Worker v. Employer, 2024 CanLII 142078

20250032

REPRESENTED by:

HEARD by:

DATED:

DECEMBER 20, 2024

ISSUE

The worker representative, on behalf of the worker, is objecting to the Return-to-Work (RTW) Specialist’s decision of June 28, 2023 authorizing the 12-month Self-Directed Transition Plan for the suitable occupation (SO) of Production Logistics Coordinator (National Occupational Classification, or NOC, 1523).

BACKGROUND

On October 12, 2017, this then 55-year-old Truck Driver slipped and twisted their left knee while in the course of employment. The Appeals Resolution Officer (ARO) decision dated August 27, 2019 provides a concise summary that will not be repeated. The prior ARO denied entitlement to tricompartmental chondrosis, an intrasubstance anterior cruciate ligament ganglion, and a Baker’s cyst. A Case Manager’s decision letter dated September 6, 2019 authorized entitlement to the high tibial osteotomy that had been performed on July 24, 2019. Hardware removal surgery took place on September 21, 2020. Maximum medical recovery for the left knee was reached on March 10, 2021.

A Case Manager’s decision letter dated May 5, 2022 listed the accepted permanent restrictions which included occasional slow-paced walking and avoiding uneven ground. The Case Manager confirmed the ability to sit frequently with self-pacing and that there were no limitations for either hand gripping/dexterity or reaching. A 10% non-economic loss (NEL) benefit for the permanent left knee impairment was awarded on May 10, 2022. The RTW Specialist’s decision dated June 28, 2023 provided the worker with the choice of a Self-Directed Transition Plan option for 12 months of full LOE benefits and the ability to pursue activities of their own choice, or a RTW Plan with Skills Training option consisting of the following:

Six weeks of Computer Training;
Six weeks of Academic Upgrading with Math focus;
A 22-week Supply Chain Resource Management diploma; and,
An 8-week placement as well as 12 weeks of Employment Services.

On July 12, 2023, the RTW Specialist confirmed that the worker had chosen the Self-Directed Transition Plan option for the SO of Production Logistics Coordinator. The RTW Specialist determined that the current identified SO wage was $25.10 per hour. The 72-month deferral letter of September 5, 2023 extended the final loss of earnings (LOE) review until July 4, 2024. On September 19, 2023, the RTW Specialist confirmed that the time limit to object to the identified SO was met. A Case Manager’s decision letter dated July 12, 2024 allowed temporary psychological entitlement to the diagnosis of Major Depressive Disorder. The RTW Specialist’s reconsideration letter of August 2, 2024 adjusted the determined SO wage to $21.07 per hour and noted that the NOC had been updated to 14402, Production Logistic Worker. The RTW Specialist stated that the SO continued to be within the worker’s education and transferrable skills.

The administrative decision of August 6, 2024 determined that the worker’s objection to the determined SO, including the identified hourly wage, would be addressed as a hearing in writing. The issue is now before me.

AUTHORITY

Operational Policy Manual

Published

19-02-10 RTW Assessments and Plans

November 30, 2020

ANALYSIS

I find that the determined SO is suitable and appropriate, including the entry-level wage of $21.07 per hour. My reasons for this determination are set out below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position and remedy sought

It is the worker representative’s position that the identified SO is not suitable and that the determined hourly wage is not appropriate.

The Appeal Readiness Form signed July 3, 2024 argues that the worker does not have the necessary skills or experience for the SO and that the local entry-level wages are lower than those used in the authorized plan. The worker representative’s verbal submissions to the RTW Specialist during a discussion on July 23, 2024 suggests that two to three years of experience is required to work in the identified SO. It is the worker representative’s view that the SO wage should be decreased to $20.00 per hour.

If the worker’s appeal is successful, the worker representative is requesting a new SO.

Is the identified suitable occupation appropriate?

I am not persuaded that a new SO is in order. The worker representative highlights that there is now psychological entitlement in this claim since the RTW Specialist’s decision regarding the identified SO.

Policy 19-02-10, RTW Assessments and Plans, requires that a SO be within the worker’s functional abilities, transferrable skills, aptitudes, interests, and education. A SO should consider labour market trends and the likelihood of the worker being able to secure and maintain employment, including a reasonable prospect of continuing in the longer term. Policy 19-02-10 provides the authority to consider the broader labor market and directs decision-makers to use the 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.

With respect to determined SO earnings, Policy 19-02-10 confirms that updated entry-level wages are to be used if the SO represents the worker entering a new field. Policy outlines that workers 55 years of age or older who require vocational skills training to achieve employment in a SO have two options:

Participate in a RTW plan (with training) to achieve the SO, or
Choose a 12-month Self-Directed Transition Plan to achieve the SO.

The Self-Directed Transition Plan option is chosen in conjunction with the irrevocable no-review option for LOE benefits payable to age 65. Policy 19-02-10 stipulates that after the worker signs the irrevocable election, full LOE benefits will continue for the 12-month period of the plan. At the end of 12 months, LOE benefits will be recalculated based on the estimated earnings of the SO as reflected in current labour market information.

When considering the worker representative’s arguments, I note that the labour market information for NOC 1523 placed to file on March 29, 2023 includes a job posting for the worker’s local labour market listing the required qualification as a high school diploma. I appreciate that the labour market information provided by the worker representative on May 11, 2023 provides the entry-level SO wage of $18.00 per hour. However, I observe this wage is associated with NOC 1215/13201. The updated labour market information placed to file on July 18, 2024 (or after the worker’s self-directed 12-month period) confirms an entry or low-end wage of $21.07 per hour effective November 29, 2023 reflecting the 2021 to 2022 reference period in the local labour market. Therefore, I accept that the most appropriate updated earnings information at the end of the 12-month period is an entry-level wage of $21.07 per hour.

I also observe that the updated labour market information confirms the change in NOC from 1523 to 14402, which represents a change from Production Logistics Coordinators to Production Logistic Workers. Regardless, the employment requirements continue to be the completion of secondary school. In fact, I find that the evidence shows that 38% in this field have a high school diploma compared to 25% for all occupations, while only 26% have a college certificate or diploma. Further, I observe that a general learning ability is indicated. In my view, the worker would have at least some transferrable skills for the identified SO by virtue of their 30-year employment history as a truck driver. In any event, I find that the worker had the opportunity to choose the RTW Plan with Skills Training which would have provided computer skills and upgrading as well as a college diploma, along with an eight-week placement within the SO.

In terms of physical demands, the labour market information indicates that the SO requires primarily sitting with limited strength, with incidental standing and/or walking. Turning to the question of availability, the updated labour market information supports there being average job prospects for the central labour market region, with a moderate employment outlook for NOC 14402 in Ontario for the period of 2023 to 2025. Importantly, I observe that 93% of employees in this SO are full-time workers compared to 81% for all other occupations.

Finally, I acknowledge the worker representative’s argument with respect to the Case Manager subsequently authorizing psychological entitlement. However, I must consider that the associated decision letter of July 12, 2024 confirms that entitlement is granted on a temporary basis and indicates that there are no accepted psychological limitations or restrictions. Therefore, for all of the above-noted reasons, I find that the SO of NOC 1523/14402 is safe, suitable, and within the worker’s functional abilities and education/transferrable skills. In accordance with Policy 19-02-10, I find that the labour market information at the time that the 12-month Self-Directed Transitional Plan establishes that the updated entry-level SO wage is $21.07 per hour. Accordingly, I find that the worker is employable within the identified SO of NOC 14402, Production Logistic Workers at the determined wage of $21.07 per hour on a full-time basis.

CONCLUSION

I conclude that the identified suitable occupation (SO) of Production Logistic Workers (National Occupational Classification, or NOC, 14402), formerly Production Logistics Coordinator (NOC 1523) is suitable and appropriate.

The updated determined entry-level wage of $21.07 per hour is confirmed.

The request for a different SO, or to lower the determined SO wage to $20.00 per hour, is denied. The worker’s objection is denied.

DATED DECEMBER 20, 2024

K. MacMillan

Appeals Resolution Officer Appeals Services Division