WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 666/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 666/16 BEFORE: S. Netten: Vice-Chair HEARING: March 10, 2016 at Ottawa Oral DATE OF DECISION: June 22, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1681 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated September 27, 2013 APPEARANCES: For the worker: For the employer: Interpreter: D. Byfield, Union representative Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 666/16 REASONS (i) Issues [1] The issues under appeal are as follows: 1. The suitability of the SEB (suitable employment or business) of Security Guard; 2. The quantum of the worker s loss of earnings (LOE) benefits from August 1, 2009 and ongoing; and 3. Entitlement to a recurrence of the compensable right elbow injury, in March (ii) Overview [2] The worker, then an airport screening agent, sustained a work-related right elbow injury on August 15, She remained at work, and received partial LOE benefits for reduced hours from August 12, Full LOE benefits were paid from her layoff date of November 2, As the employer was unable to offer permanent modified work, the Board referred the worker for labour market re-entry (LMR) services in January A permanent impairment, consisting of medial and lateral epicondylitis, was recognized, and the worker received a 4% non-economic loss (NEL) award in June The SEB of Security Guard was also selected in June 2009, and the LMR Plan consisted of job search training only. At its conclusion, LOE benefits were based upon the ability to earn $11.85 per hour, effective August 1, [3] The worker objected to the LMR and LOE decisions in December 2010, and the Board granted the necessary time limit extension at that time. [4] The worker subsequently claimed further LOE and health care benefits associated with a recurrence of March 19, Entitlement to a recurrence was denied on April 10, [5] On May 14, 2012, the Case Manager advised that the worker s LOE benefits had been adjusted, effective November 29, 2011, to reflect updated deemed wages of $13.19 per hour in the SEB of Security Guard. [6] The worker objected to the LMR, recurrence, and LOE benefit decisions in October [7] The Board issued its final LOE review decision, on August 8, LOE benefits were further reduced, effective August 15, 2013, based upon the ability to earn updated wages of $14 per hour in the SEB. [8] On September 27, 2013, an Appeals Resolution Officer denied the worker s objection, finding that the SEB was suitable, the projected earnings were reasonable, and there had been no recurrence of the right elbow injury in March The worker now appeals to the Tribunal. (iii) (a) Suitability of the SEB of Security Guard Law and policy [9] The Workplace Safety and Insurance Act, 1997 (WSIA) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated.

3 Page: 2 Decision No. 666/16 [10] Section 42 governs LMR services. The Board is required to determine the employment or business that is suitable for the worker and is available, and to prepare an LMR plan, containing the steps necessary to re-enter the labour market in the SEB, in consultation with the worker. The WSIA does not define what constitutes suitable employment. [11] Section 126 requires the Tribunal to apply Board policy when making its decisions. The applicable Board policy, titled Determining Suitable and Available Employment or Business, and Earnings (Operational Policy Manual (OPM) Document No , July 3, 2007) states: A SEB represents a category of jobs suited to a worker's transferable skills that are safe are within the worker's functional abilities reduce or eliminate the loss of earnings resulting from the injury are achievable after LMR, and are available in the local labour market. [12] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (b) Discussion [13] The worker s representative raised questions about whether more could have been done to secure alternative employment with the accident employer, before turning to the LMR process, and suggested that the employer could have accommodated the worker without experiencing undue hardship. However, the issue of the employer s re-employment obligations under the WSIA is not presently under appeal to the Tribunal, and the duty to accommodate a worker s disabilities under human rights legislation must be addressed in a different forum. This appeal relates only to the decisions made by the Board once the LMR process was underway. [14] In this respect, the worker s representative disputes the selection of the SEB of Security Guard, arguing that the worker s interests were not sufficiently considered, employment as a law clerk would be more suitable, three weeks training was inadequate to work as a security guard, and this occupation was inconsistent with the worker s restrictions on repetitive activity. [15] The original LMR Plan Proposal, dated March 11, 2009, reviewed the SEBs of Legal Assistant & Paralegals, and Security Guards and Related Occupations. The external Rehabilitation Consultant (RC) recommended the former SEB, noting the potential for the worker to fully restore her pre-injury wages; the LMR Plan would entail completion of a computer upgrading program followed by a two-year law clerk college program. However, prior to approving the recommended SEB, the Case Manager requested psychovocational testing. The psychovocational assessment of March 25, 26 and 31, 2009 found that the worker s IQ and perceptual organization scores were low average, verbal comprehension was average, working memory was borderline and processing speed was extremely low. Her academic levels in reading comprehension and number operations were significantly lower than would be expected given that she had completed Grade 12 and post-secondary courses. The assessor noted that the worker demonstrated very slow thinking and problem solving ability. Her report concluded:

4 Page: 3 Decision No. 666/16 [The worker s] intellectual ability is in the Low Average range and although she was able to complete her Police Foundations course at Algonquin College, she had significant problems with an Office Administration program. Further training at the college level may be somewhat challenging for her. However, her areas of vocational interest suggest that her current credentials may be sufficient for her to find employment. [16] The worker then attended and failed entry-level testing at a local college (for a different program). While the worker stated in testimony that this was because she couldn t write fast enough, the RC s report of May 15, 2009 indicates that the worker had failed both the timed and untimed versions of the entry test. At the time, the worker reported to the RC that she found the testing difficult and feels she needs upgrading prior to considering any courses at [that college]. [17] On this evidence, I find that the Board did consider the worker s preference for the law clerk program, but appropriately determined that the SEB of Legal Assistants & Paralegals was not suitable: this SEB required computer upgrading and a two-year college program which were likely not achievable for this worker, based upon her experience with an office administration program in the late 1990s, the results of psychovocational testing in March 2009, and the worker s difficulties with entry-level testing in April [18] In contrast, the worker had the education and experience for employment as a Security Guard. As outlined in the psychovocational assessment and in testimony, the worker completed a one-year security program in or around 1982, in her home country; she worked as an airport security agent for approximately nine years in her home country; she worked as a security guard for approximately six months when she first moved to Canada in or around 1993; she has an Ontario high school diploma (1996) and a college diploma in Police Foundations (2000); she worked as a general security guard briefly following her graduation in 2000; and she worked as an airport screening agent from 2002 to As outlined in the LMR Plan Proposal of March 11, 2009, computer knowledge was not a requirement for security guard job postings. As such, I find that this SEB was achievable for the worker following an LMR Plan consisting only of job search training. [19] The LMR Plan Proposal of March 11, 2009 discussed the physical requirements of the SEB: As per the NOC Handbook, light strength is required to perform the work of a security guard. [The worker s] tasks were unique at the [airport]. She repetitively lifted luggage & carry-on bags. As a security guard, she would not have to perform this task. Rather, the working conditions listed in the postings I obtained from the HRDSC Job Bank note the following: attention to detail, standing for extended periods of time, walking. [20] Orthopedic surgeon Dr. R. Bicknell had diagnosed medial and lateral epicondylitis of the right elbow, on June 11, This involved pain with stressing of either the medial flexor pronator mass or her lateral extensor tendon mass, and required activity modification, with no repetitive use of her arms and physiotherapy. On December 13, 2008 Dr. Bicknell recommended long-term activity modification, since the worker s elbow symptoms had returned with the conclusion of physiotherapy and/or the resumption of manual labour. On March 9, 2009, physiotherapist D. Summers provided ongoing limitations, specifically avoid repetitive activities with R arm (grasping, lifting heavy objects). Mr. Summers also provided a restriction on prolonged sitting ( frequent breaks to stretch ), presumably associated with a stated diagnosis of cervical radiculopathy. The worker does not presently have entitlement for a

5 Page: 4 Decision No. 666/16 cervical condition, in this or any other Board claim. 1 In any case, even considering both restrictions, I find the proposed SEB to be physically suitable. [21] The worker did not express any concerns to the RC regarding the physical requirements of the SEB, at the time; rather, her concern was that she would not be able to match her pre-accident wages. Similarly, the worker s representative could not identify any particular aspect of security guard employment which would exceed the worker s restrictions, other than questioning what would happen if she needed to accost an individual. The worker described the typical tasks of a security guard as conducting patrols and monitoring closed-circuit television screens, and no evidence has been tendered to suggest that general security guards are expected to apprehend or restrain individuals. The requirements found in the NOC Handbook do not exceed the worker s restrictions on repetitive arm use, nor is prolonged sitting, without changes in position, required. Moreover, the worker has in fact been working as a security guard, for varying periods of time, since late [22] On the available evidence, therefore, I find that the SEB of Security Guard was within the worker s functional abilities and physically suitable. [23] The worker s representative did not dispute the remaining aspects of suitability, and I note that employment within the SEB would reduce the loss of earnings resulting from the injury, and was, according to the RC in March 2009, available in the local labour market. [24] In the result, therefore, I conclude that the SEB of Security Guard was suitable for the worker, with an LMR Plan consisting of job search training only. The worker is not entitled to further LMR services. (iv) Recurrence in 2012 [25] The worker claimed a recurrence of March 19, 2012, advising the Case Manager that she had shooting pains across her shoulders and down her right arm, which she associated with her work duties escorting people in elevators. She advised that 12 days off work had been recommended. In testimony, the worker explained that she had been constantly pressing elevator buttons at work, and her arm and shoulder started to swell, such that she attended hospital. [26] Previously, in September 2011, Dr. A. Kabir reported that the worker s right arm was shaking uncontrollably at times; he was concerned about cervical radiculopathy. The worker had also been assessed by Dr. R. Wong of the Occupational Health Clinics for Ontario Workers, on November 16, This report focused upon the worker s upper back and neck pain, while also referring to the chronic right elbow epicondylitis. An MRI of the cervical spine dated February 15, 2012 identified degenerative disc disease, a small disc protrusion at C4-5, and a central disc protrusion at C5-6 encroaching on the anterior C6 nerve roots. An MRI of the right shoulder was also undertaken that day, showing early degenerative changes of the acromioclavicular joint, and fraying of the infraspinatus tendon. [27] At the Emergency Department on March 19, 2012, the worker reported increased pain with activity at work; her condition was described by the attending physician as chronic pain of the right neck and right shoulder. Similarly, the worker subsequently reported to the Case 1 I note that a formal entitlement decision on a June 2008 neck injury, in a separate claim, appears not to have been made, to date. A Case Manager advised the worker s representative on February 25, 2014 that this case is with the Eligibility Adjudicator, but there is no indication that a decision was taken thereafter.

6 Page: 5 Decision No. 666/16 Manager on March 28, 2012 that the areas of concern were the neck and right shoulder. There is no medical support for a flare-up of the worker s compensable epicondylitis in March It appears that medical concerns at that time and just previously had been focused on non-compensable conditions of the neck and shoulder. While the worker has ongoing entitlement for her permanent impairment of right elbow epicondylitis, I do not find that she experienced a recurrence entitling her to additional benefits in March (v) LOE benefits (a) Law and policy [28] With respect to the quantum of LOE benefits following LMR, section 43 states, in part: 43(2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the difference between, (a) the worker s net average earnings before the injury; and (b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury. (4) The Board shall determine the worker s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker under section 42 and is available and, (a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or (b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision. [29] Board policy on determining the SEB and associated earnings (OPM Document No ) states that updated mid-level wages are used to determine post-injury earnings where the LMR Plan builds upon existing and transferable job skills. Upon completion of the LMR plan, if the worker is not working or is under-employed, LOE benefits are based upon the most recent wage information for the SEB earnings identified in the LMR assessment. [30] Board policy on further review of LOE benefits (OPM Document No ) states: Employed in SO 2 If a worker is employed in the identified SO with the injury employer or a new employer, the WSIB uses the worker s actual earnings to pay LOE benefits, even if the earnings are not consistent with updated labour market wage information. Under-employed A worker is considered to be under-employed when he or she is employed in such a way that does not permit the use of his or her full abilities, skills, and training in mitigating the loss of earnings resulting from the work-related injury. In some cases, a worker may return to the identified SO but at reduced hours or lower wages than what was projected. There is a need to examine why the earnings and/or hours have been reduced. This may be due to unforseen [sic] aspects arising from the type of employment, or reflective of a probationary period, or changing work 2 In 2010, the Board began using the term suitable occupation or SO in place of SEB.

7 Page: 6 Decision No. 666/16 requirements/demands. If the decision-maker is satisfied that the worker is not voluntarily under-employing him/herself, then LOE benefits can be paid on actual earnings. If the decision-maker is satisfied that the worker chose to work fewer hours or at lower earnings, LOE benefits will be paid at the SO earnings established as part of the WT plan, rather than at actual earnings. [31] Board policy on the final LOE review (OPM Document No ) stipulates that benefits, for a worker who is not working at that time, are to be based upon updated SEB wages. Earnings of an experienced worker are only to be used if the worker has never returned to work despite being able to do so, and has not cooperated in return to work activities. (b) Discussion [32] I have found the SEB of Security Guard to be suitable, above. The worker was not working at the completion of the LMR plan in 2009, and consequently her LOE benefits were correctly based upon the SEB wage of $11.85 ($474 per week), pursuant to Board policy. This is an average wage drawn from labour market information outlined in the LMR Plan Proposal of March 11, Since the worker had existing and transferable job skills for the SEB of security guard, the use of mid-range wages is required by Board policy. Moreover, there was no significant change in the worker s compensable medical condition; while there were investigations of the worker s non-compensable cervical spondylosis, which along with non-compensable back pain reportedly affected her ability to work, this does not relate to the compensable elbow condition and thus would not affect LOE benefits in this claim. I find no basis to adjust the SEB wage from $11.85 per hour to minimum wage, as proposed by the worker s representative, between 2009 and I do find it appropriate to maintain this level of LOE benefits, rather than basing them upon wages of $13.19 per hour, beyond November 29, As will be seen below, this level of benefits will apply for only 10 days, and the range of wages earned by the worker very shortly afterwards sheds light on industry wages at that time. This additional labour market information does not support such an increase in projected wages. While the Board-determined increase was just slightly over the 10% threshold for adjusting LOE benefits, I find it more likely, based upon the wage information now available, that any increase in average wages would have been under that threshold. As such, the existing level of LOE benefits ought to have continued from November 29 to December 8, [33] The worker eventually began working in the SEB, on December 9, She confirmed in testimony that she worked on and off as a security guard, for one employer, from December 2011 until approximately May or June 2013, but was unsuccessful in securing full-time employment. She worked from a few days to a few months at a time but never a full year. Her wage varied with the job location; paystubs on file indicate wages of $10.25, $11.22, $11.42 and $12.00 per hour, with a full workweek typically ranging from 36 to 40 hours. The worker further testified that she has not had regular employment since May or June 2013; she has worked as a security guard only very occasionally, as relief, the last time being in mid Her communication with the Board leading up to the final review in August 2013 similarly indicates that she was not working at that time. The worker testified that she has applied for and continues to search for jobs in security and also in other fields, such as customer service. [34] The worker s representative takes the position that LOE benefits ought to be based upon a deemed ability to earn minimum wage (then $10.25 per hour), 40 hours per week, i.e., $410 per week. I agree with him that this is the appropriate result, from the final review date of August 15, At that point in time, the worker was not working, in the SEB or otherwise,

8 Page: 7 Decision No. 666/16 but she continued to be physically capable of employment, and was searching for employment. Her experience working in the SEB persuades me that updated SEB earnings, for this worker, were likely in the range of $410 per week on average; while wages ranged from $10.25 to $12 per hour, regular hours were often less than 40 hours per week. This is also the amount the worker might expect to earn in a different, direct-entry position (for which she may have transferable skills, but no direct experience), in the event that she does not secure a security guard position. [35] For the period from December 2011 to August 2013, however, I find that the worker is entitled to LOE benefits based upon actual earnings. During this period, the worker was employed and she was not, in my view, voluntarily under-employed; rather, she took the hours and wages that were available to her at the time. While she did not make full use of her abilities, skills, and training in mitigating the wage loss, this was more likely due to circumstance rather than choice. Pursuant to Board policy, the worker is entitled to LOE benefits based upon her actual earnings as a security guard during this period. [36] In the result, therefore, the worker s LOE benefits from August 1, 2009 to December 8, 2011 are to be based upon projected wages of $11.85 per hour, or $474 per week; benefits from December 9, 2011 to August 14, 2013 are to be based upon the worker s actual earnings from employment; and benefits from August 15, 2013 and ongoing are to be based upon the ability to earn $410 per week. Ongoing benefit entitlement is, as usual, subject to further statutory review. Since it is more than 72 months after the date of injury, further review is permitted only if one of the exceptions within section 44(2.1) applies.

9 Page: 8 Decision No. 666/16 DISPOSITION [37] The appeal is allowed in part as follows: 1. The SEB of Security Guard was and is suitable for the worker. There is no further entitlement to LMR services. 2. There is no entitlement for a recurrence in March From August 1, 2009 to December 8, 2011, the worker s LOE benefits are to be based upon projected SEB earnings of $474 per week. From December 9, 2011 to August 14, 2013, the worker s LOE benefits are to be based upon her actual earnings from employment during this period. From August 15, 2013 and ongoing (subject to further review under section 44(2.1)), the worker s LOE benefits are to be based upon the ability to earn $410 per week. DATED: June 22, 2016 SIGNED: S. Netten