Highlights of Noteworthy Decisions

Decision 1149 22
26/08/2022
R. Horne
  • Carpal tunnel syndrome
  • Osteoarthritis (wrist)
  • Loss of earnings {LOE} (employability)

The worker was recognized as having a permanent impairment with a 13% Non Economic Loss (NEL) award for bilateral wrist injuries. The issue on appeal was the level of LOE benefits payable to this worker from April 8, 2013. The worker sought full LOE on the basis that he was competitively unemployable.

The worker indicated that he found his jobs through word of mouth, or by simply going from job site to job site and presenting himself as a bricklayer. He indicated that "bosses would know within minutes if I could do the job". It was noted that he had never had a resume or looked for work any other way. He also stated that he had limited computer skills.
The appeal was allowed.
The Vice-Chair noted that the central issue was not which of the worker's disabilities was most disabling, but whether the worker with his bilateral work-related disabilities was employable. In this regard, the Vice-Chair agreed with Decision No. 01/08 which states that employability is not simply a medical question and must take into account "the degree of impairment and functional capability, the medical restrictions, the worker's transferable skills, the worker's personal aptitudes, the worker's job-search skills and abilities, and the degree or amount of loss earnings". To the above list, the Vice-Chair added the availability of work, and whether the worker had a realistic chance of securing work.
The Vice-Chair also agreed with the worker's submission that it would be unfair to consider the worker's employability retroactively to 2013 when the Board did not address the issue of employability until 2019. The worker's representative submitted that the worker must be seen as competitively unemployable, due to his age, his bilateral wrist and hand problems, which were accompanied by occupational restrictions, as well as his aptitudes, and his vocational and educational background.
The Vice-Chair found that it had not been established that the worker had the requisite skills for direct entry into either Retail Sales Greeter or Telephone Solicitor. It was noted that the worker had no identifiable transferable skills for either job. He had worked his entire career in bricklaying. He also testified that he was an outside person and preferred to be outside. It was also noted that the worker's verbal communication skills were untested, and it was unclear whether they were sufficient for either Retail Sales Greeter or Telephone Solicitor. Further, it was noted that both positions would likely involve some degree of computer work, and the worker had no skills in this area. The Vice-Chair therefore found that the SOs of Retail Sales Greeter or Telephone Solicitor were not suitable.
The Vice-Chair also acknowledged that the worker did not have skills related to job searching. The worker testified that he worked continuously for 31 years as a bricklayer. He utilized word of mouth, and going from job site to job site, to locate employment. The Vice-Chair determined that both of these methods were unlikely to result in finding a job in today's sophisticated labour market.
Additionally, at the time of the employability review completed by the Board in 2019, the worker was 63 years old. The Customer Service Representative option was not considered to be feasible or cost efficient, noting the length of time the training was projected, and the number of months the worker would have remaining in the workforce. The Vice-Chair found that the worker had insufficient job search skills to secure suitable employment following his surgery in 2012.
Taking all of the above into consideration, the Vice-Chair concluded that with respect to the worker's work-related disabilities, it was more likely than not that he was competitively unemployable. The worker was not capable of earning any income in suitable employment, largely due to the inability to identify a suitable occupation. Accordingly, he was found to be entitled to full LOE benefits from April 8, 2013 until he attains the age of 65.