20250063

REPRESENTED by:

HEARD by:

DATED:

MAY 8, 2025

The worker, through their representative, is objecting to the Case Manager’s decision dated December 18, 2024. This decision determined the worker was partially impaired, the suitable occupation (SO) of Customer and Information Service Representative was suitable, and the worker was entitled to partial loss of earnings (LOE) benefits based on entry-level SO wages from June 3, 2020, to January 24, 2022, when they turned 65.

Prior Appeals Resolution Officer and Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions provide a detailed history of the case that will not be repeated here. Accordingly, I will only provide a brief history to place the issues for this appeal into context.

On July 31, 2019, the worker sustained injuries when they were crushed against the wall of a dairy barn by a spooked cow. Entitlement was allowed for rib fractures, and later expanded to include a lumbar spine compression fracture with symptomatic L4/5 stenosis and L4 radiculopathy. A permanent impairment for the low back was accepted by the WSIAT on May 16, 2024, and the worker subsequently received a 10% non-economic loss award.

In the decision dated December 18, 2024, the Case Manager determined the worker was partially impaired, the SO of Customer Service an Information Services Representatives (National Occupational Classification (NOC) 6552) was suitable, and they were entitlement to partial LOE benefits based on entry-level SO wages from June 3, 2020, until January 24, 2022. The decision was reconsidered and upheld on February 7, 2025.

The worker objected to the decision dated December 18, 2024, and the matter was referred to the Appeals Services Division for consideration.

Operational Policy Manual

Published

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

January 2, 2018

April 9, 2021,

September 1, 2021

19-02-10 RTW Assessments and Plans

November 30, 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

For the reasons that follow, I find the worker is partially impaired as a result of the work-related injuries, the SO of Customer and Information Services Representatives is not suitable, and the worker is not competitively employable. I find the worker is entitled to full LOE from June 3, 2020, until January 24, 2022.

Worker’s Position

In the Intent to Object form dated January 6, 2025, and Appeals Readiness Form dated January 21, 2025, the worker representative submits the worker is not employable. They submitted additional medical documentation in support of their position. The remedy being sought is entitlement to full LOE benefits from June 3, 2020, until the worker turned 65.

Employer’s Position

The employer is not participating in the appeal and did not provide any submissions for my review.

Assessment and Findings

Level of impairment

To determine the worker’s level of impairment for the permanent low back injury, I relied on Policy 19-02-07 (RTW Overview and Key Concepts). The policy states the worker’s ability to return to work (RTW) can be determined based on the workplace parties’ exchange of relevant information regarding the worker’s functional abilities, or through a decision by the WSIB.

It is important to note at the outset that the WSIAT decision dated May 16, 2024, determined the worker had a low back permanent impairment and I remain bound by this finding. The issue before me is specific to the worker’s level of impairment, and whether there are any functional restrictions or limitations as a result of the ongoing low back injury.

The worker representative contends the worker is not capable of performing any work. In their submission, I note they did not put forward suggestions of specific work restrictions or point to specific documents that outlined any.

In making my determination, I relied on clinical information contemporaneous to when the worker achieved MMR for the low back injury. In this case, the MMR date was determined to be May 19, 2020, which coincides with a comprehensive specialty clinic assessment. I afforded significant weight to the findings of the assessment team as I find them to be comprehensive, detailed, and reliable.

The assessment team provided the following functional abilities for RTW:

Light to Medium Physical Demands Capacity (PDC) level for material handing
- Occasional lifting up to 35lb maximum / occasionally exerting up to 35lbs of force or frequently exerting 15lbs of force to lift, carry, push, pull or move objects.
- Constant lifting or carrying of 7lbs / constant pushing or pulling of materials that require up to 7lbs of force.
Limited sustained or repetitive movements of the lumbar spine to an occasional basis.
Limited low-level work to an occasional basis
Requires microbreaks to stretch and reposition as needed between bouts of activity.

I accept the above listed functional abilities for RTW planning as outlined by the assessment team. I am satisfied the May 19, 2020 specialty clinic report does not demonstrate the worker was totally impaired an unable to participate in any RTW activities. The assessors specifically stated the worker could perform work within the abovementioned functional parameters and recommended graduated hours when they resumed working.

In my view, the worker is partially impaired as a result of the ongoing work injury. My findings are in keeping with Policy 19-02-07 (RTW Overview and Key Concepts).

SO suitability

To review the issue of SO suitability, I turned to Policy 19-02-10 (RTW Assessments and Plans). The policy explains a SO represents a category of jobs suited to a worker’s transferrable skills that are safe, consistent with the worker’s functional abilities, and restores the worker’s pre-injury earnings to the greatest extent possible. A 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, transferrable 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
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.

In some cases, the WSIB may determine that no SO is appropriate for the worker based on various factors, including those listed above.

The identified SO before me for consideration is Customer and Information Services Representatives (NOC 6552). The Career Handbook is the counselling supplement to the NOC system. The WSIB uses the NOC to help identify a SO and earnings for a worker. The NOC is a system that classifies and describes occupations in the Canadian labour market according to skill level and skill type. A decision-maker then determines the worker’s SO using the NOC system.

The Career Handbook for the SO of Customer and Information Services Representatives (NOC 6552) describes the primary functions of this role as answering enquiries, providing information regarding an establishment’s goods, services and policies and 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.

To determine whether Customer and Information Services Representatives is suitable, I considered the nature of the occupation through the above elements that comprise a SO as outlined by the policy. This also includes reviewing the educational and employment components outlined in the Career Handbook as well.

Is Customer and Information Services Representatives safe and consistent with the worker’s functional abilities?

For the reasons outlined below, I find Customer and Information Services Representatives to be safe and consistent with the accepted functional abilities for the work-related injuries.

As discussed above, I accepted the worker can work at a light to medium PDC level for material handling, with limited sustained or repetitive movement of the lumbar spine, and low-level work to an occasional basis. They require microbreaks to stretch and repositioning as needed between bouts of activity.

To consider whether the worker’s functional abilities correspond with the physical requirements of Customer and Information Services Representatives, I again reviewed the NOC Career Handbook. I paid particular attention to the section on physical activities. The Customer and Information Services Representatives occupation category requires limited strength (handing loads up to 5-kg) to complete activities involving pushing, pulling, lifting and/or moving objects. The work activities primarily involve sitting. Standing and walking may occur but is incidental to the work being performed.

Having considered the available evidence, I find the identified SO is within the worker’s functional abilities. The physical demands outlined by the NOC in the Career Handbook confirm that the work tasks do not exceed the accepted permanent restrictions as outlined above. There is no evidence the work would pose a safety risk to the worker or others. Therefore, I find the identified SO is considered safe and consistent with the accepted functional abilities.

Is the SO suited to the worker’s transferrable skills?

For the reasons that follow, while the identified SO is available, and would restore the pre-injury earnings to the greatest extent possible, I find the identified SO is not suited to the worker’s transferrable skills, and the worker is considered to be competitively unemployable.

To consider whether the worker is well-suited to transition into the occupation within Customer and Information Services Representatives, I again reviewed the Career Handbook. I paid particular attention to the section that highlights the aptitudes most relevant in the performance of the work.

The Career Handbook confirms the work requires an average general learning ability (an ability to ‘catch on’ or understand instructions and underlying principles; to reason and make judgements), and numerical ability (ability to carry out arithmetical processes quickly and accurately). The role requires average verbal ability, numerical ability, and above average spatial perception, form perception and motor co-ordination. The role requires social and innovative interests in speaking with customers and responding to requests and questions.

In reviewing the case record, I noted there is limited information regarding the worker’s skills and aptitudes. I observed the worker has a high school education. Their work history almost exclusively pertains to working on farms, and specifically working with animals. The worker has no experience working in a customer-facing capacity. They reached MMR at age 63 and have substantial non-compensable health concerns.

I find there is consistency across various medical reports noting concerns to the worker’s cognitive abilities, and a learning disability. I observed several notations from treatment providers that the worker was hard to understand, or they had difficulty drawing out information from the worker on a particular topic.

I paid particular attention to medical notes from the family physician dated September 24, 2020, and April 29, 2021, which confirmed the opinion that it will be exceedingly difficult to the worker to find full time gainful employment with their cognitive limitations, learning difficulties and current physical health. Given the longstanding relationship and familiarity the physician would have with the worker, I afforded weight to their opinion. Furthermore, I found it compelling that several providers documented the worker exhibited problematic behaviours and noted a concern for underlying cognitive issues. Of particular significance, the family doctor eventually terminated the doctor-patient relationship due to issues with the worker’s behaviour and communication.

Having reviewed the available evidence, I am not persuaded the worker has the transferrable skills or aptitudes that would make them a suitable candidate for work in customer service. The worker representative contends the worker is not competitively employable and I agree with this position.

The term competitively unemployable is a concept that speaks to whether the worker has real and meaningful prospects of obtaining and maintaining employment in the labour market. It is important to note that the term is not found in any WSIB policy or legislation. An individual’s employability can be impacted by medical, psycho-social, and employment market factors.

In this case, I find the worker is competitively unemployable given their age, the extent of their work injury, their complex non-compensable medical issues, as well as lack of transferrable skills and cognitive abilities. I find the prospect of gainful and sustainable employment for the worker to be quite poor. In my view, it is not realistic to expect the worker would obtain new employment given the lack of skills, lack experience working with customers, and other barriers. Under the circumstances, I find no SO is appropriate for this worker.

Is Customer and Information Services Representatives appropriate as a SO?

In conclusion, I find the identified SO of Customer and Information Services Representatives, is not suitable. While I determined the SO was safe and consistent with the worker’s functional abilities, available, and would restore the worker’s pre-injury earnings to the greatest extent possible, I found it was not suited to the worker’s transferrable skills. Moreover, I found the worker was competitively unemployable given their age, lack of skills, and other barriers. In keeping with Policy 19-02-10 (RTW Assessments and Plans), I find the identified SO not suitable.

Entitlement to LOE benefits

In determining the worker’s entitlement to LOE benefits, I turned to Policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) with the publish dates of January 2, 2018, April 9, 2021, and September 1, 2021. The policy outlines the guidelines for paying and reviewing LOE benefits from the date of entitlement up to, but not including the 72-month final review date.

The policy provides a worker who has a loss of earnings as a result of a work-related injury/disease is entitled to payment of LOE benefits. Benefits continue until the earliest of:

the day on which the worker’s loss of earning ceases
the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury
two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or
the day on which the worker is no longer impaired as a result of the injury.

If the nature or seriousness of the injury/disease 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 RTW process.

As outlined above, I found the identified SO of Customer and Information Services Representatives is not suitable. Moreover, I found no SO is appropriate for this worker as I consider them to be competitively unemployable. Accordingly, I find the worker is entitled to full LOE benefits until January 24, 2022, when they turned 65. My decision is in keeping with Policy 18-03-02 (Payment and Reviewing LOE Benefits (Prior to Final Review)) with the publish dates of January 2, 2018, April 9, 2021, and September 1, 2021.

CONCLUSION

I conclude the worker is partially impaired as a result of the work-related low back injury. The SO of Customer Service an Information Services Representatives is not suitable, and the worker is not competitively employable.

I find the worker is entitled to full LOE from June 3, 2020, until January 24, 2022, when they turned 65. The worker’s objection is allowed.

DATED MAY 8, 2025

E. Parsons

Appeals Resolution Officer Appeals Services Division

Worker v. Employer, 2025 CanLII 123896

Case Summary