Worker v. Employer, 2024 CanLII 140467

20250003

REPRESENTED by:

HEARD by:

DATED:

OCTOBER 28, 2024

ISSUE(S)

The worker representative (WR), on behalf of the worker, objects to the Case Manager’s (CM) decision dated March 11, 2024, which denied Loss of Earnings (LOE) benefits beyond October 2, 2022, on the basis that the worker was capable of fully restoring their pre-accident wages in the Suitable Occupation (SO) of Accounting Technicians and Bookkeepers.

The March 11, 2024, decision made a number of rulings regarding the worker’s entitlement to LOE benefits for different periods between September 5, 2017, and October 2, 2022. However, as noted in Memo A0054, the WR clarified they are only appealing the denial of LOE benefits after October 2, 2022.

BACKGROUND

On June 20, 2017, this then 21-year-old construction labourer sustained a low back injury while performing job duties that involved lifting heavy materials. The claim was accepted for a low back strain. At the time of the injury, the worker had been employed with the company for approximately two years, earning $14.75 per hour.

The worker voluntarily ended their employment on September 5, 2017, choosing to return to school. The claim was officially closed as of September 15, 2017, with the conclusion that the worker had fully recovered.

The worker underwent lumbar decompression and discectomy surgery on October 15, 2021. The worker related their surgery to the workplace accident. The CM however denied entitlement to the surgery on the basis that the worker was deemed to have fully recovered as of September 2017.

On September 21, 2023, an Appeals Resolution Officer (ARO) ruled in favour of the worker, allowing entitlement to the disc herniation and the surgery. The ARO remitted the matter of benefits, covering the period from September 15, 2017, onward, back to the Operating Area for further adjudication.

Following the ARO decision, the CM determined that the worker had sustained a permanent low back impairment, with Maximum Medical Recovery established on October 1, 2022. The worker was awarded a 30% Non-Economic Loss (NEL) benefit in November 2023.

In calculating Loss of Earnings (LOE) benefits beyond September 5, 2017, the CM noted that the worker pursued full-time studies from September 2017 to April 2020, earning an advanced diploma in Business Administration and Accounting. During this period, the worker also took up various retail positions and later secured employment as a transport driving instructor with a transport training centre following graduation.

The worker ceased working temporarily in October 2021 due to their back surgery and received Employment Insurance benefits during recovery. On October 2, 2022, the worker resumed their position as a driving instructor, initially working four (4) hours per week, which increased to six (6) hours per week in April 2023. The worker continues to be employed at the transport training centre.

On March 11, 2024, the CM awarded the worker partial and full LOE benefits for various periods between September 5, 2017, and October 2, 2022. However, the CM denied any LOE benefits beyond

October 2, 2022, asserting that the worker could have restored their pre-injury earnings by working in the field of Accounting Technicians and Bookkeepers. The WR has objected to this decision.

As such, the sole issue under appeal concerns the denial of LOE benefits after October 2, 2022.

AUTHORITY

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits

September 1, 2021

11-02-02 Lost Time Claims

April 9, 2021

19-02-10 RTW Assessments and Plans

November 30, 2020

ANALYSIS

I find the SO of Accounting Technicians and Bookkeepers is suitable for the worker. However, due to the limitations imposed by their impairment, the worker can only work 25 hours per week (5 hours per day) in this SO. Accordingly, the worker is entitled to partial LOE benefits from October 2, 2022, based on deemed wages. My reasoning follows.

The WR did not provide a submission with their Appeal Readiness Form. In a conversation with the CM on May 30, 2024, the WR clarified that they were seeking LOE benefits beyond October 2, 2022, but did not specify the basis on which they were seeking these benefits.

In determining whether the worker is entitled to LOE benefits after October 2, 2022, I am guided by Policy 18-03-02 (Payment and Reviewing LOE Benefits), which states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of:

the day on which the worker’s loss of earnings ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.

Additionally, Policy 18-03-02 states that if the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.

In essence, therefore, the above policy states that a worker may be entitled to full LOE benefits under two circumstances - either they are totally disabled from working in any capacity or they are capable of working, but there is no suitable work that they can perform. In all other circumstances, the worker would be entitled only to partial LOE benefits or, in some cases, no benefits at all.

Since October 2022, the worker has been employed as a driving instructor, working between 4 and 6 hours per week. This suggests that the WR is likely seeking partial LOE benefits based on the worker's actual hours worked. However, as I will explain below, I find that the worker is underemployed, and therefore, not eligible for LOE benefits based solely on their current earnings.

According to Policy 18-03-02, a worker is considered underemployed when they are working in a capacity that does not make full use of their abilities, skills, or training in mitigating the loss of earnings caused by the injury. Examples of underemployment include working reduced hours in the identified SO or taking a lesser-paying job not aligned with the SO. In this case, while the worker is employed, the hours worked do not align with their full potential within the identified SO.

The worker’s level of impairment

Policy 11-02-02 (Lost Time Claims) states that decision-makers determine, through the review of clinical information, when a worker is fit to go back to his/her pre-injury work, or suitable and available work. If the worker is only able to do work that is available at a partial loss of wages/earnings, the worker may be entitled to a partial wage loss benefit or a partial loss of earnings benefit.

The worker underwent a two-level unilateral posterior lumbar decompression and left L3-4 discectomy procedure in October 2021. Based on the post-surgery medical reports, it appears the worker has only had minimal improvement in their overall symptomology. Nevertheless, in a September 21, 2022, medical note, Dr. Ellis (orthopedic specialist) noted that the worker would be able to return to work. The worker indicated that they had a very understanding employer who was willing to have them return to work three times a week with one two-hour driver instructor sessions per day. Dr. Ellis was agreeable to this.

In his October 26, 2022, report, Dr. Ellis noted the worker was having difficulty increasing hours at work due to ongoing back and left leg symptoms. Based on his examination, Dr. Ellis felt the worker had likely irritated a nerve but there was nothing that required any treatment. In a subsequent note dated November 1, 2022, Dr. Ellis documented that they had completed the Functional Abilities Form incorrectly and that the worker’s walking tolerance was 50 metres or less.

Dr. Patterson, family physician, noted in his clinical entry dated February 23, 2023, that the worker was working four hours a week as an instructor and could not tolerate any more hours “due to sitting involved.” He noted the worker goes for a 10-minute walk approximately 4-5 times a week but otherwise was not very physical activity.

Subsequent clinical entries after March 2023 confirm that the worker continued to take a number of medications including Celebrex which had resulted in some pain stabilization. The worker had a telephone consultation with Dr. Ellis on August 29, 2023. Dr. Ellis noted the worker continued to suffer from radicular leg pain despite lumbar surgery. The worker was being considered for epidural injections. By August 2023, Dr. Patterson noted the worker was driving six hours per week but felt they could not work more hours.

In his report dated October 20, 2023, Dr. Fullarton (chiropractor) noted the worker was able to ambulate with a cane. The worker’s standing tolerance was less than five minutes and sitting tolerance was less than 30 minutes. The worker’s active range of motion was also significantly limited.

The worker had another MRI on January 23, 2024, which did not identify any recurrent disc herniation, nerve root compression, or central spinal stenosis.

The worker was seen by Dr. Duggan, anaesthesiologist, for epidural steroid injection in January 2023. According to Dr. Ellis’ report of January 30, 2024, the worker reported a significant improvement in their pain levels following this procedure. Dr. Ellis remarked that over the last few months the worker had improved significantly with their pain levels, and he was hopeful that this new treatment would have a long-lasting effect.

In his letter to the WSIB dated March 27, 2024, Dr. Patterson noted the worker continued to take a number of medications for pain management. In addition to these medications, the worker had undergone epidural steroid injections which resulted in a mild improvement in their back pain. In terms of the worker’s current functional abilities, he documented the following:

Able to stand continuously for five minutes before needing a break,
Can walk 10 minutes before needing to sit down.
Can sit for 30-45 minutes in one position.
can lift a maximum of 10 pounds.
Can lie prone or supine with no restrictions.

Based on the preponderance of medical evidence, I find that the worker is partially disabled and capable of employment within the medical restrictions outlined by Dr. Patterson. While the worker’s 30% NEL award reflects the significant nature of their low back impairment, there is no medical documentation after October 2022 indicating that the worker is incapable of working. On the contrary, recent medical reports suggest an overall improvement in the worker’s symptoms following epidural injections.

I recognize that Dr. Ellis recommended a return to work limited to 4-6 hours per week; however, this recommendation was based on the worker resuming employment as a truck-driving instructor. I find this occupation to be incompatible with the worker’s medical condition and potentially exacerbating their symptoms. As a truck-driving instructor, the worker would need to climb into truck cabins and remain seated for extended periods—up to one hour at a time—while being exposed to whole-body vibrations and suboptimal seating ergonomics. Such demands are unsuitable for someone with a history of failed back surgery.

In contrast, if the worker were employed in a sedentary office environment with access to ergonomic seating and the flexibility to alternate between sitting and standing, I believe they could work more hours than Dr. Ellis recommended. This is demonstrated by the fact that the worker attended college classes for a lot longer than they are currently capable of working. Therefore, I do not accept Dr. Ellis’s opinion that the worker is limited to 4-6 hours per week, as this recommendation is contingent upon performing an inappropriate occupation. There is no objective medical evidence to suggest that the worker could not work additional hours in a more suitable role.

That said, I acknowledge the severity of the worker’s low back impairment, which has been assessed at 30%. The worker’s range of motion is restricted, and they require both pain medication and epidural injections for pain management. Under these circumstances, it is unlikely the worker could sustain full- time employment, even in a role aligned with their medical restrictions.

The worker’s ability to attend college for 4-6 hours per day, as referenced in their response to the CM’s letter dated November 21, 2023, further supports the conclusion that they are capable of working in a sedentary office role. I find that the worker could reasonably manage approximately 5 hours per day, or 25 hours per week, in an appropriate occupation.

In summary, I conclude that the worker is partially disabled and underemployed. The worker is capable of working 5 hours per day, or 25 hours per week, in a suitable and accommodating position.

SO Suitability

Policy 19-02-10 (RTW Assessments and Plans) states that if there is no RTW opportunity with the injury employer, the WSIB reviews RTW opportunities in the labour market. The review of RTW opportunities may include jobs for which the worker already has existing or transferable skills to be able to perform, or jobs for which the worker requires training to be able to perform (e.g., trade, technical or academic programs). A RTW plan (with training) may then be developed that outlines the assistance and services a worker requires to enable their return to work. However, in some cases, limited services are required. For example, if the WSIB identifies a RTW opportunity in the labour market that the worker already has the skills to perform, the plan may only consist of job search training and/or employment placement services.

The policy defines a SO as 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 policy goes on to state that the WSIB generally uses the federal government's National Occupational Classification (NOC) system and labour market information from the federal and Ontario governments as the preferred sources of information to help identify SOs and RTW plan (with training) services the worker may require.

Based on the file record, the worker holds a Grade 12 diploma and obtained an advanced diploma in general construction carpentry techniques in 2015. After voluntarily ending their employment in September 2017, the worker pursued further education, enrolling in a college program at College A that was successfully completed in April 2020.

According to the transcripts on file, the worker earned an advanced diploma with distinction in Business Administration, specializing in Accounting, and achieved an impressive 3.5 GPA. The College A website describes the Business Administration – Accounting program as an advanced diploma that provides comprehensive training in financial accounting, corporate finance, cost accounting, and taxation. It also includes a practical component, requiring students to complete a 140-hour work placement in their final semester—confirmed by the official college transcript. The college notes that graduates of this program typically secure employment in sectors such as public accounting, banking, finance, private business, government, and non-profit organizations.

After evaluating the worker’s educational background, the CM determined that the worker is qualified to work within the scope of Accounting Technicians and Bookkeepers. Having reviewed all the evidence, I find no reason to alter this decision.

In the most recent version of the NOC guides, Accounting Technicians and Bookkeepers fall into NOC 12200. Accounting technicians and bookkeepers maintain complete sets of books, keep records of accounts, verify the procedures used for recording financial transactions, and provide personal bookkeeping services. They are employed throughout the private and public sectors, or they may be self-employed. Examples of job titles include:

Accounting bookkeeper
Accounting technician
Bookkeeper
Finance technician

In terms of educational requirements to be employed in this NOC, the following is noted:

Completion of secondary school is required.
Completion of a college program in accounting, bookkeeping or a related field
or completion of two years (first level) of a recognized professional accounting program (e.g., Chartered Accounting, Certified General Accounting)
or courses in accounting or bookkeeping combined with several years of experience as a financial or accounting clerk are required.

Finally, according to the career handbook that accompanies the NOC guide all jobs in this NOC group are sedentary in nature. Strength is listed as “limited” in the strength category and “body position” is primarily sitting with occasional walking and standing.

Upon reviewing the information provided in the NOC guide, I am confident that the worker possesses the essential educational qualifications to embark on an entry-level career in this SO. It is evident that the worker also recognized the suitability of this NOC, as they voluntarily left their job to pursue further education, obtaining a diploma in business/accounting to enhance their prospects in the field.

The fact that the worker has yet to secure (or chosen not to secure) a position in their desired profession, is unrelated to their workplace injury. This is clearly illustrated by the worker’s response to the CM’s inquiry dated November 21, 2023, which asked about their challenges in finding employment in their chosen field. The worker articulated that after completing their program, the onset of COVID-19 lockdowns severely disrupted the job market, rendering it difficult for them to find suitable employment. It was during this challenging time that a friend offered them a position as a truck driving instructor, a role they accepted in light of the prevailing labor market conditions.

While I acknowledge the worker faced difficulties in securing employment following their graduation in 2020, these challenges stemmed from unprecedented economic circumstances brought about by the COVID-19 pandemic—a situation that affected many, not just the worker. There is no evidence to suggest that the worker lacked the educational background or training necessary to secure entry-level employment. With the pandemic now behind us, there is every reason to believe that the worker can successfully pursue opportunities in this NOC if they choose to do so. Furthermore, there is no indication that entry-level positions are unavailable in the worker’s local area. Residing in City A — one of eastern Ontario’s largest cities with a population exceeding 50,000—the worker has access to additional opportunities in nearby cities like City B and City C, both located just an hour away, where job prospects may be even more abundant. According to Job Bank Canada, the employment outlook for this SO in the Eastern Ontario region is rated as fair to average.

Additionally, I find that the SO is physically suitable for the worker. Dr. Patterson's correspondence dated March 27, 2024, outlines the functional abilities of the worker, indicating they are capable of thriving in any role that allows for positional flexibility. Most positions within this NOC category inherently offer such adaptability.

The CM highlighted that the average entry-level wage for this SO in Ontario stands at approximately

$17.31 per hour. Given that the minimum wage in Ontario was $15.50 per hour as of October 2022, I believe the CM’s wage assessment for an entry-level accounting position is both reasonable and justified.

I must also emphasize that, despite having recently earned a college diploma, the Operating Area extended further RTW services to the worker, which included additional courses, job search training, and employment services. The worker declined this offer, expressing satisfaction with their current employment situation. In my opinion, pursuing these additional courses would have equipped the worker with valuable skills to enhance their employability in this SO.

For these reasons, I conclude that the SO of Accounting Technicians and Bookkeepers is indeed suitable for the worker.

In summary, I find the worker is underemployed in their current (unsuitable) job as truck driving instructor. The medical evidence supports the worker is partially impaired and capable of working at least 25 hours a week in the SO of Accounting Technicians and Bookkeepers. This SO is physically suitable and available in the worker’s local labour market, and the worker possesses the necessary educational qualifications to secure employment in this SO.

CONCLUSION

Based on the foregoing reasons, I conclude:

The SO of Accounting Technicians and Bookkeepers is suitable for the worker.
The worker is entitled to partial LOE benefits from October 2, 2022, based on SO wages of

$17.31 per hour at 25 hours a week.

Since the worker is now entitled to partial LOE benefits beyond October 2, 2022, the Operating Area will need to conduct a Final LOE Review in accordance with the provisions outlined in Policy 18-03-06 (Final LOE Benefit Review). This will constitute a new decision and will be subject to the usual rights of appeal.

The objection is allowed-in-part.

DATED: OCTOBER 28, 2024

H. Mohamed

Appeals Resolution Officer Appeals Services Division