Tribunal finds no reason to take away full loss of earnings benefits when there was no significant change in worker’s condition
An Ontario worker has won a battle for permanent loss of earnings benefits after a decision that he was unemployable was rescinded and he was assigned a suitable occupation despite a lack of any change in his medical condition.
The worker was employed as a pipefitter in Ontario. On Dec. 14, 2005, a chair in which the worker — who was 53 years old at the time — was sitting at work collapsed and he fell back, injuring his left shoulder. The injury was a partial thickness tear of a tendon and mild joint degeneration was found, and the worker also developed tendinitis and impingement in his right shoulder. He was granted a 15-per-cent non-economic loss award by the Ontario Workplace Safety and Insurance Board (WSIB).
The worker was unable to return to his job as a pipefitter because of his permanent physical limitations in both shoulders. He also suffered from carpal tunnel syndrome — contributing to numbness in his hands that caused him to occasionally drop things — a hernia, and knee pain due to 36 years of “strenuous work with the same employer.” The worker had to take pain medication that affected his concentration and focus.
The WSIB determined a suitable employment or business (SEB) for him would be that of purchasing clerk. However, the worker was evaluated with a labour market re-entry psycho-vocational report in May 2008 that indicated while the demands of a purchasing clerk position outlined in the National Occupational Handbook — a sitting body position most of the time and little need for limb co-ordination — closely matched the worker’s physical abilities after his pending surgery was completed, the worker didn’t have the physical ability to complete the computer training and other training required to work in the occupation. The report also noted employers in that industry indicated receiving and storing stock was usually required, which the worker couldn’t do because of his shoulder limitations.
The May 2008 report concluded that there was no viable SEB for the worker and he was entitled to full loss of earning benefits to the age of 65. The WSIB agreed, noting the worker’s advanced age — now 56 — pending surgery, and limited capacity for learning new skills as reasons to provide the worker with benefits until the age of 65.
By 2010, the worker underwent surgery for his carpal tunnel syndrome and had less numbness in his hands, but reported that his overall condition hadn’t improved. He underwent a functional capacity evaluation in June 2010, which he was unable to complete due to discomfort in his shoulders. He also had difficulty kneeling, working with his hands at head level, flexing his trunk, or sustaining a crouch. The evaluation report also noted physiological signs of stress.
WSIB assigns new suitable occupation in retail sales
However, the WSIB found the worker was capable of performing the duties of a retail sales clerk and named that position as an SEB. As a result, the worker was no longer entitled to ongoing full loss of earnings benefits. The worker appealed, but an appeals resolution officer confirmed the WSIB’s determination of retail sales clerk as an SEB.
The worker, now 63, appealed this decision, arguing the SEB of retail sales clerk was not only unsuitable — due to his physical limitations and lack of any experience working with the general public — but also that he was “competitively unemployable” because of his inability to complete training and his relatively advanced age.
The Ontario Workplace Safety and Appeals Tribunal referred to the WSIB operating policy document dealing with loss of earnings benefits, which stated “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 WSIB.”
The tribunal found that the term “competitively unemployable” wasn’t defined in the province’s workers’ compensation legislation or any WSIB policy documents, so the issue was whether the worker was “unable to earn any income in suitable employment due to the compensable condition.” However, it noted that it had found in a 2008 decision that “a worker may be competitively unemployable if he or she has no real prospect of being able to obtain or maintain employment in the labour market.”
The tribunal also found that the worker spent his entire working life in a mill, primarily as a pipefitter, and had no experience in a retail setting or dealing with the public. As a result, his transferable skills regarding a retail sales position were “nonexistent” and his age further limited his “competitiveness in a relatively competitive field.” In addition, the worker was unable to stand, sit, or walk for an extended period of time, so an occupation that required those abilities would be unsuitable, said the tribunal.
The tribunal pointed out that the WSIB and labour market re-entry provider determined in 2008 that there was no SEB the fit the worker’s limitations and that he was entitled to full loss of earnings benefits until age 65. When the WSIB decided in 2010 that the worker now had an SEB, there had been no material changes in the worker’s circumstances or significant improvements other than less numbness in the worker’s hands after his carpal tunnel surgery. In addition, the worker had been out of the workforce for four years and had already accepted that he would be unable to work again.
The tribunal determined that the labour market re-entry assessment in 2008, the worker’s medical limitations, his age, and lack of transferable skills made him unable to earn income from employment. It overturned the WSIB and appeals resolution officer decisions that the worker had an SEB of retail clerk and reinstated loss of earnings benefits to age 65.
“It also appears unjust of the (WSIB) to suddenly determine that a worker who has previously been found to be unemployable has suddenly become employable despite no medical evidence of significance indicating that his physical condition had improved in the intervening time,” said the tribunal. “A worker who has been arranging their life to suit a physical impairment, a loss of occupation, and ongoing benefits cannot reasonably be expected to suddenly return to the workforce absent sufficient reasons such as an improvement in their condition.”
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