The Appeal CommissionThe Workers Compensation Act of Manitoba

Background:

On November 4, 2005 the worker, who was employed as a sales associate, reported to his supervisor that he pulled his right shoulder while lifting a door and carrying it down a ladder for a customer. X-rays taken on that day were normal. The worker did not miss time from work and started employment with a different company in January 2006 where he continued to lift heavy objects. However, the worker complained of ongoing shoulder pain. Following an MRI scan of the right shoulder taken on January 9, 2006 and a review of the file evidence, the WCB medical advisor was of the opinion that the worker had bursitis of the right shoulder, which had not yet resolved and recommended restrictions of not lifting more than 10 lbs. and no work using the right arm over shoulder height. The WCB accepted the claim based on a diagnosis of bursitis. On August 2, 2006 the worker stopped working because of persistent shoulder pain.

A WCB medical advisor reviewed the file on September 13, 2006 and was of the opinion that the worker suffered from adhesive capsulitis or frozen shoulder that was related to the work injury. The worker was referred to a sports medicine specialist who examined the worker on December 18, 2006 and concluded that the worker had a right frozen shoulder, which typically resolves over 12 to 18 months. The worker was approximately six months past the time the restriction in range of motion began to manifest. The specialist noted that there are no therapeutic options that shorten the duration of this type of condition and further medical treatment was deferred. The specialist noted that corticosteroid injections were contraindicated as the worker suffered from diabetes.

On January 4, 2007, a WCB medical advisor reviewed the file and recommended right shoulder restrictions for a minimum period of 6 to 8 months. The restrictions placed on the worker were to avoid tasks above shoulder height, no lifting more than 10 lbs. bilaterally, and avoidance of repetitive right upper extremity activities.

As the accident employer was unable to accommodate the worker with duties that met his physical restrictions, the case was referred to the WCB’s vocational rehabilitation branch to assist the worker with finding suitable employment.

On May 4, 2007, a WCB Vocational Rehabilitation Consultant (“VRC”) assessed the worker’s transferable skills and how they may be utilized to assist in a return to work. In her report, the VRC noted that the barriers to the worker’s return to work included leg difficulties and problems with his ability to stand and walk for any length of time due to his diabetes; inability to sit for more than 10 minutes, which the worker attributed to his diabetes and shoulder condition; continued pain in his shoulder and neck; limited education (grade 11) and limited computer skills. It was noted that the worker could work on a computer although he was not computer proficient. The worker had been employed as a warehouse worker, sales clerk, car salesman and a laboratory manager for 12 years in an optical business where he managed as many as 13 staff. The VRC concluded that the worker could not return to work as a warehouse worker or to a sales clerk position that involved heavy lifting, but it was possible he could return to work in a sales capacity that did not involve lifting outside of his physical restrictions. The VRC recommended investigating options for sales clerks and given the worker’s experience in the optical industry, laboratory or supervisory work.

An earning capacity analysis was conducted in May 2007 to determine if the worker would be employable in the occupation of Optical Laboratory Assistant/Technician NOC 3414. It was determined that the worker would be capable of returning to work as an optical lab technician, However, there was no job market for this position in the worker’s hometown.

An earning capacity analysis was conducted in June 2007 to determine if the worker would be employable in the occupation of Retail Salespersons and Sales Clerks (NOC 6421) in his hometown. The assessment concluded that the worker was physically capable of performing the duties of this occupation and that there was a job market.

On October 17, 2007, the worker was examined by a WCB medical advisor and his physical restrictions were revised to provide: no lifting of the right arm overhead; no rotational movements with the right arm; and no lifting greater than 5 – 10 pounds.

In December 2007, the VRC met with the worker and in a memo dated January 3, 2008, the VRC recorded that the worker appeared quite disabled and was walking with a cane. The worker stated he had back difficulties and continued problems related to diabetes. The worker expressed concerns that he would not be able to perform jobs in retail sales as most require lifting greater than 10 pounds or performing tasks above shoulder level. After discussing the worker’s concern with a WCB Employment Specialist, it was determined that the worker’s physical restrictions would be a barrier to most retail sales jobs covered under NOC 6421 for Retail Salespersons and Sales Clerks and that the VRC should consider whether the alternate occupation of Other Elemental Sales Occupations under NOC 6623 would be more physically suitable for the worker.

An Earning Capacity Analysis for NOC 6623 was conducted on January 22, 2008. The description of the occupational profile for Other Elemental Sales Occupations NOC 6623 provides as follows:

“This unit group includes workers who sell goods or services during home demonstrations or by telephone soliciting, retail exhibitions or street vending. They are employed by a wide range of retail and wholesale establishments, manufacturers, telemarketing companies and call centres, or they may be self-employed.”

The earning capacity assessment for NOC 6623 concluded that there was a job market for the occupation of Other Elementary Sales Occupations and that the worker was qualified and physically capable of performing the duties of this occupation. The assessment noted that while the worker may not be physically suited for door-to-door sales, retail exhibitions or street vending, he would be considered physically capable for telemarketing, which is mostly sedentary.

On February 21, 2008, the VRC met with the worker to explain the assessment that the worker had enough skills to be employable in NOC 6623 and that this occupation included call centre/customer service jobs with physical duties that were very light in nature. The worker disagreed noting that he has leg problems related to his diabetes and that he is not physically able to work an eight hour day. The VRC explained that the WCB must consider his employability within the physical restrictions related to his compensable right shoulder condition, and that the worker’s leg problems were not a compensable condition. The VRC also explained that the worker’s physical restrictions due to his right shoulder injury did not indicate that he could not work an eight hour day. The worker was advised that an Individualized Written Rehabilitation Plan (“IWRP”) would be developed to provide him with job search assistance for employment in NOC 6623.

By letter dated April 18, 2008, the VRC provided the worker with an IWRP based on the WCB’s determination that given the worker’s employment history, transferable skills and physical restrictions, he was employable within NOC 6623 for Other Elemental Sales Occupations and capable of earning a wage equal to minimum wage. The letter explained that the IWRP entitled the worker to participate in résumé writing, job search and interview skills workshops at the WCB and that he would be provided with 19 weeks of job search assistance from a WCB Employment Specialist. Effective October 12, 2008, the worker would be considered employable in NOC 6623 and his WCB wage loss benefits would be reduced by minimum wage or $340.00 per week. As a result of this reduction the worker would still be entitled to remaining WCB wage loss in the amount of $98.02 per week.

The VRC met with the worker on May 1, 2008 to discuss the IWRP. According to the file notes, the worker disagreed with the IWRP indicating that his doctor had advised that he was unemployable. The worker referred to his diabetes and related leg pain as reasons why he felt he was unemployable. The VRC explained that IWRP assessment was based on his compensable right shoulder condition and the physical restrictions imposed for that condition did not prevent him from working within the occupations under NOC 6623. The VRC informed the worker that employment search workshops were available and asked the worker to advise him if he was interested in attending.

In a letter dated May 23, 2008, the WCB advised the worker of numerous job search services that were available from the WCB, sources for job openings and a wage subsidy program offered to employers that provides an opportunity for employers to provide on-the-job training that would assist the worker in developing confidence in his job responsibilities.

By letter dated May 23, 2008, the worker appealed the WCB’s determination that he was suitable for work under NOC 6623. The worker stated that without taking several painkillers he was not able to function. He also stated that he still had severe shoulder pain, leg pain and could not sit, walk or write for long periods of time and that coping with daily living was extremely difficult. He felt that the heavy medication needed in order to function would be detrimental to everyone’s health and safety. The worker stated that he was unemployable in this state and could not work even a few hours without being in great pain.

In a July 3, 2008 decision, the Review Office held that the worker was employable within NOC 6623 and the medical evidence did not support a finding that the worker was unemployable due to his compensable right shoulder injury. The Review Office noted that the worker’s physician provided a report dated May 8, 2008, which stated that the worker was not employable at this stage “not only due to his shoulder but due to diabetic peripheral neuropathy and amyotrophy.”

In concluding that the worker is employable within NOC 6623, the Review Office referred to WCB Board Policy 43.00, which provides that vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury and the worker’s restrictions regarding prolonged standing and walking were not related to his compensable right shoulder injury and therefore not the responsibility of the WCB. The Review Office also noted that NOC 6623 included telemarketing, which was a sedentary position.

According to a file memo dated August 1, 2008, the WCB provided the worker with nine job leads for positions within NOC 6623.

On September 18, 2008, a worker advisor appealed the Review Office’s decision to the Appeal Commission and a hearing was arranged.

Evidence at Hearing held on October 27, 2008

Prior to the hearing, the worker filed three letters from his daughter, co-worker and a family friend. The letters described the worker’s lifelong dedication to working hard and doing the best job possible. The letters also described the worker’s struggle with diabetes and his present difficulties with his legs, including severe leg cramping and inability to walk without a cane or lift both arms.

At the hearing the worker described his limitations due to diabetes, a condition he has had for 55 years. The worker testified that the right side of his body is always sore and stiff and he cannot walk on concrete for longer than an hour. He indicated that he has leg problems and difficulty walking because of his diabetes and he now walks with a cane. The worker indicated that in the last two to three years he suffered from neuropathy resulting from his diabetes. He explained that about one year ago he experienced what he described as similar to a stroke that damaged his nerves. The worker related an incident that occurred sometime in 2007 while he was standing in a store and the right side of his body went numb and he fell over against a post. After a day or two the feeling came back but now walking on solid surfaces hurts. If he’s standing for a long period of time the area from his foot to his knee aches and throbs and he has periodic weakness and numbness in his right leg. The worker testified that currently he uses a cane all the time in order to provide body support. He cannot travel on concrete or walk without a cane unless he is holding on to something. The worker testified that these symptoms were continuing effects of his diabetes.

The worker provided evidence regarding the amount of medication he currently uses. He testified that he does take medication on a daily basis for his shoulder pain. Although it makes him groggy, the worker testified that he is able to drive when on this medication. The worker testified that he also takes an extra pain killer on days when his shoulder pain is bad. While the amount needed varies, the worker’s evidence was that his prescription for 30 pills lasts approximately 45 days.

The worker testified that WCB offered to arrange for him to attend job workshops in Winnipeg, but he declined to attend as he already knew how to prepare résumés and present himself at interviews. He also testified that he did not think he could do any of the jobs on the job list provided by the WCB.

The worker was questioned about the efforts he made to search for a minimum wage job within his restrictions. The worker’s evidence was that he had not applied for any jobs. He testified that he had not applied for or approached any of the nine employers on the job list provided by the WCB.

The worker’s evidence was that he did not believe he was capable of performing any of the job duties for the nine jobs listed based on his review of the job posting. The worker testified that he could not work as a customer service representative at a tool rental business because he would have to write up contracts and he may have to lift heavy tools. He testified that he couldn’t work as a customer service representative at a convenience store because he would have to set up displays, do computerized inventory and record keeping and he has no computer training. He testified that he could not work as a driver and sales worker for a distribution company since it would require lifting. He testified that he could not work as an entry level manager at a car rental business because it would require a lot of computer work and writing. He could not work as a customer service representative at a money exchange business because it required typing. He testified that he could not work as a customer service representative for a parts and service company because it would require computer skills. The worker also testified that he could not work as a store greeter or do any in-store sales because his legs prevent him from running after customers.

The worker testified that he would have difficulty working as a telemarketer because of the requirement to sit a lot and type information. The worker explained that when he types his hands stiffen up and shake. The worker’s evidence was that he has always suffered from numbness or tingling in both his right and left hands as a result of what one of the physicians referred to a paresthesias and that it had worsened in his right hand.