Appeals Resolution Officer Decision
Decision Number: 20240034
Objecting Party: worker
Represented by: self
Respondent: employer (not participating)
Hearing: Hearing in Writing
Heard by: D. Bowker, appeals resolution officer
Dated: April 25, 2024
Issues
The worker is objecting to the case manager’s November 10, 2023, decision to adjust the worker’s loss of earnings (LOE) benefits based on updated entry-level wages for the suitable occupation of Customer Service Representative.
Background
On November 7, 2018, this early childhood educator in a childcare centre was removing clothes from a top loading washing machine when they felt a pull in their back. This claim was established for a lower back L5-S1 disc protrusion and left S1 radicular features. The worker did not make a complete recovery from their lower back injury and received a 6% non-economic loss benefit rating.
The worker was unable to return to their pre-injury job and was referred to the return to work specialist to identify a suitable occupation (SO) the worker could perform. The return to work specialist determined the occupation of Customer Service Representative was appropriate for the worker. On September 25, 2019, the case manager adjusted the worker’s loss of earnings benefits from full to partial benefits to reflect the determined SO entry-level wages of $14.00 per hour and 40 hours per week.
On September 25, 2019, the case manager granted temporary entitlement to psychotraumatic disability for an exacerbation of major depressive disorder, generalized anxiety disorder and panic attacks. The case manager determined the worker was partially impaired from a psychological perspective with no specific psychological restrictions. The case manager subsequently determined the worker had made a full recovery from their temporary psychological impairment on June 1, 2021.
The worker appealed these decisions. The appeals resolution officer’s October 19, 2022, decision confirmed the SO of customer service representative was a suitable and available employment option for the worker and the partial LOE benefits set on the basis of the deemed earnings in the SO were appropriate. The decision also found the worker had recovered from their psychological impairment as of June 1, 2021, and the worker had been partially impaired from a psychological perspective up to that date.
The worker appealed this decision, as well. The Workplace Safety and Insurance Appeals Tribunal (WSIAT) confirmed on July 10, 2023, the SO was suitable and the worker’s entitlement to partial loss of earnings benefits based on the deemed earnings of the SO was confirmed.
On November 10, 2023, the case manager conducted the annual LOE benefit review and adjusted the worker’s loss of earnings benefits to reflect a change in the entry-level wages of the SO from $14.00 per hour to $16.55 per hour for a 40-hour work week.
The objection to this decision forms the basis of this appeal.
Authority
Operational Policy Manual
Published
18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)
September 1, 2021
Analysis
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the worker’s LOE benefits were appropriately adjusted.
I note the worker has submitted they are unable to work but I am bound to the WSIAT finding, that the SO of customer service representative is appropriate for the worker and as such, my jurisdiction in this appeal is solely confined to the adjustment of the worker’s LOE benefits.
According to policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review), 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. Examples include but are not limited to workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.
Determined earnings are the earnings associated with the identified SO and are based on current labour market wage information. The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker remains unemployed at the completion or closure of the return to work plan.
The WSIB conducts regular case management reviews while the worker is engaged in health care measures and return to work activities, after which time, the WSIB conducts annual reviews until the 72-month final review date.
In this case, the worker’s date of injury was November 7, 2018, and their 72-month date is November 7, 2024. Annual reviews are therefore conducted until November 7, 2024, when the final benefit review will occur.
In cases where a worker’s post-injury earnings were based on determined earnings, if the WSIB originally used entry-level wages to determine the post-injury earnings, updated entry-level wages are used.
At the time the worker’s SO earnings were determined, they were based on a $14.00 per hour for a 40-hour week for a gross of $560.00 per week. When the 2023 annual review occurred, the entry-level wages increased to $16.55 per hour. This resulted in a new weekly gross income of $662.00.
I reviewed the labour market information for the SO on the Government of Canada Job Bank website. According to the information posted there, the hourly wages are 16.55 per hour at the low or entry-level. The median wages are $18.68, and the high level are $35.10 per hour. The low or entry-level wages for Ontario are also $16.55 per hour. For Canada, they are $15.00 per hour.
It is my understanding these wages are determined following a comparative analysis of Employment and Social Development Canada, Statistics Canada data and other data sources such as provincial and territorial governments federal departments and professional organizations. The wages are determined using the best source of data available for an occupation within a given region, while taking the historical trends into consideration. The wages published are intended to be representative of the earnings of a typical worker in a specific occupation but do not account for years of experience. Low wage estimates are intended to offer some insight into salaries for some entry-level positions.
The reference period for the data was gathered between 2021 and 2022 from the Statistics Canada Labour Force Survey. I am of the view this is therefore reliable information to use for the review of the SO earnings as it was arrived at following an objective review of easily accessible information obtained by an impartial government organization.
As the worker lives in the xxx region, I find it is appropriate and fair to use this area for the labour market information. I do not find it appropriate to base the worker’s wages on the average for all of Canada as minimum wage is a provincial and territorial designation that is not the same across Canada. Noting the worker is an Ontario resident who lives in the xxx region, I find it is most fair to base the SO wages on this region.
By my calculations, the difference in the worker’s SO earnings from $14.00 to $16.55 is a change of 18.2% I note the case manager indicated this was a change of 15.85% and I believe this was arrived at by mistakenly using $16.22 per hour as the wage and not $16.55.
LOE benefits are generally recalculated if the WSIB determines there is a material change in a worker’s post-injury earnings. To determine whether a change in post-injury earnings is “material”, the WSIB compares the changed earnings with the post-injury NAE last used to calculate/recalculate the LOE benefit. If there is a significant difference (increase or decrease) between the two, usually 10 per cent or greater, it is considered material. This comparison is done each time the post-injury earnings change.
As the change is more than 10%, it is therefore a material change and the worker’s benefits should be adjusted to reflect the new wage rate.
Conclusion
The worker’s objection is denied. I find their LOE benefits were appropriately adjusted to reflect a change in the entry-level wages of the SO.
DATED APRIL 25 2024
D. Bowker
Appeals Resolution Officer
Appeals Services Division