WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2424/12

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2424/12 BEFORE: S. Ryan: Vice-Chair HEARING: December 13, 2012 at Toronto Oral DATE OF DECISION: January 22, 2013 NEUTRAL CITATION: 2013 ONWSIAT 171 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) M. Palmieri, decision dated September 23, 2011 APPEARANCES: For the worker: For the employer: Interpreter: L. Brown, Paralegal Did not participate N/A 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. 2424/12 REASONS (i) Introduction [1] The worker appeals the Appeals Resolution Officer (ARO) decision of September 23, That decision denied the worker entitlement for a Chronic Pain Disability (CPD) and confirmed the Suitable Employment or Business (SEB) objective of Security Guard and Related Occupations (NOC 655). The ARO granted the worker an increase to the quantum of his Loss of Earnings (LOE) benefits based upon the deemed earnings of the SEB objective ($7.86 per hour) at 20 hours per week effective March 1, These issues arise out of a claim established for the compensable accident of February 3, (ii) The issues [2] I discussed the issue agenda with Mr. Brown. Pursuant to that discussion, I accept that in this appeal the Tribunal must decide whether the worker has entitlement for CPD and 100% LOE benefits effective March 1, (iii) Background and testimony of the worker (a) History to February 3, 1999 [3] The worker was born in 1958 in Macedonia. He immigrated to Canada in [4] In a psycho-vocational assessment report dated September 4, 2003, Dr. D. Scher, psychologist, recorded the worker s personal, educational and vocational history. She understood that he completed Grade 9 in 1974 in a vocational stream. The worker advised her that he was not diagnosed with any learning disability. She noted that the worker reported having difficulty learning to read and spell. The worker advised that he did not obtain any further certificates except for a forklift operator licence which had expired. The worker reported an inability to type. With respect to his employment history, Dr. Scher noted that the worker obtained employment after high school as a punch press operator for a manufacturer of auto parts. He continued in that capacity until 1986, when the company went out of business. She understood that the worker was hired by the accident employer in May 1986, and operated a brake press to bend and form metal. With respect to his personal life, Dr. Scher noted that the worker was married with two children. [5] At the hearing, the worker confirmed the history recorded in the psycho-vocational assessment report. He advised that he immigrated to Canada when he was eight years old. He added that he had very limited employment opportunities due to his limited command of the English language in both reading and writing. He stated that he worked since the age of 16 in various labour-type jobs. He stated that he felt very fortunate to work as a press operator for the accident employer because it paid well. [6] The worker testified that prior to his compensable back injury on February 3, 1999, he was in good health and very active around the house. He stated that he tended to all outdoor chores such as lawn cutting and snow removal. He stated that he also helped his wife with chores inside the house such as laundry. The worker testified that his job was very physical in nature and he worked on one of the most strenuous presses in the plant.

3 Page: 2 Decision No. 2424/12 (b) History from February 3, 1999 [7] On February 3, 1999, the worker injured his lower back while pulling on a large and heavy part. He sought medical attention the next day from Dr. R.M. Boyko, family doctor, who diagnosed right lower back strain and recommended conservative health care treatment. At the time of the compensable accident, the worker was 41 years old and earned $18.88 per hour in a 40 hour work week (excluding overtime work). [8] The worker testified that his back condition never improved after the compensable accident of February 3, [9] Information in the Case Record indicates that he continued to work until February 22, 1999, when he laid off due to pain. At that time, he participated in physiotherapy. Despite the treatment, his back symptoms persisted. [10] On May 13, 1999, the worker underwent a CT scan of his lumbar spine. The ensuing report indicated mild annular bulging at the L3-4 level and a small broad-based midline disc herniation with mild thecal indentation at the L5-S1 level. The radiologist opined: No evidence of significant disc herniation or nerve compression. Mild right-sided annular bulge at L3-4, but of doubtful significance. [11] On May 21, 1999, the worker underwent EMG and nerve conduction studies. The ensuing report indicated that there was no evidence of entrapment neuropathy. [12] In a report dated May 31, 1999, Dr. C.D. Nguyen, orthopaedic surgeon, reviewed the imaging investigations and opined that they indicated some minor degenerative changes in [the worker s] lower back. He noted that the worker was visibly upset with his employer and the WSIB and appeared to be depressed over the situation. Dr. Nguyen recommended that the worker seek treatment for anxiety and depression. [13] Throughout the summer and early fall of 1999, the worker continued to participate in conservative health care treatment. The Board granted him 100% LOE benefits during this period. [14] On October 6, 1999, the worker returned to work to light duties at no wage loss. The worker confirmed that he returned to work. He stated that he was assigned to duties on a lighter press machine which meant that the materials he worked with were not as heavy as the materials he worked with before his accident. Despite the change in duties, his symptoms persisted. [15] In a report dated March 14, 2000, Dr. J.C. Stewart, rheumatologist, noted the worker s complaints of musculoskeletal symptoms which were somewhat more diffuse and encompassed his lower and upper back areas. She opined that the worker suffered a lumbar strain injury with some evidence of a cervical strain injury as well. She recommended regular exercise and avoidance of heavy lifting. [16] In September 2000, the worker underwent a Functional Abilities Evaluation (FAE) to determine his physical ability to perform his pre-accident duties. In a report dated September 25, 2000, the FAE assessors noted that the worker put forth a good effort and willingness to work through his discomfort. They opined that the worker appeared to be functioning in the light industrial work range and that his pre-accident job as a press brake operator as described in a Physical Demands Analysis (PDA) exceeded his physical abilities. They recommended further physiotherapy.

4 Page: 3 Decision No. 2424/12 [17] Over the next two and one-half years, the worker continued to work as a press operator on a lighter press for the accident employer. Medical reporting in the Case Record indicates that his back was vulnerable to acute exacerbations which resulted in short periods of lost time from work. He also developed problems with his upper extremities, particularly his left shoulder. [18] On June 25, 2001, the worker suffered a strain injury to his left shoulder. The Board accepted the claim for health care benefits only as the worker was able to continue working in modified duties at no wage loss. [19] On February 11, 2002, the worker underwent a MRI scan of his cervical, thoracic and lumbosacral spine. The ensuing report indicated: There are mild degenerative changes seen in the cervical and lumbosacral spine. There are small osteochondral bars seen at the C4-5 and C5-6 levels as well as multilevel disc bulge seen from L1-2 down to L5-S1 level. These do not result in significant spinal stenosis. [20] On February 25, 2002, the worker was assessed at a pain management clinic upon a referral from Dr. Boyko. In a report dated March 11, 2002, Dr. G. Purdell-Lewis, specialist in anaesthesiology, advised that the worker presented with pain in his head, neck, left shoulder, left arm, lower back and lower extremities. Dr. Purdell-Lewis understood from the worker that he had some lower back pain since approximately 1992, but continuous lower back pain after the compensable accident in Dr. Purdell-Lewis noted that the worker had taken pain and anti-inflammatory medication in the past, but experienced side-effects. He noted that the worker had also been prescribed Paxil 20 mg. per day for anxiety. The anaesthesiologist recommended further imaging investigations and either Amitriptyline or Nortriptyline to treat depression and assist the patient to sleep. [21] On June 28, 2002, the worker experienced an acute onset of lower back and left shoulder pain after lifting a heavy piece of steel at work. [22] The worker s continued ability to perform press operator duties became a matter of further investigation in the fall of 2002 by the employer and the Board. In response to an inquiry from the employer s medical consultants dated October 31, 2002, a physiotherapist at the pain management clinic advised that management of the worker s symptoms was difficult due to his anxiety overlay. [23] On January 24, 2003, the worker contacted a Board Claims Adjudicator (CA) who documented their telephone conversation in Memorandum #34. The CA noted: The [injured worker] called to inform me that he was into the supervisor s office yesterday and was told that they no longer can accommodate him. I indicated to the [injured worker] that I was not aware that the [accident employer] was accommodating him with mod[ified] work. The [injured worker] said that at the time of the injury he was working on a large press and when he [returned to work] he was placed on the 6 [foot] press machine. He said the work was the same just the amount of weight that he was required to lift was less.... The [injured worker] has been employed by [the accident employer] for approx[imately] 16 [yrs]. The [injured worker] said that the employer told him to call the WSIB and he will start to receive his full wages He also said that the [accident employer] told him that he would refer him for LMR Services

5 Page: 4 Decision No. 2424/12 [24] In a report dated February 27, 2003, Dr. Boyko set out the history of his treatment of the worker since becoming a patient in The family doctor advised: Since the injury to his back in 1999, I have seen [the worker] on an almost monthly basis. Treatment has consisted of ice, heat, anti-inflammatory medication, physiotherapy, massage therapy, chiropractic treatments and acupuncture. Each of these has only provided transient relief of pain. While he has had a Functional Ability Evaluation done, and been placed on modified work, he has tried to resume his regular duties and continues to experience pain in various areas of his back. [25] In a report dated March 3, 2003, Dr. Purdell-Lewis also reviewed his history of treatment of the worker. He advised: [The worker] portrayed himself as a long-time employee (15 years) who has worked diligently at his work, and wishes to continue to work if at all possible [26] Dr. Purdell-Lewis opined that the worker suffered from chronic pain secondary to workplace accidents and probable repetitive strain injuries. [27] In May 2003, the Board initiated arrangements for a mediator to liaise with the workplace parties and an ergonomist to assess the worker s duties in an effort to facilitate his continued employment with the accident employer. However, on May 26, 2003, the CA contacted the employer and documented their conversation in Memorandum #42. The accident employer advised that, they definitely do not have any modified work the[y] can offer this worker. Accordingly, the mediation and ergonomic assessment were cancelled and the worker was referred to Labour Market Re-entry Services (LMRS). [28] Starting in July 2003, the worker participated in LMRS. [29] Following vocational testing, the LMRS consultant advised in a LMR Plan report dated December 23, 2003, that the worker demonstrated borderline to low average general intelligence. He noted that the worker performed at the following functional levels: Reading pronunciation: Late Grade 4 Spelling: Early Grade 3 Reading Comprehension: Grade 2.2 (Grade 3.8 untimed) Arithmetic: Late Grade 7 Vocabulary: Grade 6.2 (Grade 6.5 untimed) Writing: Estimated early elementary [30] Additionally, the LMRS consultant advised that the worker demonstrated below average aptitudes in spatial, perception, clerical, motor coordination and numerical spheres. [31] The LMRS plan recommended a Suitable Employment or Business (SEB) objective of Security Guard and Related Occupations following 52 weeks of academic upgrading to bring him to the Grade 8 level, job-search training and job-search assistance. The worker testified that he did not agree with the SEB objective recommended for him. He stated that he would not be able to write reports. The worker stated that no one told him that in order to find work as a security guard he would require a licence. [32] Over the following 14 months, the worker participated in academic upgrading. Initially, he was provided with one-on-one instruction, but then participated in academic upgrading in a small group setting. Early LMRS reporting indicates that the worker was not able to learn as

6 Page: 5 Decision No. 2424/12 quickly as the other students in his small group and quickly began to fall behind. The LMRS consultant suspected that the worker might have a learning disability. Although the worker s punctuality and attendance was reported to be perfect, it was also noted that the worker took frequent breaks. Additionally, the worker reported working in excess of four hours per night to complete homework assignments. [33] The worker testified that prolonged sitting in a classroom increased his lower back pain. He stated that he had difficulty with the curriculum and was always the last student in his group to finish assignments. He stated that his wife helped him complete homework assignments and that had it not been for her assistance, he would not have completed the academic upgrading program. [34] In a LMRS progress report dated June 15, 2004, it was noted that the worker required much one-on-one attention as he found it difficult to follow instructions. The worker also demonstrated pain-focused behaviours and complained of sleep disruption over worries about his future. LMRS reporting into the balance of 2004 indicated that the worker expressed frustration and anger over his rate of progress. [35] In a Creative Job Search Training (CJST) program report dated March 2, 2005, it was noted that the worker expressed an unwillingness to apply for some advertised positions in the SEB objective due to shift work and night shifts. In mock interviews, the worker emphasized his pain and disability. The report indicated that on February 14, 2005, the worker met with a prospective employer for the position of a concierge in a condominium building which, the report indicated, requires minimal physical duties. The report indicated that the worker was offered the position of concierge/security guard of a building. However, the report also indicated: During this interview, [the worker] demanded information about the benefits package, to which [the prospective employer] replied that the company cannot discuss this topic during the first interview. Subsequently, [the worker] reported that he declined the position simply because they would not discuss the benefits package with him during the interview. [36] The CJST report indicated: [The worker s] attitude during the entire job search training program was very negative. He consistently focused on his lack of abilities rather than concentrating on his positive skills and attributes. Since the beginning of his program, [the worker] made note of the restrictions that would prevent him from becoming a successful security guard, which were not related to his physical limitations. [37] I questioned the worker about this report. He stated that he did not think he would be capable of performing a security guard job due to his pain and academic limitations. He stated that he was frustrated by his slow progress at school and would not have completed the program without the assistance of his wife. [38] In a LMRS closure report dated March 27, 2005, The LMR consultant advised that the worker had improved his academic skills following upgrading as follows: Reading Grade 10 Vocabulary Grade 6.5 Spelling Grade 5

7 Page: 6 Decision No. 2424/12 Writing Grade 3.2 Math Grade 7 [39] In a decision dated April 4, 2005, a Board CA advised the worker that LOE benefits would be calculated using the deemed starting wages of the SEB objective or $7.86 per hour. [40] On May 27, 2005, the worker underwent a Non-Economic Loss (NEL) assessment for his lower back impairment. He was subsequently granted a 15 percent NEL award. [41] In a report dated July 6, 2006, Dr. H. Philips, psychiatrist, reviewed the worker s history and diagnosed dysthymia and possible somatisation disorder. Dr. Philips recommended small doses of a tricyclic anti-depressant. [42] There are no medical reports between July 2006 and March [43] In a report dated June 5, 2009, Dr. J.W. O Riordan, psychiatrist, advised that the worker was prescribed anti-depressant medication, but was bitterly angry with the fact that he cannot work. The psychiatrist did not think further psychiatric treatment would be effective and opined that the worker suffered from chronic pain disorder. [44] In a report dated August 14, 2009, Dr. Zigrovic, chiropractor, advised that the worker was treated for lumbar spine posterior facet syndrome. He attached a printout of treatment dates that span between 1999 and [45] In a report dated November 23, 2009, Dr. Boyko advised that imaging investigations indicated that the worker suffered from mild to moderate multilevel degenerative disc disease of the spine and a small infraspinatus tendon tear and rotator cuff tendonitis of the left shoulder. The worker also suffered from mild osteoarthritis of the right hip. The family doctor opined: Due to the chronicity of the pain, I believe the prognosis for [the worker] is poor and he will likely have chronic recurring ongoing pain. A referral to an Interdisciplinary Pain Rehabilitation Program was suggested and recommended by me. [46] In a report dated December 2, 2009, Dr. Weisleder, orthopaedic surgeon, advised that the worker suffered from rotator cuff tendonitis and myofascial pain involving his neck, left shoulder, upper and lower back. [47] On August 9, 2010, Dr. W. Thorpe, Board Medical Consultant, reviewed the available evidence in the Case Record and opined that the worker did not meet the criteria for entitlement for CPD. He advised that the worker s lower back symptoms were consistent with pathology seen on imaging MRI of his spine in [48] The worker testified that since 2005, he has not looked for work due to the degree of his pain. He stated that he spends a lot of time lying in bed during the day and has difficulty sleeping at night. He lives at home with his wife and daughter. His wife works on a full-time basis during the day and his daughter attends university. The worker stated that he often does not get out of bed until his wife returns home from work in the afternoon. [49] The worker testified that he holds a valid driver s licence. I asked him how he was able to pass the written driver examination with his difficulty reading. He stated that he failed the test once or twice before finally passing it. He stated that it took him a long time to study for the written examination. The worker stated that he drives on an occasional basis to visit his mother

8 Page: 7 Decision No. 2424/12 in a nursing home and attend medical appointments. He stated that he drives for a maximum of about 40 minutes at a time and experiences increasing pain in his back and neck. [50] The worker testified that he avoids family gatherings and socializing due to his pain. He stated that two to three years ago, his wife and children went on a vacation to the Dominican Republic. He did not join them because he was not feeling good. [51] During the day, the worker watches television and goes for short walks. He spends time in a Jacuzzi and attends chiropractic and massage treatment. (iv) Submissions [52] On behalf of the worker, Mr. Brown offered written and oral submissions. The worker s representative reviewed the provisions of Operational Policy Manual (OPM) Document # , Chronic Pain Disability which sets out the criteria for entitlement for CPD. He submitted that the medical evidence establishes that the worker s pain since the compensable accident in 1999 has been genuine and consistent. He noted that despite significant back pain, the worker persevered in a lighter version of his pre-accident duties for a period of about two and one-half years. He noted that the worker has been treated with nerve blocks at a pain management clinic and anti-depressant medication. Mr. Brown cited the medical reporting of Drs. Boyko and Prudell-Lewis who described the worker s condition as chronic pain. [53] With respect to the issue of the SEB objective, Mr. Brown submitted that the worker was not qualified to reasonably compete for security guard jobs. He reviewed the LMRS reporting indicating that the worker had difficulty reading and writing and submitted that the SEB objective exceeded the worker s physical and cognitive abilities. Mr. Brown submitted that the worker was only able to improve his literacy skills to the mid-to-upper elementary grade levels and that most security guard jobs required a high school education. [54] The worker s representative submitted that the Board failed to address applicable provincial legislation governing security guards in Ontario. He cited section 6 of the Private Security and Investigative Services Act, S.O. 2005, s.34 (the PSISA ) which states: No person shall act as a private investigator or a security guard or hold himself or herself out as one unless the person holds the appropriate licence under this Act [55] He noted that the worker does not possess the appropriate licence. [56] Mr. Brown cited a description of the physical activities of a Security Guard published by Human Resources and Skills Development Canada which indicates that the job typically requires moderate amounts of sitting, standing and walking as well as some bending, stooping, kneeling and crouching. The worker s representative noted that the SEB objective encompassed a number of jobs including: bodyguard, bouncer, commissionaire, crossing guard, gate attendant, night watchman/woman, pre-boarding security guard, security guard and security officer. He submitted that the worker s physical and academic limitations rendered him incapable of reasonably competing for most jobs in the SEB objective and of finding any remunerative employment. He requested that the worker be granted 100% LOE benefits effective March 5, 2005.

9 Page: 8 Decision No. 2424/12 (v) Analysis and conclusions [57] I have carefully considered all of the available evidence in the Case Record, testimony of the worker and submissions of Mr. Brown. (1) Does the worker have entitlement for CPD? [58] The accident at issue in this appeal occurred on February 3, Accordingly, the Workplace Safety and Insurance Act (WSIA) applies. Under section 126 of the WSIA, the Board identified a number of applicable policies. As noted by Mr. Brown, the Board identified OPM Document # , Disabilities/Impairments Resulting from Accidents Chronic Pain Disability. This policy states, in part: Condition A work-related injury occurred. Chronic pain is caused by the injury. Evidence A claim for compensation for an injury has been submitted and accepted. Subjective or objective medical or non-medical evidence of the worker s continuous, consistent and genuine pain since the time of the injury, AND a medical opinion that the characteristics of the worker s pain (except its persistence and/or its severity) are compatible with the worker s injury, and are such that the physician concludes that the pain resulted from the injury. The pain persists 6 or more months beyond the usual healing time of the injury. Medical opinion of the usual healing time of the injury, based on the nature of the injury, the worker s pre-accident health status, and the treatments received, AND subjective or objective medical or non-medical evidence of the worker s continuous, consistent and genuine pain for 6 or more months beyond the usual healing time for the injury. The degree of pain is inconsistent with organic findings. The chronic pain impairs earning capacity. Medical opinion which indicates the inconsistency. Subjective evidence supported by medical or other substantial objective evidence that shows that persistent effects of the chronic pain in terms of consistent and marked life disruption. [59] The policy offers several definitions of terms used in the eligibility criteria. Chronic pain disability is a condition of a person whose chronic pain has resulted in marked life disruption. Chronic pain is pain with characteristics compatible with work-related injury, except that it persists for six or more months beyond the usual healing time for the injury. Marked life disruption is a subjective phenomenon in which the worker s pain affects:

10 Page: 9 Decision No. 2424/12 activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships. [60] I find that the preponderance of evidence in this case supports the conclusion that the worker developed CPD as a result of the compensable accident of February 3, [61] In reaching this conclusion, I note that there is no dispute that a work-related injury occurred. On February 3, 1999, the worker suffered a back strain while lifting a heavy part at work. The Board accepted that the worker suffered a permanent injury to his lower back on an organic basis. The evidence indicates that the worker has suffered persistent or chronic pain as a result of the accident. The Board has also accepted that the worker s lower back injury resulted in an impairment of his earning capacity as the worker is currently in receipt of partial LOE benefits. [62] The dispute in this case appears to centre on the issues of whether the pain persisted six or more months beyond the usual healing time of the injury and whether the degree of pain is inconsistent with organic findings. In my view, both of these policy criteria have been met in this case. The medical evidence indicates that the worker s pain has persisted more than six months beyond the usual healing time for a soft tissue injury and the degree of pain experienced by the worker is not consistent with the organic findings. [63] I note: Dr. Boyko, February 4, 1999 The family doctor diagnosed right lower back strain and recommended conservative health care treatment. CT scan, May 13, 1999 The CT scan revealed degenerative changes including a mild annular bulge at the L3-4 level and small broad-based midline disc herniation with mild thecal indentation at the L5-S1 level. However, the radiologist opined that there was, No evidence of significant disc herniation or nerve compression. EMG study, May 21, 1999 The report found, no evidence of entrapment neuropathy. Dr. Nguyen, May 31, 1999 The orthopaedic surgeon reviewed the imaging investigations and opined that they indicated some minor degenerative changes in [the worker s] lower back. He also noted that the worker appeared to have developed anxiety and depression. Dr. Stewart, March 14, 2000 The rheumatologist described the worker s symptoms as somewhat more diffuse and encompassed his lower and upper back areas. MRI scan, February 11, 2002 This investigation revealed degenerative changes in the worker s lumbar and cervical spine, but no significant spinal stenosis. Dr. Prudell-Lewis, March 11, 2002 The anaesthesiologist at the pain management clinic noted that the worker consumed Paxil 20 mg. per day for anxiety and recommended Amitriptyline or Nortriptyline to treat depression and assist the patient to sleep. Physiotherapist, October 31, 2002 The physiotherapist advised that managing the worker s pain was difficult due to his anxiety overlay. Dr. Boyko, February 27, 2003 The family doctor advised that the worker s pain persisted despite his participation in a variety of modalities including ice, heat, anti-inflammatory medication, physiotherapy, massage therapy, chiropractic treatments and acupuncture.

11 Page: 10 Decision No. 2424/12 Dr. Purdell-Lewis, March 3, 2003 The anaesthesiologist diagnosed chronic pain and expressly related the diagnosis to the workplace accidents and probable repetitive strain injuries. Dr. Philips, July 6, 2006 The psychiatrist diagnosed dysthymia and possible somatisation disorder. Dr. O Riordan, June 5, 2009 The psychiatrist diagnosed, chronic pain disorder. [64] I acknowledge Dr. Thorpe s opinion that the worker did not meet the criteria for entitlement for CPD because his lower back symptoms were consistent with pathology seen on imaging MRI of his spine in However, Dr. Thorpe does not explain how the worker s symptoms are consistent with the pathology found on the MRI scan and his opinion does not appear to be shared by the preponderance of medical specialists who have examined the worker. [65] The worker has entitlement for CPD and is entitled to a NEL assessment for that condition. (2) Does the worker have entitlement to 100% LOE benefits effective March 1, 2005? [66] Section 43 of the WSIA states, in part: 43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, (a) the day on which the worker s loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). Amount (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. [67] OPM Document # , Payment of LOE benefits, states, in part: Law A worker who has a loss of earnings as a result of a work-related injury is entitled to payment of loss of earnings (LOE) benefits beginning when the loss of earnings begins. The payment continues until the earliest of the day on which the worker s loss of earnings ceases the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury

12 Page: 11 Decision No. 2424/12 Policy two years after the date of injury, if the worker was 63 years of age or older on the date of the injury, or the day on which the worker is no longer impaired as a result of the injury. LOE benefits are based on 85% of the worker s pre-injury net average earnings (NAE) subject to the legislated minimum and maximum amounts of compensation, see , Calculating Net Average Earnings. A full LOE benefit is 85% of the worker s pre-injury NAE. A partial LOE benefit is some portion of 85% of the worker's pre-injury NAE.... Payment of full LOE Treatment with no return to work 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 LOE benefits, providing the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB. If the worker does not co-operate, the WSIB may reduce or suspend the worker s LOE benefits. [68] In this case, the Board has determined that as of March 1, 2005, the worker was only capable of working in the SEB objective of Security Guard and Related Occupations (NOC 655) at 20 hours per week. Accordingly, the worker was granted partial LOE benefits from March 1, 2005 to [69] On his behalf, Mr. Brown submitted that the worker was not capable of performing the job of a security guard because the SEB objective exceeded his physical and cognitive abilities and because the worker lacked the necessary licence which is required under provincial legislation. [70] The PSISA governs the licensing of security guards. The PSISA had not been enacted during the time that the worker participated in LMRS between 2003 and The PSISA was enacted on December 15, 2005 and came into force on August 23, Thus, prior to August 23, 2007, the worker did not require a licence to work as a security guard. Even if he was required to have a licence, there is no evidence to suggest that he would be ineligible for a licence had he applied for one in accordance with the provisions of the PSISA. [71] I note that section 10 of the PSISA lists the following as mandatory requirements for a licence: a clean criminal record, age of 18 or older, entitled to work in Canada and successful completion of all prescribed training and testing. The regulations under the PSISA do not set any prescribed training or testing for licensing as a security guard. There is no statutory or regulatory minimum level of education, training or testing required to qualify for a security guard licence. [72] I find that the lack of a licence did not prevent the worker from seeking employment as a security guard because it was not required in 2005 and there is no evidence to indicate that he would be ineligible for one.

13 Page: 12 Decision No. 2424/12 [73] With respect to the worker s physical abilities, I note that despite chronic back pain (which I have determined developed in to CPD), the worker was nevertheless found to function at a light industrial work range by the FAE assessors in their report of September 25, While the evidence indicates that some jobs in the SEB objective of Security Guard and Related Occupations (NOC 655) require moderate amounts of sitting, standing and walking as well as some bending, stooping, kneeling and crouching, the evidence also indicates that not all jobs in the SEB objective require such physical demands. As noted in the CJST program report of March 2, 2005, the position of a concierge in a condominium building was offered to the worker. The report indicated that the job required minimal physical duties. Although the available medical evidence establishes that the worker has CPD, there is no medical evidence that indicates an inability to perform a job that required minimal physical abilities on at least a part-time basis. In my view, the job of concierge was within the worker s physical abilities which had been determined to be at the light industrial level. [74] With respect to the worker s level of education, I note that to his credit and with the assistance of his wife the worker was able to improve his academic skills while participating in LMRS. As noted in the LMRS closure report of March 27, 2005, the worker had achieved Grade 10 in reading, Grade 6.5 in vocabulary, Grade 5 in spelling, Grade 3.2 in writing and Grade 7 in math. I agree with Mr. Brown that according to Human Resources and Skills Development Canada, many jobs in the SEB objective of Security Guard require a high school education. However, the available evidence also indicates that some jobs did not require a high school education. Again, I note the job of concierge which was actually offered to the worker by a prospective employer despite his limited academic skills. The worker declined the job offer. [75] I find that given the totality of evidence and taking into consideration the effect of the worker s CPD on his activities of daily living, granting the worker entitlement to LOE benefits based upon an ability to work 20 hours per week as a Security Guard earning $7.86 per hour effective March 1, 2005, is a fair and reasonable estimate of the worker s loss of earnings arising out of the injury.

14 Page: 13 Decision No. 2424/12 DISPOSITION [76] The appeal is allowed, in part. The worker has entitlement for CPD. The worker s LOE benefits calculated on the basis of his ability to earn $7.86 per hour in a 20 hour work week in the SEB objective effective March 1, 2005, is confirmed. DATED: January 22, 2013 SIGNED: S. Ryan

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