WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1872/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1872/10 BEFORE: M. Butler : Vice-Chair HEARING: September 30, 2010, at Thunder Bay Oral DATE OF DECISION: October 20, 2010 NEUTRAL CITATION: 2010 ONWSIAT 2356 DECISION UNDER APPEAL: WSIB ARO decision dated November 30, 2006 APPEARANCES: For the worker: For the employer: Mr. Jim Pasel, Union Representative Ms Jackie Supper, Paralegal 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. 1872/10 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals the decision of the Appeals Resolution Officer (ARO) dated November 30, 2006, rendered based upon the written record without an oral hearing, which concluded that he was not entitled to full loss of earnings (LOE) benefits from July 10, 2006 on the basis that he was not unemployable. (ii) Issue [2] The sole issue under appeal is whether the worker has entitlement to full LOE benefits from July 10, [3] The worker s appeal is allowed for the reasons set out below. (iii) Background [4] The following are the basic facts: [5] The now age 49 worker started his employment with the accident employer (the employer ) in May He was injured on June 14, [6] The ARO succinctly set out the background facts of this case as follows: On June 14, 2004, while employed as a machine operator, he was trying to prepare a ballast-car door for unloading purposes, while pushing upon the bar to open, felt a sharp pain in his lower back. Initial medical attention was obtained on June 14, 2004, and Dr. Carpentier diagnosed a back sprain and [the worker] was provided with conservative treatment. He continued to be employed in modified duties until August 31, 2004, when the employer was no longer able to accommodate his medical restrictions. Maximum medical rehabilitation (MMR) has been achieved on March 4, 2005, when he was discharged from the functional restoration program. An assessment by the noneconomic loss (NEL) division occurred and on September 20, 2005, he was awarded [an] 18 per cent NEL award. The worker objected in a letter dated December 5, The NEL clinical specialist upheld the award. A referral was made to the labour market re-entry (LMR) service provider to assist [the worker] in obtaining suitable and sustainable employment and restoring his pre-accident wages. A suitable employment or business (SEB) of Hotel Front-desk Clerk with a National Occupational Classification (NOC) of 6435 was established. Services were finalized on July 10, 2006; he was unsuccessful in obtaining appropriate employment. In a letter dated July 18, 2006, the claims adjudicator [name] informed [the worker] that he had the necessary skills and abilities to obtain employment in a minimum-wage position of $7.75 per hour, or $ gross weekly. Effective July 10, 2006, he is entitled to partial LOE benefits.

3 Page: 2 Decision No. 1872/10 (iv) Law and Policy [7] Because the worker was injured in 2004, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [8] Pursuant to section 126 of the WSIA, the Board stated that policy packages 212 and 300, Revision # 7, would apply to the subject matter of this appeal. [9] The former Document No of the Board s Operational Policy Manual (OPM), published on October 12, 2004, has been included as applicable Board policy for this case. This policy applied to all decisions made on or after January 1, 1998, for all accidents. (v) Testimony [10] Relevant to the issue before me, the worker testified as follows: He was advised by the employer that he had to go for a two-day course for flagman in Winnipeg starting on a Monday. He went but he had not been given the manuals for flagging. However, he was given the materials on the first day. On the second day, a review was conducted following which the participants wrote the test. He passed the test with a mark of 81%, even though he was taking a lot of medication for pain. He was uncertain whether the employer knew that he was on narcotic medication. He outlined the medications that he is taking now: OxyContin 5 & 325 mg, two at night; Omeprazole 20 mg, one per day; Hydrochlorothiazide 25 mg, one per day; Novo- Amlodipine 10 mg, one per day; Apo-Cyclobenzaprine 10 mg, one per day for his blood pressure; Aspirin 500 mg, two tables twice daily; and Acetaminophen 500 mg, of which he takes two in the morning, two in the early afternoon and two at supper time. He denied that he took the job of flagman. He was told to go to Brandon, Manitoba. His representative from the union told him that he would look into it. The matter went to arbitration but, he stated, he did not get a decision. No other job was offered to him by the employer. He confirmed that the Board offered him labour market re-entry (LMR) services. He was uncertain whether he signed the LMR plan. He was arguing with the service provider s representative. He wanted to set up a small business doing small motor repair, although he had no knowledge of small motors. She told him that wrenching would be too hard on his back. He thought that he could do it and that he would do the best that he could. He wanted a career where he could work with his hands. Following the LMR training he was told that he was capable of working as a hotel front desk clerk and two other jobs that he could not remember. He confirmed that the two other SEBs were cashier and retail sales. He denied that he was trained for work as a front desk clerk, cashier or sales clerk. He stated that he does not know how to spell. He was told that Grade 12 would be challenging for him. He confirmed that his upgrading provided him with Grade 12 diploma and he received a diploma with honours. He stated that going to college was past his ability. He was told that he had to go to Dryden for three

4 Page: 3 Decision No. 1872/10 days for job search which included doing his resume. Dryden is a 3.5 hour drive each way for him. Fort Francis is an hour to an hour and a half away. That is too far for him to go to work. He would need money for gas. He stated that when he attended the pain management program in Toronto he was told that he could not do the three jobs that had been selected for him because of his physical abilities. He stated that following the completion of job search, he passed out six to eight resumes. He looked for jobs working as a hotel front desk clerk, in gas stations and in three grocery stores. The grocery stores are mostly family-owned and hire students. He had no success in finding a job. He stated that he is in competition with students whose employers receive half of their pay from the government. They are younger and faster than he is. He was told by employers that they were looking for younger people. He applied for a job at the front desk at a hotel in Fort Francis. They told him that there was no front desk job and that he would have to make beds and do the cleaning. His restrictions included no bending or twisting from side to side. He thought that his lifting restrictions were 5 to 8 pounds. He was willing to try the job but he was given no opportunity to do it. He stated, Nobody gave me a chance. He wanted a job. He stated that he is still looking for work but businesses and the hotel have closed down in the town that he lives near. There are no jobs, particularly in the wintertime. He feels that his age is the greatest barrier preventing him from getting a job. He added, I m still looking for the rainbow. He stated that he has seen lots of specialists. He has a problem with numbness in his left leg. It is hard for him to drive. Pain goes into his hip. He stated that he has a 366 acre farm that he inherited from his father. They keep rabbits but wild animals kill them. Wild animals killed the wild turkeys. He denied ever ploughing the fields. He stated that he has a garden the size of the hearing room (20 feet by 30 feet) and uses a small Ford 8N tractor to plough the garden. He plants enough potatoes, carrots and peas for his and his wife's consumption. His wife is disabled from working because of rheumatoid arthritis. He denied that he ever has to carry her. She can walk. He has a snowmobile which he rides once in a while. He thought that he rode it twice last winter. He uses an 8 hp snowthrower in the wintertime He confirmed that he cooks, washes the dishes and cleans the house off and on with his wife. He stated that while he was working for the employer, he had hoped to retire in 2016 because he would have achieved the magic 30 years of service. (vi) The parties submissions (a) The worker [11] Mr. Pasel noted that the employer had no work for the worker. The worker went into the LMR program but did not agree with the SEBs of hotel front desk clerk, retail sales and direct

5 Page: 4 Decision No. 1872/10 entry cashier. While the Board gave him upgrading to Grade 12, they provided him with no hotel front desk training or computer training. He was provided with four weeks of job search. Mr. Pasel argued that the LMR program was not focused on true upgrading. The LMR program could have placed him in a co-op (training-on-the-job) where he would have had hands-on experience, doing a maintenance job. The worker is more of a hands-on man. That would have been a better investment of resources. He noted that the town nearby where the worker lives has a population of 1000 and an unemployment rate of 20%. The hotel in town is now closed. The worker's situation is having a Grade 12 education with no opportunity for employment. [12] The worker was out of a job at age 43. His restrictions included no bending, twisting, repetitive sitting and standing, and no lifting more than 5 kg. He was employed by the employer for 22 years and had planned to retire from the employer. However he was injured and was placed in the unenviable position of finding himself with no future and no income. Mr. Pasel advised that there was no follow-through on the worker's arbitration. [13] Mr. Pasel concluded his submissions by arguing that the worker is now disabled and has barriers to employment. He was not given the opportunity to pursue his choice of small engine repair. He is now 49 years of age and, although he could still achieve, he suffers from anxiety and depression. He is unemployable. (b) The employer [14] Ms Supper submitted that the employer s position is that reliability is the concern. It is easy for the worker to say that he is looking for work. It is a vague portrayal. [15] Ms Supper noted that the ARO was satisfied with the SEBs determined for the worker and found that they complied with his medical restrictions and work was available. [16] Ms Supper noted that the worker s academic level had been elevated to Grade 12 through the eight month LMR program and he was given four weeks of job search. She argued that it was not unreasonable for the worker to drive to Fort Francis for work. He never looked for work there. He did not pursue employment as a school bus driver. [17] Ms Supper questioned the worker's motivation to look for a job and whether he tried to look for a job. She argued that it is not reasonable that employers are reimbursed a portion of students wages unless it is for mentally challenged students or a co-op program. She argued that the positions that students held in the summertime would be available for the worker in the winter. She noted that the discussion involves only the worker's ability to find a minimum wage job. [18] Ms Supper noted that the union did not pursue the worker s arbitration. Regarding the flagman position, Ms Supper advised that the employer was not aware that the worker was on medication. The employer acted with genuine intent to place the worker. [19] Ms Supper noted that the worker is able to drive a tractor and ploughs his garden and he rides a snowmobile. These are activities that would jostle him around a bit. She questioned the size of the worker's garden and suggested that it could have been twice the size that he

6 Page: 5 Decision No. 1872/10 testified to. She noted from Dr. Remus Regional Evaluation Centre Report dated November 9, 2004 that the worker participated in hunting and fishing as well as driving his snowmobile. Moreover the worker told Dr. Remus that he planned to retire in She thought that was quite a coincidence that he left the work force in [20] Ms Supper questioned why the worker did not pursue a claim for discrimination on the basis of age when he found out that the younger applicants were being hired for the available positions on the basis of their age. [21] Ms Supper noted that while the worker claims to be disabled, he has been active at home. He has mild degenerative disc disease. He was diagnosed with acute lumbosacral strain from which he had largely recovered. There was no nerve root damage, no disc herniation and no spinal stenosis. He has been diagnosed with somatoform disorder. There is an element of pain magnification. [22] Ms Supper referred to The Toronto Western Hospital Functional Restoration Program Discharge Report Summary dated March 10, 2005 which noted the worker's ability to do two one-hour self-paced daily functional activity sessions. She referred to Dr. Beller s report dated December 20, 2009 that he had no evidence to conclude that the worker could not perform the duties of a hotel clerk. Dr. Hoffman reported on September 18, 2008 that the MRI failed to show any serious organic pathology to explain the persistence and the severity of the worker's symptoms. [23] Ms Supper concluded her submissions by arguing that the worker is not unemployable and that he is capable of working at a minimum wage job. However, the worker has accepted that he has no intention of working. He planned to retire in 2006 and he has done so. He has conducted no active job search and there is no evidence that he has been job searching. (vii) Analysis [24] On the basis of all of the evidence before me, I conclude that the worker has entitlement to full LOE benefits from July 2006 ongoing. In coming to this decision, I considered the worker s testimony, Mr. Pasel s submissions, Ms Supper s submissions, the documentary evidence before me, and applicable Board policy and legislation. [25] In general, I found the worker s testimony to be reliable. I find that he did a modest, but not thorough, job search. I accept that the opportunities for employment in his geographic region have been quite limited and that he would be in fierce competition with younger, more ablebodied students for the summer and part-time jobs that might be available. [26] I considered the following: Fort Francis is 90 km, or 56 miles, (67 minutes) from Rainy River 1. The best opportunity for employment for the worker has been with the employer. Evidently, the employer did not have a position that was suitable and available in his 1

7 Page: 6 Decision No. 1872/10 geographic region. The employer has not provided any evidence that there are any minimum wage jobs available in the SEBs that the service provider found to be suitable for him. I reject Ms Supper s notion that the worker could work as a school bus driver. With the medications he is on - that include potent pain killing medication - it would not be safe to permit him to be driving school children to and from school every day. While he has purportedly increased his academic level to Grade 12 in an eight month upgrading period, his academic achievement before the program was in the low to midlevel elementary school (Grade 1 to Grade 4), with Math at Grade 5 to Grade 6 (Psychological Assessment Report dated July 31, 2005). His verbal IQ score was at the 9 th percentile. In my view, this portrays a person with very limited academic skills and brings into question his achievement of a Grade 12 diploma and his ability to pass any qualifying tests that a prospective employment might have him write. The fact that he can drive a small garden tractor or snowmobile from time to time is insufficient evidence that he could do a regular 40 hour per week job, plus the time required for traveling. The suggestion that the worker pursue a claim for discrimination on the basis of age is unfounded. The fact that he had the ability to do two one-hour self-paced daily functional activity sessions during The Toronto Western Hospital Functional Restoration Program indicates that he might be capable of working two hours per day, if indeed he could find such employment. It is not indicative that he can work 40 hours per week. The worker s LMR program was directed at academic upgrading. It did not provide the worker with any hands on or training-on-the-job experience. His transferable skills are evidently somewhat limited. [27] While I am bound by the policies that the Board has determined are applicable to this appeal, including the former Document No , I do note that the most recent version of Document No , applicable to all decisions made, with respect to wage loss entitlement periods on or after July 1, 2007, defines a SEB as representing a category of jobs suited to a worker s transferable skills that include being available in the local labour market. Available means that employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job. [28] Tribunal decisions have also considered whether work was available in the labour market in determining if a worker is entitled to full future economic loss/loss of earnings benefits. The Vice-Chair in Decision No. 2597/00 dated October 26, 2000 concluded that there was no suitable, available work and granted the worker entitlement to a full FEL award. In that case, the Board had found that the worker was capable of working as a clerk or a cashier. The Vice-Chair noted that the worker lived in a community of about 1,200 people. The immediate job market was very limited. Two of the town's major employers had closed. The nearest city was about 100 km away. The worker did not extend her job search area to that regional area. The Vice- Chair found that the worker was justified in not extending her job search area. Commuting 200 km per day may have aggravated her condition. Weather conditions for commuting could be

8 Page: 7 Decision No. 1872/10 problematic in northern Ontario. Employment opportunities in the region were limited. The worker was active in looking for work. [29] In my view, the facts in Decision No. 2597/00 are very similar to the facts in this case. The work lives approximately 90 km from Fort Francis. While the drive may take 67 minutes in good weather and on dry roads, weather conditions in the area can be quite variable. I find that the worker in this case should not be expected to commute 90 km each way in order to find work. This does not even take into consideration the amount of fuel that would be consumed each day to do a minimum wage job. It assumes that the worker s motor vehicle would be in a safe driving condition, capable of being driven 900 km each week. This does not take into consideration the worker s low back condition and the medications that he has been on. Indeed, the medications may well limit his ability to do any driving, let alone 900 km per week to pursue employment in Fort Francis. [30] All in all, I find that the worker had become competitively unemployable by July 2006 and that the prospects for employment of this man in his geographic area were most remote. Accordingly I conclude that the worker has entitlement to full LOE benefits from July 10, 2006 ongoing unless and until there is a material change in circumstances.

9 Page: 8 Decision No. 1872/10 DISPOSITION [31] The worker s appeal is allowed as follows: 1. The worker has entitlement to full LOE benefits from July 10, 2006 ongoing unless and until there is a material change in circumstances. DATED: October 20, 2010 SIGNED: M. Butler