Worker v. Employer, 2025 CanLII 111673

Decision Number:

20250058

REPRESENTED by:

Employer (not participating)

HEARD by:

DATED:

S. Waters, appeals resolution officer

AUGUST 21, 2025

ISSUES

The worker objects to the Case Manager’s (CM’s) decision dated January 27, 2025, which determined:

The worker was partially impaired and able to pursue sedentary employment;
The suitable occupation (SO) of telephone solicitor was suitable at full-time hours;
The worker was entitled to partial loss of earnings (LOE) benefits based on entry-level SO wages of $17.20 per hour, 40 hours per week, which was locked in to age 65 effective January 31, 2025.

BACKGROUND

Prior Appeals Resolution Officer (ARO) and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions include detailed summaries of the worker’s claim that I will not repeat here. Briefly, on January 31, 2019 while working as a labourer, the worker sustained multiple injuries in a multi-vehicle collision. The operating area granted initial entitlement for an acute disc herniation in the worker’s lower back, a fracture and dislocation to the worker’s left hip, and fractures to the worker’s face, neck, clavicle, and right-sided ribs. The worker also received entitlement for multiple surgeries as well as periods of full and partial LOE benefits.

There were multiple periods of the worker being off work or performing modified duties with the employer. On September 1, 2022, the worker told the CM that they were struggling to do their job due to pain. The worker stopped working as of September 16, 2022 and has not returned to work. In a decision dated November 9, 2023, an ARO concluded the work available with the employer was suitable and LOE benefits were not in order from September 16, 2022 onward.

The worker objected to this decision and pursued the matter with the WSIAT. In a decision dated August 22, 2024, the WSIAT determined the modified work with the employer was not suitable. The WSIAT also concluded the worker would not have been able to find suitable and available employment elsewhere that was consistent with the worker’s functional abilities, age, transferable skills, and location. As a result, they allowed full LOE benefits from September 16, 2022 onward and returned the nature and duration of benefits flowing from the decision to the WSIB.

On September 26, 2024, a CM accepted the WSIAT’s conclusion that the worker’s injuries, functional abilities, and vocational profile were significant contributing factors to the worker’s unemployability from September 2022. They paid full LOE benefits from September 16, 2022 until the date of their letter and ongoing as a result.

The file was referred to a Return to Work Specialist (RTWS), who provided a consultation memo on January 8, 2025. The RTWS stated they were unable to identify any direct-entry SO for the worker. The RTWS stated telephone solicitor would be a SO for the worker based on their compensable functional restrictions. However, the RTWS indicated the worker would require training to be competitively employable for the occupation.

On January 27, 2025, a CM determined the worker was partially impaired and capable of pursuing employment of a sedentary nature. They concluded that telephone solicitor represented a SO, and that the worker was capable of earning entry-level wages ($17.20 per hour) working 40 hours per week in this occupation with training. Since the worker did not intend to participate in a training plan, the CM approved partial LOE benefits based on SO wages and locked these benefits in effective January 31, 2025 until age 65. The worker objected to this decision. The CM confirmed the decision on April 17, 2025.

Worker’s Position

It is the worker representative’s position that the worker is unemployable based on their compensable impairments and vocational profile. They argued the August 2024 WSIAT decision already made findings in this regard. In the event the appeal is allowed, the worker’s representative seeks full LOE benefits from January 31, 2025 to age 65.

Employer’s Position

The employer did not return the Participant Form dated February 3, 2025. They are not participating in the appeal.

AUTHORITY

Operational Policy Manual

Published

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

18-03-06 Final LOE Benefit Review

19-02-10 RTW Assessments and Plans

December 5, 2024

November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find the SO of telephone solicitor is not suitable as the worker is unemployable. As a result, I find the worker is entitled to full LOE benefits effective January 31, 2025 and locked in to age 65.

The worker’s appeal is allowed.

Assessment of Entitlement

It is the worker representative’s position that the worker is unemployable and entitled to full LOE benefits to age 65. Information on file supports this position. I found the following policies relevant to my decision:

Policy 18-03-02 (Payment and Reviewing LOE Benefits) states that a worker who has a loss of earnings as a result of a work-related injury is entitled to payment of LOE benefits beginning when the loss of earnings begins. The policy adds:

If the nature or seriousness of the injury 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 process.

Policy 18-03-06 (Final LOE Benefit Review) states that except where noted, the final LOE benefit review must occur before the end of the 72^nd month post-injury… If the WSIB determines there is a change to account for in the LOE benefit (e.g., post-injury earnings have changed), the LOE benefit is recalculated prior to being locked in. Otherwise, it is locked in as is.

Policy 19-02-10 (RTW Assessments and Plans) defines a suitable occupation (SO) as a category of jobs suited to a worker's transferable skills that are:

safe,
consistent with the worker’s functional abilities,
restores the worker’s pre-injury earnings to the extent possible, and
available, meaning it exists and is in demand to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.

First, I note the WSIAT already made significant findings of fact regarding the worker’s employability in their August 22, 2024 decision:

I find that the worker was not capable of earning income in suitable and available employment because of [their] permanent back and left hip related restrictions due to [their] compensable back and left hip injuries.

Under OPM Document No. 18-03-02 the worker’s compensable injuries were impairing [their] ability to work and [they were] seeking and complying with health care treatment for [their] ongoing back and hip issues. I find the work-related injuries made a significant contribution to the worker’s unemployability from September 2022. I find the medical evidence before me supports, on a balance of probabilities, that the worker was unemployable because of [their] compensable injuries from September 2022.

Even if the Board had assisted the worker, who was 56 years old in September 2022, with finding employment, I find it is more likely than not that the worker would not have been able to find suitable and available employment consistent with [their] functional abilities, age, transferable skills and where [they live], which has limited employment opportunities.

Medical evidence does not show any significant improvement in the worker’s compensable conditions and impairments between the WSIAT’s decision and the 72-month review date five months later.

Since telephone solicitor was not identified as a potential occupation at the time of the WSIAT decision, I reviewed whether it matches the definition of a SO provided by Policy 19-02-10. However, for the reasons that follow, I find this SO was not suitable and the worker is considered unemployable.

Within the January 8, 2025 consultation memo, the RTWS indicated the accepted functional abilities related to the worker’s compensable lower back and left hip injuries included:

Walking up to 100 metres
Standing 15-30 minutes
Sitting 30-60 minutes
Stairs not recommended
Lifting limited to 5-10kg from floor to waist and from waist to shoulder
No work above shoulder level
Driving up to 60 minutes.

The RTWS documented that the physical demands of telephone solicitor involved sitting, not relevant limb coordination, and limited strength. They indicated the occupation would allow the worker to alter positions as needed to accommodate their restrictions for prolonged walking, standing, and sitting. Based on this information, it appears telephone solicitor as an occupation would be physically safe and consistent with the worker’s functional abilities.

With that said, I find available evidence demonstrates this occupation was not suited to the worker’s transferable skills and was not available to the extent that the worker had a reasonable prospect of obtaining employment in the occupation. I explain my reasoning below.

In terms of the worker’s transferable skills, the worker was 58 years old at the time of the 72-month review date. While age is not a determining factor regarding someone’s employability on its own, it does impact how many years a worker has to complete training and obtain employment before they reach age 65. In this case, the RTWS indicated the worker would likely require multiple stages of training to be competitively employable for the occupation of telephone solicitor. This included academic upgrading to obtain their high school diploma, computer skills training, customer service training, and employment services.

I find it likely that these trainings, in particular the computer and customer service trainings, would be extensive and require a significant amount of time to complete to the extent that it would positively impact the worker’s employability. This is noting both skillsets are essential for the work of telephone solicitor, but the worker had very limited pre-existing experience with either skill. The RTWS acknowledged the worker does not have any prior customer service experience and limited computer skills. In a psycho-vocational assessment report dated November 18, 2019, a psychologist stated the worker had potential to be successful with training but would need to obtain academic upgrading and “considerably increase” their computer knowledge and typing skills before entering any such program. Based on this information, I find the occupation of telephone solicitor unsuited to the worker’s transferable skills and education.

In terms of availability, the RTWS’s consultation memo documented that the employment outlook rating for the occupation of telephone solicitor was “moderate” in Ontario and the worker’s local labour market for the period of 2019 to 2021. However, the employment outlook rating changed to “limited” for the period of 2023 to 2027. I placed significant weight on the updated outlook rating since it encompasses the time period relevant to my decision. Since the demand for work in this occupation decreased to limited, I find there is very little evidence to demonstrate the worker had a reasonable prospect of obtaining employment in the occupation even if they completed all necessary training. As such, I find the occupation of telephone solicitor does not match Policy 19-02-10’s requirement for a SO to be available.

Considering my findings above, I determined the occupation of telephone solicitor is not a SO for the worker based on Policy 19-02-10’s definition.

I find it significant that the RTWS stated in their consultation memo that they were unable to identify any direct-entry SO for the worker when taking into consideration the worker’s compensable impairments, level of education, limited computer skills, limited employment background, and local labour market availability. Further, for the reasons described above when reviewing the suitability of the telephone solicitor occupation, I find the extent of training needed to make the worker competitively employable in combination with their age, transferable skills, and location make it more likely than not that the worker would be unable to obtain and sustain suitable and available employment on an ongoing basis. For these reasons, I determined the worker is unemployable.

The nature and seriousness of the worker’s compensable impairments, in combination with their vocational profile, completely prevents the worker from returning to any type of work. As such, I find the worker experienced an ongoing loss of earnings as a result of their work-related injuries. The worker remains entitled to full LOE benefits effective January 31, 2025 in accordance with Policy 18-03-02. Since the worker would be in receipt of full LOE benefits with no change in their condition or earnings at the time of the 72-month final review on January 31, 2025, I also find the worker’s full LOE benefits should be locked in to age 65 in accordance with Policy 18-03-06.

CONCLUSION

I find the SO of telephone solicitor is not suitable as the worker is unemployable. As a result, I find the worker is entitled to full LOE benefits effective January 31, 2025 and locked in to age 65.

The worker’s appeal is allowed.

DATED August 21, 2025

S. Waters

Appeals Resolution Officer

Appeals Services Division