WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 170/17
BEFORE:
R.E. Basa
S.T. Sahay
F. Jackson
: Vice-Chair
: Member Representative of Employers
: Member Representative of Workers
HEARING:
January 19, 2017 at Toronto
Oral
DATE OF DECISION:
February 6, 2017
NEUTRAL CITATION:
2017 ONWSIAT 389
DECISION UNDER APPEAL:
WSIB Appeals Resolution Officer (ARO) dated August 12, 2014
APPEARANCES:
For the worker:
J.T. Lamont, Paralegal
For the employer:
Not participating
Interpreter:
R. Osmakovski, Serbian
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 7th Floor
Toronto ON M5G 2P2
505, avenue University, 7e étage
Toronto ON M5G 2P2
Decision No. 170/17
REASONS
(i)
[1]
The worker appeals a decision of the ARO, which concluded that the position of gate
attendant is suitable for the worker’s medical restrictions and skills/abilities, and which
confirmed the decision to pay the worker partial loss of earnings (LOE) benefits from
November 1, 2003. The ARO rendered a decision based upon a written record without an oral
hearing.
(ii)
[2]
Introduction
Issues
The issues under appeal are as follows:
1.
Whether the suitable occupation (SO) of Gate Attendant/Security Guard, National
Occupational Classification (NOC) 6651 (“gate attendant”), is suitable for the
worker’s restrictions.
2.
The quantum of LOE from November 1, 2003.
(iii) Background
[3]
The following are the basic facts.
[4]
On May 9, 2001, the now 69 year-old worker was standing on a ladder removing drywall
when pipes fell out of the wall, knocking him off the ladder onto the concrete floor. Pipes,
drywall, and the ladder fell on top of him. The worker was employed as a carpenter at the time.
[5]
The worker was diagnosed with a comminuted fracture of his right heel bone. He
received LOE benefits for a period of four months, and in September 2001 he returned to work.
In November 2001, the employer claimed that it no longer had work for him.
[6]
The worker was referred for labour market re-entry (LMR, now known as “Work
Transition” (WT)) services. A LMR assessment/plan dated April 25, 2002 determined that the
worker would most likely succeed as a gate attendant as it offered fair employment prospects, the
work is not based on productivity, and the environment could be accommodated to meet the
worker’s restrictions.
[7]
The LMR plan consisted of 52 weeks of English-As-Second-Language (ESL) training,
followed by four weeks in a job search training program. The worker commenced the ESL
training in June 2002. Eleven months later, the Board approved an extension of the LMR plan
by three months for a work placement so as to maximize the worker’s opportunity for success in
the SO of gate attendant.
[8]
The worker completed the 52 weeks of ESL training and the four weeks of job search
training. He did not complete the three-month placement because he was unable to be placed
with an employer.
[9]
The Board deemed the LMR plan completed on October 31, 2003 and reduced the
worker’s LOE benefits based on deemed earnings in the SO, effective November 1, 2003.
Page: 2
[10]
Decision No. 170/17
On May 5, 2004, the worker’s non-economic loss (NEL) was rated at 24% for the right
ankle/leg, which reduced to a 10% whole person impairment.
(iv) Law and policy
[11]
Since the worker was injured in 2001, 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.
Specifically, section 43 of the WSIA governs the worker’s entitlement in this case.
[12]
[13]
[14]
[15]
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.
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.
Pursuant to section 126 of the WSIA, the Appeals Tribunal is required to apply any
applicable Board policy when making decisions. The Board has identified certain policies as
applicable to his appeal and we have considered those policies as necessary in deciding this
appeal, in particular:

Operational Policy Manual (OPM) Document No. 19-03-03, “Determining Suitable
Employment or Business, and Earnings”;

OPM Document No. 18-03-02, “Payment of LOE benefits.”
(v)
[16]
[17]
Testimony and submissions
The worker testified with the assistance of an interpreter. He testified that he did not
learn much in the LMR program. He found it difficult. By the end of the program, he knew that
he could not fill out the application forms that would be required in a job search. He does not
agree that security guard/gate attendant work is suitable for him given his age, his poor English,
and because he cannot walk.
The worker’s representative submitted that the worker does not have sufficient skills to
work as a gate attendant. The LMR program was futile, and it was a failure. Given the worker’s
age, his various medical issues, and his lack of transferable skills, it was submitted that the
worker is competitively unemployable.
(vi) Analysis
[18]
[19]
The appeal is allowed for the following reasons.
The SO represents the category or categories of jobs suited to the worker’s transferable
skills that are: safe, within the worker’s functional abilities, reduce or eliminate the loss of
earnings resulting from the injury, and are available in the local labour market. The
determination of a SO is based on the goal of restoring an injured worker’s earning capacity. See
OPM Document No. 19-03-03.
Page: 3
Decision No. 170/17
[20]
When the Board determines a SO for a worker, it also decides whether the worker
requires a LMR/WT plan. If the worker is provided with a LMR/WT plan, he or she is entitled
to full LOE benefits while cooperating in the plan. However, when the worker completes the
LMR/WT plan, the Board deems the worker’s post-injury earnings to be the earnings the worker
is able to earn from the SO identified in the LMR/WT assessment. Even if the worker is
unemployed when he or she is no longer involved in a LMR/WT program, the Board decides
what LOE benefits are payable by determining what the worker would be able to earn in the SO
identified by the LMR/WT assessment.
[21]
The Panel finds that the SO of Security Guard/Gate attendant, NOC 6651, was not
appropriate for the reasons set out below.
[22]
In April 2002, the worker was assessed for LMR purposes and the following barriers to
training and re-employment as a gate attendant were identified:
Results of the attached WRAT Assessment indicates that [the worker] is functioning at a
Grade 1 level in Spelling and a Grade 2 level in Reading. This, in the Case Manager’s
opinion, would impact [the worker’s] ability to conduct a meaningful job search in light
of his inability to complete application forms independently and appropriately
communicate with potential employers. In addition according to the NOC education
training/requirements for Gate Attendant positions are some high school education and or
on the job training or experience.
[The worker] appears older than his stated age of 54 years. In light of his change of
vocations (i.e. carpentry to Electronics Assembly [sic]), this may be questioned by
prospective employers.
[23]
The Panel notes that, from the outset of LMR services, the identified barriers ought to
have signaled that a LMR program geared toward the gate attendant SO was inappropriate for
the worker. The position required some high school education or on-the-job training or
experience, none of which the worker had. In addition, the worker was functioning at a low
elementary level in reading and spelling, which could not reasonably be expected to improve
dramatically with 52 weeks of ESL training.
[24]
In addition to these barriers, there were a number of other aspects of the role which were
not suitable to the worker’s transferrable skills and abilities. For instance, referring to
Appendix H of the LMR assessment/plan which is Human Resources and Development
Canada’s (HRDC) description of NOC 6651, the worker did not satisfy a number of stated
characteristics or requirements of the position:
[25]

sufficient verbal ability to communicate with officials or the public,

demonstrated social interest in speaking with officials or the public,

the ability to patrol assigned areas,

the ability to drive/guard armoured trucks.
The Panel notes that even after the worker completed the 52 weeks of ESL training and
four weeks of job search training, he still did not demonstrate the requisite verbal ability for the
SO. He also does not drive and would have difficulty patrolling due to his compensable injury
and restrictions.
Page: 4
Decision No. 170/17
[26]
The inappropriateness of the LMR plan became clear, or ought to have become clear,
when the worker, who was fully cooperating, was unable to be placed with an employer for
training purposes. A LMR Progress Report dated October 22, 2003 sets out the reasons why the
worker was unable to be placed. First, the worker scored poorly on an aptitude test administered
by the employer security agency. Second, the employer no longer had the client/contract with
which it initially expected to place the worker. Third, the worker was unable to drive which
disqualified him from being placed with other prospective clients.
[27]
When the worker was discharged from his LMR program in October 2003 he was
55 years old, competing with much younger job seekers for entry-level positions which, as
pointed out by Mr. Lamont and confirmed by HRDC’s document, usually require some high
school education or some experience on the job. Not only did the worker not have the skills and
experience required, he also had a permanent right foot disability with permanent medical
restrictions of prolonged walking/standing and climbing. These medical restrictions would likely
conflict with many of the patrolling tasks associated with the gate attendant role.
[28]
The Panel finds that the SO of gate attendant is not suitable in the present circumstances.
Furthermore we have concluded that the worker is not capable of gainful employment, and he is
therefore entitled to full LOE benefits to age 65.
[29]
Entitlement to LOE benefits is governed by section 43(1) of the WSIA which states that a
worker who has a loss of earnings as a result of an injury is entitled to payments. Also see
OPM Document No. 18-03-02.
[30]
In Tribunal Decision No. 2342/06, the Vice-Chair defined the term “competitively
unemployable” as follows:
The concept of “competitively unemployable” is not defined or addressed in the Act or
Board policy. It arises out of Tribunal case law as a consideration of the cumulative effect
of medical, psycho-social, and employment market factors related to the workplace injury
that would reasonably impact a worker’s ability to obtain and sustain suitable
employment. In one respect, the concept widens the prospect of a worker’s ability to
establish unemployability beyond strict medical grounds. Yet, the concept also requires
that the cumulative effect of the factors considered achieve the same result as a finding of
total medical disability, that is, unemployability arising from the injury.
[31]
The evidence establishes that gainful employment of any sort is not within the worker’s
reach on account of his compensable right foot injury and his personal/vocational characteristics
(which includes his age, limited education, limited vocational experience, and limited
transferable skills). The Panel is also satisfied that the compensable injury was a significant
contributing factor in the worker’s resulting loss of earnings and he should be entitled to full
LOE benefits following his discharge from the LMR program, in keeping with section 43(1) of
the WSIA.
Page: 5
Decision No. 170/17
DISPOSITION
[32]
[33]
The appeal is allowed as follows:
1.
The SO of Security Guard/Gate Attendant is not suitable.
2.
The worker is entitled to full LOE benefits from November 1, 2003 to age 65 on the
basis that he is not capable of gainful employment.
The quantum of benefits flowing from this decision will be returned to the WSIB for
further adjudication, subject to the usual rights of appeal.
DATED: February 6, 2017
SIGNED: R.E. Basa, S.T. Sahay, F. Jackson