Decision #19/09 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (“WCB”) for bilateral carpal tunnel syndrome. The worker is currently appealing a decision that was rendered by Review Office which stated that the occupational goal of National Occupational Classification (“NOC”) 6421 (Retail Salesperson and Salesclerk) was an appropriate vocational goal for the worker and that a deemed post-accident earning capacity of minimum wage should have been implemented as of November 22, 2006. The worker disagreed with these decisions and an appeal was field with the Appeal Commission through the worker’s union representative. A hearing was held on December 2, 2008 to consider the matter.
Issue
Whether or not the vocational rehabilitation plan with an occupational goal of working within National Occupational Classification (“NOC”) 6421 (Retail Salesperson and Salesclerk) was appropriate; and
Whether or not a deemed post-accident earning capacity of minimum wage should have been implemented as of November 22, 2006.
Decision
That the vocational rehabilitation plan with an occupational goal of working within National Occupational Classification (“NOC”) 6421 (Retail Salesperson and Salesclerk) was appropriate; and
That a deemed post-accident earning capacity of minimum wage should have been implemented as of November 22, 2006.
Decision: Unanimous
Background
In July 2001 the worker reported that as a result of continuously cropping turkeys, she developed severe pain in her right three fingers and wrist that shot up to her arm. The worker was diagnosed with bilateral carpal tunnel syndrome (“CTS”) and a left sided carpal tunnel release was performed on May 30, 2002.
In August 2003, the worker met with a WCB Vocational Rehabilitation Consultant (“VRC”) for an initial vocational assessment. It was determined that the worker had a grade 12 education, a Criminology Certificate, a First Class Power Engineering Certificate and a Class 5 driver’s licence. The worker’s employment history included employment as a production worker, a cook and a janitor. The worker had temporary restrictions to avoid the use of her left hand and to avoid repetitive flexion and extension of her wrists.
On December 16, 2004, the worker was advised by a WCB VRC that arrangements were being made for her to undergo vocational testing in order to identify a vocational goal and to develop an Individualized Written Rehabilitation Plan (“IWRP”).
On January 26, 2005, a Vocational/Educational Assessment report stated, in part, that the worker had reasonable skills and a solid learning ability. Given the worker’s age and residence location, employment options were considered to be limited and training did not seem to be justified in terms of cost effectiveness. The report further stated that the worker had the ability to train and be successful in employment roles beyond her past experience, including work in child care, animal health care, floral arranging, sales or food service or as an educational assistant.
In May 2005, the worker advised the WCB that she was unable to participate in vocational rehabilitation activities due to pain and her inability to drive, as a result of which vocational rehabilitation activities were placed on hold.
On October 6, 2005, the worker was advised that no responsibility would be accepted by the WCB for wage loss benefits or treatments beyond December 29, 2005, as a WCB medical advisor had concluded in a report dated August 31, 2005 that she had no restrictions to preclude her from returning to her pre-accident work activities. This decision was appealed to Review Office. On March 26, 2006 Review Office determined that the worker was not entitled to retroactive wage loss benefits; however wage loss benefits were to be reinstated contingent upon her participation in a vocational rehabilitation plan. The worker agreed to participate and her vocational rehabilitation program resumed.
On May 2, 2006, the worker advised her WCB case manager that she had applied for employment on a production line dealing with medications and also as a cook, but had not yet heard back.
In a May 8, 2006, report, the family physician stated, in part, “… she has hand pain and impaired grip strength. She is therefore limited to light activities with her hands for only short durations of time. Her driving should be limited to about an hour per day, as it is difficult for her to grip the steering wheel for any longer than that. An exception would be made when she has to drive in for medical appointments. These restrictions should be in effect for the next 6 months.”
In a May 8, 2006 memo to file, a WCB VRC noted that the worker had permanent restrictions to avoid repetitive, forceful grasping movement of the fingers of both hands.
On May 23, 2006, an Employment Specialist (“ES”) indicated that based on the worker’s skills and restrictions, the labour market opportunities most open to the worker would be in NOC 6421, (Retail Salesperson & Salesclerk). The positions in this NOC were frequently posted and included a wide range of positions with small, medium and large employers.
An Earning Capacity Assessment (“ECA”) dated June 6, 2006 indicated that the worker was physically capable and had the transferable skills to obtain positions as a retail salesperson and sales clerk, and that there was a job market in her area of residence for these positions. An IWRP was then developed which included the completion of a tutorial program and job search, and was to run between August 1, 2006 to November 24, 2006. Upon completion of the vocational plan, it was anticipated that the worker would be capable of earning a starting wage of $304 per week. If employment was not secured after the job search period, the worker’s benefits would be reduced in accordance with WCB policy.
On October 11 and 16, 2006 the worker reported to the VRC that she was continuing with her job search efforts and had applied for various retail sales and other positions in the centre closest to her rural residence.
On November 6, 2006, the worker advised the WCB that she had applied for 16 different jobs both on-line and in-person within the previous five days.
On November 22, 2006, the worker advised her VRC that she had worked two shifts at a store unloading Christmas trees. She found the cold weather bothered her hands and wrists, however, and she had quit the job.
In a letter dated November 29, 2006, the WCB case manager advised the worker that her vocational rehabilitation plan would be completed effective November 21, 2006 and that her benefits would be reduced based on her established earning capacity in accordance with WCB Policy 44.80.30.20 Post Accident Earnings-Deemed Earning Capacity, even if she remained unemployed.
On December 11, 2006, the worker advised the WCB that she had obtained full time work commencing December 14, 2006 in retail sales.
On February 19, 2007, the worker appealed from the WCB decision terminating her vocational rehabilitation plan effective November 21, 2006. She submitted that she was forced by the WCB into an occupation/job search that did not meet WCB policy and guidelines. She stated that the WCB had not clarified that there was a good job market that would produce a full time job in her area, nor did her VRC or ES help her find employment.
In a decision dated May 30, 2007, Review Office confirmed the decision that NOC 6421 was an appropriate vocational rehabilitation goal for the worker. While Review Office noted that retail sales was not an ideal occupation for the worker, it concluded it was the most accessible given the limitations of the worker’s skill set and her place of residence.
Review Office further determined that by November 22, 2006, the worker had been provided with the vocational rehabilitation assistance typically provided in similar circumstances. While the worker remained unemployed as of then, that was not a sufficient reason to preclude the implementation of a deemed post accident earning capacity of minimum wage as of November 22, 2006.
On February 12, 2008, a union representative advised the WCB that the worker underwent Carpal Tunnel release on her right hand on December 5, 2007 and that the surgery had been a success. He reported that the worker had been working part time in retail sales at the time of the surgery and that she had resigned that position to work more hours elsewhere and was now employed full time as a baker in a fast food restaurant. On April 28, 2008 the worker’s attending physician recommended that she go off work as a result of increasing symptoms in her left arm.
On June 3, 2008, the worker was advised the WCB was accepting responsibility for the December 5, 2007 surgery and that wage loss benefits resulting from the surgery would be approved. On June 27, 2008 the worker was advised that her time loss from work effective April 29, 2008 was more related to her left elbow symptoms and would not be accepted in relation to this claim. She was further advised of the importance of following her workplace restrictions of avoiding repetitive forceful grasping and finger movements.
On September 26, 2008, a union representative appealed Review Office’s decision of May 30, 2007 to the Appeal Commission on the basis that the goal of the rehabilitation plan and the assigned deem were not reasonable. A hearing was then arranged.
Reasons
The worker appeared and was accompanied by her Union Representative. No one appeared on behalf of the employer.
Vocational Rehabilitation Assistance Generally
Subsection 27(20) of The Workers Compensation Act (the Act) provides for vocational rehabilitation assistance which may be available to a worker. WCB Policy 43.00 provides that 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. The Policy provides in part:
2. The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.
Where rehabilitation services are provided, the goals and responsibilities of the worker, the WCB and the employer (when involved) will be identified through an IWRP. The IWRP will, among other things, generally define the goals of vocational rehabilitation, describe the occupation or occupational group in which the worker can competitively pursue employment, detail the steps for it to be obtained, and indicate the expectations for the worker’s earning capacity upon the completion of the IWRP. That expectation will be a factor in decisions regarding the post – accident earnings (i.e. deemed earning capacity) of the worker.
Vocational rehabilitation services will be reduced or discontinued where the worker has completed a plan which has resulted in a certain level of earning capacity.
The Appropriateness of an Occupational Goal of Working Within NOC 6421
In this instance it was determined by an Employment Specialist that, based on the worker’s skills and restrictions, the labour market most open to the worker would be NOC 6421. The nature of the work performed under NOC 6421 is that of retail salespersons and sales clerks who sell, rent or lease a range of technical and non-technical goods and services directly to consumers. They are employed by stores and other retail or wholesale businesses that sell on a retail basis to the public. The panel notes that the ECA assessment done for NOC 6421 indicated that employment prospects for salespersons and sales clerks were good. It was reported as being one of the easiest occupations to enter for individuals with limited education and skills, given the high turnover rate and the many advertised positions. The worker’s restrictions at the time were to avoid repetitive forceful grasping movements of the fingers and both hands. Given the significant physical variety and nature of this occupational group, the ECA indicated that the worker would be capable of meeting the physical requirements in the NOC.
The panel therefore finds that the vocational rehabilitation plan with an occupational goal of working within NOC 6421 was appropriate given the medical restrictions that were in place in 2006.
The Appropriateness of the Deem
Wage loss benefits are paid to a worker when a compensable injury results in a loss of earning capacity. That loss of earning capacity is the difference between the worker’s pre-accident earnings and what the worker is determined or deemed to be capable of earning post-accident.
Before the WCB may apply a deemed earning capacity under WCB Policy 44.80.30.20, the WCB must demonstrate as follows:
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.
Ability to competitively find, compete for, obtain and keep employment in NOC 6421
The worker’s history confirms her ability to find, compete, obtain and keep employment in NOC 6421. By September 2006 the worker had purchased a home computer, arranged for dial up Internet, found several websites with advertisements for retail sales and applied for a number of jobs in sales and customer service. With the skills acquired through the vocational rehabilitation program, the worker independently secured employment on her own within NOC 6421. She sought both full and part time employment, and initially obtained work unloading Christmas trees. When that proved unsuitable she then secured a retail position. It turned out to be short term for reasons unrelated to either the worker or her performance. She next obtained employment in July 2007 with a large grocery chain, initially as a filing clerk and then as a cashier. She left that employer in December 2007 in part because she was to have surgery on her right hand, but also because her hours were being cut down. Almost immediately following the surgery she obtained full time employment in the fast food industry as a baker. She remained in that position from January to April 2008.
The worker’s position is that the WCB did not adequately assist her in securing employment, however, the panel finds that the evidence simply does not support that position. Notwithstanding the WCB did not “hand-market” her to potential employers, as her union representative asserted ought to have been done, the worker secured employment independently on multiple occasions. While the positions she obtained within NOC 6421 were not the retail jobs to which she was most ideally suited given her restrictions, they were nonetheless jobs within the class that was an appropriate vocational goal for the worker.
Physical capacity
The worker is permanently physically restricted from repetitive forceful grasping movements of the fingers and both hands. In a medical report dated May 8, 2006 her physician reported that she would be limited to light activities with her hands for short durations of time and that her driving should be limited to about one hour per day. Subsequent to that report the worker did in fact work for several employers, and in one instance worked on a full time basis for a period of several months. The worker is able to drive, although at present is limited to the use of one hand when doing so.
On the basis of the evidence before us, we find that the worker does have the physical capacity needed to obtain and keep employment in NOC 6421.
Education, skills, aptitudes, interests, and personal qualities
NOC 6421 may require completion of secondary school education and some employers may require a university degree or college diploma. Specific subject matter courses or training may be required.
The worker was reported to have a complete Grade 12 as well as a criminology certificate and a Class Five Power Engineer Certificate. At the hearing the worker told the panel that she had taken a criminology course in 1982, but that it had not led to a certificate. Her ECA reported transferable skills including good communication skills, an ability to handle customer inquiries and complaints, significant attachment to the work force, an ability to deal appropriately with the public and follow written and spoken instruction and a Class 5 driver’s licence. As part of her vocational assistance the worker was trained in basic computer skills, and did in fact purchase a computer for home use. The worker indicated to her VRC in February 2005 that she was amenable to the occupational goal of retail sales, and in her evidence before this panel she testified that when employed at the grocery store in 2007 she had enjoyed working in that environment.
We find therefore that the worker does have the necessary education, skills, aptitudes, interests, and personal qualities to obtain and keep employment in NOC 6421, on a full time basis.
In all of the circumstances, we find that the deemed post-accident earning capacity of minimum wage should have been implemented as of November 22, 2006.
Conclusion
In conclusion, we find that an occupational goal of working within NOC 6421, and deeming a post-accident earning capacity of minimum wage as of November 22, 2006 was appropriate. The worker's appeal is therefore denied.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
Signed at Winnipeg this 28th day of January, 2009