Thursday, January 07, 2010

LMR Completed- Now What?

You’ve finished your Labour Market Re-entry program (LMR). While looking for work, it becomes clear to you that there are no jobs available and you’ve come to the conclusion you can ever work again. Now what?

The Board will re-evaluate your loss of earnings benefits upon completion of the retraining program to reflect your potential new earnings. It is usually the Board’s opinion that you have received skills and are therefore, able to find employment in the suitable employment or business (SEB) which was chosen for you. For example; if you retrained as customer service representative, the WSIB would presume that you have the appropriate skills and should be able to find employment at an entry-level wage in this job category. They would then reduce your benefits by the amount of the anticipated entry-level wages in this SEB. In this example, a customer service representative. This decision is of course, appealable. The appeal must be filed within 6 months of the date of decision.

In determining the loss of earnings to be paid the WSIB in accordance with s. 43(4) of the Workplace Safety and Insurance Act shall determine the worker’s earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker and is available and,

(a) if the worker is provided with a labour market re-entry plan, the earnings shall be determined as of the date the worker completes the plan; or

(b) if the Board decides that the worker does not require a labour market re-entry plan, the earnings shall be determined as of the date the Board makes the decision.

Interestingly, the word determine is not defined in the legislation but yet effort was made to introduce the word “determined” into the legislation in place of the word “deemed”. Determined means to find out or come to a decision about by investigation, reasoning or calculation. Deemed means to come to think or judge or to have an opinion. I can believe a job exists or deem that a job exists but yet determine thru research and investigation that in reality my belief or opinion was incorrect based on the statistical information available. This is an important distinction. The Board must perform a more thorough review of the actual statistical information available and consider its veracity against the current true labour market.

There are of course times when workers cannot find employment in their training program for a number of reasons and the following factors should be considered in determining whether or not an appeal will be successful:

1. The availability of employment in the goal set by the Board.

Available means that the employment must exist in the labour market to the extent that the worker has a reasonable prospect of actually acquiring the job. Obviously this argument is very dependant upon the economy and the current economy in the Windsor area there may be a number of goals which may not have jobs available following the completion of a retraining program.

In addition, the worker’s scope of job search or geographical location may come into play. For example, if a worker’s previous job was in Leamington and they’ve always worked in Leamington and have issues with transportation; the local job market which should be reviewed is the Leamington area rather than the entire Windsor-Essex County area.

2. Adequacy of skills

The education and experience a worker possesses may not be sufficient to have a reasonable prospect of obtaining a job in the field specified. For example, it may be successfully argued that a worker who obtains computer training may now have out dated skills or that a certificate of social work from a business college may not have the necessary skills to complete and/or perform the duties of a social worker The starting point for this type of argument is the job requirements set out by the National Occupation Code (NOC) which is available through Employment Canada. This index of job descriptions also provides the basic job requirements in order to be successful in employment. If the job requires a grade 12 education or a college/university degree and this level of education has not been provided, then a worker may be successful in arguing that they did not receive the necessary skills to be successful in obtaining employment in the job identified by the Board.

3. The worker’s physical ability to perform the duties required.

Success on this point depends heavily upon medical information, job descriptions and actual job postings. If a worker has a restriction of no prolonged standing and the goal chosen is customer service. The Board may have thought there were jobs were the worker could sit but a review of job postings could show no such jobs available within a 6 month period and therefore the worker could not possibly have a reasonable prospect of obtaining a sitting customer service job.

The question of whether benefits should be reduced following an LMR plan also needs to address a worker’s compensable and non compensable physical and mental abilities, but also their transferable skills, education and even age.

It is important that a worker, if in disagreement with a Board decision, immediately appeal the decision and obtain appropriate advice so as to maximize the benefits they are legally entitled to from the Board. It is extremely important that regardless of whether or not you as a worker agree with the WSIB, you must continue to search for work even if you believe you can never return to work again. A job search is critical in ensuring that you have mitigated your losses as an injured worker and made a whole-hearted attempt at finding employment in the area which you have been retrained. A failure to do this can result in either a negative decision or a reduction of benefits.

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