The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on May 16, 2006, at the worker's request. The worker appeared and presented evidence. No one appeared on behalf of the employer.

Issue

Whether or not an occupational goal of working within National Occupational Classification 6421, Retail Sales Person and Sales Clerk, is appropriate.

Decision

That an occupational goal of working within National Occupational Classification 6421, Retail Sales Person and Sales Clerk, is appropriate.

Decision: Unanimous

Background

Reasons

Introduction
On August 11, 1999, the worker suffered a compensable injury to his left knee which has left him with several physical restrictions. In addition, the worker suffered an aggravation of pre-existing psychological conditions related mainly to anxiety and anger management.

At the time of his workplace injury, the worker was employed as a general labourer. He was unable to return to this job because of his knee condition. As alternate employment was not available with his accident employer, the Workers Compensation Board (hereafter the "WCB") referred the worker to its vocational rehabilitation services department (hereafter "Voc Rehab") with the aim of finding a suitable alternative occupational goal.

The outcome of the Voc Rehab process was retail sales. The worker says that this occupation is not for him. He says, in particular, that he cannot work under someone else's authority and would not be able to deal with customers given his anger management problems.

Overview of the Voc Rehab Process
The worker's Voc Rehab did not proceed smoothly. It was frequently interrupted because the WCB has cut off the worker's benefits on multiple occasions. Further, there has been disagreement between the worker and the WCB over the worker's physical restrictions. These issues appear to have been resolved as a result of a Medical Review Panel which took place in 2003. It is after that date that the worker's Voc Rehab commenced which resulted in an occupational goal of working in NOC 6421 which has been appealed to this panel.

That said, it is important to examine the file material prior to this date as it helps to explain the Voc Rehab process after 2003.

* * *

The worker was first referred to Voc Rehab in the summer of 2000. A Voc Rehab Consultant (hereafter "VRC") met with the worker on July 20, 2000 and an appointment was made for a vocational assessment to be done by a registered psychologist.

In an August 10, 2000 letter the registered psychologist described the worker as follows:

"[The worker is] a man who enjoys being with people and interacting with them. He can be mildly verbally aggressive and does not back down from conflict or argument...He enjoys helping people and is interested in caring for the young, the old and the disabled…He appreciates receiving help and support from others, and will seek advice and reassurance…"

The registered psychologist also indicated that the worker's vocational interests were clustered around social service, teaching, skilled trades, and business-orientated occupations.

WCB memoranda to file indicate that the worker was mainly interested in working as an outreach worker. He did not want to work in trucking or heavy equipment (March 1, 2002 memorandum). Employment opportunities as an outreach worker were explored in 2002; nothing came about as the worker informed a potential employer that he was taking Paxil, Lorazepam, sleeping pills and was under psychiatric care (May 10, 2002 memorandum).

The file material also indicates that the worker was experiencing increasing frustration with the WCB which led to an aggravation of his pre-existing anxiety and anger management problems. For example:

• A July 21, 2000 memorandum to file states that the worker "was very pleasant to meet with. He talked about the frustrations he has had with the WCB up to this time".
  
  
• An October 19, 2000 memorandum to file states "that he has been feeling angrier lately and is having flare-ups in his anger. [He] told me that he tries to stay out of his old haunts to stay out of trouble. He talked about the anger he felt in his earlier dealings with the WCB. He said that he really felt corner [sic] in at the time and said that he had thoughts about coming into the WCB and "breaking some legs." In further discussion of this comment, [the worker] told me that he might feel like doing something but that he won't do anything. He said that violence is the last resort."
  
  
• A December 4, 2000 memorandum states: "The claimant expressed a great displeasure in the past with the WCB as his benefits had been terminated at one point…he has experienced difficulty in sleeping. He states that he wakes up and then cannot fall back asleep. [He] described himself as feeling "somewhat glum" in the evenings and not having much focus…[He] denies any suicidal ideation and advises that his religious beliefs would not allow him to entertain such an option…he has recently started a Paxil regime to assist him in his anxiety."
  
  
• A December 12, 2000 memorandum states that the worker "reports that he has on a few occasions recently vomited in the morning. States he is experiencing anxiety attacks; palms sweating, difficulty breathing, increased heart rate. Claimant describes feeling as though "he was going to die". Claimant reports having anxiety attacks in the past however not in the past 11 years of so." This information led to a psychological assessment by a WCB psychological advisor. A January 11, 2001 report summarizes this assessment. Of note is the description of the worker's personality and his treatment regime:
  
  "The other pattern he is displaying is felt to characterize a pre-existing personality style of this gentleman. He is likely to show marked disregard for social standards and values and may exhibit antisocial behaviour, have a poorly developed conscience and fluctuating ethical values. He does acknowledge a wide array of antisocial acts, including alcoholism, fighting, stealing and other acting out behaviours. Others are likely to see him as being selfish, self-indulgent and impulsive. He does have difficulty in delaying gratification or impulses. He is prone to showing poor judgement and may act without considering the consequences of his actions. He also will seemingly fail to learn from punishing experiences. He is likely to manifest low frustration tolerance, moodiness, irritability and a caustic manner. He does tend to show intense feelings of anger and hostility which are often expressed through negative emotional outbursts. Others are likely to see him as being energetic, restless, overactive and needing to seek out emotional stimulation and excitement. He also may be seen by others as being uninhibited, extroverted and talkative. He is likely to create a good first impression, but his relationships are often superficial and tend to wear thin over time. As a result, he is likely to tend to keep others at an emotional distance. His social façade may hide a lack of self-confidence and security. Individuals with this profile often do not accept responsibility for their own behaviour and are not prone to seek treatment unless others pressure them to do so. They are likely to rationalize their own shortcomings and failures and blame their difficulties on others…It would appear that at present he is receiving appropriate treatment in the form of psychotropic medication, specifically Paxil and Lorazepam, along with his participation in individual therapy with both a psychologist and mental health worker…"
  
  
• An April 19, 2001 medical report from his treating psychiatrist states: "My impression is that his primary difficulty is his sense of anger directed towards Worker's (sic) Compensation Board in that he feels that he was deceived by them. He certainly presents a chronic, but a low risk, to harm others. There is at this time no acute risk of him harming others. Rather than seeing him as a risk to harm others he primarily at this point and time is taking the route of intimidation..."
  
  
• A May 17, 2001 medical report from his treating psychiatrist states: "…I note he states that he is currently receiving no physiotherapy on his knee and, secondly, that he had a vocational worker, but he stated that the "file was closed". Both of these aspects seem to be essential at this time in terms of further enhancing his overall functioning and, certainly, in terms of his mental well being…I will be completing the Provincial Assistance Form requesting a three month period with no work pending further evaluation from [a psychologist]"
  
  
• A June 21, 2001 medical report from his treating psychiatrist sates "…He has occasional episodes of anger which come "out of the blue" and seem very difficult for him to control, however, they are not directed at individuals, but at inanimate objects, for example, his lawn mower. He does remain embroiled in issues relating to the Worker's (sic) Compensation claim and feels that he has been unjustly dealt with. He talks about wanting to get back at people and "letting them have it", however, he denies that he is going to harm anyone stating "I ain't gonna hurt anybody, but I'd like to go into that Worker's (sic) Compensation building sometime". He stated as well that the only way I got any attention was when "I said I was gonna break someone's f-ing neck"..."
  
  
• An October 24, 2001 medical report from the worker's treating psychiatrist states:
  
  "[The worker] has suffered from anxiety as a result of his 1999 commensurable [sic] injury…[He] has required treatment for his anxiety disorder, and in fact the treatment with antidepressant/anti-anxiety medication has been effective in decreasing the frequency and intensity of panic attacks. As well, it has allowed him to maintain some control over his frustration and anger which has been directed at times toward the way that there has been lack of progress in his view in the settlement of his claim."
  
  
• A November 22, 2001 medical report from his treating psychiatrist states: "…He is hoping to obtain some form of work in [his rural community], but as I understand so far this has not been forthcoming through Worker's (sic) Compensation Board. He makes comments that he would like to "let someone have it", however, he continues to be on the verge of intimidating Worker's (sic) Compensation Board personnel, however, he denies any active thoughts of harming himself or anyone else."
  
  
• A February 13, 2002 memorandum notes that the worker said that "WCB was a "target" for his anger and he did not want to meet and "make a fool" of himself or "waste [WCB's] time. He said he was not "feeling right in the head" and that his psychiatrist…had advised him not to meet with [the WCB] when he was feeling that way. He said he felt like taking a base ball [sic] bat and hitting someone or something". He said he had no feelings of self harm but that he would not think twice about taking a base ball bat [sic] and hitting someone and then just walking away and forgetting about it. He reported that he threw the telephone through the wall after he spoke to [the WCB]. He said he was thankful there was a God because if there wasn't, he "could break all the rules."…He reported that his friends and family are staying away from him recently because of his behavior and that he tries to avoid noise and people as much as possible because he feels so violent. He reportedly had an altercation with his best friend recently because his friend hooked his arm with a pool que [sic] while they were playing pool."
  
  
• A February 21, 2002 medical report from his treating psychiatrist states: "He relies heavily on his "faith in God and his family" and this is what keeps him able to continue living day to day. He admits that he does have anger towards people at the Worker's (sic) Compensation Board because of various injustices that he has had the sense of suffering from, although, he denies any specific plan to harm anyone. He asked specifically today about Paxil 30 mgs. He had significant improvement after the Paxil was started with respect to panic attacks and anxiety he had been experiencing, however, he was wondering if the Paxil was of any benefit to him now considering that he has been taking it for two years. I suggested to him that right now is probably not a good time for him to be changing his medication, but I would be pleased to review this with him when things were a bit more stable for him…"
  
  
• A May 16, 2002 medical report from his treating psychiatrist notes that the worker seemed to be fairly stable;
  
  
• A June 12, 2002 memorandum summarizing a meeting dealing with the adjourning of preventive voc rehab states: "The claimant became progressively agitated throughout the duration of the meeting…raising his voice on numerous occasions and accusing the writer of making "rookie mistakes". The claimant had also stated, "You don't want to mess with me" and, "You don't want to fuck with me"…"
  
  
• A June 20, 2002 medical report from his treating psychiatrist states: "He states he is still upset regarding Worker's (sic) Compensation. He, however, continues to deny that he has any thoughts to harm a specific person, and has no plans of this nature. In this respect, he continues to represent a chronic, but overall low risk of harm to other people. He endorses a number of factors, which reduce this risk, including involvement with AA, support from his family, and his involvement with the church. He also finds it helpful to meet with myself and [his community mental health worker]."

* * *

When the worker was referred back to Voc Rehab in 2003, this referral appears to have been done on the assumption that the worker was capable, from a psychological point of view, of participating in vocational rehabilitation. This is the position advanced by a WCB psychiatric consultant in an October 12, 2002 report. It was not however the position of the worker's treating psychiatrist who, in an October 17, 2002 report, thought that at that time, any participation was "questionable". A September 2, 2003 report from the worker's psychiatrist did note however that the worker's pain disorder was in good remission.

A functional capacity evaluation was done in 2003 and in early 2004 Voc Rehab began reviewing possible occupational goals for the worker.

Memoranda to file note that realistic occupational goals in or near the worker's community were scant. A January 8, 2004 memorandum to file notes that the worker's rural town only had a population of 265 and that it was uncertain as to whether an earning capacity could be established locally for the worker. In a meeting with the VRC, the worker confirmed that there were no recent employment opportunities within his rural communities but that he was not willing to relocate to a larger community with more employment opportunities. The VRC explained that in the event that a labour market could not be confirmed in his rural community for occupations within his restrictions, WCB Relocation Policy 43.20.40 might be implemented.

The VRC identified four potential NOCs that she thought would be the most probable sources of work within the worker's rural community - NOC 6683 Other Elemental Services, NOC 6651 Cashiers, NOC 6421 Retail Sales, and NOC 7411 Truck drivers. As stated previously, the worker was not interested in trucking. A WCB employment specialist (hereafter "ES") selected NOC 6651 and 6421 as the most realistic occupational goals for the worker's rural area and did a labour market survey for these two NOCs. The result was that no labour market existed for NOC 6651, and only a limited labour market existed for NOC 6421.

An earning capacity analysis (hereafter "ECA") was therefore done for NOC 6421. In doing the ECA, the ES took into account the following:

1. The worker's physical restrictions:

• Avoid excessive/repetitive knee bending;
• Avoid lifting over 75 pounds;
• Avoid carrying more than 60 pounds for any distance greater that 30 feet;
• Avoid unreasonable/ excessive stair/ladder climbing;
• Potential work should allow for use of a knee brace;
• Potential work should allow for the worker to change position for comfort from time to time.

2. The worker's transferable skills:

• Grade 12 education;
• 22 years as a volunteer in local hockey;
• Community coordinator/ outreach worker with a provincial organization.

Retail sales is designated light work with lifting of 5 - 10 kilograms. The physical requirements include near vision, colour discrimination, verbal interaction, standing and/or walking and upper limb coordination. The main duties in retail sales include the following:

• Greet customers and discuss the type, quality and quantity of merchandise or services sought for purchase, rental or lease;
• Advise customers on the use and care of merchandise, and provide advice concerning specialized products or services;
• Estimate or quote prices, credit terms, trade-in allowances, warranties and delivery dates;
• Prepare merchandise for purchase, rental or lease;
• Prepare sales, rental or leasing contracts and accept cash, cheque credit card, or automatic debit payment;
• Assist in the display of merchandise;
• Maintain sales records for inventory control;
• Operate computerized inventory record keeping and re-ordering systems;
• Possibly conduct sales transactions through internet based electronic commerce.

The ES concluded that the worker had the skills, ability and physical capacity to work in retail sales.

On the basis of this ECA, the worker was advised that NOC 6421 had been chosen as the occupational goal for him. The worker did not think that he would be well suited for a job working with the public as he was taking anger management classes and had anger issues. He differentiated his prior work as a volunteer stating that he could relate "to those guys as they were in AA like him" and that "he was the boss and did not have to answer to anyone".

Prior to completing an IWRP, the VRC sought input from the worker's psychiatrist and community health worker. The letter to these two health care professionals indicated that WCB was implementing Voc Rehab services for the worker and that any future employment would respect his physical restrictions and remain within his rural community. No mention was made of employment as a retail salesperson.

The community health worker responded on June 7, 2004 stating that she would support this plan if the worker was in agreement with it.

The psychiatrist did not agree. On June 21, 2004 he wrote:

""I would note that these limitations on his physical work have absolutely nothing to do with his depression and anxiety for which I follow him as a psychiatrist and would suggest that it be entirely inappropriate of myself to comment on the appropriateness of these restrictions as part of an acceptable vote [sic] rehab program. Although, you have not addressed any of the psychologic [sic] issues that would be important for [the worker's] successful return to work I would be happy to state in advance that it would be highly unlikely that [the worker] would be able to function satisfactory [sic] in a retail position."

This position was later clarified in a September 9, 2004 letter:

"…I would point out [the worker] has, what might be called, an abrasive approach to personal relations. I would also draw your attention to [the worker's] relationship with the Worker's (sic) Compensation Board which has been, at times, quite troubled to the point that I think he has been called antisocial in the past. I understand that [the worker] has been threatened with having the RCMP called in to ensure safety of Worker (sic) Compensation Board members. In regard to possible employment considerations, I would suggest that [the worker] would be an excellent advocate for people who are having problems dealing with bureaucratic systems…"

The IWRP was nonetheless written up and signed by the worker on June 10, 2004 for the period of June 14, 2004 to September 14, 2004. The IWRP recognized that retail sales was not the worker's preference for employment but that given the limited employment options within the worker's rural community, this was the only realistic option.

The worker then found a position from September 7 to November 12, 2004, as a Sales Counter Clerk with a local welding shop where he worked at the order desk dealing mainly with customer inquiries over the phone and in person.

Memoranda to file indicate that the worker's experience at the local welding company was positive:

• September 28, 2004 memorandum to file: "…[he] states that his work experience…continues to go well…He advised that the staff at this placement are quite good and very understanding of his situation and physical limitations. [He] explains that he continues to work in the front office answering the telephones and has recently begun reviewing the billing system with the owner…He reports that he enjoys what he is doing and that same allows him to keep his mind focused on certain tasks…Overall, [the worker] is pleased with his current placement and feels that things are going well."
• October 18, 2004 memorandum to file: "[the employer's spouse] indicated that [the worker] has been very helpful and is answering phones, looking up information on the internet and sending faxes…"
• December 1, 2004 memorandum to file: "[the employer]…agreed [the worker] did a good job in what he could do, but he does not have enough skills in this field to be employed in a shop [of their] size…[The worker] did provide customer service, to drop in customers and particularly over the phone. He handled calls in a professional manner, but could only deal with customers on a very cursory basis in this business…"

Unfortunately, the worker did not find any further employment after that date. As the worker declined relocation and the labour market in the worker's rural community was basically non existent, WCB Relocation policy 43.20.40 was implemented February 21, 2005 until February 21, 2008. This means that the worker will receive three years of full wage loss benefits until February 21, 2008, at which time his benefits will be reduced based on his earning capacity in a larger community. This effectively works out to no wage loss benefits after February 21, 2008, given the worker's pre-accident earnings.

On October 29, 2005, the worker outlined his concerns to his VRC that he did not feel he was physically capable of working in retail sales as he cannot stand for long periods of time on a hard surface and that his personality was not well suited for working with people.

On November 3, 2005, the worker appealed the WCB's decision that the occupational goal of a retail sales person and sales clerk was appropriate. On December 7, 2005, Review Office agreed with the VRC's decision. It is this decision that the worker appeals to the Appeal Commission.

Worker's Position
The worker takes the position that NOC 6421 is not an appropriate occupational goal for him. He says that retail is not for him - he does not like it and he continues to have anger management issues which would not fit well with retail sales.

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
To accept the worker's appeal, we must find that he does not have 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. Based on the evidence before us, we are unable to make that finding.

At the hearing, the worker expressed the inappropriateness of retail sales as follows:

"But retail, I can't. I don't even in [sic] go in stores, I don't like stores… I don't like, you know, I just - and, but when they said, you know, you got all these, they said, oh, you got all these interpersonal things and that, you know, that's neither here or there. I was the boss, I was - I enjoyed what I did. And I didn't take orders and I wasn't selling things. I was just giving my experience to the other kids, how to referee proper hockey games. It's as simple as that.

And they give me, like I said, it's ironic, they give you all these things to fill out, see what your best job is, you know, pages like this here. And at the end it shows, you know, retail was the least interested, or least one, and that's the one they pick, because it's the easiest one for them, not for me,

So that's the way I was and I wasn't trying to be smart or arrogant, but, see, my blood pressure gets up even just talking about stuff like that. It gets me hot around the collar. But that's the way she goes…

I just want to - basically what I want to do is tell them they're wrong. That's wrong for me, what they did, trying to put me in this vocational retail thing is wrong. And it's not because I don't want to do it, it's because - - well, yes, it's because I don't want to do it, because I don't like to do it. And it's not me.

I probably would last five minutes in there, five minutes in the store. Somebody would come up and say, you know, this or this, or how is this and that, I'd just tell them, you know, go "f" yourself and go ask somebody else, or I have a bad day and then my people skills ain't very good when I, you know, get a bad day and I got to deal with some arrogant salesperson that or a consumer would bring something half empty and want back a full bottle and use a half of it. You know what I'd go tell him to do? That's what I'd tell him to do."

We have considered the worker's submissions particularly with regard to his psychological ability to work a job in retail. Our findings follow:

i) The worker would be able to physically work in a retail job as the physical requirements of a job in retail sales respect the worker's physical restrictions.

ii) The worker has the required level of education to work in retail sales.

iii) The worker states that he is not interested in working in retail sales. However, the evidence regarding his work placement does not fully support this assertion while memoranda to file, test results and the worker's evidence at the hearing confirm this. The worker's advice to his VRC was that he was enjoying his work placement and overall pleased with it.

iv) In any event, a worker's level of interest in a particular NOC is not determinative of whether a NOC is appropriate for a worker. While the WCB should try to find a NOC that the worker is interested in, this is not always possible, nor is this a necessary prerequisite of a VR plan, under WCB policy. In the worker's case, the labour market is extremely limited. Most of the available jobs, outside of heavy labour which the worker is physically prohibited from doing, do not interest him. In these circumstances, while we note that the worker has a strong dislike for retail, we do not find that it is of sufficient weight to find that retail sales is inappropriate for him.

v) In our opinion, the worker's skills, aptitudes and personal qualities are best assessed in examining the medical reports and memoranda to file.

In reviewing these reports and memoranda we find that the worker had a pre-existing anxiety and anger management problem as well as what has been referred to as antisocial traits. This personality and these behavioural issues pre-exist the workplace accident. Despite them, the worker was able to maintain employment, volunteer and have relationships with people.

We note, however, that the aggravation of his anxiety and anger after the workplace accident appear to be mainly as a result of his dealings with the WCB. These dealings are characterized by "intimidation" tactics. They do not appear to be pervasive in his dealings with others outside of the WCB. The worker was able to complete a work experience in a retail setting that by his account and his employer's account was positive. Further, the worker testified at the hearing that he would like to be an advocate since he likes helping people. He spends a great deal of his days helping others. This propensity for helping others and being psychologically able to help others is echoed by his psychiatrist.

The worker has also been characterized as having an "abrasive approach". His psychiatrist relies on this to substantiate his position that the worker is not fit for retail sales. This "abrasive approach" is referred to, albeit in different terms, in other medical reports and memoranda. Interestingly, the reports also state that the worker is personable, talkative and out-going, even if these are only a cursory presentation.

In weighing the evidence, we do not find that the worker is precluded from working in retail as a result of his psychological make-up.

In conclusion, we find, on a balance of probabilities, that the NOC 6421, Retail Sales is appropriate for the worker. Though we appreciate that this is not the worker's ideal choice of employment, nor the type of employment that he is best suited for, it is nonetheless an appropriate one.

Accordingly, we would deny the worker's appeal.

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 5th day of July, 2006