Decision #46/07 - Type: Workers Compensation

Preamble

This appeal deals with the worker’s entitlement to wage loss benefits and re-training.

The worker injured his left shoulder in a work-related accident. His claim was accepted by the Workers Compensation Board (WCB) and wage loss and other benefits were provided. The worker was unable to return to his pre-accident employment but was considered fit to return to other employment at the minimum wage level. The worker requested retraining assistance. The WCB refused this request and upon appeal the Review Office upheld the WCB decision. The worker filed this appeal with the Appeal Commission.

A hearing was held on February 14, 2007, at the request of an advocate, acting on behalf of the worker. The panel discussed this appeal on February 14, 2007.

Issue

Whether or not it was appropriate to implement a post-accident deemed earning capacity; and

Whether or not the worker is entitled to retraining.

Decision

That it was appropriate to implement a post-accident deemed earning capacity; and

That the worker is not entitled to retraining.

Decision: Unanimous

Background

On April 21, 2004, the worker sustained a compensable injury to his left shoulder during the course of his employment as a hotel vendor clerk. He subsequently underwent surgery to repair the fracture/dislocation of his left shoulder. In November 2004, he attended physiotherapy treatments and then returned to work for the accident employer.

In April 2005, the WCB was advised by the worker’s treating surgeon that the worker was no longer working because of his inability to lift beer cases. A Functional Capacity Evaluation (FCE) was then arranged and the results were reviewed by several members of the WCB’s healthcare branch. The following permanent restrictions were outlined:

  1. Limit floor to waist lifts to 50 lbs.
  2. Limit shoulder or above lifts to 20 lbs.
  3. Limit repetitive overhead reaching with left arm
  4. Limit carrying to 30 lbs.
  5. Left arm single lifts limited to 11 lbs.
  6. Limit lifting tasks to 33% of work day

As it was determined following a work site evaluation that the worker could not return to his previous employment duties due to his permanent restrictions, he was referred to the WCB’s vocational rehabilitation branch for assistance in obtaining alternate employment.

Given the worker’s previous job experience and transferable skills, an Individualized Written Rehabilitation Plan (IWRP) was established for the worker with the occupational goal of NOC 6611 Cashier. The duration of the plan was 13 weeks which consisted of one week of a sponsored job search and interview skills workshop and 12 weeks of job search. Following completion of the plan, it was determined that the worker would be capable of earning $290.00 per week with maximum earnings of $382.00 per week. The plan was signed by the worker on October 31, 2005.

A WCB Employment Specialist (ES) wrote several memos outlining the worker’s job search activities between February 20, 2006 and May 15, 2006. Briefly, these memos revealed that the worker had missed appointments with the ES on several occasions and was not diligent with following up on job leads.

Effective May 12, 2006, the worker’s vocational rehabilitation plan was completed. He was advised in a letter dated May 25, 2006, that his benefits were being reduced based on his established earning capacity even though he remained unemployed. As he was considered capable of earning a weekly amount of $304.00 based on the criteria used to determine an earning capacity, effective May 13, 2006, his benefits would be reduced by this amount entitling him to a weekly benefit rate of $0.00.

An advocate for the worker appealed the above decision on July 21, 2006. The advocate explained that the reason why the worker did not show up for some appointments was because there were times when he was ill or simply frustrated at the way his file was being handled. He pointed out that the worker did not have “a work history of cashiering” as the WCB ES had stated on the file. The worker only had one year and a few months handling cash at a hotel vendor and the advocate did not believe that this constituted a work history of cashiering. The advocate pointed out that about 75% of the job referrals given to the worker consisted of cashier positions which were either part-time or targeted females and younger people. He noted that some of the job referrals required that the worker have his own transportation, perform heavy lifting, have computer related experience or have a minimum 2 years experience relevant to the position. He stated that the worker would be unable to qualify for any of these positions.

The advocate submitted that the WCB did not really offer the worker any constructive options. Due to his age and lack of skills, the advocate felt that some type of training would benefit the worker’s long term employment perspectives. He also thought that the worker’s benefits were terminated too quickly based on the severity of his injury.

On August 24, 2006, Review Office determined it was appropriate to implement a post-accident deemed earning capacity and that the worker was not entitled to retraining. Review Office noted that the worker’s pre-accident employment was at a level approximately equivalent to minimum wage employment and that NOC 6611 was consistent with the worker’s transferable skills and his restrictions. It stated that the IWRP developed for the worker by the WCB was the most cost-effective and viable option. It stated that providing the worker with retraining would increase the costs for the IWRP and would not meet the criteria of being cost effective.

Review Office was of the opinion that the WCB had met the requirements of Policy 43.00, Vocational Rehabilitation, and Policy 44.30.80.20, Post Accident Earnings – Deemed Earning Capacity and that it was appropriate to implement a deemed earning capacity on completion of the worker’s IWRP. It felt the worker did not fully participate in his vocational rehabilitation activities which likely impacted on the worker’s unsuccessful job search.

Review Office noted that the worker was right hand dominant and thus, his limitation with respect to occupations in the sedentary to light strength category as stated in the Earning Capacity Analysis (ECA) was minimal, affording him access to most of the opportunities within NOC 6611, which has an active labour market offering numerous and varied prospects.

In December 2006, the worker’s advocate appealed Review Office’s decision and a hearing was arranged.

Reasons

Worker’s Position

The worker attended the hearing and was to be represented by an advocate who did not attend. Attempts to reach the advocate were unsuccessful. The worker was offered the choice of adjourning to a future date to accommodate his advocate or proceeding with the hearing. The worker chose to proceed with the hearing.

The worker advised the panel that he has always done physical work with heavy lifting but because of the workplace accident he can no longer do physical work. He asked that the WCB provide retraining assistance so that he can find a job which complies with the restrictions which resulted from the workplace accident.

He advised that the WCB gave him job leads, but said these jobs involved heavy lifting or cashier work. He said that many of the jobs, such as store clerk or gas station clerk, involved heavy lifting. He disagreed with the WCB suggestion that he is qualified to work as a cashier. He said he had only one year experience as a cashier. He also expressed concern about the possibility of being attacked in a cashier position and said that he would like to avoid working with money.

In answer to a question, the worker acknowledged that he learned to use the cash register at his pre-accident job within about four days. He advised that it was a pretty straightforward machine. He also advised that in his pre-accident job he was able to process cash and credit card payments. He confirmed that he has grade 12 standing.

He advised that he did not think that restaurant work would be good for him. He asked that the WCB consider training him to use computers. He is interested in learning to do tax preparation. He advised that he wants to work full-time.

Regarding a job search he advised that he checks the paper regularly but has not found any jobs which match his experience except for heavy lifting jobs. He advised that he has not applied for a job since May 2006.

Regarding his left shoulder he advised that he had a shoulder replacement and had restrictions on the use of the shoulder. He advised that his physician told him he had about 65 percent use of his left arm. He advised that his elbow and hand are okay. He also advised that he is right hand dominant.

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors of the WCB. This case deals with vocational rehabilitation assistance which is mandated by The Workers Compensation Act, specifically subsection 27(20). In addition there are policies of the Board of Directors which are directly applicable to this appeal.

Subsection 27(20) provides that the WCB may provide academic, vocational and rehabilitative assistance to workers. Such assistance is considered to be a discretionary benefit.

WCB Policy 43.00, Vocational Rehabilitation, outlines eligibility for vocational rehabilitation services, the services that are available and when vocational rehabilitation will be discontinued.

WCB Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity, deals with when the earnings a worker is deemed capable of, but not actually earning, will be included in the loss of earning capacity calculation.

Analysis

There were two issues before the panel. The first issue was whether it was appropriate to implement a post-accident deemed earning capacity. The second issue is whether the worker is entitled to retraining. The panel finds that it was appropriate to implement a post-accident deemed earning capacity and that the worker is not entitled to retraining.

The panel finds that while the worker is unable to return to his pre-accident position due to permanent restrictions arising from the accident, the worker is fit to return to other employment. The panel notes that the pre-accident employer is unable to provide the worker with modified or alternate duties and accordingly the worker was provided with vocational rehabilitation benefits in accordance with WCB policies.

With respect to the post-accident deemed earning capacity, the panel finds that the decision to deem the worker and the amount of the deemed earning capacity complies with WCB Policies.

The panel finds that the worker is capable of finding, obtaining and keeping work in NOC 6611- Cashiers. The ECA noted that this occupational group was in the light category for strength requirements, there were significant workers in this category, there was a large number of job postings, and the employment potential was good. The panel is satisfied that with his grade 12 standing and prior experience and training as a hotel vendor clerk, this was an appropriate occupational goal for the worker which respected his permanent restrictions.

The panel notes that the worker’s pre-accident earnings were calculated to be roughly equivalent to the minimum wage ($281.25) and that the positions under NOC 6611 provided compensation commencing at the minimum wage level. The panel is satisfied that the worker is capable of working full time in a minimum wage position in NOC 6611 and finds that the worker’s post accident earning capacity is properly calculated to be at minimum wage (commencing at $290.00 per week).

Wage loss is paid on the basis of loss of earning capacity which is the difference between the worker’s average earnings before the accident and what the worker is determined or deemed to be capable of earning after the accident. In this case, applying the formula the worker’s loss of earning capacity is $0.00 and therefore no wage loss is payable.

The evidence discloses that the worker’s average earnings before the accident were $281.25 while his deemed post accident earning capacity was higher at $304.00 As such, there is no loss of earning capacity as he was deemed to be able to earn more afterwards.

The panel also finds that the worker was provided with suitable vocational rehabilitation services in the form of a job search and interview skills workshop and job search with the assistance of an ES. The panel notes that the worker did not follow up on job leads and did not appear to seriously look for work. The worker advised the panel that since his wage loss benefits were terminated he has not found employment and had not applied for a position since May 2006. The panel finds that the worker’s failure to find employment is due to the worker’s actions and barriers that he has imposed.

With respect to retraining, the panel finds that the worker is not entitled to retraining. The panel finds the worker is capable of finding and working in an occupation in which he would recover his average earnings.

The worker’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2007

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