Decision #38/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker was capable of employment in the field associated with Customer Services and that it was appropriate to implement a deemed earning capacity for the period November 2008 to August 2009. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on March 2, 2011 to consider the matter.

Issue

Whether or not the vocational rehabilitation plan with an occupational goal of working within NOC 1453, Customer Services, Information and Related Clerks is appropriate; and

Whether or not it is appropriate to implement a deemed earning capacity based on NOC 1453 from November 11, 2008 to August 21, 2009.

Decision

That the vocational rehabilitation plan with an occupational goal of working within NOC 1453, Customer Services, Information and Related Clerks is not appropriate; and

That it is not appropriate to implement a deemed earning capacity based on NOC 1453 from November 11, 2008 to August 21, 2009.

Decision: Unanimous

Background

On September 1, 2005, the worker injured his left shoulder in a work related accident. His claim for compensation was accepted by the WCB and the worker was paid compensation benefits in relation to his left shoulder condition.

In January 2008, the WCB determined that the worker was capable of returning to work with temporary restrictions to avoid heavy lifting with his left arm and to avoid overhead and repetitive work. As the accident employer was unable to accommodate the worker with a position that met his restrictions, the worker's case was referred to the WCB's vocational rehabilitation branch to assist him with finding suitable employment.

On February 1, 2008, a WCB vocational rehabilitation consultant ("VRC") met with the worker to discuss viable vocational rehabilitation options. The VRC noted that the worker had significant transferable skills in the manufacturing industry both at a supervisory level and as a technician. It was decided that National Occupational Classification ("NOC") 0712, Maintenance Manager/Supervisor, may be suitable employment for the worker to pursue. An earning capacity assessment/labour report was then requested to establish whether there was a positive labour market in NOC 0712.

On February 20, 2008, the VRC noted that the worker attended a resume workshop and was scheduled for job search/ interview training skills in March 2008. She noted that the worker would be provided with job leads so he could do his own independent job search while awaiting the results of the earning capacity assessment. The worker was encouraged to apply for jobs that were of interest to him and was advised that if there was not a positive labour market in NOC 0721, other vocational options would be researched.

On March 12, 2008, the VRC noted that the worker was attending the Pain Clinic in regards to left elbow problems and that elbow surgery was being contemplated.

In e-mail correspondence dated March 25, 2008, the worker indicated that he was exploring all the want-ads but was concerned that the VRC and his Employment Specialist ("ES") were not aware of how much pain he was in which was continuous and unrelenting. He said the medication he was taking upset his stomach and he was only getting 3 to 4 hours of sleep every night.

On March 26, 2008, the VRC noted to the file that based on the advice of the worker's treating clinical psychologist, it was decided that a work experience/training on the job would be arranged to transition the worker back to work in his field as a means of establishing his ability to work in NOC 0721.

On April 29, 2008, the VRC noted that the worker agreed to participate in a one month work experience as a means of establishing his ability to attend a worksite on a regular basis and to prepare himself for return to full time work. The VRC noted that the worker was contending that he was not capable of full time work.

A "Transferable Skills Analysis - Stage 2" report dated April 30, 2008, outlined the following vocational options for the worker:

  1. NOC 0721, Maintenance Manager;
  2. NOC 1453, Customer Service, Information and Related Clerks; and
  3. NOC 0621, Jewelry Store Manager/Retail Manager.

The VRC noted in the report that she was concerned about the worker's ability to search for and obtain employment as a maintenance manager as these positions tended to have high stress levels due to the amount of responsibility and duties required. She noted that the worker had been experiencing higher levels of pain symptomatology as well as other medical based systems (i.e. diabetes, ongoing sleep difficulties, a self-perception of being unable to concentrate, increased use of medication due to shoulder pain). The VRC stated that although the ES had established a strong labour market in NOC 0721, she was recommending a vocational rehabilitation plan in NOC 1453, Customer Service. She felt that this position was within the worker's current restrictions and would allow the worker to move directly to job search without further upgrading or re-training. An Earning Capacity Assessment related to NOC 14543, Customer Service, Information and Related Clerks is on file dated May 9, 2008.

On May 13, 2008, the VRC documented that the worker terminated his counseling/therapy sessions with his treating psychologist as he felt he did not require his services at this time.

On May 14, 2008, the ES placed a note to file regarding the worker's job placement. The employer indicated they were happy with the way the worker interacted with all the staff and they found him to be quite knowledgeable and professional. The worker had to leave work a few hours early a number of times citing that his arm and back were in pain. In a further note to file dated May 16, 2008, the ES recorded that the employer advised him that the worker appeared to be in a lot of pain all the time and left work right after lunch on most days.

A Vocational Rehabilitation Plan was developed for NOC, Customer Service. The start date of the plan was June 1, 2008 and the end date was September 5, 2008. At the completion of the plan, it was anticipated that the worker would be capable of earning $382.00 per week. In the event that the worker did not secure employment after the job search period of the plan, the worker's benefits would be reduced in accordance with policy.

On May 27, 2008, the worker advised the VRC that he was scheduled for surgery in July 2008 and did not anticipate that his recovery would be lengthy.

On June 12, 2008, the employer with the Work Experience Program wrote to the ES stating that the worker had great potential for a supervisory role as well as the ability to lead and direct employees.

On June 12, 2008, the worker wrote to his ES stating that he was aiming for a maintenance or operations managerial position. He said he was well-prepared to work in pain. He said his left arm was the key issue and it ached deeply even at rest.

The worker underwent left elbow surgery in July 2008. On August 11, 2008, the worker was advised that the WCB was not accepting responsibility for his left elbow condition and any related treatment. The worker appealed the decision to Review Office.

In a Vocational Rehabilitation Deem Summary dated August 15, 2008, the VRC stated:

"[the worker] was provided with extensive VR services including exploration of viable occupational goals related to his existing work history. A brief work experience set up by Employment Services at the [name] in the maintenance area but was terminated after 3 weeks due to pain issues raised by [the worker]…He was provided with job leads prior to the existing plan in NOC 1453, Customer Service in related fields but made little or no attempt to follow through with these leads provided by ES. He was provided with psychological counselling with [psychologist] but discontinued this support. Resume preparation and updating in addition to job search/interview skills training was provided on several occasions as well as significant individual job search assistance by Employment Specialist. It is my opinion that [the worker] is employable in NOC 1453, Customer Service."

In a letter to his WCB case manager dated September 9, 2008, the worker indicated he was very frustrated by his inability to find employment. He said he was still recovering from his left shoulder and left elbow surgeries and there was little doubt in his mind that his recovery would accelerate through necessity. The shoulder pain intensified with his elbow physiotherapy and occupational therapy. He said "If I have to increase my analgesic intake to compensate for increased pain levels, I don't care. My not working is taking an incredible psychological toll on me….I have been exploring multiple websites daily, and applying to dozens of companies in the hopes of securing several different types of employment, but focusing on trying to get employment as a Maintenance Manager. I have had a few interviews, but so far nothing has developed …"

In a letter dated September 15, 2008, the worker was advised that his compensation benefits were being reduced as his vocational rehabilitation plan was completed as of September 12, 2008.

On October 9, 2008, Review Office upheld the case manager's decision that the worker's left elbow problems and associated treatment were not related to his compensable left shoulder injury and its surgery. The worker appealed the decision to the Appeal Commission. On July 21, 2009, the Appeal Commission accepted that the worker's left elbow problems and associated surgical treatment were related to the compensable left shoulder injury and surgery.

On October 2, 2009, the WCB case manager noted that he was referring the worker's file to the WCB's healthcare branch to determine what restrictions the worker would have had in relation to his left elbow as of September 2008 and whether the additional restriction would have compromised the worker's vocational rehabilitation plan.

In a decision dated November 6, 2009, the worker was advised that a WCB medical advisor reviewed his file and that the added restriction was "No repetitive flexion/extension of the left elbow." The worker was also advised that in consultation with his VRC, the duties outlined in NOC 1453 would not affect the additional restriction related to his left elbow. Based on these findings, the worker was not entitled to full wage loss retroactivity, as the additional restriction would not have compromised his vocational rehabilitation plan.

On February 12, 2010, the worker appealed the above decision to Review Office. The worker outlined the position that he was unable to work during the period September 6, 2008 through to August 21, 2009 due to his left arm surgeries. In support of his position, the worker provided the WCB with medical information from his family physician and treating surgeon.

In a report dated November 20, 2009, the treating surgeon noted that the worker had surgery on July 22, 2008 consisting of a contracture release to the left elbow. The worker then had further surgery on August 24, 2009 consisting of open radial head excision. He stated that the worker was unable to work between since July 22, 2008 and August 24, 2009, as he had been recovering from these surgeries.

On November 30, 2009, the family physician outlined the opinion that the worker was unable to work between his two surgeries as he had constant severe pain of his elbow and a very limited range of motion. He also had shoulder pain related to the poor movement at the elbow. He was left-handed and worked in a field that required constant hand work.

On April 20, 2010, Review Office determined that the vocational rehabilitation plan with an occupational goal of working within NOC 1453 was appropriate, that the worker was entitled to full wage loss benefits from September 15, 2008 to November 10, 2008 (the recovery phase of his elbow surgery), and that it was appropriate to implement a deemed earning capacity based on NOC 1453 from November 11, 2008 to August 21, 2009.

Review Office was of the opinion that the worker had a variety of transferable skills that made him well-equipped to find employment in NOC 1453. The change in occupational goal from NOC 0721 to NOC 1453 took the worker's psychological status and condition into account, given that NOC 0721 was open to high stress levels due to the amount of responsibility and the duties required. Review Office found that NOC 1453 met the goals and objectives of the VR policy and was a reasonable, appropriate, and cost-effective plan that had a positive labour market. Review Office also determined that the evidence on file supported that the worker was capable of working within NOC 1453 at a wage loss $382.00 per week. The fact that the worker did not obtain employment is not in and of itself a basis for his inability to do so. On September 14, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Subsequent file information dated January 27, 2011 indicated that the worker "has a pre-existing depression" which had been aggravated by his compensable injury. It was indicated that the worker's clinical psychologist opined that customer service may not be appropriate given the worker's depression and that the WCB was pursuing a NOC in the security field for the worker.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and by policies made by the Board of Directors of the WCB.

This appeal deals with the provision of benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

The Board of Directors has made a policy dealing with the provision of vocational rehabilitation and the payment of benefits. WCB Policy 43.00 deals with the provision of vocational rehabilitation services and benefits under subsection 27(20) of the Act.

This subsection 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.

Worker's Position

The worker attended the hearing and made a presentation to the panel. The worker described his injury and the impact the injury has had on him. The worker answered questions posed by the panel.

He noted that he had two surgeries related to the injury. He said the first surgery on his left elbow was not successful. The second surgery resulted in a decrease in pain, but no increase in range of motion. He finds moderate physical activity very painful. He expressed concern regarding the impact of disuse upon his arms. He noted that he has substantial pain in his elbows. He said his left arm pain varies with his headaches. He feels his right arm is now worse than his left.

The worker advised that he has other medical issues which are not related to his workplace injury.

With regards to NOC 1453, the worker indicated that he did not feel this was an appropriate occupational field due to his personality. He noted that his treating psychologist supports this position.

While he referred to a report from his family physician indicating that he was not employable due to pain and a report from his treating surgeon that he was not employable since June 22, 2008 to August 24, 2009 as he was recovering from two surgeries, he indicated that he thought he could work in an appropriate occupation.

He stated that he believes that he can work in a field that he has experience in. He advised the panel that he did not look for work in NOC 1453 but rather looked for employment as a maintenance manager.

In response to a question, the worker stated that he does not feel his depression is an issue and that it was the same in 2008 and 2010.

The worker said that he has to be able to work. He feels that without work he has nothing.

Analysis

Issue No.1: Whether or not the vocational rehabilitation plan with an occupational goal of working within NOC 1453, Customer Service, Information and Related Clerks is appropriate?

In this case, it had been determined that, based on the worker’s skills and restrictions, the labour market most open to the worker would be NOC 1453. The nature of the work performed under NOC 1453 is primarily concerned with answering enquiries and providing customer service and information such as office, retail, and call centre positions. The work is sedentary and often involves computer work. Positions in this NOC can involve significant interaction with people.

Having considered all of the evidence, including the evidence on the claim file and the worker's evidence at the hearing, the panel finds, on a balance of probabilities, that NOC 1453 is not appropriate. The worker has indicated that he is not a people person and prefers to work on his own. This view has been supported by his treating psychologist who commented that the worker "…expresses a good deal of frustration as he does not feel well suited to a customer service positions, given his personality and in this regard I find myself in agreement with him." While this opinion was provided on March 6, 2010, the panel finds that it is equally applicable to the period under consideration. The evidence of the worker's reclusive nature and interactions with people is well established.

The panel notes that the WCB appears to have accepted the opinion of the treating psychologist. A claim note dated January 19, 2011 acknowledges this opinion and more recent vocational rehabilitation activity has been directed towards a different NOC.

Issue No. 2: Whether or not it is appropriate to implement a deemed earning capacity based on NOC 1453 from November 11, 2008 to August 21, 2009.

Given the panel's conclusion that NOC 1453 was not an appropriate occupational goal, the panel further concludes that a deemed earning capacity based upon this goal was not appropriate for the period from November 11, 2008 to August 21, 2009.

Although the panel finds that the deem was not appropriate and that the worker should be paid his full benefits during the period, the panel does not find the worker to have been unemployable during this time. The panel notes that during the period in question, the worker was actively involved in a job search, albeit for a different type of position. The evidence suggests that the worker's medication use and pain levels did not prevent him from actively looking for work and attending interviews for employment positions as was suggested by two of his treating physicians.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of April, 2011

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