Decision Number: 20100067, 2010 CanLII 35735 (ON W.S.I.B.)

Appeals Resolution Officer Decision

OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker

Issue:
The worker objects to the payment of partial Loss of Earning (LOE) benefits from October 22, 2009 based on 40 hours per week instead of 20 hours per week.

How The Issue Arises:
On September 21, 2006, the worker lifted a countertop and had an onset of seve stabbing pain in his hip, and down his leg. He was diagnosed with a disc herniation on the L5-S1 on the left with radiculopathy. Entitlement was granted and benefits were paid in accordance with the medical evidence received. He received conservative medical management but was left with a permanent impairment and thus unable to return to his pre-accident job as a labourer.

Following an Assesment, a Suitable Employment or Business (SEB) of Customer Service was deemed to appropriate. The work became involved in upgrading, computer training, and GED training, and following a placement, was offered a job at Color Your World to commence effective October 22, 2009. He commenced working 20 hours per week as he indictated he could not tolerate full-time employment. As the worker found a suitable job, LMR services were closed and the worker's partial LOE benefits were adjusted as of October 22, 2009 based on a full-time job of 40 hours per week. The worker objected to the adverse decision claiming that he remains only capable of part-time work.

Assessment of the Evidence:
The work is found to be capable of more than 20 hours per week, but not capable of full time employment. The reasons are as follows:

• Considering the worker on a holistic basis, in total he has a 50% combined award and this is a rather significant award that must be taken into consideration.
• Dr .Mailis noted that the worker’s left leg pain is worse than the low back pain and is constant. In his job in customer service, the worker would be required to stand quite a bit over a 40 hour work week and given the leg pain, this would be difficult for the worker on a full-time basis.
• The doctor also noted the worker was unable to sustain a school program due to pain, however the worker did appear to attempt to co-operate in him LMR program.
• A Functional Restoration Program was recommended to help the worker manage his pain, but this was not done.
• The worker was able to tolerate and complete his LMR program. In terms of schooling, he lost quite a bit of time due to the amount of sitting. A job that is more flexible and suitable to his restrictions would not be unreasonable.
• A May 13, 2009 LMR report noted that the worker had concerns over working on a full-time basis, but committed to completing 30 hours per week with his sponsor. The sponsor noted flexibility with respect to hours and the willingness to accommodate the workers restrictions.
• By September 19, 2009 it was reported that the worker was working 25 hours per week. While he attempted to increase his hours, he was unable to reach the 30 hours he had expected to in May, 2009.

Conslusion:
I am not granting the worker’s request to pay partial LOE benefits based on 20 hours per week, I am directing that partial LOE benefits from October 22, 2009 be based on working 25 hours per week, as I am not satisfied he is able to maintain full-time employment