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WORKPLACE SAFETY AND INSURANCE

APPEALS TRIBUNAL

DECISION NO. 945/15

BEFORE: M.T. McGarvey: Vice-Chair

HEARING: April 21, 2017 at Toronto


Oral

DATE OF DECISION: December 5, 2017

NEUTRAL CITATION: 2017 ONWSIAT 3708

DECISION(S) UNDER APPEAL: WSIB decision of Appeals Resolution Officer (ARO) K. Hille
dated May 16, 2013

APPEARANCES:

For the worker: F. DiLena, Paralegal

For the employer: Not participating

Interpreter: J. Blanes, Spanish

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle


Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étage


Toronto ON M5G 2P2 Toronto ON M5G 2P2
Decision No. 945/15

REASONS

(i) Introduction
[1] The worker appeals a decision of the ARO, which concluded that she was capable of
working in either of the suitable occupations of cashier or other service support occupation, and
which adjusted her loss of earnings (LOE) benefits to reflect this, effective June 1, 2012. The
ARO rendered a decision based upon a written record without an oral hearing.

(ii) Issues
[2] The issues under appeal are as follows:
1. Suitability of cashier or other service support occupation; and

2. Level of LOE benefits from June 1, 2012.

(iii) Background
[3] The now 65-year old worker started as a housekeeper with the accident employer in
June 2004. She was injured on May 22, 2005 when she hurt her shoulder pulling a clean linen
bag from a cart. She did not report the accident to the Board until August 8, 2005 although she
had seen her family physician, Dr. M. Heller, and was referred for an ultrasound on
May 24, 2005. Her only other previous employment had been working in a greenhouse.
[4] The Board initially denied entitlement due to the delay in reporting and lack of
confirming evidence that an accident had occurred. An appeals resolution officer (ARO)
allowed initial entitlement on May 20, 2008 and the worker was awarded LOE benefits until
August 28, 2008 with ongoing benefits referred back to the operating level pending receipt of
further medical evidence.
[5] The accident employer did not offer modified duties and had no other position in which
they were willing to accommodate the worker. On October 3, 2008 the Board recognized that
the worker had a permanent impairment and referred her for a non-economic loss (NEL) benefit
determination. She was also referred for a labour market re-entry (LMR) assessment.
[6] On January 16, 2009, following receipt of a psycho-vocational assessment, the claims
adjudicator at the time, E. Raffa, determined that the worker was entitled to full LOE benefits
retroactive from August 28, 2006 until the age of 65, given the worker’s very limited intellectual
and cognitive functioning, limited educational prospects, her age, limited English language
skills, and limited employment prospects. On June 23, 2009 the worker was awarded a 15%
NEL benefit on the basis of a 25% impairment to her left arm.
[7] On May 17, 2010 the Case Manager, still E. Raffa with a changed title, reviewed the
worker’s file as it approached the 60-month anniversary and confirmed a recommendation that
full LOE benefits continue as the worker did not appear to have any prospect of successful
labour market re-entry assistance in order to re-enter the workforce in light of her profile and
lack of transferable skills.
[8] On June 22, 2010 the worker was contacted by E. Raffa and indicated she was taking
ESL courses at a community centre, which she had been doing for two to three months, and did
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not feel she could work because of pain in her shoulder. E. Raffa enquired whether the worker
had considered looking for part-time work within the Spanish speaking community, since she
was (in light of her participation in ESL courses) “able to do something.” The worker indicated
she had not, and when asked whether she had applied for CPP disability benefits she indicated
she was unaware of them. On July 22, 2010 E. Raffa received a review questionnaire from the
worker confirming her sole source of income was her WSIB benefits, and indicated in a
memorandum, “I am satisfied LOE benefits are being paid appropriately and no further action is
required at this time.”
[9] In January 2011 in anticipation of the 72-month “lock-in” of LOE benefits, the worker
was asked to submit income tax information. There was difficulty reaching the worker by
telephone, with attempts on May 12 and 13, 2011, and LOE benefits were suspended pending
contact. In a memorandum dated May 16, 2011 E. Raffa notes an attempt to contact the worker
to discuss her file, notes her intent to send a letter to the worker indicating her LOE benefits
would continue, and notes that “there are services WSIB could offer worker to assist her in
returning to the workforce and a referral for Work Transition (WT) services will be made once I
speak with the worker.” There is no explanation in the memorandum for the change in rationale
from one year earlier that would suggest why WT services would be of any benefit to the
worker’s re-entering the workforce. There is also no record of correspondence in the period
following this memorandum. On May 17, 2011 E. Raffa called the worker’s representative and
physician to try to get a contact number but was unsuccessful. Unreturned calls were also placed
on May 19 and 20, 2011.
[10] Although there is no record of when contact was made to arrange a meeting, on
June 9, 2011 the worker met with a work transition (WT) specialist, M. Pozdrowski. It appears
she also communicated with E. Raffa on this date. The worker indicated she did not have her
own telephone and relied on her roommate’s phone. She indicated she had been staying with a
friend for a few weeks due to illness, and she was advised that while in receipt of LOE benefits,
if she was going to be away from home “for an extended period of time” she needs to advise the
Board in case they are trying to reach her. The worker responded that she did not know this but
understood.
[11] According to the M. Pozdrowski’s interview report concerning the June 9 meeting, dated
July 28, 2011, the worker indicated she was completely incapable of working or participating in
WT services due to inability to use her left arm. She said her friend assisted her with cooking,
showering, dressing and grooming. The worker said that due to overuse her right arm and
shoulder had become very limited. After consulting by telephone with her representative, the
worker said she would cooperate with whatever WT recommendations were made.
[12] M. Pozdrowski notes the worker had attended ESL courses but was still unable to
converse in English without an interpreter. She indicates the worker had attended these courses
for three to four years, not a few months as was indicated to E. Raffa. It is unclear which of
these is accurate. The worker indicated she understood about half of what was said to her. The
worker indicated she had completed grade 2 in Guatemala, had no computer skills and relied on
friends for transportation.
[13] M. Pozdrowski considered the worker capable of obtaining work in “Other Elemental
Service Occupations” which would require Spanish speaking co-workers or employers, or
“Retail Salespersons and Sales Clerks” in a Spanish speaking establishment. The jobs listed in
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these categories included beauty salon attendant, door attendant, funeral home attendant,
laundromat attendant, parking lot attendant and car jockey, ticket taker/usher for elemental
service, and box office cashier, grocery store cashier, office cashier, racetrack cashier, self-serve
gas bar cashier and theatre cashier. The “next steps” identified included contacting the accident
employer to consider accommodated work, and if this was not successful, offer a period of two
weeks of job search training and 10 weeks of job placement assistance.
[14] E. Raffa’s memorandum of this meeting indicates the worker said her hand gets numb
and she had difficulty holding items so would be unlikely to be capable of working. E. Raffa
indicates the worker was told “the medicals” do not support an inability to work and although
non-compensable conditions such as her right shoulder would be considered, even with bilateral
shoulder injuries she was “not incapacitated from all work.” She would be expected to work
within bilateral shoulder restrictions such as no overhead activity, no heavy lifting, and no
repetitive pushing and pulling. The memorandum indicates the worker’s LOE benefits were
reinstated and the 72-month “lock-in” date was deferred since she was considered to be a
candidate for WT services.
[15] The only subsequent entry in the worker’s file concerning WT services is a memorandum
from M. Pozdrowski dated April 10, 2012. This memorandum reiterates the worker’s history
and background, and suggests she could work in Other Elemental Service Occupations and Box
Office Cashier. There is no indication that the job search training or job placement assistance
had occurred or even begun, or that there had been any contact whatsoever with the worker.
There are no indications of further contact with the worker or the accident employer at all after
the June 9, 2011 interview. The memorandum indicates the worker did not believe she could
return to work in any capacity or participate in any WT activities, and although on advice of her
representative she said she would cooperate, it was not her intention or ability to return to work.
It was concluded that the worker would not benefit from a WT plan based on her perception that
she could neither participate in one nor would return to work, thus no further services be offered.
[16] On April 20, 2012 the worker was contacted by E. Raffa to “follow up on her meeting
with the WT Specialist and the outcome of the meeting.” The worker indicated she would do
whatever was asked of her. She was informed by E. Raffa that since the WTS report states the
worker did not feel she could return to work, a plan would not be offered. The worker was told
“if she states she will participate it is because she truly believes she can return to work and is
motivated to do so.” The worker indicated her condition was very bad. She was told that a 15%
NEL level does not constitute a disabling condition that would preclude a return to modified
duties, and she would be given two weeks to provide any additional information (although what
sort of information might be relevant does not appear to be discussed). E. Raffa then indicates
she told the worker she would then provide a written decision and adjust LOE benefits four
weeks from the date of the letter.
[17] By correspondence dated May 4, 2012 E. Raffa determined the worker’s LOE benefits
based on her purported ability to work as a box office cashier or elemental service worker at
$10.25 per hour. This was the rate used to determine the lock-in rate of partial LOE benefits.
The effective date of the LOE determination was June 1, 2012. The worker appealed this
decision and this is the decision that was considered by the ARO.
[18] On May 16, 2013 the ARO denied the appeal.
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[19] In Decision No. 945/15E, dated May 12, 2015, the Vice-Chair allowed the worker’s
application for an extension of time to initiate her appeal at this Tribunal.

(iv) Law and policy


[20] Since the worker was injured in 2005, the Workplace Safety and Insurance Act, 1997 (the
“WSIA”) is applicable to this appeal. All statutory references in this decision are to the WSIA,
as amended, unless otherwise stated.
[21] Specifically, sections 42, 43 and 44 of the WSIA govern the worker’s entitlement in this
case.
[22] Tribunal jurisprudence applies the test of significant contribution to questions of
causation. A significant contributing factor is one of considerable effect or importance. It need
not be the sole contributing factor. See, for example, Decision No. 280.
[23] The standard of proof in workers’ compensation proceedings is the balance of
probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in
favour of the claimant where it is impracticable to decide an issue because the evidence for and
against the issue is approximately equal in weight.
[24] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages,
Revision #9, would apply to the subject matter of this appeal:
 Package #226 – Final LOE Review – benefits from July 15, 2011 to February 14, 2013
 Package #230 – Work Transition & Suitable Occupation – from July 15, 2011 to
November 30, 2012
 Package #300 – Decision Making/Benefit of Doubt/Merits and Justice
[25] I have considered these policies as necessary in deciding the issues in this appeal

(v) Testimony
[26] The worker testified that she had achieved grade 4 over the course of six years of
education in Guatemala. She described a work history from the 1970s in Guatemala to the date
of her accident which included working in packaging in factory settings, and cleaning and
housekeeping. She had never worked in any other capacity such as serving the public. She said
she considered some of the jobs proposed by the WSIB, such as movie theatre ticket taker, but
she and her daughter made some enquiries and were told such work also involved cleaning duties
which she would not be capable of performing. She was also concerned about her limited
English language skills considering she would have to interact with customers. She testified that
she tried on her own initiative to attend school on and off for a few weeks but she had difficulty
with the language and difficulty maintaining focus. She testified that she felt she had no mental
health issues but was of basic intellect. She did not realistically think she could find work given
her limitations.
[27] The worker’s husband had passed away and she lived with a friend. She received social
assistance benefits, then Ontario Disability Support Plan benefits, but was not collecting CPP
disability benefits.
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(vi) Analysis
[28] The appeal is allowed for the reasons set out below.
[29] Operational Policy Manual (OPM) Document No. 19-03-03, “Determining Suitable
Occupation,” indicates that a suitable occupation (SO) represents a category of jobs suited to a
worker’s transferable skills that are safe, consistent with the worker’s functional abilities, and
that to the extent possible, restores the worker’s pre-injury earnings.
[30] This document indicates it is to be read in conjunction with OPM Document No. 19-02-
01, “Work Reintegration Principles,” which was not included in the Board’s policy package but
which was referred to and provided by the worker’s representative. This document says that to
be “employable” a worker must have the necessary skill and training to be capable of obtaining
and performing full-time or part-time employment on a regular basis in the labour market.
Factors influencing employability include education, transferable skills, aptitudes and work
experience, and both work-related and non-work-related impairments and disabilities.
[31] By June 2011 the worker had been out of the workforce entirely for over six years. Her
work history consisted entirely of cleaning or packaging work, neither of which she could now
perform. She had previously been advised that she would receive LOE benefits until age 65; she
was not advised to upgrade her vocational prospects or attempt to secure employment. She is
limited in her cognitive and learning abilities. A psycho-vocational report from
December 9, 2008 indicates the worker had below average English skills, borderline/below
average intelligence, below grade 3 level functioning in arithmetic and reading, below grade 2
level in spelling, and below Kindergarten functioning in reading comprehension. She had below
average attention span, visual memory and long-term memory. She had indicia of an attention
disorder, mild depression and mild anxiety, and it was noted in the “Strengths/Weaknesses”
section of the report that the worker had no strengths. The conclusion was that the worker was a
slow learner, culturally deprived and likely not able to learn much in a classroom setting. It was
suggested she needed to see a physician and a psychiatrist to address her memory, attention and
emotional issues.
[32] The only substantive improvement, such as it was, in the worker’s vocational prospects
by 2011 stemmed from ESL courses which I find as a fact did little to advance her language
skills. Although the WT specialist recommended a period of job search training and assistance,
because the worker felt she was not able to work she was not actually offered these services. I
find they would have been of no assistance in any event; the worker was effectively
unemployable in any of the positions which fit the categories of the putative SOs. She had no
experience with cashier work, and no experience dealing with the public in a retail or service
setting. She was physically limited with respect to use of both arms in any physical work. I find
she lacked the cognitive and language skills necessary to render her competitively employable.
[33] In Decision No. 563/08, the Vice-Chair noted:
Employability and impairment are separate and distinct concepts. A worker may be only
partially impaired, but competitively unemployable if he or she has no real prospect of
being able to obtain or maintain employment in the labour market. Competitive
unemployability may occur for a number of reasons, including the worker’s age, level of
education, transferable skills, literacy, or the nature of the compensable condition from
which the worker suffers. Workers who become competitively unemployable as a result
of an injury have been granted full LOE benefits by Tribunal decisions.
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[34] This distinction between employability and impairment is readily applicable to this
worker’s situation. I find there is no employment which is suitable for this worker; she is
unemployable.
[35] By awarding the worker partial LOE benefits and assessing her suitability for WT
services, the Board has acknowledged that the worker’s loss of earnings is related to her
compensable injury. It is thus not really at issue in this appeal; nonetheless the level of that loss
of earnings is at issue. I find that the worker’s injury is a substantial contributing cause of her
ongoing complete loss of earnings. She was once employable as a cleaner and in packaging; her
injury rendered her incapable of continuing this kind of employment. I find that she is entitled to
full LOE benefits until the age of 65, subject to any further statutory exceptions.
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DISPOSITION

[36] The appeal is allowed as follows:


1. There is no identifiable SO for this worker; she is unemployable.

2. The worker is entitled to full LOE benefits from June 1, 2012 until she reaches the
age of 65.

DATED: December 5, 2017

SIGNED: M.T. McGarvey