WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 737 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1960/03 [1] This written appeal was considered in Toronto on March 31, 2004, by Tribunal Vice-Chair E.J. Sajtos. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of an Appeals Resolution Officer dated February 6, That decision concluded that the worker was not entitled to a recalculation of his final (R2) future economic loss (FEL) award effective March 1, [3] The worker was represented by Mr. Evangelista, a consultant. The employer is no longer active. THE RECORD [4] The Vice-Chair considered as evidence the Case Record, two Addenda and correspondence dated August 27 and September 18, [5] Mr. Evangelista provided undated written submissions. THE ISSUES [6] The Vice-Chair must determine whether the worker is entitled to a recalculation of his R2 FEL award effective March 1, THE REASONS (i) Background [7] The worker was employed with the accident employer as a Health Care Aid from June On December 16, 1992, she developed bilateral shoulder pain and was subsequently diagnosed with tendonitis. There was no lost time until May 17, Benefits were granted based on the heavy work that was required in the job. [8] The worker was assessed at a Regional Evaluation Centre on September 17, 1993 and it was concluded that she had non-specific shoulder pain and possible fibromyalgia. The Board held that she was able to return to her pre-accident employment effective November 16, Benefits were terminated in November 1993, but the worker did not return to work until early 1994, after being diagnosed by a rheumatologist in January 1994 with mechanical neck pain, incomplete fibromyalgia and chronic pain disability. Initially, the Board found that the fibromyalgia was related to the worker s mechanical neck pain and not the compensable injury.

2 Page: 2 Decision No. 1960/03 [9] On February 24, 1996, the worker was assisting to lift an elderly resident. She lost her grip and sustained an injury to her right arm when she and the resident fell onto a bed. The Board granted benefits until May 2, 1996 based on an aggravation of her non-compensable fibromyalgia. [10] An Appeals Resolution Officer, in a decision dated November 4, 1997, concluded that: 1. The worker was not entitled to benefits for a neck injury arising out of the December 16, 1992 disablement claim. 2. The worker s fibromyalgia arose out of the December 16, 1992 disablement claim. 3. The worker was entitled to temporary total disability benefits from November 16, 1993 until she returned to her employment in The worker s injury of February 24, 1996 was a recurrence of the December 1992 claim and the two files were amalgamated. 5. The worker was entitled to temporary total disability benefits from May 3, 1996 until October 31, 1996 and temporary partial disability benefits until a FEL determination. [11] The initial FEL (D1) effective March 1, 1997 was based on the vocational objective of medical secretary with a 26.80% award granted. Commencing December 19, 1997, the worker received a FEL supplement based on her participation in a retraining program and subsequent job search. [12] In April 1998, the worker was granted a 10% non-economic loss (NEL) award for her fibromyalgia condition. [13] At the first FEL review (R1), effective March 1, 1999, the award was calculated at % based on the employment goal of medical secretary. She continued to receive a FEL supplement until June 1, 2000 when her job search was concluded. [14] The final FEL was effective March 1, The Board concluded that the worker was capable of achieving the maximum hourly rate as a medical secretary and she was granted a sustainability award. (ii) Law and Policy [15] On January 1, 1998, the Workplace Safety and Insurance Act (WSIA) took effect. This legislation amends portions of the Workers Compensation Act (WCA), which continues to apply to the injuries that occurred before January 1, [16] In addition, the jurisdiction of the Appeals Tribunal is now prescribed by section 123 of the WSIA, with necessary modifications. [17] Section 43 of the Workers Compensation Act, in part, states: 43(1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury.

3 Page: 3 Decision No. 1960/03 (2) An injured worker ceases to be eligible for compensation for future loss of earnings when the worker reaches sixty-five years of age. (3) Subject to subsection (8), the amount of compensation payable to a worker for future loss of earnings arising from an injury is equal to 90 per cent of the difference between, (a) the worker's net average earnings before the injury; and (b) the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment. (7) For the purposes of subsection (3), in determining the amount that a worker is likely to be able to earn in suitable and available employment, the Board shall have regard to, (a) the net average earnings, if any, of the worker at the time the Board determines compensation under this section; (b) any disability payments the worker may receive for the injury under the Canada Pension Plan or the Quebec Pension Plan; (c) the personal and vocational characteristics of the worker; (d) the prospects for successful medical and vocational rehabilitation of the worker; (e) what constitutes suitable and available employment for the worker; and (f) such other factors as may be prescribed in the regulations. (iii) The Vice-Chair s reasons [18] In a Labour Market Re-entry Plan, dated September 28, 1998, it was noted that the worker agreed to participate in a Medical Office Assistant Program at the Toronto School of Business for employment targets of medical secretary and/or receptionist. [19] A labour market information sheet from Human Resources Development Canada (HRDC) for a Medical Office Assistant was provided noted as NOC In the section entitled Labour Market Outlook, it was noted that occupational groupings for this NOC included: Admitting Clerk, Answering Service Operator, Business Receptionist, Dental Receptionist, Hospital Admitting Clerk, Medical Receptionist, Reception Clerk, Receptionist, Switchboard Operator and Telereceptionist. [20] In a memorandum dated November 1998, the Claims Adjudicator considered the worker s entitlement to benefits for her D1 FEL award. It was noted that the worker was to be sponsored in the Medical Office Assistant program. The NOC s used to calculate the FEL award were #1241 (General Secretary) and #1243 (Medical Secretary). The R1 FEL was calculated based on the same vocational goals of general and medical secretary. [21] The worker graduated from the Medical Office Assistant Program in November [22] In a Labour Market Re-entry Services Completion Report, dated June 6, 2000, it was noted that the worker was 43 years of age and had standard restrictions for a bilateral shoulder injury. The vocational goal was that of a medical secretary. But, the worker reported that she felt that she would obtain employment in the near future in sales and customer service. Benefits were terminated effective May 31, At the end of the report, the Case Manager noted that the vocational goal was Medical Office Secretary NOC#1414 Wages $7.25/hr. (HRDC report)

4 Page: 4 Decision No. 1960/03 [23] The FEL adjudicator, in a memorandum dated April 18, 2002, reviewed the worker s entitlement to a R2 FEL award. It was reported that the worker had been provided with a retraining program and six month job search assistance, which expired on May 31, It was decided that the R2 award would be based on an average of the maximum hourly rate of the two vocational goals identified, which were the NOC (General Secretary) at $19.76 and NOC (Medical Secretary) at $ The gross weekly projected earnings were based on what the worker would have earned had she been performing these jobs for the past three years. The average was found to be $19.39 per hour that the worker was deemed capable of earning and thus she was only entitled to a FEL sustainability award, as there was no deemed wage loss. [24] Operational Policy Manual, Document No , Reviewing FEL benefits, stipulates that when the final FEL review is undertaken, the Board deems the worker s earnings using up-to-date wage guide information, and, if the worker is not employed at the final review, the amounts a fully experienced worker would earn in the SEB identified. [25] The Vice-Chair is persuaded that the SEB (suitable employment or business) that had been appropriately identified in this case was that of a Medical Office Assistant (NOC ). The worker did participate in and complete a course in this vocational goal. It appears, however, that the Board incorrectly calculated her FEL awards based on employment goals of general and medical secretarial positions, which are substantially different than NOC 1414 with respect to job duties and salary. [26] When the worker commenced her job search, she initially attempted to find employment as a medical secretary. In the final labour market re-entry completion report, it is noted that she was attempting to find work in sales and customer service, which was lower paying than that of a medical secretary. This action appears to have been condoned by the service provider, as the worker was assisted with a mock interview based on the sales and customer service vocational goal. The worker was also assisted with rewriting her resume based on applications for positions other than that of a medical secretary. [27] The Vice-Chair is satisfied that the R2 FEL award is to be recalculated based on the SEB of a Medical Office Assistant, NOC [28] For the following reasons, the Vice-Chair is persuaded that the amount of this recalculation is to be based on a mid-range salary of a Medical Office Assistant. [29] Board policy, # states that the R2 FEL review is to be based on that of a fully experienced worker. A fully experienced worker must be defined in the context of the personal and vocational characteristics of the individual. In this case, the worker had not found work in her vocational field approximately one year and ten months after her labour market re-entry program was completed. At the time of the R2 determination, she was 46 years old; her prior vocational history consisted of employment in factories and as a farm helper. And, perhaps most importantly, the worker was not trained as a medical or general secretary. The information provided by HRDC for the Medical Officer Assistant course states that the occupational groupings for this training were consistent with clerk and receptionist positions. Finally, the compensable injury was that of a bilateral shoulder injury and the worker had permanent medical restrictions arising out of her disability.

5 Page: 5 Decision No. 1960/03 [30] Thus, the Vice-Chair is persuaded that the worker s R2 FEL award should be calculated based on the Medical Office Assistant NOC 1414 at the mid-range wage level. THE DECISION [31] The appeal is allowed. [32] The worker s R2 FEL award is to be recalculated based on the position of a Medical Office Assistant, NOC 1414 at the mid-range wage level. DATED: April 20, 2004 SIGNED: E.J. Sajtos