Worker v. Employer, 2024 CanLII 64300

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20240046

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER (NOT PARTICIPATING)

HEARING: Hearing in Writing

HEARD by: Stephen Crisostomo, appeals resolution officer DATED: MAY 17, 2024

ISSUES

The worker objects to:

1. The Return-to-Work (RTW) Specialist’s decision dated September 7, 2021, which determined Customer Service Representative under National Occupation Code (NOC) 6552 was a Suitable Occupation (SO) for him.

2. The Adjudicator’s decision dated September 7, 2023, which determined his Loss of Earnings (LOE) benefits as of September 1, 2023 would be based on the entry-level earnings associated with the determined SO of Customer Service Representative, which was $15.50 per hour (minimum wage).

BACKGROUND

On May 6, 2019, the worker, a Doorframe Assembler, reported breathing difficulties after being exposed to sawdust, lacquer thinner and Varsol. Entitlement in the claim was reviewed and allowed for eosinophilic bronchitis and asthma.

In May of 2021, the worker received a 26% Non-economic Loss (NEL) benefit for his residual respiratory impairment due to his eosinophilic bronchitis and asthma.

As the employer was unable to accommodate the worker’s accepted work-related restrictions of avoiding PVC, composites of PVC and high levels of dust and fumes, the worker was granted RTW services. Based on the worker’s RTW assessment, it was determined the occupation of Customer Service Representative was an appropriate SO for the worker and the worker was sponsored in a RTW plan for the SO. This decision was communicated on September 7, 2021.

On November 12, 2021, entitlement to psychotraumatic disability was denied.

The worker participated in a RTW plan for the determined SO of Customer Service Representative, which he completed on September 1, 2023.

Entitlement to LOE benefits from September 1, 2023 was reviewed by the Adjudicator in September of 2023. Based on the review, the Adjudicator determined the worker was entitled to partial LOE benefits based on the updated entry-level wages of the SO of Customer Service Representative, which was $15.50 per hour (40 hours per week). This decision was communicated on September 7, 2023.

The worker objected to the decisions dated September 7, 2021 and September 7, 2023; however, they remained unchanged and as a result, the matters were referred to the Appeals Services Division for further consideration.

Worker Representative’s Position

The worker’s representative submits:

• The worker is not capable of securing full-time employment in the labour market following the completion of his RTW plan.
• The worker’s work-related respiratory impairment causes him to have a significant decreased functional tolerance.
• The worker has no transferable skills or experience in the determined SO.
• The worker’s RTW plan did not adequately equipe him for the competitive labour market.
• Full LOE benefits should be restored from September 1, 2023.

Employer’s Position

The employer is not participating in the appeal and did not provide a submission related to the issue before me.

AUTHORITY

Operational Policy Manual:

Published

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

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 and relevant operational policies in reaching this decision.

1. SO Suitability

I find the determined SO of Customer Service Representative is suitable for the worker following the completion of his sponsored RTW plan on September 1, 2023. I rely on the key findings/facts in reaching this decision.

• Operational Policy 19-02-10 states in part:

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 makes every effort to provide the worker with effective and meaningful input and choice when determining a SO. For example, the worker is encouraged to suggest possible SOs and provide any supporting research.

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.

• I accept “employable” refers to a worker having the necessary skill and training to be capable of obtaining and performing full-time or part-time employment on a regular basis in the labour market. I also accept that factors that influence a worker's employability include but are not limited to their:

  • level of education/training (including special certificates/licenses)
  • transferable skills/aptitudes and work experience
  • work-related impairment(s)/disabilities, and
  • other non-work-related impairment(s)/disabilities (e.g., including non-physical disabilities such as a learning disability).

• Prior to the injury in this claim, the worker was employed as a Door Frame Assembler for over 20 years with many different employers, which included supervisory duties while employed by one employer for 11 years. Based on the above, I am satisfied the worker’s personal characteristics including his English skills and education were not a barrier for him in obtaining and sustaining employment and/or in performing the job duties.

• As a result of the worker’s eosinophilic bronchitis and asthma, it has been accepted that he has the following permanent restrictions:

  • Avoid PVC, composites of PVC and high levels dust and fumes.

  The worker agreed with these restrictions during his 2020 psychovocational assessment.

• The worker completed high school and three years of a university law program in Country X. The language of instruction in school was Y but he learned English for two to three hours per week. The worker additionally completed one year of English as a Second Language in Canada and was advised that he had upgraded to a Grade 12 level. As well, the worker partially completed a paralegal program at a private career college in English.

• The worker’s 2020 psychovocational assessment revealed the worker demonstrated good conversational English skills such that an interpreter was not considered necessary.

• The worker is familiar with the internet and email.

• In reviewing NOC 6552, I note other customer and information services representatives answer enquiries and provide information regarding an establishment's goods, services and policies and who provide customer services such as receiving payments and processing requests for services. They are employed by retail establishments, contact centres, insurance, telecommunications and utility companies and other establishments throughout the private and public sectors.

Example titles include:

• Bus information clerk
• Complaints clerk - customer service
• Contact centre agent - customer service
• Courtesy desk clerk
• Customer service representative - call centre
• Enquiries clerk
• Information clerk - customer service
• Order desk agent
• Public relations clerk
• Tourist information clerk

Customer Service Representatives perform some or all of the following duties:

• Answer, in person or on the phone, enquiries from customers
• Investigate complaints regarding the establishment's goods, services and policies
• Arrange for refunds, exchange and credit for returned merchandise
• Receive account payments
• Receive credit and employment applications.
• Take customer orders for goods or services
• Promote goods or services
• Respond to enquiries and emergencies
• Investigate complaints and update accounts.
• Provide information to customers and the public concerning goods, services, schedules, rates, regulations and policies in response to telephone and in-person enquiries.

Based on my review of the job duties of a Customer Service Representative in relation to the worker’s work-related restrictions, I am satisfied that the worker has the abilities to perform the essential job duties of a Customer Service Representatives.

• There are no specific educational requirements for the SO of Customer Service Representatives; however, completion of secondary school is usually required.

• The worker’s sponsored RTW plan included:

• Career Partnership Program (CPP) at AA which provided him with in-class SO-specific training with hands-on experience.

• Employment Services

• In my assessment of the evidence, I am satisfied the determined SO of Customer Service Representative is suitable for the worker for the following reasons:

  • The SO is within the worker’s functional abilities for his respiratory impairment, as the job demands match the worker’s functional abilities.
  • Based on the worker’s transferable skills and education, and noting the worker completed RTW services, which provided him with specific customer service skills from a practical and hands-on perspective, the worker has the essential skills for the SO, which does not require specific subject matter courses and/or training.
  • I am satisfied that the SO is available in the worker’s labour market.

Based on the above, I find the the worker is employable and that the determined occupation of Customer Service Representative is a SO for the worker with respect to his work-related respiratory impairment due to his eosinophilic bronchitis and asthma

2. LOE benefits from September 1, 2023

I find the worker’s LOE benefits as of September 1, 2023, were appropriately determined based on the entry-level earnings of the SO of Customer Service Representative at the completion of his RTW plan, which was $15.50 per hour (minimum wage) over a 40-hour workweek. The reasons for my decision follow.

Operational Policy 18-03-02 states in part:

Determined earnings are the earnings associated with the identified SO, and are based on current labour market wage information (my emphasis added).

The circumstances in which the WSIB bases post-injury earnings on determined earnings include those where a worker:

• will not be provided with Work Reintegration services
• remains unemployed at the completion or closure of Work Transition plan
• is underemployed in a job not identified in the SO, or
• is voluntarily underemployed in the identified SO.

A review of the file reveals that on September 1, 2023, the worker completed his RTW plan for the SO of Customer Service Representative and that his RTW plan was closed. The file also reveals the worker was unemployed at the completion and closure of his RTW plan. As such and in accordance with Operational Policy 18-03-02, the worker’s post-injury determined earnings are to be based on the earnings associated with the SO of Customer Service Representative at the time his RTW plan was completed/closed.

Operational Policy 19-02-10 states in part:

The earnings for the SO are an estimate of what the worker is capable of earning when re-entering the labour market in a SO. They are established based on whether the RTW plan (with training)

• involves the worker acquiring a new skill set or entering a new field. If this is the case, updated entry-level wages are used to determine post-injury earnings, or
• is designed to improve the worker’s existing or transferable job skills. If this is the case, updated mid-level wages are used to determine post-injury earnings.

In this case, I note the worker’s RTW plan for the SO of Customer Service Representative was designed to provide him with a new skill set, so he could enter a new field of work and that the worker was advised at the beginning of the RTW plan that his post-injury determined earnings for the SO would be based on the entry-level wages of the SO.

A review of the file reveals the entry-level wages/earnings in the SO of Customer Service Representative at the completion of his RTW plan was $15.50 per hour (minimum wage). Thus, I find the worker’s post-injury earnings for the SO of Customer Service Representative was appropriately determined to be $15.50 per hour (over a 40-hour workweek).

As such, I find the worker’s LOE benefits as of September 1, 2023, were appropriately determined based on the post-injury entry-level earnings of the SO of Customer Service Representative at the completion of his RTW plan, which was $15.50 per hour (over a 40-hour workweek).

CONCLUSION

Based on the evidence outlined in this decision, I conclude:

1. The worker is employable, and the occupation of Customer Service Representative is a SO for the worker.

2. The worker’s LOE benefits as of September 1, 2023, were appropriately determined based on the post-injury entry-level earnings of the SO of Customer Service Representative at the completion of his RTW plan, which was $15.50 per hour (minimum wage) over a 40-hour workweek.

The worker’s objection is denied.

DATED May 17, 2024

S. Crisostomo Appeals Resolution Officer Appeals Services Division