WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2001 ONWSIAT 2499 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO [1] This appeal was heard in Toronto on February 16, 2001 by Tribunal Vice-Chair E.J. Sajtos. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer, dated August 13, That decision concluded that the worker s R1 and R2 Future Economic Loss (FEL) awards and supplement were correctly determined. [3] The worker attended and was represented by Mr. Mobin, a consultant. The employer was notified of the proceedings and chose not to participate. THE RECORD [4] The Vice-Chair considered as evidence the Case Record, one Addendum, correspondence dated September 28, 2000 and a package of documents consisting of income tax information. [5] The worker testified under oath. Mr. Mobin provided submissions. THE ISSUES [6] Mr. Mobin, the worker s representative submitted that the issues under appeal before the Vice-Chair were the worker s entitlement to a recalculation of her R1 and R2 FEL awards. THE REASONS (i) Background [7] The worker was employed with the accident employer, as a nurse from November 8, On June 20, 1991, the worker suffered a low back injury as a result of her job duties. Dr. Siller, an orthopaedic surgeon diagnosed the worker on August 16, 1991 with a lumbar strain. The worker was granted benefits based on an aggravation of a pre-existing condition. [8] The worker s maximum medical recovery date was determined to be November 15, 1991 and she had permanent restrictions of no lifting more than seven kilograms and no repetitive bending or twisting. The worker was assessed by Dr. Sharma, for a Non-Economic Loss (NEL) award on September 10, 1992 and in correspondence dated January 9, 1993, she was granted a 14% NEL award. [9] A D1 FEL award was considered effective September 1992 to September The pre-accident wages were noted to be $19.09 per hour for a 37½-hour work week. The worker s file had been activated for vocational rehabilitation assistance on January 2, 1992 and the

2 Page: 2 Decision No worker s FEL award was determined to be zero. The worker appealed this decision and a FEL reconsideration was allowed on February 23, 1993 based on a finding that the worker s acute episode had not ended and a permanent impairment was identified. It was concluded that the vocational rehabilitation goal was that of a medical secretary and her projected earnings were $ per week. The worker then participated in a vocational rehabilitation program in order to obtain typing and medical office assistant skills. [10] The R1 FEL determination was considered in a memorandum dated July 15, 1994 effective September 1, 1994 to September 1, It was concluded that the worker was capable of employment as a medical secretary with an average wage of $ per week or a medical office assistant with the average wage of $ per week. In a memorandum of September 29, 1994 it was noted that the worker s vocational rehabilitation goals were that of a medical secretary or medical office assistant. The worker was continuing to be involved in formal training and the current salary information as per the wage guide showed average salaries of $ and $ per week, respectively. The average weekly starting salary for these jobs was found to be $ per week. [11] The worker s vocational training consisted of a refresher typing course at the Toronto School of Business from June 7, 1993 until September 10, From September 13, 1993 until January 21, 1994, she participated in a course for medical office assistants. [12] The worker commenced a work trial on October 11, 1994 to October 31, 1994, training as a nursing assistant. The worker then started a work trial program with a second employer on November 15, 1994, as a co-ordinator/nursing supervisor. Her duties consisted of scheduling home care professionals and, receiving phone calls and faxes. The work trial ended on February 1, 1995 and the worker was offered employment as a nursing co-ordinator with the employer at $13.00 per hour. She remained in this position until February 23, 1996 and was then terminated due to a shortage of work. [13] The worker s R2 FEL award was determined on September 25, 1997 and it was concluded that the worker demonstrated an earning capacity of $ per week, which was within the chosen salary range of a medical secretary and medical office assistant. [14] The Appeals Resolution Officer denied the worker additional benefits based on the following reasoning: However, the evidence on file shows the worker was dedicated in all of her vocational programs, was successful in her Toronto School of Business refresher courses, and succeeded in a training program with a prospective employer which resulted in employment for almost one and a half years. Although this worker is now almost 52 years old, she does have a great deal of experience in the medical field and has accumulated further experience with her recent employment. As substantiated by the information on file, the worker is not a malingerer, and considering all the above, I find an employer would be likely to hire such a person based on the apparent reliability and knowledge that she would bring to a workplace. I find this would be the case in spite of some drawbacks such as her physical impairment. However, the impairment itself would not be a barrier to her performing suitable work on a full-time basis with a new employer.

3 Page: 3 Decision No (ii) The information available in the wage guide supports the type of work suitable for the worker continues to exist in the workplace. The average earnings for this type of work does fall within the projected earnings of $87.50 ($13.00 per hour for a 37.5 hour workweek), which was used to calculate the worker s FEL benefit effective September 1, As no contrary evidence has been provided, I find the worker s FEL benefit has been calculated correctly, with an appropriate objective of medical secretary, and a realistic earning of $13.00 per hour. Law and policy [15] The Vice-Chair was provided with the applicable policy in accordance with section 126 of the Workplace Safety and Insurance Act, [16] Since this worker s injury occurred in 1991, the pre-1997 Workers Compensation Act, as amended, applies. The hearing of this appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 also apply to the appeal. (iii) The Vice-Chair s reasons [17] The worker is requesting a recalculation of her R1 and R2 FEL awards to reflect an entry-level wage, as opposed to an average salary of her vocational goals. [18] The worker testified that she came to Canada in the 1970 s and worked from that time as a nurse in hospitals. She was unable to return to her pre-accident employment as a result of her injury. The worker was given vocational rehabilitation training at the Toronto School of Business and then secured employment from November 15, 1994 to February 23, 1996, as a nursing co-ordinator. This job required her to co-ordinate and dispatch nursing staff for home care. She was paid a salary of $13.00 per hour and was laid off in 1996 due to a reduction in staff. [19] The worker stated that in March 1996 and ongoing, she attempted to find administrative work in a medical office or hospital. However, she was of the view that she was unable to find a job in her chosen vocations due to her age. In December of 1997, she obtained employment as a telemarketer at a starting rate of $8.00 per hour. She has continued to work at this job full-time and performs phone telemarketing duties selling business directories. The worker stated that due to her compensable condition, she is not always able to work a full seven-hour day and on occasion has to leave her employment or take breaks. The worker stated that she periodically looks for work, however, she is of the view that due to the accommodations offered to her by her current employer, this is a job that she feels comfortable remaining in, both for the purposes of job security and for accommodation reasons. [20] The worker stated that in March 1996, she looked for positions as a medical secretary, nursing co-ordinator and medical assistant. She stated that at the time there was a crisis in health care and agencies were closing. She referenced newspapers, the phone book, applied at hospitals and checked bulletin boards. She also took a course at George Brown College in order to learn how to prepare a resume. According to the worker, she applied for between 15 to 20 jobs per week. The worker stated that she is currently 54 years of age and her pre-accident employment was that of a nurse.

4 Page: 4 Decision No [21] The Vice-Chair notes that when the worker was provided with educational upgrading by the Board, it consisted of a course from the Toronto School of Business, as a medical office assistant. Based on this upgrading, the Board then concluded that the worker was capable of performing work as a medical secretary at the time of the D1 FEL reconsideration. [22] It was not until the R1 FEL determination that the Board changed the worker s vocational goals to that of a medical secretary or medical office assistant. The respective wage rates for these positions were $ to $ and $ to $ per week with an average calculated at $ This average was then used to calculate the worker s R1 FEL. [23] The Vice-Chair notes that the vocational rehabilitation given to the worker was for that of a medical office assistant and not that of a medical secretary. It is unclear why the Board did not commence the worker s starting salary at the entry level wage for a medical office assistant given that she had no prior experience as a secretary, nor was she given appropriate training. The Board appears to have recognized that the worker may not be qualified to obtain employment as a medical secretary when it changed the R1 FEL determination to include the vocational goal of a medical office assistant, which was a lower-paying job than that of a secretary. [24] The Vice-Chair notes that in Operational Policy Manual, Document # it stipulates that when a vocational rehabilitation plan has been developed identifying gross wages for a vocational goal, the salary must reflect, as close as possible, the worker s years of job experience in that occupation. Typically entry-level wages are contemplated. [25] The Board when determining the R1 FEL wage rate chose an average wage based on the combined positions of a medical secretary and medical office assistant as opposed to the entry-level wages for that of a medical office assistant. The Vice-Chair notes that the worker fully co-operated in her vocational rehabilitation program and with the assistance of the Board was able to obtain employment from November 15, 1994 until February 23, This job was as a nursing co-ordinator and I note that the job duties involved in that position were not consistent with the requirements of a medical secretary but rather were similar to that of a medical office assistant. The worker was terminated from this position due to a work shortage and she then attempted to find employment at a time when there was a health care crisis and jobs were limited. She eventually was able to obtain a position as a telemarketer at $8.00 per hour, which was not within her vocational field. [26] The Vice-Chair notes that at the time of the R2 calculation, the worker was 51 years of age. She worked in a position that accommodated her physical needs and felt secure in this employment. [27] The Vice-Chair is of the view that when the worker s R2 determination was made it should have been considered based on the average salary of a medical office assistant and not that of the combined earnings of a medical office assistant and medical secretary. Nothing had changed with respect to the worker s training and experience and, as such, the lower-paying vocational goal of medical office assistant was the correct goal.

5 Page: 5 Decision No [28] The Board is directed to recalculate the worker s R1 FEL award based on that of an entry-level salary of a medical office assistant. The Board is also to recalculate the worker s R2 FEL award based on an average salary for a medical office assistant. THE DECISION [29] The worker s appeal is allowed in part. The Board is to recalculate the worker s R1 FEL award based on a weekly entry-level salary for a medical office assistant. The Board is to recalculate the worker s R2 FEL award based on a weekly average salary of a medical office assistant. DATED: August 27, 2001 SIGNED: E.J. Sajtos