Decision #96/11 - Type: Workers Compensation
Preamble
This appeal relates to a decision made by Review Office of the Workers Compensation Board
("WCB") which determined that the worker's vocational rehabilitation plan was appropriately based on an occupational goal of employment as a service writer within NOC 1453, Customer Service. The worker disagreed with this finding and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on May 19, 2011 to consider the matter.
Issue
Whether or not the worker's vocational rehabilitation plan was appropriate.Decision
As it is currently formulated, the worker's vocational rehabilitation plan is not appropriate and should be revisited.Decision: Unanimous
Background
On August 15, 2005, the worker injured his low back during the course of his employment as a diesel mechanic. His claim for compensation was accepted based on the diagnosis of a right L4 radiculopathy. In early 2007, primary adjudication referred the claim to the WCB's vocational rehabilitation branch as the accident employer was unable to provide the worker with modified or alternate employment that met his permanent restrictions, which were as follows:
- no lifting greater than 10 pounds;
- no crouching or stooping;
- no repetitive or sustained overhead work; and
- should be afforded the ability to change posture frequently.
By March/April 2007, a vocational rehabilitation plan was developed for the worker. The occupational goal was National Occupation Classification ("NOC") 1453, Customer Service Representative (Service Writer). The plan was to run from April 19, 2007 to November 2, 2007.
In a memorandum to file dated April 5, 2007, a Vocational Rehabilitation Consultant ("VRC") noted that the worker agreed with the proposed vocational rehabilitation plan. She also wrote: "His only concern at this time is his ability to stand on concrete floors or to sit for any length of time. I informed [the worker] that accommodations could be put into place once he has employment to assist him with these issues."
In a memorandum dated May 28, 2007, an Employment Specialist ("ES") met with the worker. The worker indicated that he had medical issues that prevented him from working as a service writer. He had trouble standing on concrete as it caused his back to seize up after 20 minutes. His doctor told him he should not be standing on concrete.
In a report to the WCB dated May 30, 2007, the worker's treating physician stated in part:
…[the worker] has disc disease with protrusion and probably intermittent compression at the Rt. L4 nerve root. Accordingly, he has relative comfort in some positions but is not able to stand on hard concrete as has been recommended by the work hardening and tolerance program…He has definite pathology in the back that has intense discomfort when on concrete…The vocational rehabilitation program has been ongoing as you have indicated. I want him to continue with the program with the caveat that he be in a job that does not warrant hours of walking on concrete.
On July 10, 2007, a WCB medical advisor reviewed the worker's file in order to determine whether the worker's restrictions should be changed to reflect the restriction suggested by the treating physician. Following review of the file and discussion with the treating physician, it was agreed that there was no objective information that substantiated a restriction of not being able to walk/stand on a concrete floor at work. The medical advisor noted that one of the worker's restrictions was the ability to change posture frequently. This meant that any posture being adopted for a lengthy period (including prolonged standing in one position) was not recommended. In principle, the worker could use cushioned insoles/footwear or mats to mitigate the reported problems he had with concrete. The medical advisor noted there was no evidence provided that the alternatives to working on a concrete floor (ie operating a small engine repair shop after having a subfloor built) would result in less symptom provocation.
During a telephone conversation on September 13, 2007, the worker was advised that based on the comments made by the medical advisor, there would be no changes to his permanent restrictions. On December 1, 2007, the worker's advocate outlined the view that the occupation of a service writer was not suitable for the worker as walking and standing on concrete for prolonged periods of time aggravated his back condition.
On January 10, 2008, Review Office determined that the vocational rehabilitation plan was appropriate. Review Office was satisfied that all of the necessary steps were taken to identify and develop a suitable vocational rehabilitation plan. The worker had the skill set necessary to be competitive in seeking employment as a service writer and was considered physically capable of the job demands.
In approximately July 2008, the worker secured employment as a service writer. He subsequently went off work on several occasions due to ongoing back difficulties.
In a letter to the WCB dated March 10, 2010, the worker's treating physician wrote that the worker had pathology in his spinal cord region and that hard concrete floors were not facilitating the worker's ability to work without distractibility, pain and emotional liability.
On April 7, 2010, a WCB medical advisor reviewed the file and expressed the opinion that the current diagnosis of the worker's condition was non-specific low back pain. The medical advisor also stated:
There can be an association between walking/standing on concrete and low back pain. [The treating physician] does mention that the worker could work on the concrete floor if appropriate orthotics are used. If the current orthotics are not providing pain relief, then maybe they should be reviewed. Rubber mats could be used if the work is done within a specific area. If that still does not reduce the worker's pain, then avoidance of prolonged walking on concrete floor should be added to the restrictions.
This restriction would be in place based on the worker's report of symptoms; no objective findings would be able to support it. However, it is known for concrete floors to be aggravating to those with back pain. There is no reason provided to doubt the worker's reliability as a historian.
On May 25, 2010, the worker provided Review Office with a letter from his treating physician dated May 20, 2010 to support his position that the vocational rehabilitation plan was not appropriate given his health. The worker requested retraining in a position that did not require walking on concrete, increase his medication or aggravate his back condition.
On June 8, 2010, Review Office determined that it was premature to consider the worker's appeal and the file was returned to primary adjudication to gather additional information and provide a further decision to the worker.
The worker spoke with a Review Officer on June 9, 2010. The worker stated that standing and walking on concrete at work constituted 75 to 80 percent of his day.
On July 1, 2010, a WCB case manager reviewed the file regarding the worker's footwear and orthotics. He noted that the orthotics were not "the off the shelf variety." The orthotics were molded specifically for the worker to alleviate the pain he experienced. The first pair of orthotics appeared to help the worker cope with the concrete. However, the worker advised that the most recent set of orthotics were of no benefit in that he still experienced pain in his back from walking on concrete.
An ES reviewed the file on July 21, 2010 to provide the case manager with information on the physical demands of NOC 1453, Customer Service, Information and Related Clerks. She stated:
The body positioning for this occupation is listed as "sitting." According to the HRSDC Career Handbook, "Sitting" is defined as:
"Work activities primarily involve sitting. Standing and/or walking may occur but is incidental to the work being performed."
Therefore, within this occupation, an individual would primarily be sitting for the majority of their work shift however would have the ability to change posture when needed as standing or walking may occur as well.
The strength demand for this occupation is listed as "Limited". According to the HRSDC Career Handbook, "Limited" is defined as:
"Work activities involve handling loads up to 5 kg" (or 11 pounds)"
Based on the above information, it is this writer's opinion that the physical demands of NOC code 1453 would be within [the worker's] physical capabilities.
On July 27, 2010, the worker was advised by the case manager that based on the information provided by the ES, it was considered that the worker remained capable of working within the whole occupational group (NOC 1453). The case manager indicated that while working in the specific occupation of a service writer may on occasion be problematic due to the issue with standing on concrete, it would not be precluded based on the physical demands of the job in the relation to his compensable restrictions. He noted that occupations in NOC 1453 encompassed numerous other customer service positions that he would be capable of performing which were also well within his compensable restrictions. It was confirmed to the worker that in the opinion of the case manager, his vocational rehabilitation plan was appropriate.
On November 3, 2010, a worker advisor acting on the worker's behalf, asked Review Office to consider whether or not it was appropriate to implement a deemed earning capacity associated with NOC 1453. The worker advisor noted the worker's position that the WCB did not truly explore his ability to succeed in this occupational field. Rather the plan was developed specific to the position of service writer, one job title within the overall occupational group of NOC 1453.
The worker advisor noted that the worker underwent vocational interest and aptitude assessment with a registered psychologist and the results of the assessment indicated that people-oriented occupations directly clashed with the worker's personality style. She noted that the worker said he did well as a service writer after his workplace accident only because of his knowledge and experience in the mechanical field and the fact that his service manager handled most of the complaints. It was felt that the worker's ability to work as a service writer was limited by the difficulty he had in working on concrete and the fact that this type of work represented only a portion of the labour market in the customer service field as a whole.
On January 6, 2011, Review Office confirmed that the worker's vocational rehabilitation plan was appropriate. In reaching its decision, Review Office referred to its decision of January 10, 2008 and the comments made by the employment specialist on July 21, 2009. Review Office was of the opinion that walking on concrete was not an accepted restriction related to the compensable injury. While the restriction had been suggested, the restriction would be based on the worker's subjective complaints as there was no objective evidence to support the need for same.
Review Office indicated that the worker had the physical capabilities to perform the majority of the job titles within NOC 1453 as determined by the ES on July 21, 2009. Review Office noted that the worker was able to work in this field for one year and there was no information on file to indicate that the worker's interpersonal skills resulted in conflict or disciplinary action by the employer. It was of the opinion that limitations in interpersonal areas expressed by the worker would not preclude him from seeking employment within NOC 1453. On January 20, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Pursuant to subsection 27(20) of The Workers Compensation Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides
Academic, vocational and rehabilitative assistance
27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker
(a) could, in the opinion of the board, experience a long-term loss of earning capacity;
(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or
(c) requires assistance in the activities of daily living.
WCB Policy 43.00 Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Voc Rehab Policy states 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 Voc Rehab Policy also provides that: “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.”
Worker's Position:
The worker appeared at the hearing and was assisted by a worker advisor. It was submitted that the vocational rehabilitation plan was not appropriate for the worker and did not meet the goals and objectives of the WCB's own policy for vocational rehabilitation. By way of background, it was noted that the worker had been employed as a diesel mechanic for approximately 30 years before sustaining a lower back injury in August 2005. On December 12, 2005, the worker returned to work with the accident employer in an accommodated position as a shift foreman. Within one month, the worker was reinstated on full wage loss benefits because of worsening symptoms. In two separate memos on the WCB file, the worker's difficulties with walking and standing on concrete over the course of his shift were discussed. While the WCB identified the need for permanent restrictions in January 2007, it did not address the need for a restriction on concrete, despite the problems noted by the worker. The employer was not able to accommodate the worker on a permanent basis so the worker was referred for vocational rehabilitation assistance. Prior to development of the plan, the worker was referred for psychological vocational assessment. The psychologist's report described the worker as being a distant, reticent, guarded and tense individual. He was noted to have a generally impatient demeanor and to show features of annoyance, irritability and short temperedness. The psychologist concluded that the worker would not fare particularly well in many occupations requiring extensive interpersonal contact in light of those personality traits and his overall temperament.
After conducting a transferable skills analysis, the WCB voc rehab consultant indicated that the most appropriate goal for the worker would be customer service, specific to the position of service writer. It was submitted by the worker advisor that the WCB did not recognize the discrepancy between the occupational demands of this field and the worker's capabilities. Customer service clerks must have the skills to listen and communicate well with customers, be consistently pleasant and polite, enjoy working with the public and be able to handle customer complaints and resolve disputes between mechanics and customers. The position also generally requires standing on one's feet.
Despite his reservations, the worker did accept a position as a service writer beginning in July 2008. The WCB arranged for a rehabilitation specialist to go on the work site and assess what the worker would require to help his employment. The specialist determined that a sit/stand stool would not be appropriate and that anti-fatigue matting would not work in that workplace. Instead, the worker was provided with a high back drive chair and steel-toed shoes with insoles. The worker lasted about one year at that job before contacting the WCB to advise he was off work because of an increase in symptoms. In October 2009, the worker did return to work at four hours per day, but he continued to experience the increase in symptoms. By early January 2010, the worker's attending physician reported the worker was not capable of working on concrete for even four hours per day. On April 7, 2010, a WCB medical advisor confirmed there could be an association between walking and standing on concrete and low back pain. She recommended the use of orthotics and rubber mats if appropriate to the work setting, and if that still did not reduce the worker's pain, then avoidance of prolonged walking on concrete should be added to the worker's restrictions.
It was noted by the worker advisor that the anti-fatigue matting was found by the rehabilitation specialist to not be appropriate for the work site and that the worker had tried orthotics without success. It was submitted that in view of the medical recommendations of both the worker's attending physician and the WCB medical advisor, a restriction on standing and walking on concrete should have been imposed.
Overall, the worker's position was that the occupational goal under NOC 1453 was unsuitable for someone of his temperament and personality style. Further, the specific position of service writer was not tenable for the worker due to the problems he had with concrete flooring which resulted in ongoing aggravations of his lower back symptoms. The worker was not employable within the customer service field, and the panel was requested to make the finding that the vocational rehabilitation plan was inappropriate.
Analysis:
The issue before the panel concerns the appropriateness of the vocational rehabilitation plan. The WCB provided the worker with vocational rehabilitation assistance aimed at re-employing the worker in NOC 1453, Customer Service. In order for the worker’s appeal on this issue to be successful, the panel must find that the vocational rehabilitation assistance provided to the worker did not reasonably take into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. On reviewing the facts of this case, we are able to make that finding.
At the hearing, the worker described his experience while working as a service writer from July 2008 to July 2009. The company he worked for provided repair services for the heavy trucking industry. The worker said that he very much liked working for that employer as they were accommodating of his restrictions and he was familiar with the industry. The customer base consisted mostly of truck drivers and whenever there was a complaint, the service manager handled the matter. The worker was able to focus solely on ordering parts, making work orders and distributing jobs to the mechanics on the floor. With his past experience as a mechanic, he was also able to provide advice to the mechanics. The job involved very little in the way of customer service skills, that is, contact with the public.
The worker's evidence was that for the first three months, everything seemed to be fine. There was no limitation in his ability to change postures. He estimated that his day was divided approximately 60/40 between sitting and standing. Over time, however, his back started to get worse and his response would be to increase his medications. He got new orthotics and had custom ones made, but still found that his symptoms were getting worse. His condition steadily declined until it reached a point where he was taking too much medication and his physician told him to stop working.
The panel notes that the worker's concerns regarding his ability to stand on concrete floors were expressed very early on in his claim. His concerns were noted, but the vocational rehabilitation plan as a service writer still proceeded, with the idea that accommodations could be made later on with the use of aids such as orthotics or anti-fatigue matting. When the worker later secured a position as a service writer, it was determined that anti-fatigue mats would not be appropriate. The worker tried using orthotics, but these did not assist in easing his symptoms. Both the worker's attending physician and the WCB medical advisor recommended that a restriction for avoidance of prolonged walking on concrete floor should be put in place. The panel finds that this requirement should be added to the list of the worker's permanent restrictions.
The panel agrees with the worker advisor's submission that the vocational rehabilitation plan was originally intended to be directed specifically at the goal of employment as a service writer. The panel feels that re-employment in the sub-classification of service writing and not the entire classification of NOC 1453 Customer Service Representative was the only reasonable target for this worker. We acknowledge the observations set out by the psychologist in his vocational assessment and agree with same. The panel found the worker to be forthright and candid in his demeanor, but we recognize that he would not be well suited to the customer service field generally. While his personality dispositions did not prevent him from functioning successfully in the particular category of service writing in the heavy trucking industry, we do see them as creating a barrier in general customer service.
Overall, in the panel's opinion, the worker's vocational rehabilitation plan should be revisited for further adjustment. The restriction limiting prolonged walking on concrete should be added. We note that the original plan for employment as a service writer contemplated approximately 10-20% of the day spent standing/walking. The worker's evidence was that when he had worked as a service writer for the one year, he was spending 40-60% of his time on his feet. Clearly, this particular service writing position was not appropriate for the worker as it involved too much walking and standing. It may be that employment as a service writer is still possible for the worker, but the panel feels that further investigation is required.
We therefore find that as it is currently formulated the worker's vocational rehabilitation plan is not appropriate and should be revisited. The worker's appeal is therefore allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 14th day of July, 2011