APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250029
OBJECTING PARTY:
WORKER
RESPONDENT PARTY:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
NEIL CLARK, APPEALS RESOLUTION OFFICER
DATED:
JANUARY 31, 2025
ISSUES
The worker objects to the following decisions:
The Case Manager’s October 31, 2023 decision, which determined that the Suitable Occupation (SO) of Customer Service Representative – Information and Kiosk Clerk was suitable as of September 7, 2017.
The Case Manager’s October 31, 2023 decision, which adjusted the worker’s loss of earnings benefits as of September 7, 2017, based on their ability to earn entry-level wages in the SO at full-time hours.
The Case Manager’s November 19, 2024 decision, which determined that the worker would be entitled to ongoing partial loss of earnings benefits from the date of their 72-month lock-in on January 23, 2019, until the age of sixty-five, based on the updated entry-level wages of the worker’s SO.
BACKGROUND
The Workplace Safety and Insurance Appeals Tribunal decision of December 21, 2021, provides a comprehensive background of the worker’s claim. Therefore, I shall not repeat it in full. In summary, on January 23, 2013, the worker slipped and fell on ice. In their decision dated December 21, 2021, the Workplace Safety and Insurance Appeals Tribunal determined that the worker had initial entitlement to benefits for a neck injury and lower back injury, but did not have entitlement to benefits for right leg, right ankle, right foot, right arm, right buttock, and right hip injuries. The nature and duration of benefits flowing from this entitlement were remitted back to the Workplace Safety and Insurance Board for further adjudication.
In their decision dated October 3, 2022, the Case Manager determined that the worker was entitled to loss of earnings benefits from April 2, 2013 to July 22, 2014. In addition, they accepted that the worker’s C2-C7 laminectomies with C3-C7 lateral mass screw fusion, navigation duraplasty surgery of
July 22, 2016, was directly related to the worker’s compensable accident. Therefore, loss of earnings benefits were allowed from July 22, 2016 to September 7, 2017. The Case Manager noted that beyond this period, the worker’s psychiatrist had provided a diagnosis of depression and therefore loss of earnings benefits after September 7, 2017, would need to be considered once this diagnosis had been addressed. Last, the Case Manager found that the worker’s neck and lower back injuries reached maximum medical recovery with a permanent impairment as of February 16, 2022.
In July 2022, the worker received a 30% Non-Economic Loss (NEL) benefit for their lower back and neck injuries. Of relevance, the worker also has an 8% NEL benefit under a prior claim for the diagnosis of bilateral carpal tunnel syndrome. As a result, the worker currently has a 38% whole-person NEL benefit across all claims.
In their decision dated February 28, 2023, the Case Manager determined that the worker had entitlement to benefits for a psychotraumatic disability and, specifically, the diagnosis of major depression. In a subsequent decision dated April 13, 2023, the Case Manager found that the worker remained partially impaired from a psychological perspective and able to return to work with limitations.
On October 31, 2023, the Case Manager found that, based on a return-to-work consultation that had occurred, the worker would have been able to secure employment in the SO of a Customer Service Representative– Information and Kiosk Clerk. As a result, the Case Manager determined that the worker’s loss of earnings benefits should be adjusted as of September 7, 2017, based on their ability to earn entry-level wages in the SO at full-time hours. This decision was reconsidered on March 5, 2024, and upheld.
In their decision dated November 19, 2024 decision, the Case Manager determined that the worker would be entitled to ongoing partial loss of earnings benefits from the date of their 72-month lock-in on January 23, 2019, until the age of sixty-five, based on the updated entry-level wages of the worker’s SO. This decision was reconsidered on November 20, 2024, and also upheld.
The worker objected to the decisions outlined above, and these issues form the basis of the appeal before me.
AUTHORITY
Operational Policy Manual
Published
18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-10, RTW Assessments and Plans
18-03-06, Final LOE Benefit Review
July 15, 2011
November 30, 2020
April 9, 2021
Section 43(2) of the Workplace Safety and Insurance Act
ANALYSIS
I have carefully considered all of the available information, legislation, and relevant operational policies in reaching this decision. I find that:
From September 7, 2017, the worker was capable of working in the SO of a Customer Service Representative– Information and Kiosk Clerk, based on a 20-hour workweek.
It was appropriate to use the entry-level wages of the SO when determining the worker’s entitlement to ongoing partial loss of earnings benefits as of September 7, 2017.
The worker remains entitled to partial loss of earnings benefits from the date of their 72-month lock-in on January 23, 2019, until age 65, based on their ability to work 20 hours per week, at updated entry-level wages, in the SO of Customer Service Representatives– Information and Kiosk Clerk.
Worker’s Position
The worker states that they are unemployable and would not be able to obtain work in the SO. As a result, they are requesting entitlement to full loss of earnings benefits from September 7, 2017, until the age of sixty-five. They note that they possess a number of work-related impairments and, as per their Canada Pension Plan Disability (CPP-D) benefits, they have been found to have a severe and prolonged disability. In addition, the worker notes that the memo, which identifies that a 100% offset of their CPP-D benefits would be required is contrary to the exception that they would be able to return to work in their SO.
Employer’s Position
A Participant Form was sent to the employer on December 23, 2024, but was not returned. No information was submitted for my consideration.
Assessment of Entitlement
Issue #1- The suitability of the SO Customer Service Representatives– Information and Kiosk Clerk as of September 7, 2017.
Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states that if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, the worker is entitled to full loss of earnings benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the Workplace Safety and Insurance Board.
In regards to the worker’s physical injury, the worker was assessed at the Back and Neck Specialty Program on July 28, 2023, by Dr. DeMarchi, a neurosurgeon. At that time, the doctor confirmed that the worker was capable of returning to work with permanent limitations. Specifically, these were identified as follows:
Walking up to 20 minutes at a time, rarely, with the use of a single-point cane, as needed.
Standing up to 20 minutes at a time before positional change is needed.
Sitting up to 30 minutes at a time before positional change is needed.
Stair climbing up to 1 flight of stairs at a time with the use of a handrail and single-point cane, as needed.
0-5 kg lifting.
0-5 kg pushing and pulling.
No ladder climbing.
Able to drive a car.
Able to use public transit.
Bending, twisting, and repetitive movement on the low end of occasional.
Allow for micro-breaks or self-pacing every 20 minutes, as needed.
Limit carrying to a rare basis with limited loads.
Limit above shoulder-level work to the low end of occasional and not prolonged (less than 3 minutes/sec at a time).
Limit forward-reaching tasks to the low end of occasional and not prolonged (less than 5 minutes at a time).
Avoid low-level work (crouching and kneeling).
Able to work full hours if the work is within the recommended restrictions.
In assessing the restrictions, I accept the information provided by Dr. DeMarchi. In doing so, I note their direct assessment of the worker, their review of the previous medical history, their in-person testing, and their specialty as a neurosurgeon. As a result, from an organic perspective, I find that the worker is partially impaired and able to return to work with restrictions.
In regards to the worker’s psychotraumatic disability, I note that there is a memorandum on file indicating that the worker reached maximum medical recovery with no permanent impairment; however, no decision has formally been made, and this issue is not properly before me. Given no decision has been communicated in writing concerning this issue, and the worker had entitlement to benefits for a psychotraumatic disability at the time their SO was determined, I find it is relevant to review if their accepted psychotraumatic disability would have prevented them from returning to any form of work as of September 7, 2017.
On September 7, 2017, the worker underwent a comprehensive psychiatric assessment with Dr. Joseph. In my review of the available information on file, this appears to be the most recent appointment of this nature regarding the compensable psychotraumatic disability. Dr. Joseph stated that the worker had ongoing symptoms, including disturbed sleep, impaired appetite, anxiety, poor energy, poor concentration, poor memory, and poor interests. The doctor confirmed that the worker continues to drive, performs daily self-care, cooks, cleans, and does laundry, banking, and groceries. The worker also continues to be able to use a cell phone, text, email, and use the internet, and has maintained good family relationships. Dr. Joseph stated that the worker had major depressive disorder with moderate anxious distress and moderate severity, as well as somatic symptom disorder of a moderate severity.
Dr. Joseph stated that the main functional restriction is related to memory difficulties and organization, as they identified that they had difficulty gathering a coherent history from the worker during the assessment. Therefore, Dr. Joseph felt that the worker possessed a limited ability to multitask.
In terms of return to work, the doctor felt that a return-to-work program would not be tolerated due to the worker’s stress, pain, depression, and problems at work. They confirmed that the prognosis for a return to work remained guarded. However, I note that this assessment was solicited by the worker’s long-term disability provider, whom the worker was receiving benefits from, and the purpose was to determine the worker’s ability to return to their pre-injury position with the employer or an accommodated role following their compensable neck surgery. I accept that a significant contributing factor to Dr. Joseph’s opinion that the worker could not return to work with the employer was an ongoing conflict between the worker and the agency where they were employed. Dr. Joseph stated that “she perceives that she received [a lack of support] from the agency when she had a conflict with the colleague. She also feels that the agency was not happy with her as she had testified against the agency in a sexual assault case against one of her colleagues. She believes that there must have been a vendetta against her because of that.” The doctor added, “Some of the stressors may be the ongoing pain and the fact that she had to leave work due to a conflict with a colleague and she feels that agency did not support her as well.”
Of relevance, a chronic mental stress claim was established with the Workplace Safety and Insurance Board concerning the above issues, but was denied in 2019. While Dr. Joseph’s opinion is clear
concerning the worker’s inability to return to their pre-injury position, in part due to the significant conflict in the workplace, the issue under appeal is if in September 2017, the worker could have resumed some form of alternative employment in the identified SO. In my assessment of the report, I find that while the worker possessed limitations concerning their memory and ability to multi-task, the report demonstrates that they remained partially impaired from a psychological perspective. The worker continued to be able to drive, manage their activities of daily living, perform their own self-care, and take care of their home. Based on the available information, it also does not appear that any ongoing psychological treatment or counselling was required outside of continued medication management. As noted above, although Dr. Joseph confirmed that the worker could not return to their pre-injury position, I accept that the main reason for this recommendation was the perception of the ongoing conflict in the workplace and the stress that would have resulted from the worker returning to their employment with the accident employer.
In consideration of the above, I find that the worker was partially impaired from a non-organic perspective, possessed limitations regarding memory and multi-tasking, and was able to return to some form of work.
As previously discussed, I note that no determination has been made concerning the worker’s maximum medical recovery in relation to their psychotraumatic disability. If it is later found by the Operating level that the worker’s level of impairment or psychological restrictions have changed as a result of their psychotraumatic disability, any benefits flowing from this, including the worker’s employability, can be further considered by the Operating level.
While no CPP-D offset was ultimately determined, I acknowledge the worker’s position that a memorandum does reflect that a 100% offset would be required, which the worker states would suggest that 100% of their ongoing disability is work-related. In this regard, I note that while a number of work- related conditions are mentioned, non-occupational issues are contributing to the worker’s level of disability. This includes but is not limited to, asthma, migraines, and chondromalacia. In addition, the July 28, 2023 Specialty Program report confirms that the worker has a complicated medical history, which also includes conditions such as gastric issues, kidney disease, and Raynaud’s Syndrome. The
doctor further identified that there appeared to be significant right hip pain. In regards to this, they wrote “I do not think the current main complaints are related to that injury. I think her most recent complaints seem to be related to either her right hip or SI joint. This is something which her family physician is looking into in the community.”
When reviewing all of the above, I accept that there are a number of significant non-compensable medical conditions that are currently contributing to the worker’s current clinical presentation, in addition to the limitations associated with the accepted workplace injuries. However, when assessing the worker’s compensable injuries, as discussed above, I find that from September 7, 2017, the nature or seriousness of the injury did not completely prevent the worker from returning to any form of work, as per Operational Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review).
While I have found that the worker remains partially impaired, Operational Policy 19-02-10, RTW Assessments and Plans, confirms that if a worker was working full-time hours, but a return to full-time hours is not feasible due to the work-related injury, a SO with part-time hours may be considered. When holistically reviewing the worker’s level of impairment, I find that given the extent of their permanent neck and lower back symptoms in combination with their other impairments, such as their accepted bilateral wrist injuries under their prior claim, it is not feasible that the worker would be able to sustain full-time hours. In doing so, I note that the although Specialty Program report confirms that the worker can perform full hours if the work is within their restrictions, their other compensable impairments were not considered during this assessment. The medical evidence and the quantum of the worker’s NEL benefit
confirm that the worker possesses relatively significant functional restrictions. I accept that the information on file confirms that the easing activity for the worker’s symptoms is frequent breaks and relaxation, and that part-time hours would allow the worker to have improved rest between shifts, which would assist with controlling their well-documented pain. Therefore, on a balance of probabilities, I find that the worker is able to work 20 hours per week in part-time employment, as per Operational Policy 19- 02-10, RTW Assessments and Plans.
In considering the payment of retroactive loss of earnings benefits from September 7, 2017, Section 43(2) of the Workplace Safety and Insurance Act states that a worker is entitled to the difference between their net average earnings before the injury and the net average earnings that they are able to earn in suitable and available employment. In assessing if the worker was capable of securing suitable and available employment for 20 hours per week in the SO of Customer Service Representatives– Information and Kiosk Clerk, Operational Policy 19-02-10, RTW Assessments and Plans, states that when developing a return-to-work plan with training, a Suitable Occupation is identified for the worker. A Suitable Occupation 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 Suitable Occupation 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.
According to the National Occupational Classification handbook, Customer Service Representatives include kiosk information clerks. The primary responsibilities of the job include providing customer service, answering phone inquiries, taking orders, explaining goods or services, and processing service requests.
In terms of functional abilities, the position is sedentary and requires sitting, upper limb coordination, and limited strength. In addition, the worker would be able to change postures, as needed. While I accept that the worker possessed non-organic restrictions as of September 7, 2017, involving memory and multitasking, the Return-to-Work Specialist’s September 28, 2023 report confirmed the definition of multitasking, as per the Government of Canada Occupational and Skills Information System, is “The ability to shift back and forth between two or more activities or sources of information during the same time period”. In this case, for the identified SO, multitasking is listed as the lowest level of one. As a result, I accept that minimal multitasking or sustained memory would be required while performing the position. When considering the demands of the SO from both an organic and non-organic perspective, I find that the position would be consistent with the worker’s functional abilities, at 20 hours per week, as the job is sedentary in nature and the worker remains cognitively intact and does not have any limitations concerning communication.
In terms of employment requirements, completion of secondary school is usually required, while completion of some college or other post-secondary programs and clerical or sales experience may be required. The information on file confirms that the worker has completed high school, has two diplomas, and worked in prior jobs that would have involved certain levels of communication or customer service skills. When considering the worker’s previous education and work history, I find that they would possess the transferable skills required to obtain a position as a Customer and Information Services Representative.
In regards to the availability of the position, Job Bank Canada confirms that within the worker’s region, the outlook for the position from 2017 was generally fair or average, which was consistent with the forecast for the position across the province of Ontario. I find that this confirms that the position was available in the labour market to the extent that the worker has a reasonable prospect of obtaining employment in the occupation.
In consideration of all of the above, I find that from September 7, 2017, the worker was capable of working in the SO of a Customer Service Representatives– Information and Kiosk Clerk, based on a 20- hour workweek, as per Operational Policy 19-02-10, RTW Assessments and Plans.
Issue #2- The adjustment of the worker’s loss of earnings as of September 7, 2017.
As previously noted within Issue #1, Section 43(2) of the Workplace Safety and Insurance Act states that a worker is entitled to the difference between their net average earnings before the injury and the net average earnings that they are able to earn in suitable and available employment.
Given that I have determined that part-time employment was available in the SO from that date, I find that the worker is entitled to the difference between their net average earnings before the injury and the net average earnings that they were able to earn in that occupation, as per Section 43(2) of the Workplace Safety and Insurance Act, less any applicable offsets, such as CPP.
In regards to the worker’s actual earnings, Operational Policy 19-02-10, RTW Assessments and Plans, confirms that 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. The policy notes that the earnings are established based on whether the return-to-work plan involves the worker acquiring a new skill set or entering a new field. When the worker is required to acquire a new skill or enter a new field, the policy states that updated entry-level wages are used to determine post-injury earnings. In this case, I accept that although the worker possessed the skills to obtain employment in a customer service position, they had not previously performed a job of this nature and would be entering a new field.
As a result, I find it was appropriate to adjust the worker’s loss of earnings benefits as of
September 7, 2017, using the entry-level wages of the SO, as per Operational Policy 19-02-10, RTW Assessments and Plans.
Issue #3- The worker’s entitlement to ongoing partial loss of earnings benefits from the date of their 72-month lock-in on January 23, 2019, until the age of sixty-five, based on the updated entry-level wages of the worker’s SO.
Operational Policy 18-03-06, Final LOE Benefit Review, confirms that the Workplace Safety and Insurance Board shall not review a worker’s loss of earnings benefits more than 72 months after the date of the worker’s injury unless certain circumstances are met. The policy states that when a worker has co- operated and is not working at the time of the final review, the loss of earnings benefits will be paid based on SO-identified earnings. Specifically, if the final review occurs before the worker returns to employment, the Workplace Safety and Insurance Board uses the available wage information for the identified SO as of the completion date of the return-to-work plan (with training). If the Workplace Safety and Insurance Board originally used:
entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the LOE benefit. This generally occurs if the plan was designed to provide the worker with new skills or if the worker would have entered a new field, or
mid-range wages to determine the post-injury earnings, updated mid-range wages are used. This generally occurs if the plan was designed to improve a worker’s existing or transferable job skills.
In this case, I note that when entry-level wages were used to determine post-injury earnings, the entry- level wages of the SO in 2017 were $12 an hour and from 2018 to 2019, when the worker’s final lock-in occurred, they were $14 per hour. As I have already determined the SO to be suitable at 20 hours per
week, and given that the worker had not returned to work at the time of their 72-month lock-in but would have been entering a new field, I find it was appropriate to use the updated entry-level wages of the SO.
In consideration of the above and Issue #1, I find that the worker remains entitled to partial loss of earnings benefits from the date of their 72-month lock-in on January 23, 2019, until age 65, as per Operational Policy 18-03-06, Final LOE Benefit Review, based on their ability to work 20 hours per week, at updated entry-level wages, in the SO of Customer Service Representatives– Information and Kiosk Clerk.
CONCLUSION
I find that:
From September 7, 2017, the worker was capable of working in the SO of a Customer Service Representative– Information and Kiosk Clerk, based on a 20-hour workweek.
It was appropriate to use the entry-level wages of the SO when determining the worker’s entitlement to ongoing partial loss of earnings benefits as of September 7, 2017.
The worker remains entitled to partial loss of earnings benefits from the date of their 72-month lock-in on January 23, 2019, until age 65, based on their ability to work 20 hours per week, at updated entry-level wages, in the SO of Customer Service Representatives– Information and Kiosk Clerk.
The worker’s objection is allowed-in-part.
DATED JANUARY 31, 2025
Neil Clark
Appeals Resolution Officer Appeals Services Division