duties at the time of the layoff. This consisted of helping in the yard by directing trucks to back into a spot. The worker was performing exam work, which consisted of rating a driver while they drove a specific route. He helped in the maintenance department. The worker trained drivers and the maintenance staff, which also included the use of the ISAAC trucking system.

In June 2018, the worker received a 7% NEL benefit for a low back L4-L5 facet sprain/strain. As noted in the case manager’s decision of April 4, 2018, permanent restrictions were accepted. The restrictions consisted of work at a sedentary physical demands level, with the avoidance of low-level work. Sitting was limited to an occasional basis with micro-breaks as needed for position change. It was recommended the worker avoid lumbar extension, overhead work and limiting the rotation of lumbar spine to a rare basis.

As the worker confirmed during his testimony, he continued to be accommodated at work prior to the layoff. He attempted to return to the workforce, in a training position, following the layoff, but was unsuccessful. He has not returned to work since the layoff in May 2020.

Policy 15-06-03 (Entitlement Following Permanent Work Disruptions) states 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 RTW services. The policy states 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.

However, that was not the case in this claim. I do not find a SO was previously identified because the worker was not in receipt of RTW services at the time of the permanent work disruption.

The policy goes on to state that 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. To determine if the suitable work performed prior to the work disruption is the worker’s SO, the WSIB considers the following three questions, which need to be answered in the affirmative for that to be the case. The questions are:

a) Does such work exist in the general labour market?

b) Does the worker have the transferable skills/qualifications that would allow them 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?

The policy states that 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 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.

I note the worker performed suitable work, consisting of a variety of training duties, following the workplace accident of January 5, 2017 and the permanent work disruption of May 22, 2020. At the time of the layoff, the worker helped in the yard by directing trucks to back into a spot. He performed exam work, which consisted of rating a driver while they drove a specific route. The worker helped in the maintenance department. He also trained drivers and the maintenance staff, which also included training them on the use of a trucking system.

I do not find there was significant expense or efforts made to modify the work or workplace for the worker. There is no information to support the worker performed those tasks at a lower productivity rate vs. non-injured workers. The duties were available at no wage loss and full-time hours. I note the worker did not lose time from work following the workplace accident. He returned to modified work, which he continued to perform until his temporary and then permanent work disruption layoff dates of March 25, 2020 and May 22, 2020.

I accept the worker representative’s position that the modified duties the worker performed at the time of layoff was not available in the labour market. I do not find the accommodated work complies with all three questions as listed above. I am not satisfied the suitable work performed prior to the work disruption is considered to exist in the general labour market. I note the worker performed a variety of tasks prior to their permanent layoff. While similar work may exist at other companies, I find the tasks and work processes were specifically accommodated for the worker’s low back impairment to the extent they were unlikely to exist with another employer.

Lastly, policy 15-06-03 (Entitlement Following Permanent Work Disruptions) indicates that if a worker’s SO is not identified, 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 policy 19-02-10 (RTW Assessments and Plans).

The worker representative argued the worker was competitively unemployable following the permanent work disruption of May 22, 2020. Of note, the term “competitively unemployable” is not defined in the Workplace Safety and Insurance Act or WSIB operational policy. In order to conclude if a worker is competitively unemployable, I need to determine if they were unable to earn any income in suitable employment due to their work-related injuries. Rather, the concept of being “competitively unemployable” is a consideration of the cumulative effect of medical, psycho-social and job market factors related to a workplace injury that would reasonably impact a worker’s ability to obtain and sustain suitable work.

I considered the worker representative’s position, including the factors he presented, for the worker being competitively unemployable. The representative cited the worker’s age, specialized skill set based on his employment history and restrictions, indicating it made him competitively unemployable. He stated the worker was 61-years of age at the time of the layoff and 62-years old, turning 63, when the case manager made their decision in July 2021.

I find the circumstances differed in this claim. I find there is a lack of available evidence to support the worker representative’s argument that the worker’s age renders them competitively unemployable. I do not accept that the worker’s age precluded them from finding employment.

While the worker was 61-years of age at the time of the permanent work disruption, I do not consider age to be a barrier in regards to finding employment. I note the worker began working with the employer in 2015, after completing and obtaining certification to be a truck driver. At that time, the worker would have been around 57-years old. This indicates to me he was capable of learning new skills, which he did when he complete the truck driving course. In my view, there is no available evidence to support the worker’s age will prevent him from seeking, finding or obtaining employment.

The worker has a vast and varied employment history. He worked in the oil and gas industry for approximately twenty-seven years from 1976 to 2003. He then worked as a charity aid worker from 2003 to 2007. During this time, the worker even created a charitable aid foundation and a few programs to help the residents in Country V get back on their feet following the tsunami. Upon returning to Canada in 2007, he opened up a hotel, which he renovated and ran for about five years until it was damaged by fire.

In my view, the worker’s prior work experience in the oil and gas industry and running a charity aid foundation and hotel, did not preclude him from finding work in the trucking industry. The worker became interested in trucking and completed the course work required to become certified. He began working as a trucker in 2015 with the employer.

In terms of the worker’s education, I note he finished high school. He completed various courses in engineering pertaining to the oil and gas industry. The worker took the truck driver courses and obtained his certification. He also attended trainer courses while working for the employer. As such, I do not find the worker’s education prevented him from finding work.

I find there is insufficient clinical evidence in the case record to support the worker was unable to return to work in any capacity after the permanent work disruption. The worker testified he applied for training and driver retention positions following the permanent work disruption in May 2020, but was unsuccessful in finding employment. In my view, this supports the worker wanted to and was capable of returning to the workforce in some capacity following the permanent work disruption.

As I previously noted, the case manager’s decision of April 4, 2018 found the worker partially recovered and had permanent restrictions for the low back injury. There was no indication, on the part of the case manager, that the worker was totally impaired and incapable of returning to work at that time. I acknowledge the worker has a 7% NEL benefit for his low back impairment. However, I do not find that precluded him from continuing to perform suitable work until the work disruptions in 2020.

Following the permanent work disruption of May 22, 2020, it remains unclear what changed in the worker’s physical abilities to make them unfit to return to work in any capacity from the worker representative’s perspective. There is no further clinical evidence in the case record after the specialty clinic report of March 26, 2018. As such, I do not find the worker’s restrictions or work-related low back impairment limited him from seeking and finding employment.

Thus, I do not find the available evidence supports the worker is competitively unemployable. I find the worker possessed the sufficient education and employment history to be competitively employable. I find the available evidence does not support that the worker’s age, prior work experience, education, or permanent restrictions renders him competitively unemployable.

As I have addressed the worker representative’s arguments regarding competitively unemployability and found the worker was employable, I will now move onto determining whether the SO of Sales and Account Representative is suitable.

On June 28, 2021, the RTWS contacted the worker to gather information in order to complete a consultation report. At that time, the worker stated he was actively searching for jobs and was not planning to retire yet. On July 21, 2021, the RTWS considered four SO options before recommending the SO of Sales and Account Representative ((National Occupation Classification (NOC) 6411).

In the decision of July 29, 2021, the case manager determined the job duties of the direct-entry SO were aligned with the worker’s permanent restrictions and work experience. Median-level wages at $24.04 per hour were recommended. There was no entitlement to LOE benefits or RTW services.

As such, I reviewed the Career Handbook to take a closer look at the job duties for Sales and Account Representative. The Career Handbook is the counselling supplement to the NOC. The WSIB uses the NOC to help identify a SO and earnings for a worker. The NOC is a system that classifies and describes occupations in the Canadian labour market according to skill level and skill type. A decision-maker then determines the worker’s SO using the NOC system.

I reviewed the Career Handbook in regards to educational, employment, environmental and physical requirements for the SO of for Sales and Account Representative (NOC 6411). There are various sales representative positions available in this SO in advertising time, food product, freight, graphic design, hotel accommodation, liquor, magazine, oil distributor, security services, transfer company agent and wholesale trade.

Sales representatives in wholesale trade (non-technical), sell non-technical goods and services to retail, wholesale, commercial, industrial, professional and other clients domestically and internationally. They are employed by establishments that produce or provide goods and services such as petroleum companies, food, beverage and tobacco producers, clothing manufacturers, motor vehicles and parts manufacturers, hotels, business services firms, and transportation companies.

The duties may include promoting sales to existing clients, identifying and soliciting potential clients, and providing clients with presentations on the benefits and uses of goods or services. Representatives estimate or quote prices, credit or contract terms, warranties and delivery dates. It may involve the preparation or overseeing the preparation of sales or other contracts, consultation with clients after a sale or signed contract to resolve issues and provide ongoing support. The representative may need to review and adapt to information regarding product innovations, competitors and market conditions, represent companies that export and import products or services to and from foreign countries and conduct sales transactions through Internet-based electronic commerce,

I will first address whether the educational and employment requirements are met for the selected SO. I find the educational requirement is met by the worker in the identified SO. The Career Handbook indicates that completion of high school is required. Experience in sales or an occupation related to the product or service is usually required as well. Fluency in a foreign language and/or foreign country work or travel experience may be required for sales representatives seeking employment with companies that import or export goods or services.

The representative argued that at almost 63-years of old, the worker had no prospects in the identified SO or the oil and gas industry. He argued the worker’s employment history was highly specialized and unique. The worker had not worked in sales for over 15-years. He referenced a July 2021 memo in regards to the identified SO, noting the education required. However, I did not come to the same conclusion after reviewing the available evidence in the case record.

The worker completed high school, as confirmed by the information he provided to the RTWS during their conversation and his testimony. He also took courses in the oil and gas and trucking industries. It is important to note that prior to becoming a truck driver, the worker was employed in the oil and gas industry for about 27-years, from 1976 to 2003. For the majority of that time, he was employed in a sales position.

Furthermore, the worker transitioned from working in that industry to creating and running a charity aid organization for about 5-years from 2003 to 2007. The worker then purchased, renovated and ran a hotel for another 5-years. The worker then became interested in truck driving and completed his certification. He began working as a truck driver in 2015.

Following the January 2017 workplace accident, the worker transitioned to a trainer role. He helped out in the yard and maintenance department. I note the worker also attended trainer courses while working for the employer. He took courses in working at heights and learned about overhead crane work. The worker began training his co-workers and rode in the truck as a passenger, where he evaluated drivers.

The worker representative opined the worker’s employment history was not applicable for the identified SO. He argued the worker had no experience in the SO and did not find the worker’s prior experience aligned with what was needed to the SO.

I find it noteworthy the worker’s education did not preclude them from working in various jobs and changing occupations, noting their extensive employment history as outlined above. I note his prior job experience allowed him to work in various parts of the world. The worker has extensive experience in the oil and gas industry, aid charities, hospitality and trucking, along with various courses and/or certifications. In my view, this will enable him to adapt to numerous jobs within the SO of Sales and Account Representative. As such, I am satisfied the educational and employment requirements are met for this SO.

I note the worker had no restrictions for working indoors or outdoors. Noting the variety of jobs in the identified SO, I am satisfied the environmental requirement is met.

I find the available evidence supports the physical requirement for the selected SO is met. In reviewing the career handbook, it states the work activities involve handling loads of 5-kg, but less than 10-kg. The primary type of posture or body movement involved in performing the work requires varying degrees of sitting, standing and walking.

I note permanent restrictions were accepted for the low back impairment in the case manager’s decision of April 4, 2018. As I outlined earlier, the restrictions consisted of work at a sedentary physical demands level, with the avoidance of low-level work. Sitting was limited to an occasional basis with micro-breaks as needed for position change. It was recommended the worker avoid lumbar extension, overhead work and limit the rotation of lumbar spine to a rare basis.

I find the worker was physically capable of performing the duties required within the SO of Sales and Account Representative. I find that given the various jobs within the identified SO, the physical requirement is met, provided the worker seek out employment opportunities that match his permanent restrictions for the low back.

I find there are various tasks and jobs within the identified SO of Sales and Account Representative that the worker can perform. I find the duties associated with the SO do not exceed the worker’s restrictions that were accepted by the case manager as permanent for the low back. As such, I find the worker was capable of performing various tasks required in this SO and the physical requirement is met.

Lastly, I will turn to SO availability in the local job market. The worker representative contends a direct- entry SO was identified and the worker was not even provided with any information or support of the identified SO. The representative questioned the availability of jobs in the SO and disagreed with the RTWS’ opinion that the job outlook was good. The representative could only find one job posting, which came up as a “justice of the peace” in the posting.

Policy 19-02-10 (RTW Assessments and Plans) states the local labour market is not limited to a particular city or town but also comprises any surrounding areas to which the worker might reasonably commute. If there are no available SOs in the local labour market, the labour market may be expanded to the broader labour market to identify available SOs. In such cases, relocation may be an option considered, since the broader labour market would be outside a reasonable commuting distance for the worker.

Of note, the worker testified he had no experience in the identified SO, or retail and marketing. He indicated not knowing the difference between an expensive and cheaper version of jeans. However, the SO of Sales and Account Representative does not limit the worker to only retail jobs. In my view, the identified SO is a broad category and not just limited to a few positions.

I do not find there is a lack of availability of jobs within the selected SO in the worker’s geographical area. I noted the RTWS indicated the job prospects were “fair” in regards to the SO of Sales and Account Representative in the local labour market. In reviewing the Government of Canada job bank, the job prospects were good and employment is expected to remain relatively stable.

The worker representative concluded the identified SO was not suitable because the worker had no chance to obtain or maintain employment. He considered the worker competitively unemployable. However, I did not find that to the case in this claim, nor that the worker was competitively unemployable and outlined my findings for why earlier in my decision.

I note the representative questioned the opportunities the worker would have in the SO. However, in my view, there is no guarantee a worker may be successful in finding employment after the RTW plan completion or closure. As I previously stated, the worker’s employment history is vast and includes the aid charity work and working in the oil and gas, hospitality and trucking industries.

The worker representative noted a median-level wage was recommended and opined if the worker was able to secure employment at that pay, he would have already done so. The representative indicated that should I find the identified SO as suitable, the worker would only be capable of earnings entry-level wages at part-time hours.

In terms of part-time employment, policy 19-02-10 (RTW Assessments and Plans) states if a worker was working full-time hours, but a return to full-time hours is not feasible due to the work-related injury/disease, a SO with part-time hours may be considered.

I agree with the worker representative’s position that entry-level SO wages should be used in this claim. For the majority of the worker’s time in the oil and gas industry from 1976 to 2003, he was employed in sales positions. However, at the time of the permanent work disruption in 2020, it had been about 17- years or so since the worker’s last sales position. In my view, it would not be reasonable for the worker to earn median-level wages in the SO of Sales and Account Representative.

However, I do not accept the worker representative’s position that the worker was only capable of working part-time hours. In my view, there is no available clinical evidence to support the worker’s inability to work on a full-time basis. Of significance, at the time of the work disruptions, the worker was working full-time hours on modified duties. There is no clinical opinion in the case record from any of the treating health practitioners with respect to the worker’s ability to work part-time given their low back impairment. I find the recommendation to work part-time was based on the worker representative’s opinion that the worker was not capable of working on a full-time basis.

Noting policy 19-02-10 (RTW Assessments and Plans), I find the SO of Sales and Account Representative is suitable. I am satisfied this SO is appropriate because the worker has the skill set and physical capability to find gainful employment within the accepted restrictions. The worker representative argued the worker is competitively unemployable. However, in my view, the worker’s low back impairment, along with their age, education and extensive and varied employment history, does not render him unable to work in the identified SO.

As I previously stated, I did not find the worker was capable of earning median-level wages following the permanent work disruption of May 22, 2020. I do not find the entry-level wages for the SO of Sales and Account Representative would fully restore the worker’s pre-injury earnings. As such, I find the worker is entitled to partial LOE benefits following the permanent work disruption.

Thus, noting policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)), I find the worker is entitled to partial LOE benefits from May 22, 2020 based on the entry-level SO wages for the SO of Sales and Account Representative at full-time hours. The nature and duration of benefits that flows from this decision is remitted back to the operating area for further adjudication and is subject to the usual rights of appeal.

CONCLUSION

As outlined in the above decision, I conclude:

1. The SO of Sales and Account Representative is suitable.

2. Entitlement to partial LOE benefits is in order from May 22, 2020 based on the entry-level SO wages for the SO of Sales and Account Representative at full-time hours.

The nature and duration of benefits that flows from this decision is remitted back to the operating area for further adjudication and is subject to the usual rights of appeal.

The worker’s objection is allowed in part.

DATED July 26, 2023

Ms. M. Rodrigues Appeals Resolution Officer Appeals Services Division