Worker couldn’t do some tasks or work all the hours determined in labour market re-entry assessment
An injured Ontario worker has won an appeal disputing the suitable occupation the province’s workers’ compensation board determined for him and the hours of work expected of him each week.
The 36-year-old worker became a farm labourer in 2002 and worked in that occupation for six years. On Sept. 15, 2008, the worker was lifting a heavy object onto a tractor and experienced pain in his lower back. He sought medical attention and was diagnosed with a lower back strain.
A few months after the accident, in January 2009, the worker underwent an MRI which revealed degenerative changes throughout the lumbar spine and mild bulging in a few discs.
The worker’s back pain didn’t get any better and he remained unable to work as a farm labourer, so he was referred for a Regional Evaluation Centre (REC) assessment in November 2009. The REC report indicated that the worker had a history of low back pain and had permanent restrictions that required him to avoid prolonged and repetitive bending, low back twisting and stooping, and moderate to heavy lifting. The report concluded that these restrictions made it unlikely he would be able to return to work as a farm labourer.
The Ontario Workplace Safety and Insurance Board (WSIB) referred the worker for a labour market re-entry assessment and transferable skills analysis in February 2010. The skills analysis determined that the worker was capable of working with and repairing machinery, operating vehicles, woodworking, working with plants and animals, and following instructions. The worker expressed interest in jobs such as small engine repair, auto mechanics, nuclear energy, carpentry, electricity, and plumbing.
Based on the worker’s skills and interests, the assessment identified six suitable employment alternatives: three involving small machinery, two in customer service, and an egg processor/grader. However, the worker had relatively low cognitive abilities that didn’t reflect his grade 12 education, so this placed some limits on his options. After additional assessment, it was determined suitable occupations were small motor repairer, tool room attendant/automotive parts person, jeweler apprentice, and hotel clerk.
The WSIB used the assessment results to determine a labour market re-entry plan for the worker. The plan determined that a customer service clerk was a suitable occupation the worker could perform within his medical restrictions and his cognitive abilities. By October 2010, the worker completed his training and was considered capable of earning $10.25 per hour over a 40-hour work week. The WSIB ended his workers’ compensation benefits and granted the worker partial loss-of-earnings benefits to make up the difference in the pay he received as a farm labourer, as well as a non-economic loss award of 17 per cent for his back impairment.
Worker had difficulty with work placement
The worker had a work placement as a customer service representative in a farm implements store as part of his labour market re-entry plan. He experienced some difficulties and was only able to work between four and five hours a day instead of the expected eight hours. He had difficulty reading shelf labels because of his low cognitive ability and store management told him they wouldn’t hire any permanent employee who wasn’t able to lift heavy objects such as feed bags and equipment.
The worker challenged the WSIB’s determination of a suitable occupation, arguing that he functioned below the grade 12 level and had spent most of his working life in outdoor farming work. This would make it difficult to transition to the type of work and work culture associated with the occupation of customer service clerk. He also argued that his physical restrictions prevented him from being able to work 40 hours a week.
An appeals resolution officer upheld the WSIB’s determination, finding that customer service representative was an achievable suitable occupation with additional training and the worker was capable of working 40 hours a week. The worker appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal.
The tribunal noted that WSIB policy stipulates that a suitable employment or business is “within the worker’s functional abilities and is achievable after labour market re-entry.” It found that the worker’s education, experience, and cognitive level “presents very much like the farm labourer he was.” Even without his physical restrictions, the worker would have difficulty in a retail setting and the WSIB’s retraining efforts weren’t successful, said the tribunal.
The tribunal found that the labour market re-entry plan wasn’t adequate to prepare the worker to be a customer service representative and it was unlikely to be successful anyway because of the worker’s functional abilities even after the plan. As a result, the tribunal agreed with the worker that customer service representative wasn’t suitable employment for the worker.
The tribunal noted that the worker was in pain most of the time and took a number of medications. In addition, the 17-per-cent non-economic loss award demonstrated “a level of impairment which is not insignificant,” and the worker was unable to work eight-hour days during his work placement due to his pain.
The tribunal determined the worker wasn’t capable of working 40 hours a week due to his low back condition. Since he was able to work only five hours a day during his work placement, the tribunal found 25 hours a week was a reasonable assessment of what the worker could do.
The tribunal granted the worker’s appeal and overturned the decisions that customer service representative was a suitable occupation and was capable of working 40 hours a week. The WSIB was ordered to adjust the loss-of-earnings benefits in accordance with a 25-hour work week instead of 40 and re-assess the wage to reflect the minimum wage at the time benefits were terminated, in the absence of a suitable occupation.
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