Decision #34/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 11, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not a deemed post accident earning capacity should have been implemented; and

Whether or not the worker should be provided with retraining.

Decision

The deemed post accident earning capacity was not appropriate; and

That the worker should be provided with vocational rehabilitation assistance (job search and/or retraining).

Decision: Unanimous

Background

In February 1992, the worker sustained an injury to his left shoulder region during the course of his employment as a "parts piler". The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits and services were paid to the worker which included a 15% permanent partial impairment award. In light of permanent left shoulder restrictions, the WCB's vocational rehabilitation branch had been assisting the worker with finding suitable modified work.

Based on the worker's previous work experience, his performance at two work assessments and after an earning capacity analysis, the WCB determined that the worker had the transferable skills, aptitude and physical capacity for electronic assembly positions (NOC 9483). On August 29, 2001, the worker signed an Individualized Written Rehabilitation Plan (IWRP) that provided him with continued vocational rehabilitation wage loss benefits while he participated in a job search. The length of the plan was September 2001 to February 15, 2002.

During a January 9, 2002 telephone conversation with a WCB vocational rehabilitation consultant (VRC), the worker stated that he was too busy to look for work as he was attending Math, English, and Science classes. The worker stated he was trying to upgrade his education and hoped that by February 2002 his English testing would be high enough for him to attend the Winnipeg Adult Education Centre and to enter their computer keyboarding class. The VRC advised the worker that the WCB would not support this direction and that he was being paid benefits to participate in a job search for electronic assembly. In a letter dated January 9, 2002, the VRC confirmed to the worker that his failure to participate in his vocational rehabilitation plan would result in the suspension of his entitlement to vocational rehabilitation benefits per WCB policy.

In a further memo to file dated January 9, 2002, a WCB employment specialist (ES) outlined the worker's concerns as follows:
  • the worker did not agree with the WCB's choice of occupation for him. The worker felt he was entitled to return to school to get a different job in the computer field.

  • he did not have time to job search as he was attending school full time during the day and taking courses in the evening;

  • the worker said he was incapable of full time work and that employers would not be interested in hiring him given that he could not predict when he would be able to work.
In a meeting which took place on January 18, 2002, the worker advised his VRC that he preferred to attend the Adult Education Centre for computer classes as he perceived this being helpful to him in that an employer may be more willing to hire him if he had computer skills. The worker stated that he was not prepared to work for $7.00 per hour and that he would only be prepared to work at employment at a rate which matched what he was previously receiving with his pre-accident employer.

On February 23, 2002, the WCB wrote to the worker to advise that his vocational rehabilitation plan expired on February 15, 2002. As he remained unemployed, his benefits would be reduced based on his established earning capacity. The WCB further stated, "…it has been determined that you were not capable of fully earning a weekly amount of $549.00 upon completion of your vocational rehabilitation plan. Acknowledging this, we deviated your expected earning capacity for a period of 1 year, effective February 15, 2003, inclusive. The amended earning capacity during this period is $290.00 per week. A decision on your earning capacity shall be reviewed after the 1-year period has elapsed."

Subsequent file records showed that the worker obtained employment starting April 15, 2002 but that he began to have increasing problems with pain in his shoulder and neck. He was then given alternate work within the same company that respected his physical restrictions. In February 2003, the worker was let go due to attendance problems.

In September 2003, the worker asked the WCB for further assistance as he was having a hard time securing employment. The worker felt that he did not have enough education and that his English language skills were not very good. The worker asked for educational upgrading and training as an industrial electronic technician.

On January 9, 2004, Review Office determined that a deemed post accident capacity should have been implemented and that the worker should not be provided with retraining. Review Office noted that the worker limited his job search to upgrade his English and academic skills. Review Office noted that while this was laudable, it was not required for him to obtain the type of employment provided for in his IWRP. Review Office considered the worker's skills set and low pre-injury earnings. It felt that retraining of any consequence was not a viable vocational rehabilitation option and would not be cost effective. Review Office felt that there was not a viable employment market for the occupation of an industrial electronic technician. Review Office summarized that the worker had been provided with appropriate vocational rehabilitation services and was capable of employment within NOC 9483 and that employment opportunities did exist within that area. It followed that the decision to implement a deem and not provide the worker with retraining was confirmed.

On March 30, 2004, a worker advisor, acting on the worker's behalf, asked Review Office to reconsider its decision of January 9, 2004. On June 4, 2004, Review Office wrote to the worker advisor indicating that the weight of evidence supported the position that the worker was capable of employment within NOC 9483 and that no change would be made to the decision of January 9, 2004. In October 2004, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

We find that the implementation of a deemed post accident earning capacity was premature and not appropriate in this particular case. The vocational rehabilitation plan of entering the worker in the field of electronic assembly failed to provide him with the necessary skills with which to acquire a minimum wage job. In accordance with WCB policy 43.00, "The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests."

We note that the worker faced significant barriers to his reemployment such as his permanent physical restrictions and lack of language skills. We further find that the vocational rehabilitation plan did not provide the worker with a realistic opportunity to obtain at the very least, sustainable employment at a minimum wage level.

Notwithstanding the worker's failure to obtain employment in NOC 9483, the vocational rehabilitation consultants were of the opinion that the worker could work in other elemental occupations paying wages of $290.00 per week. While it may be possible for the worker to work at these other jobs, we nevertheless find that the WCB failed to provide the necessary resources, which would facilitate the worker's securing employment in one of these other positions.

At the hearing, it became readily apparent that the worker actively attempted to mitigate his circumstances by pursuing other possible sources of employment in several fields, most of which failed to respect his permanent medical restrictions. The worker expressed his concern that the fact he sustained a compensable injury necessitating WCB assistance was a huge negative element in his not being able to secure alternate employment.

We recommend that the worker be provided with further vocational rehabilitation assistance, which may or may not include such things as retraining, focused job search, etc., to the extent that it would aid the worker back to full time employment honoring his restrictions.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of February, 2005

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