Decision #90/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that it was appropriate to implement a post-accident deemed earning capacity of $380.00 per week effective May 21, 2011. A hearing was held on July 16, 2012 to consider the matter.Issue
Whether or not it is appropriate to implement a post-accident deemed earning capacity of $380.00 per week effective May 21, 2011.Decision
That it is appropriate to implement a post-accident deemed earning capacity of $380.00 per week effective May 21, 2011.Decision: Unanimous
Background
The worker's compensation claim was the subject of an earlier appeal panel hearing held on March 2, 2011 to determine whether or not the occupational goal of working within National Occupational Classification ("NOC") Customer Services, Information and Related Clerks was appropriate and whether or not it was appropriate to implement a deemed earning capacity based on NOC 1453 from November 11, 2008 to August 21, 2009. The appeal panel ultimately determined that NOC 1453 was not a suitable occupation for the worker and therefore it was not appropriate to implement the deem. A complete background of the case leading up to that decision can be found under Appeal Commission Decision No. 38/11 dated April 5, 2011 and will not be repeated at this time.
File records show that at the time of the appeal panel's decision, the worker was already involved in a different vocational direction under NOC 6651, Security Guard, as it was felt that the occupational goal of customer service may not be appropriate for the worker given his diagnosed depression. Via e-mail correspondence dated January 26, 2011, the worker advised the WCB that he was willing to take a security course to wedge him back into the workforce but also that he was "convinced that I am still best suited to a position as Maintenance Manager , where I could still control inventory, analyze data, develop budgets, and control work flow…"
An Earning Capacity Assessment is on file dated February 22, 2011 based on NOC 6651 for the Winnipeg labour market.
A Vocational Rehabilitation Plan ("VRP") based on the occupational goal of NOC 6651 in also on file. The start date of the plan was February 4, 2011 and the end date of the plan was May 20, 2011. At the completion of the plan, it was anticipated that the worker would be capable of earning $380.00 per week. In the event that employment was not secured after the job search period of the plan, the worker's wage loss benefits would be reduced in accordance with WCB policy.
At a meeting held at the WCB on March 1, 2011, the worker was presented with a copy of the updated VRP. The vocational rehabilitation consultant noted that the worker passed the Security Guard training course with a score of 94%. The worker was asked what types of jobs he was interested in and he stated that he wanted to find work as a maintenance manager and that security work was his secondary goal. The worker was advised that he was free to apply for other jobs of interest to him as long as they were within his compensable restrictions.
On May 2, 2011, the worker advised the WCB that he had been ill for the past two weeks which he thought was due to an increase in his pain medication that was affecting his stomach.
On May 11, 2011, a WCB case manager noted to the file that he telephoned the worker to advise that his VR plan was scheduled to end on May 20, 2011 and that his wage loss benefits would be reduced to reflect a deemed earning capacity of $380.00 per week.
The worker continued to advise the WCB that he was having problems with his stomach and that he had an appointment with a gastroenterologist on October 6, 2011. On October 13, 2011, the gastroenterologist advised the WCB that "anything that they have done for the worker has nothing to do with a work-related accident."
In December 2011, the WCB received a report from the worker's family physician. She stated that the sole factor preventing the worker from working at this point was ongoing musculoskeletal pain and dysfunction related to arm and shoulder pain previously acknowledged to be compensable. She noted that a non-compensable illness and depression were not impacting the worker's ability to work at this time.
In December 2011, the worker submitted an appeal to Review Office dated November 3, 2011 as he disagreed with the reduction of his wage loss benefits effective May 31, 2011. The worker outlined the view that he was incapable of performing security guard work due to the nature of his injury to his shoulder and elbow and that he has applied for maintenance management or supervisor positions but to no avail.
On January 4, 2012, Review Office referred the worker's file back to primary adjudication to provide the worker with a formal written decision regarding the deem.
A decision was issued to the worker dated January 26, 2012 which confirmed that his benefits were being reduced to $380.00 per week effective May 21, 2001 in accordance with WCB Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity.
By letter dated January 26, 2012, the worker was advised that a WCB psychiatrist reviewed his file in relation to the anti-depressant medications and based on this opinion, it was felt that the current diagnosis of depression did not relate to the 2005 workplace injury and therefore no responsibility would be accepted for prescription medications related to his diagnosis of depression.
On January 29, 2012, the worker wrote that he was not capable, physically or mentally, to perform security guard work. He noted that the dysfunction and constant pain in both arms was debilitating. On March 1, 2012, the worker provided Review Office with an update of his medical appointments.
In a decision dated March 26, 2012, Review Office determined that the worker's wage loss benefits were correctly reduced based upon a deemed earning capacity of $380.00 per week effective May 21, 2011. Review Office indicated that it was unable to accept that the worker continued to be totally disabled due to the effects of his compensable left shoulder and elbow injuries. It recognized that efforts to have the worker pursue re-employment activities had been deferred in the past due to the problems that he was experiencing with unrelated health issues.
Review Office accepted the worker's assertion that he remained capable of employment in relation to his compensable injuries, as evidenced by his ongoing search for employment in the field of maintenance management. With respect to the worker's position that he was not capable of security guard employment, Review Office believed that the worker may not be suited for some jobs in this field of employment but would be capable of other security positions where excessive physical demands and dealing with unruly patrons was not required.
Review Office felt that the imposition of a minimum wage deem was reasonable, given the compensable physical limitations resulting from the worker's injuries, and his own long expressed desire to return to employment in his former line of work rather than pursue other occupational options. On April 15, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
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.
Subsection 27(20) of the Act provides for vocational rehabilitation assistance for injured workers. WCB Policy 43.00 deals with the provision of vocational rehabilitation services and benefits. The goal of vocational rehabilitation is to help injured workers achieve a return to sustainable employment in an occupation which reasonably takes into consideration the workers' post-injury physical capacity, skills, aptitudes and, where possible, interests.
Worker's Position
The worker explained his reasons for appealing the WCB decision and answered questions posed by the panel.
The worker disagreed with the WCB vocational rehabilitation plan (VR Plan) which was based on the worker finding employment as a security guard. He said that he was not suited for this type of work because he has difficulty dealing with people and is not able to defend himself due to his left arm injury.
He said that rather than look for security guard positions, he focused his job search on maintenance management positions. He said that he has many years of experience in this field. Regarding the limitations on the use of his left arm, he said that the "lion's share of maintenance management is instructing people on where to go, what to do, how to do, and subsequent paper work." He said that he is capable of working in this field.
The worker said that the job market for maintenance management positions in Winnipeg is strong. He referred to several maintenance management jobs which were available and provided copies (Exhibit 1). He said that he has applied for positions which are supervisory in nature. The worker said that he has recently had interviews in this field and was offered a position but was unable to accept due to treatment of his non-compensable illness. He was not able to provided details of the offer.
Regarding his general health the worker advised he has several non-compensable conditions and is actively receiving treatment for one of the conditions. He advised that he is in constant pain but that he is able to function. He said his left shoulder has been stable over the last two years and that his left elbow condition has been static over the past year. He acknowledged that he has suffered from depression but noted that he has worked with this condition for many years and has not missed any work as a result of this condition. He also advised that he has had headaches for many years but that these are not an issue in terms of employment.
The worker advised that he would like assistance from the WCB in upgrading his qualifications. He said he can perform many duties of a power engineer, but does not have a certificate so it would be helpful if the WCB assisted him in getting a certificate.
The worker was critical of the WCB for ignoring the advice of his physician. He said his physician has provided two letters indicating that he cannot work in the security field.
Employer's Position
The employer did not participate.
Analysis
The issue before the panel was whether it is appropriate to implement a post accident deemed earning capacity of $380.00 per week effective May 21, 2011.
For the worker's appeal to be successful, the panel must find that it was not appropriate to implement a deemed earning capacity of $380.00. In other words, the panel must find that it was not reasonable for the WCB to deem the worker capable of earning $380.00 on a weekly basis. The panel was not able to make this finding. The panel finds that the worker is employable on a full time basis in the security field and is capable of earning minimum wage which was $380.00 per week at the time the deemed earning capacity was implemented.
At the hearing the worker indicated that he could work as maintenance manager but not as a security guard. The panel notes the worker's evidence that he would be working as maintenance now except for a non-compensable condition for which he is currently being treated. The panel believes that the duties in maintenance management may, in some positions, be more physical than those in the security field, and finds that the worker's workplace injury does not prevent him from working as a security guard.
The worker acknowledged that his right shoulder has been stable for two years and that his right elbow condition has been static for a year. The worker's current restrictions are noted to be temporary and include no repetitive flexion/extension of the left elbow, no lifting, pushing, or pulling greater than 10 lbs with left shoulder, no working at or above chest level, no repetitive internal /external rotation. The panel finds that these restrictions do not prevent the worker from working as a security guard.
The panel is not able to attach any weight to the worker's physician's letter of September 2011. The physician indicates that "The sole factor preventing him from working at this point is ongoing musculoskeletal pain and dysfunction related to arm and shoulder pain…" The panel contrasts this with the worker's evidence at the hearing that he can work with pain and has done so for many years.
The worker acknowledged that he has suffered from depression for many years. The panel notes and accepts the opinion of the worker's psychologist that "From the perspective of mood, [the worker] continues to display and report some symptoms consistent with depression however at the same time his ability to continue to apply for jobs and meet a certain portion of his day to day obligations suggests to me that mood issues here may be more characterological than state based."
Regarding the worker's opinion that he is not a suitable candidate for work in the security field because of his inability to deal with people and his inability to defend himself, the panel believes there are many jobs in the security filed which address the worker's concerns. The file evidence indicates that the worker was provided with an array of potential contacts and employers in the security field where his concerns regarding his physical well-being would have been addressed.
However, the panel notes that the worker has not applied for any jobs in the security field. In the panel's view, the worker's self-limiting actions in respect of a job search in the security field are not supported by the medical evidence. The panel finds that NOC 6651, Security Guard, is appropriate for the worker and that establishing a deemed earning capacity of minimum wage on the basis of that occupation is therefore appropriate.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Lafond, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 8th day of August, 2012