The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 16, 2006, at the request of a worker advisor, acting on behalf of the worker. The worker appeared and was represented by a worker advisor. The worker's spouse attended as an observer. No one attended on behalf of the accident employer.

Issue

Whether or not an occupational goal of working within National Occupational Classification (hereafter "NOC") 7412 is appropriate; and

Whether or not the deemed post-accident earning capacity of $525.00 per week is appropriate.

Decision

That an occupational goal of working within NOC 7412 is not appropriate; and

That the deemed post-accident earning capacity of $525.00 per week is not appropriate.

Decision: Unanimous

Background

On August 8, 1997, the worker suffered a compensable injury to his right knee, which left him with permanent physical restrictions of no frequent/repetitive climbing, kneeling and deep squatting.

In addition to this compensable injury, the worker also suffered from non-compensable conditions involving his back and left and right knees, which left him with physical restrictions related to stooping, bending, twisting, carrying more than 20 pounds, lifting more than 50 pounds and sitting for prolonged periods of time.

As the worker's physical restrictions prevented him from performing the regular duties of a welder/boilermaker, and his accident employer was unable to accommodate him, he was referred to the WCB vocational rehabilitation branch to develop a vocational rehabilitation plan (hereafter "VRP"), which would help him find alternative employment which would reasonably take into consideration his post-injury physical capacity, skills, aptitudes and, where possible, his interests.

His file was first reviewed by a WCB vocational rehabilitation consultant (hereafter "VRC") on May 8, 2001. After reviewing the worker's file, the VRC was of the opinion that he did not have any transferable skills arising from his twenty years of experience in welding, and would, therefore, need help identifying an appropriate vocational goal.

The VRC therefore referred the worker to a clinical psychologist for interest and aptitude testing. This testing took place in August, 2001. The results of the testing were, in the opinion of the psychologist, indicative of an employment goal in visual spatial areas such as assembly, design and visual inspection, as well as in teaching practical subjects relevant to welding. He discouraged employment involving administrative or clerical work, computing, or extensive sitting.

The VRC then enrolled the worker in a career planning symposium in October, 2001, where he had informational interviews with Red River Community College (hereafter "RRCC") for teaching welding and welding for non destructive testing. He also identified inspection as a potential occupational area of interest.

As the worker was still having difficulty identifying an exact occupational goal, the VRC enrolled him in introductory computer courses in November, 2001, since most jobs required computer knowledge.

She then enrolled him in a transferable skills program in February, 2002. The outcome of this program was that the worker was identified as having, amongst others, transferable work skills in teaching or training others, managing and supervising staff, providing services, following instructions, using team work skills, developing and interpreting information, planning and organizing operations and activities, analyzing, examining, and evaluating information, collecting, gathering and classifying information and comparing, sorting and inspecting objects.

The VRC dismissed teaching as an unrealistic occupational goal given the worker's limited level of education and the lack of a market for trades instructors. In a February 26, 2002 memorandum, she concluded as follows:

"It is apparent that [the worker] cannot entertain retraining programs at RRCC. He has a very limited formal academic background and his testing results confirm that he requires some basic math and reading comprehension upgrading before he is able to consider even the most basic training program. Employment will have to be fairly sedentary in nature to accommodate the knee restrictions; however, [he] also has a non-compensable back at risk which is being handled through an AutoPac claim. This means that he could not work at a job that made significant sitting demands as he has to have the opportunity to get up and move about to relieve the stress on his back…[The worker] should begin a general math and reading comprehension upgrading program to elevate his basic literacy skills above the grade 5 level…if he could increase his skill level to a grade X equivalency we would be able to look at a broader range of employment options that would respect [the worker's] limited knee function."

On this premise, the VRC enrolled the worker in math and reading comprehension upgrading, and consulted a WCB employment specialist (hereafter "ES") regarding the worker's potential employment options.

Two occupational goals were examined - light assembly and purchasing and inventory. Light assembly was dismissed given the worker's physical restrictions. However, purchasing and inventory (National Occupational Classification (hereafter "NOC") 1474), which consists in processing purchasing transactions and maintaining inventories of materials, equipment and stock, was considered suitable.

An Individualized Written Rehabilitation Plan (hereafter "IWRP") for NOC 1474 was therefore developed on September 25, 2002. At this time, the worker was hopeful that a job in this field might provide him with the skills needed to work as a tool push or crib man. This type of job would allow him to remain with his union and work with companies he worked with previously as a welder.

As part of the IWRP, the worker upgraded his education to Grade X and began the purchasing/inventory control program. Unfortunately, the worker had difficulty processing the course content and it was agreed between the VRC and the worker, to withdraw him from the program. Further, given these difficulties, it was decided to avoid further academic training and focus on an occupational goal of driving.

A February 28, 2003 medical report from the worker's clinical psychologist suggests however that the worker was not psychologically suited for this occupational goal. He writes:

"Overall it was apparent from our interview, collateral information and psychological assessment result, that [the worker] met the diagnostic criteria of a major depressive episode consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood…, a Pain Disorder Associated With a General Medical Condition…; and anger management problems in an individual with mixed passive-aggressive and paranoid personality features. It was apparent that his adjustment disorder was a function of numerous enduring psychosocial stressors contributing to his depressive reactions, including his ongoing pain, physical limitations, slow period of recovery, loss of career and identity from his work, financial concerns, concerns about the impact of his difficulties on his family, slow process of rehabilitation, frustrations with … and WCB, and future career uncertainties…
…

Clearly, he has continued to experience significant concerns about his vocational rehabilitation program and directions, particularly in light of his ongoing problems, work limitations, physical limitations, pain, limited vocational interests, motivation and ability for further training, health problems, financial concerns, age and concerns about returning to work, given that he has not been employed since March 2001. Most recently, he has experienced a further depressive reaction as a function of the frustrations and difficulties he is experiencing in his Inventory Clerk training program, arranged and sponsored by the Workers Compensation Board of Manitoba."

The worker expressed concerns about the occupational goal of a driver to the VRC and suggested that WCB should sponsor him for a blueprint reading course at RRCC. This course would allow him to become a supervisor of welders. The VRC responded that the WCB was continuing to consider the driving industry as an appropriate occupational goal; her initiatives would therefore be focused on that.

On that basis, on July 21, 2003, the VRC had an Earning Capacity Assessment (hereafter "ECA") done for NOC 7412 - Bus Drivers, Subway Operators and Other Transit Operators. This NOC includes bus drivers, motor coach drivers, school bus drivers, courtesy vehicle drivers, sightseeing tour drivers and shuttle bus drivers. The ECA stated that the job market for this field was considered good or average. The market at that time was broken down as follows:

- 52% of the jobs were in the public passenger transportation system; both city and long distance driving;

- Approximately 41% of the jobs were accounted for by school bus drivers;

- 7% are local government and 'other'; and

- 0.3% consisted in automobile dealerships.

The ECA also indicated that employment in NOC 7412:

- is largely sedentary and requires the use of upper and lower limbs as well as the handling of loads between five to ten kilograms (or 11 to 22 pounds);

- requires Grade X, a Class 2 driver's license and up to 3 months of on-the-job training;

- requires a customer service orientation and a resilient personality to be able to effectively handle difficult passengers.

The ES noted that in regard to this latter requirement, the worker had not previously worked in a public relations capacity and that his dealings with the WCB indicated that he could be impatient and anger easily. He therefore recommended that the public relations requirement be explained to the worker and that he be enrolled in an anger/aggression management and customer service course.

This does not appear to have been done. Instead, an IWRP for NOC 7412 was prepared on November 7, 2003. The labour market was listed as good or average with increasingly good prospects for job opportunities over the next ten to fifteen years. Upon completion of the IWRP it was anticipated that the worker would be capable of earning $525.00/week.

On November 13, 2003 the worker called his case manager to express his apprehension with this vocational direction. At the end of the discussion the worker nonetheless agreed to participate and offered his commitment to the plan.

However, on November 17, 2003, the worker once again questioned the appropriateness of NOC 7412 and requested a functional capacity evaluation (hereafter "FCE").

The case manager responded on November 27, 2003, stating that it was the WCB's position that NOC 7412 was appropriate. She also warned the worker that should he not participate actively in the achievement of that goal, his benefits could be suspended.

The worker finally signed the IWRP for NOC 7412 on January 14, 2004. However, he stipulated that he was doing so under duress, and added that "WCB has not listen [sic] to what I want, but instead has looked for the simplest way of retraining me."

Despite the worker's concerns with the IWRP, he nevertheless continued to complete the requirements for NOC 7412, namely, obtaining his Class 2 licence and his on-the-job training as a school bus driver. He also took an entry level test for a position as a city bus driver with a transit company, which is a prerequisite to employment with it. The test consisted in watching a film for one and one-half hours and answering multiple choice questions on how to deal with various relational issues. He failed the test twice, and was precluded from taking it again within the next three years. He also visited and dropped off resumes at more than sixty potential employers in the driving industry. Most shuttle bus employers did not have openings and the long distance drivers required at least two years of driving experience.

The ES assisted the worker with his job search. He called multiple potential employers and even accompanied the worker on some interviews. No employment was found.

On March 16, 2004, the worker's family physician wrote to the WCB about the IWRP:

"He has been requested to retrain as a bus driver. I do not believe that he can perform this job. He has shown me 5-6 pages of numerous tasks that must be completed prior to sitting behind a wheel for several hours. In my opinion he cannot drive a bus due to [sic] following reasons:

1. Injury to his (R) knee. He presently has restrictions that prohibit repetitive bending, kneeling and squatting. He would not be able to inspect his vehicle on a daily basis.

2. He has chronic back pain due to a L5 spondylolisthesis and associated discopathy of the L3 and L4 disc that would only be aggravated by constant bending and prolonged sitting.

3. He is presently under the care of a clinical psychologist for treatment of stress and depression."

Then, on March 18, 2004, the worker's treating psychologist advised the WCB that:

"[The worker's]…present vocational training program is not well suited to his physical limitations, vocational interest and temperament. Given his history of anger control problems, prejudicial experiences and suspicious thinking, it is my opinion that he will experience difficulty in relating to customers and children, and is not well suited to working directly with the general public. It is my opinion that he would be much better suited to a position that would use his transferable skills, skills developed in his trade, knowledge of boilers, equipment and ability to relate to tradesmen (e.g. tool crib, safety work, welding instruction, etc.)."

The worker also contacted his case manager on several occasions to tell her about the physical problems he was encountering with his knees and back as a result of the school bus driving. He was worried in particular, about the inspection duties of the bus, which required him to look under the seats and the bus; these duties involved kneeling, bending and twisting and aggravated his physical conditions.

The case manager's response to the concerns about the appropriateness of NOC 7412 was as follows:

"As you are aware, ongoing medical information has been submitted by [your family physician] and [your clinical psychologist]. The medical opinions provided have been considered, however it is still our opinion that the vocational goal of a driver is appropriate'.

The case manager also advised that an FCE would not be done since she felt that it would not provide her with any additional information.

The worker continued on with the IWRP. He continued to apply for positions with potential employers but was not successful.

Memoranda to file by the ES indicate that potential employers found the worker's presentation to be aggressive. Further the worker refused to consider applying for part time employment and was only applying for fifteen jobs per week instead of thirty. The ES asked the case manager if these behavioural issues could constitute lack of mitigation.

The case manager replied yes. She therefore sent a March 26, 2004 letter to the worker advising that his benefits were suspended due to his lack of participation; his behaviour and lack of sufficient daily application were cited as grounds for this suspension.

An additional letter was sent by the manager of Rehabilitation and Compensation Services on March 29, 2004, which stated in part:

"Although there were delays in getting your class 2 license that were beyond your control the feedback we received from the training company…suggests that your behaviors during this training was not the most cooperative. Two specific examples of your behavior that were noted include: 1) missing time during the training for personal appointments on several occasions and 2) not communicating positively around other students about the training, getting your class 2 license and working in the industry of transport driving."

The worker responded on March 30, 2004:

"...I would like to clarify a few things.

1) According to the vocational Rehabilitation Plan Amendment sent to me from [the case manager] on March 17, 2004, (dated January 14, 2004) it clearly states that I should be in a 4 week work experience, not the job search portion until April 12, 2004.

2) In regards to my not being the most cooperative, 1) missing time during the training for personal appointments on several occasions. These appointments are crucial to my everyday existence, they consisted of (3) psychologist, (1) physician, (5) physiotherapist, and (2) chiropractor. On several occasions, at several meetings with [the VRC and the case manager] I mentioned that it is difficult to change these appointments because these doctor's book several weeks even months in advance. I live in chronic pain, I need my treatments, even more now with all the physical bending, kneeling and twisting I had encountered during the training period. This was also brought to the attention of both [the case manager and the VRC].

3) In the last item, not communicating positively around other students about the training, there may have been occasions of venting in regards to life changes. I do admit that it has been a difficult transition and I have been trying to be as cooperative as possible. I want desperately to return to work as much as WCB."

The worker's benefits were reinstated shortly thereafter and within one month, work experience was found for him as a hotel shuttle bus driver. Unfortunately, on May 8, 2004, the worker suffered injury to his back when he lifted some bags for a customer.

Once again, the worker expressed his concerns about his physical ability to drive. On May 10, 2004, he told the case manager that he did not feel he could do the job given the amount of lifting and bending he had to do. He told her that he was 'barely walking'.

The worker's chiropractor followed up on the worker's back injuries and wrote to the WCB on May 20, 2004 to advise that he should indefinitely avoid duties that stress his lumbar spine such as sitting for excessive periods (greater than one hour), repetitive/prolonged forward bending at the waist, and lifting more than 25 pounds.

It was at this point that the VRC acknowledged that the worker would not be able to work as a hotel shuttle bus driver. She also acknowledged that work experience in the driving industry was not easy to secure. For this reason, the ES would need to provide ongoing effort to secure a potential placement for the worker.

On July 28, 2004 the worker once again advised the case manager that he never agreed with the IWRP and felt WCB should have trained him to read blueprints so that he could continue to work in his trade as a supervisor.

Finally, in September, 2004, the WCB agreed to have the worker undergo an FCE. The results were as follows:

"[The worker] due to his knee pathology would have difficulty crouching, kneeling, crawling, lifting from below his thighs, walking more than 3 blocks, walking on uneven ground, climbing, standing for extended periods (10 min.) and carrying more than 20lb. and lifting more than 50lb. 'occasionally'.

[The worker] due to his back problems would have difficulty stooping, bending, twisting, carrying more than 20lb. and lifting more that 50lb. 'occasionally', and sitting longer than 30min."

After review of these FCE results, the ES wrote a memorandum to file on September 15, 2004, which dealt with the discussion he had with the case manager on the results of the FCE, the labour market for NOC 7412 and the worker's employability in this NOC. What follows is an excerpt of the memorandum:

"As earlier reported, there are 1550 workers (2001 Census) in NOC 7412. FCE results indicated that jobs involving long distance bus driving may be difficult for him as his endurance in a seated position and ability to lift from floor to waist level is limited. Thus, bus driving jobs with employers like [employer names] may be difficult. Other driving jobs where regular lifting of luggage or Senior care homes and Hotels who specify this requirement may also be difficult. The total number of drivers encompassing the above work environments is considered small. The majority of workers (nearly 1000) are working at [employer name] where shifts are shorter duration (split shifts) and workers are not seated for long periods. Shuttle bus drivers at automotive dealerships are viable as most do not usually require lifting. The only physical demands are light and involve maintenance duties when workers are not driving (Maintaining vehicle appearance, tidying reception areas). Given the findings of this FCE, [the worker] would remain employable in the NOC."

The case manager followed up with a September 15, 2004 letter to the worker advising him that as the IWRP was successfully completed, he was deemed capable of earning a weekly income of $525.00 per week. His weekly benefits would therefore be reduced by this amount effective September 14, 2004, leaving the worker with $232.13 per week of benefits.

Unemployed, with weekly benefits of $232.13 per week, the worker decided to explore, on his own, a career path that would take into account his transferable skills as a welder, and one that was recommended by a consulting psychologist to the WCB in August, 2001 - one of teaching welding.

He completed his Grade XII with an adult education institution, then applied at RRCC in the vocational education teacher program. He was accepted and began the course in August, 2005. He is set to complete it on June 16, 2006. In addition, the worker will be taking a test to obtain his Red Seal certification as a journeyman. RRCC will assist the worker with a job placement. However, the worker has already been in contact with several employers and is very hopeful to secure employment.

In conjunction with his vocational rehabilitation efforts, the worker appealed the case manager's decision to the Review Office. On May 16, 2005, the Review Office confirmed the case manager's decision. It found that there was an active market for driving positions which the worker was capable of physically performing. It also found that the worker did not mitigate the effects of his compensable injury by taking advantage of the opportunities and assistance that were available to him, namely, his refusal to accept part time employment on numerous occasions, and his 'less than positive' presentation to prospective employers.

It is this decision that the worker appeals to the Appeal Commission.

Reasons

Conclusion

In conclusion, we agree with the worker and find that neither an occupational goal of working within NOC 7412 nor a deemed post-accident capacity of $525.00 per week is appropriate.

As a final remark, we would be remiss if we failed to state that we are very impressed

with the worker’s inner strength and perseverance in undertaking his own self-directed vocational rehabilitation plan. This plan not only takes into consideration his transferable skills, his physical restrictions and personality style, aptitudes and interests, but it will also lead him to a teaching position where he can share his knowledge with others in his community. This plan will also exceed, by far, the deemed earning capacity that had been considered by the board, and in fact is expected to result in a post-plan income that exceeds his pre-accident income. We commend the worker’s efforts and endorse his self-directed vocational rehabilitation plan which far exceeds the initial expectations of the WCB.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of March, 2006