Decision #63/06 - Type: Workers Compensation

Preamble

An appeal panel hearing was held on March 22, 2006, at the worker's request. Both the worker and the accident employer attended.

Issue

Whether or not an occupational goal of working within National Occupational Classification (hereafter "NOC") 6623, Other Elemental Sales (hereafter "NOC 6623"), was appropriate; and

Whether or not a deemed post-accident earning capacity of $290.00 per week (hereafter the "deem") should have been implemented effective June 11, 2005.

Decision

That an occupational goal of working within NOC 6623 was appropriate; and

That the deem should have been implemented effective June 11, 2005.

Decision: Unanimous

Background

Reasons

Background
On February 13, 2003, the worker suffered a massive complete rotator cuff tear to his right shoulder. This compensable injury left him with permanent physical restrictions consisting of no repetitive or sustained activities at or above shoulder level and no lifting greater than twenty-five pounds.

As the accident employer was unable to accommodate the worker with his restrictions, the worker was referred to a Workers Compensation Board (hereafter the "WCB") vocational rehabilitation consultant (hereafter "VRC") to assist the worker to find an alternative vocational goal.

With this aim in mind, a vocational rehabilitation assessment was completed on October 22, 2003. It revealed that the worker was 51 years old with a Grade 12 education and mainly farming, welding and painting skills.

In March, 2004 a psychological assessment was completed which revealed that the worker's aptitude strengths were in non-verbal social comprehension, applied mathematics, mental arithmetic, and factual knowledge. The psychologist administering the assessment opined that given these strengths, the worker would best be suited to a career in sales, food service, clerical/administration, customer service, supervisory work, marketing, grocery or retail product ordering, and bookkeeping/office clerking.

The psychologist noted however that the worker was experiencing functional difficulties as a result of his compensable injury. His April 6, 2004 report states, in part:

"In terms of physical functioning, [the worker] reported that he experiences pain on a daily basis, and he reported that his shoulder is easily aggravated by routine, daily activities (e.g. housework, writing, lifting or pushing objects with his right arm). In order to avoid experiencing additional pain, he limits his activities of daily living, and he tends to hold his right arm/shoulder still and close to his body. To manage pain, [the worker] also takes Tylenol 3's (9-12 per day), Zopiclone (15mg) at bedtime to help him sleep, and he rests as needed. [The worker] also reported having several other ongoing medical issues (e.g., migraine headaches, pre-existing heart condition, asthma, high cholesterol, stomach problems), and he is currently taking prescription medications for all these conditions.

As for psychological functioning, [the worker] admitted that he feels "a little depressed some days". He reported that, since the accident, he has gained 30 lbs, and he tends to drink more alcohol now (18-20 drinks per week) than is normal for him. [The worker] indicated that he smokes about a pack and a half of cigarettes a day. He also reported that things are tight financially."

Given the worker's functional difficulties, the psychologist recommended a course of individual psychotherapy to deal with issues such as chronic pain, symptoms of depression, excessive alcohol use and smoking. The WCB accepted and authorized twelve psychotherapy sessions.

In keeping with his vocational rehabilitation, the worker attended a career planning seminar where he identified several possible areas that he would be interested in working. These were retail sales (NOC 6421), wholesale sales (NOC 6411), accommodation services manager, pharmacy technician or insurance claims adjuster.

Upon discussion with the VRC, it was agreed to also focus on NOC 6623. NOC 6623 includes employment in sales through home demonstrations, telephone solicitation, retail exhibitions or street vending. Employment is offered by retail and wholesale companies, manufacturers, telemarketing companies and call centres or by self-employment. This NOC would take the worker's transferable skills into consideration and would not require the educational training that NOC 6411 did. NOC 6421 was considered to potentially be unsuitable for the worker given his lifting restrictions.

Based on these preliminary findings, a WCB employment specialist (hereafter "ES") did an earning capacity assessment (hereafter "ECA") for NOC 6623 to determine whether it was suitable for the worker.

The ECA indicates that the job market in the worker's rural community and Winnipeg, which is within 60 kilometers of his home town, for NOC 6623 was a high opportunity occupation, meaning that there were a good number of employers requiring certain skills compared to the number of available workers possessing these skills. The weekly wage rate in 2004 was $280.00.

Given the worker's physical restrictions, skills, level of education, experience and strengths, the ES opined that the worker had the requisite qualifications for entry level positions within this NOC.

With this NOC goal in mind, the worker attended a resume writing workshop and an individualized written rehabilitation plan (hereafter "IWRP") was entered into in September, 2004. It was extended on March 1, 2005 to June 10, 2005 due to a subsequent non compensable injury.

Between February 14, 2005 and June 10, 2005, the worker began his job search with the assistance of the VRC and ES. Unfortunately, the worker did not find employment within this timeframe. On June 23, 2005 he was advised in writing that effective June 11, 2005, he would be deemed capable of earning $290.00 per week (the 2004 wage of $280 indexed to 2005) in NOC 6623. His benefits were therefore reduced by this amount, leaving him with a partial wage loss benefit of $128.00 per week.

The worker appealed this decision to the Review Office which upheld it on September 19, 2005. It is this September 19, 2005 Review Office decision that the worker appeals.

Worker's Position
The worker takes the position the neither NOC 6623 nor the deem are appropriate. In support of his position he says the following:
  • He is not well suited to sales as he is not a people person and does not have sales experience;
  • His arm is not functional and at times he is incapable of much activity;
  • His shoulder and the medication he takes make it impossible for him to drive any great distance. He is therefore limited to employment in the immediate vicinity of his rural home;
  • If shoulder surgery were authorized by the WCB, he would be able to return to pre-accident status and find a labourer job without any difficulty.
Employer's Position
The employer takes the position that the NOC and the deem are appropriate. It says that the NOC is consistent with the employee's restrictions.

The Law
Vocational rehabilitation assistance is governed in part, by subsections 27(2) and 40(1) of The Workers Compensation Act (hereafter the "Act") and WCB policies 43.00 and 44.80.30.20, the relevant provisions of which are as follows:

Policy 43.00:

1. Goals and Objectives

1. 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.

V. Individualized Written Rehabilitation Plans (IWRP)

4. When developing the worker's vocational profile as part of an assessment, the WCB will include the worker's personal characteristics (e.g., age in terms of how it affects prospects for success), education, work history, occupationally significant characteristics, and transferable work skills.

Policy 44.80.30.20:

3. Requirements for WCB to demonstrate deemed earning capacity

a. The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.

b. The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.

c. The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based.

Analysis

1. The Appropriateness of an Occupational Goal within NOC 6623

A. The worker's physical capacity, education, skills, aptitudes, interests, and personal qualities

Section 3.b. of Policy 44.80.30.20 stipulates that before applying a deem, it must be demonstrated that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the NOC.

On the basis of the evidence before us, we find that the worker does have the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in NOC 6623.

i) Physical capacity

NOC 6623 comprises relatively sedentary employment with some door-to-door jobs. Examples of employment duties are as follows:

  • Direct distributors contact potential customers by phone or though personal contacts, and demonstrate and sell products directly to individual customers or at sales parties;
  • Door-to-door salespersons solicit sales and sell merchandise to residents of private homes;
  • Street vendors set up and display merchandise on sidewalks or at public events to sell to the public;
  • Telephone solicitors and telemarketers contact businesses or private individuals by telephone, to solicit sales for goods or services;
  • Demonstrators show, describe and sell goods or services at wholesale, retail and industrial establishments, and at exhibitions, trade shows and private homes.

The worker is permanently physically restricted from repetitive or sustained activities at or above shoulder level and lifting greater than twenty-five pounds.

At the hearing, the worker testified that he also has difficulty with the following physical activities:

  • Difficulties driving because of his medications and inability to shoulder check;
  • Non compensable migraine headaches which, on occasion require him to go to the hospital for a shot of Demerol or Phenergan;
  • Difficulties working with his right arm or hand for any length of time;
  • Difficulty walking more than 12 to 15 blocks.

He did not however have any difficulty sitting and was able to cook, do dishes and clean up around the house (excluding vacuuming), drive in the vicinity of his rural community, and partake, to a minor degree, in family farming operations.

When asked by the panel what it is about working in NOC 6623 that he feels he would not physically be able to do, the worker was not sure. Though driving long distances caused him concern, he thought that he might have the stamina to work a full day at a call centre. He also thought that he would be able to work out of his home.

We find the medical reports from the worker's treating physicians persuasive. They confirm the worker's ability to work in some capacity. These reports include those from his family physician who prescribes all medication to the worker, with the exception of his migraine medication. Further, the worker's reported activity level is consistent with the job duties in NOC 6623.

ii) Education, skills, aptitudes, interests, and personal qualities

NOC 6623 requires some secondary school education and possibly Grade 12.

The worker has a Grade 12 education. The psychological assessment done in April, 2004 indicates that he has the aptitude and personal qualities for a people-orientated career, which would include sales.

The worker also initially identified retail or wholesale sales as an area of interest to him.

At the hearing however, the worker told the appeal panel that he was not a 'people-person'. He felt that he did best in a job where he was told what to do. He was not sure if he would like sales. Further, he said that when he signed his IWRP for NOC 6623, he thought that he would have his shoulder surgery and things would be better.

The panel is not persuaded by the worker's argument. We feel that the worker is capable of working in NOC 6623. The worker himself admitted this on occasion during the hearing. However, he would then express the wish of having shoulder surgery so that he could go back to work as a painter or welder. This shoulder surgery was proposed by his treating orthopaedic specialist and family physician. It was however rejected by the medical advisor to the WCB for the following reasons:

  • A massive rotator cuff tear is probably not repairable;
  • The worker's history of a significant intake of analgesics, alcohol and the presence of degenerative disease in the shoulder preclude a satisfactory outcome to surgery;
  • WCB experience shows that of multiple shoulder repairs performed, only two cases have resulted in a return to pre-accident job function. Many of the injured workers were significantly more impaired than they were pre-operatively;
  • In all probability, surgery to the worker's shoulder would result in increased dysfunction and further reduce the worker's chances of any gainful employment.
Though shoulder surgery is not an issue before the panel, the worker continued to return to this issue on several occasions. By doing so, it became apparent that the worker's focus on returning to his pre-accident status and therefore his pre-accident employment has stymied him from transitioning into a new career. We feel that it is this focus, and not his ability to work, which is preventing him from effectively working.
B. The worker's ability to competitively find, compete for, obtain and keep employment in NOC 6623

The ECA assessment done for NOC 6623 in 2004 is indicative of a high opportunity occupation. Unfortunately, the worker did not make a serious attempt at finding employment. We are therefore unable to say that the ECA does not hold true in the worker's case.

The file is replete with instances where the worker did not partake in employment training opportunities (including the psychological counselling) which was intended to assist the worker find a job. For example:

  • A July 7, 2004 VRC memorandum: "[The worker] and I discussed his many re-scheduled appointments with [the psychologist] for counselling which were unacceptable if he wishes to benefit from this type of treatment. [The worker] advised that he had been busy with his farming operation and also that his car had broken down again and he had had to repair a flat tire."
  • A September 2, 2004 VRC memorandum: "On September 3, 2004, I conversed with [the psychologist] who has been authorized to provide pain management counselling also to deal with depression etc. [The worker] had an appointment on August 4th but cancelled - no reason recorded - and there is an appointment re-scheduled in early September. [The psychologist] and I mutually agreed that [the worker] should be attending every two weeks for benefit to be received from the counselling sessions."
  • September 7, 2004 VRC memorandum: "[The worker] called me today to advise that he cannot make his scheduled assessment appointment with [the person] at the [tutoring institute] on Wednesday September 8th as he has two different crop adjusters out on Wednesday…"
  • December 2, 2004 VRC memorandum: "...I conversed with [the psychologist] who stated that [the worker] had missed some sessions in the previous weeks for a variety of reasons. [The worker] had telephoned the office to advise that he would be unable to attend his scheduled appointment this date as he was unable to drive. [The psychologist] and I discussed [the worker's] participation as not being of sufficient consistency to benefit him…"
  • March 1, 2005 VRC memorandum: "...[The ES] provided him with a sampling of open job orders in call centers for entry level call center work…[The worker] advised that he would prefer to find employment in NOC 6623 in his local labor market. He advised that Rosenort and Winkler have many employers and labor market is good for this areas so with his farming knowledge he is hopeful of employment in these areas… [sic]"
  • March 2, 2005 ES memorandum: "…March 18, 2005 - the following lead was pulled from HRDC: Sun Valley Co-op - cashier and pump attendant…; March 29, 2005 - I called [the worker] to follow up on lead provided and to discuss job search plans. No answer, message left on answering machine for him to return my call; March 31, 2005 - called [the worker] again and left message for him to return my call…"
  • April 12, 2005 VRC memorandum: "[The worker] advised that he has been job searching and provided some information as to where he has sought employment…[The worker] and [the ES] agreed that future communication would be more frequent - once a week - so that [the ES] could provide job leads to the worker]. During this meeting [the ES] provided a job lead of a park attendant for the St. Malo area. This is within driving distance for [the worker] and he is interested in applying for this position…"
  • May 24, 2005 VRC memorandum: "I conversed with [the worker] today and he advised that his job search has consisted mostly of reviewing the Red River Valley Echo newspaper and noting that he is not able to do the jobs for which there are advertisements in this newspaper. I suggested that he should be more active. I suggested that he should take his resume to the … Co-op and apply for inside sales work there. I also suggested that he target other companies for customer service or sales potential employment and take his resume in to apply directly in-person even where there is no advertisement. He did follow-up on [the ES's] lead for employment as a parks attendant…"
  • May 25, 2005 ES memorandum: "May 3, 2005: ...He indicated he has seen a number of jobs in his area however, he advised they would all be outside his restrictions. He spoke about positions as a welder etc. he would be interested in - he knows this type of work is no longer a possibility for him. [He] advised he has been looking in the paper most for positions. I asked if he had a list of possible employers - he will look in the area and advise next week the names of potential employers in the area… The following job leads were pulled from HRDC:… bending press operator…This position involves lifting weights up to 20 lbs which is within [his] restrictions… Assembly Line General Labourer… again weight of 20 lbs. to lift… factory labourer…cabinet assembler…. May 17, 2005…I asked if he had prepared a list of potential employers. He had not….May 31, 2005… [he] advised the community newspaper comes in on Fridays and he will be looking there again this week to see what is available. We discussed his putting in applications at companies regardless of whether they are advertising a position. He replied that he could do that. I asked him again if he had a list of companies in his area I could contact on his behalf…"
  • June 9, 2005, ES memorandum: "[The worker] has been provided/offered all the services available to him including resume, job search interview skills, job leads, assistance with cover letters offered, offer to contact employers on his behalf. [The worker] indicated he has applied for a few positions however was unsuccessful in securing employment. He has been looking in the newspaper for available positions and has reported that the majority of openings are for positions that are outside his restrictions - many are for welding or labor positions within a manufacturing environment. [The worker] has been asked numerous times to provide a listing of employers within the range of distance he is willing to travel that we can contact on his behalf. This list was requested several times, however was never received."

At the hearing, the worker testified that he had applied for approximately ten jobs up to June 10, 2005. He has not made any substantial effort to find a job since that date.

Therefore, based on the information on file from the ECA and our earlier findings under part A, we find that the worker should have, with appropriate effort, been able to competitively find, compete for and keep employment in NOC 6623.

2. The Appropriateness of the Deem

The ECA indicates that the average weekly earnings in NOC 6623 are $552.00; the maximum is $824.00 and the starting earnings are $280.00. It is this starting wage that was applied as a deem to the worker (indexed to June 10, 2005).

As we find that the worker was capable of working within NOC 6623 and $290.00 per week was the minimum starting wage in June, 2005, we find that the deem is appropriate.

Conclusion

In conclusion, we find that an occupational goal of working within NOC 6623, and deeming a post-accident earning capacity of $290.00 per week effective June 11, 2005 are appropriate. The worker's appeal is therefore denied.

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 10th day of May, 2006

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