Appeals Resolution Officer Decision
DECISION NUMBER: 20250020
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT PARTY: EMPLOYER (NOT PARTICIPATING)
HEARING: HEARING IN WRITING
HEARD by: H. MOHAMED, APPEALS RESOLUTION OFFICER
DATED: DECEMBER 12, 2024
ISSUE(S)
The worker representative (WR), on behalf of the worker, objects to the following decisions:
The Return-to-Work Specialist (RTWS) decision dated February 9, 2023, which identified the Suitable Occupation (SO) of Customer Service Representative as the best employment option for the worker.
The Case Manager’s (CM) decisions dated August 3, 2023, which denied secondary entitlement to the right hip.
BACKGROUND
On July 21, 2020, this then 60-year-old crane operator was descending a staircase when they rolled their left ankle. The claim was allowed for a left talus fracture and left subtalar dislocation. Entitlement was later expanded to include post-traumatic left subtalar arthritis. The worker underwent left ankle surgery (arthrodesis) on September 9, 2021, through the WSIB Lower Extremity Specialty Program (“Specialty Clinic”) and remained off work after this date.
The worker was discharged from the Specialty Clinic on June 15, 2022, with permanent lower extremity restrictions, which included the inability to use any form of public transportation. The Operating Area accepted a permanent impairment (PI) in August 2022 resulting in the worker receiving a 4% Non- Economic Loss (NEL) benefit in recognition of their PI.
As the employer was unable to accommodate the worker’s permanent limitations, a Return-to-Work (RTW) plan was developed to assist the worker in re-entering the labour market. The SO selected was Customer Service Representative, national occupational classification (NOC) code 6552, and the plan included computer upgrading and employment services. This was communicated to the worker in a decision dated February 9, 2023. The WR has objected to this decision, essentially arguing that the worker is unemployable.
The worker successfully completed the RTW plan in July 2023, but did not secure employment. The worker’s loss of earnings (LOE) benefits were adjusted from July 22, 2023, based on entry-level SO wages.
In August 2023, the WR requested secondary entitlement to a right hip injury, which they believe developed gradually as a result of the altered gait from the left ankle impairment. In a decision dated August 3, 2023, the CM denied entitlement to a right hip injury on the basis that there was no evidence to suggest that the left ankle impairment had caused any issues with the worker’s right hip. The WR has objected to this decision also.
Accordingly, the following questions will be addressed in this appeal:
- Is the worker employable, and if so, whether the SO of Customer Service Representative is suitable?
- Does the worker have secondary entitlement to a right hip injury?
AUTHORITY
Operational Policy Manual
Published
19-02-10 RTW Assessment and Plan
November 30, 2020
15-05-01 Accidents Resulting from Work-Related Disability/Impairment
April 9, 2021
ANALYSIS
For the reasons that follow, I find the worker is unemployable. The worker is entitled to full LOE benefits from July 22, 2023, to age 65. Furthermore, I find the worker has secondary entitlement to a right hip injury.
1. Employability and suitability of chosen SO
The essential thrust of the WR’s position is that the worker is unemployable and should be paid full LOE benefits to age 65. The WR notes the worker is 64 years old and will have a difficult time finding employment at such an advanced age. The WR references some case studies that identify the difficulties faced by aging workers in finding suitable employment. Furthermore, the worker’s entire employment career has been in heavy equipment construction work with no experience in any customer service occupations. Finally, the WR submits the worker’s permanent left ankle restrictions and right hip symptoms, which causes a visible limp, poses a significant barrier in securing employment with a new employer.
Having reviewed the evidence, I agree with the WR that the worker is likely unemployable.
While I acknowledge the worker has a relatively minor permanent left ankle impairment that would not preclude them from working in a sedentary job, the worker’s employability and impairment are separate and distinct concepts. While a worker may only be partially impaired they may have no real prospects of being able to obtain or maintain employment in the general labour market. Competitive unemployability may occur for various reasons including the worker’s age, level of education, transferable skills, literacy or the nature of the compensable condition.
Policy 19-02-10 titled “RTW Assessment and Plan” states that WSIB generally identifies a SO for the worker. 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.
It is clear from the above section that decision-makers must take a multifactorial approach when it comes to assessing the worker’s employability within a particular SO and the general labour market.
With regards to NOC 6552, the claim file contains information about this NOC from the NOC Handbook. This information was submitted by the RTWS. According to the NOC Handbook, positions under NOC 6552 require limited strength (loads up to 5kg) and sitting is primarily required, although some walking and standing may be required. Based on the worker’s physical restrictions, I find that some (if not most) positions within NOC 6552 would likely have been physically suitable for the worker.
According to the NOC Handbook, positions under NOC 6552 require a worker to answer customer enquiries in person or on the phone, investigate complaints from customers, arrange for refunds, exchanges and credits on returned merchandise, promote goods or services, receive account payments, and explain services and account details. These are examples of duties and not an exhaustive list.
According to the NOC Handbook information, the employment requirements for NOC 6552 are:
- Completion of secondary school is usually required.
- Completion of some college or other post-secondary programs may be required.
- Clerical or sales experience may be required.
While the worker has no clerical sales experience or any post-secondary programs apart from crane operator training, the worker does have a high school equivalency that they obtained in the mid 1980’s (memo A0102). Therefore, the worker meets the minimum requirements to obtain entry-level occupation in this SO.
Despite the physical suitability of the jobs within NOC 6552, I believe the worker would find it difficult to compete for jobs within this NOC in the general labour market for two reasons. Firstly, the prospect of obtaining employment at the worker’s age is unreasonable. The worker was 63 years of age when they completed their RTW plan. In my view, the majority of employers would prefer to hire younger workers to fill vacant positions over someone who is just a few years away from their statutory retirement date. I agree with the WR that the research supports that there is ageism in the labour market particularly for disabled workers. The WR cited a paper from 2006 titled “The Effects of Aging on Employment of People with and without Disabilities” by Mitchell, Adkins, and Kemp. This paper states that people with disabilities had a significantly lower employment rate that was exacerbated with age. By their 6th decade only 28% of people with disabilities were employed compared to 65% of those without disabilities. Of those disabled without a college education, like the worker in this case, only 18% were employed.
Secondly, the worker has very limited transferable skills that would make securing employment in customer service unlikely. The worker has never worked in a customer service type role or in any office/retail environment. While prior experience is not necessary to secure employment in this field, in today’s competitive labour market I find it would be difficult to obtain entry-level employment without some type of prior experience.
For these reasons, I conclude that the worker’s age, limited transferable skills, and work-related impairment renders the worker unemployable. Consequently, the worker is entitled to full LOE benefits from July 22, 2023, to age 65.
2. Secondary entitlement to the right hip
The WR submits that the worker began to develop right hip pain after their left ankle surgery. The worker’s recovery following the surgery was slow and painful and resulted in the emergence of right hip pain due to the antalgic gait caused by their left ankle impairment. As such, entitlement to the right hip condition should be accepted as a secondary condition.
When it comes to determining whether a worker has entitlement to a secondary condition, I am guided by Policy 15-05-01 titled “Accidents Resulting from Work-Related Disability/Impairment” which states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries.
Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury. The Policy provides the example of a left knee disability/impairment due to an increased dependency following a work-related injury to the right knee.
The medical evidence confirms the worker underwent surgery (left subtalar arthrodesis) in September 2021. Following this procedure, the worker was non-weight bearing on the left ankle and foot for over eight weeks and was then transitioned into an Aircast. I note the worker was seen at the Specialty Clinic in January, March, and April 2022 for follow-up appointments but there was no mention of any right hip problems documented in these reports. The first mention of hip issues is documented in the Specialty Clinic report of June 15, 2022, which noted that the worker had started to develop pain in the low back and right hip because they were “compensating for the left foot/heel pain.” An actual diagnosis was not provided.
I note the worker also had an x-ray of the right hip in June 2023. The report noted the worker presented with a three-month history of right hip pain with no trauma. Aside from some mild degenerative changes within the hip joint, the x-ray did not identify any acute injury or bony abnormality.
Based on the totality of the evidence, I am satisfied on a balance of abilities that the worker’s right hip symptoms were likely caused due to altered gait issues following the surgery. Given the worker’s age, I find that the minimal degenerative changes in the right hip that are likely just incidental findings and probably do not account for the worker’s symptoms. In my view, compensating for left foot and heel pain, as documented by the Specialty Clinic, is the more likely source for the worker’s emerging right hip symptoms than any underlying degenerative condition. In the absence of any specific diagnosis, I find the worker most likely developed a soft tissue strain/sprain type injury to the right hip due to overcompensating for their left lower extremity impairment. Given the paucity of medical information pertaining to the right hip beyond June 2023, I make no findings on whether the worker has any ongoing impairment to the right hip after this date. The issue of any ongoing entitlement after June 2023 can be reviewed by the Operating Area should the worker provide updated medical information.
CONCLUSION
Based on the foregoing reasons, I find:
The worker is competitively unemployable and entitled to full LOE benefits from July 22, 2023, to age 65.
The worker has secondary entitlement to a soft tissue right hip injury.
The objection is allowed.
DATED: DECEMBER 12, 2024
H. Mohamed
Appeals Resolution Officer Appeals Services Division