The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that National Occupational Classification 1453 was an appropriate vocational goal for the worker and that it was appropriate to implement a post-accident deemed earning capacity effective January 28, 2012. A hearing was held on November 6, 2014 to consider these matters.

Issue

Whether or not the vocational rehabilitation plan for the National Occupational Classification 1453, Customer Service Information and Related Clerks is appropriate; and

Whether or not it is appropriate to implement a post-accident deemed earning capacity effective January 28, 2012.

Decision

That the vocational rehabilitation plan for the National Occupational Classification 1453, Customer Service Information and Related Clerks is appropriate; and

That it is appropriate to implement a post-accident deemed earning capacity effective January 28, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right shoulder injury that occurred on August 14, 2007. The worker reported the accident as follows:

I was driving and I was turning around a corner and I heard a pop in my shoulder. I felt a pull in my shoulder, I stopped for a couple of minutes because it was really sore, I continued to work for about another 2 hours and just used my other arm, and then I left work and went to see the doctor.

On August 21, 2007, the WCB advised the worker that his claim for compensation was not acceptable as the WCB was unable to establish that he suffered a personal injury due to an accident arising out of and in the course of his employment. The worker appealed the decision to Review Office and on December 10, 2007, Review Office accepted that the worker's right shoulder injury arose out of and in the course of his employment. Benefits were then paid to the worker based on the compensable diagnosis of a probable right shoulder subluxation in the setting of multidirectional laxity of the right shoulder.

On September 27, 2007, the worker filed a separate WCB claim for ongoing left elbow pain that he related to his employment activities as a truck driver. The worker's claim was initially denied by primary adjudication but accepted by Review Office on June 25, 2008 on the basis that the work activities resulted in a worsening of a pre-existing, non-compensable left ulnar neuropathy. Information on this claim also showed that the WCB accepted responsibility for the worker's pre-existing anxiety and depression symptoms.

On April 7, 2008, the worker underwent right shoulder surgery for subacromial bursitis. The WCB accepted responsibility for the surgery and felt that the bursitis condition was likely related to the worker's compensable injury.

In early July 2008, the worker's treating physiotherapist outlined the following right shoulder work restrictions:

• no repetitive arm movements
• no overhead lifting
• no reaching
• no lifting greater than 20 pounds
• no driving long distances

In a note to file dated October 2, 2008, the WCB case manager indicated that the accident employer made every effort to accommodate the worker with alternate modified duties but were unable to do so due to the worker's compensable restriction of "no use of right arm." The worker's file was then referred to the WCB's vocational rehabilitation branch to assist the worker in finding employment that met his compensable restrictions related to both WCB claims.

A vocational rehabilitation ("VR") plan was developed for the worker under the occupational goal of National Occupational Classification ("NOC") 2282, User Support Technician. The start date of the plan was February 5, 2009 and the end date was May 15, 2010. At the completion of the plan, it was anticipated that the worker would be capable of earning $400.00 per week. The plan was later extended to accommodate a work experience placement and additional job search.

File records indicate that the worker requested that his VR plan be extended further as he was concerned that he may not be employable in NOC 2282. On February 16, 2011, the WCB case manager advised the worker that it was the general consensus of VR staff that a plan extension was not warranted as it was felt that he was employable within NOC 2282.

On April 16, 2011, the Worker Advisor Office appealed the February 16 decision to Review Office. The worker advisor contended that a viable labour market did not exist and that the worker was not employable under NOC 2282. It was felt that the associated deem of $400.00 should not have been implemented on April 1, 2011. It was submitted that despite the educational training that the worker was provided, he lacked the necessary experience in his field to be competitive in securing employment.

On July 8, 2011, Review Office's opinion was that the worker had been provided sufficient training and related experience to make him employable within NOC 2282. It found that additional vocational training was not warranted and that the deemed earning capacity of $400.00 per week effective April 1, 2011 was implemented correctly.

On August 11, 2011, the Worker Advisor Office requested Review Office to reconsider its decision of July 8, 2011.

On September 28, 2011, Review Office determined that the worker was competitively disadvantaged from securing employment as a User Support Technician (NOC 2282) primarily due to a significant downturn in the job market and the worker's lack of sufficient related job experience. Review Office also indicated that there was some indication that the worker may not be physically capable of all the duties that fell within some of the job postings within the User Support Technician category. To a lesser degree, Review Office noted that ongoing psychological issues may have some impact on the worker's ability to secure employment. It was therefore determined that the decision to implement a deemed earning capacity was premature and that the worker would be provided additional vocational rehabilitation benefits and services.

In a memo dated October 3, 2011, a WCB vocational rehabilitation consultant ("VRC") reviewed the VR documentation on file over the past 2 years and she recommended a new VR plan for the worker under NOC 1453, Customer Service or NOC 1411, General Office Clerk.

On October 20, 2011, the worker advised the VRC that a Customer Service Representative was closely related to his previous VR plan in NOC 2282 so he was choosing this as his VR goal. The worker also indicated that he wanted to continue to look for work in NOC 2282.

A vocational rehabilitation plan was developed for the worker under NOC 1453, Customer Service. This included 13 weeks of job search starting October 31, 2011 and ending January 28, 2012. Permanent work restrictions were also outlined in the plan.

In a memo to file dated January 25, 2012 entitled "Deem Recommendation" the following was documented:

Employment Services Summary

His participation in second plan was minimal and no documentation indicating he applied for jobs or had any interviews in either NOC (NOC 1453 or 1411). He continued to say he wanted to find work in NOC 2282, User Support Technician despite Review Office decision indicating he was not competitively employable in this NOC.

-[The worker] was provided with 35 job postings during his job search period

-He was provided with a list of 164 potential employers within NOC code 1453 from the HRSDC website

Recommendations

Based on the above information, I feel [the worker] has received services over and beyond what was required for both NOC 2282 (previous plan) and NOC 1453 (alternate VR plan). Therefore, I concur with the ES and VR's recommendation that he is employable in NOC 1453 and therefore effective January 28, 2012 the worker's benefits be reduced to $404.00 per week.

On February 17, 2012, the WCB advised the worker that as his VR plan was completed, his benefits were being reduced based on his established earning capacity even if he remained unemployed. Therefore effective January 28, 2012, his weekly wage loss benefits would be $244.10.

On November 20, 2012, the Appeal Commission considered an appeal brought forward by the worker on his other WCB claim regarding a WCB Review Office decision. The Appeal Commission's decision was that the worker's current left medial elbow and forearm symptoms were related to his compensable injury.

In 2013, the worker had reduced contact with the WCB. Medical reports indicated that during 2013, the worker was suffering mental health difficulties and was under regular medical care from a psychiatrist and psychologist.

In December 2013, the worker met with his WCB case manager to discuss his VR plan and the possibility of placing him back onto full wage loss benefits.

In a memorandum dated March 12, 2014, a WCB director in case management reviewed the worker's right shoulder and left elbow claims to determine whether or not the WCB should reinstate full wage loss benefits to the worker on the basis of anxiety and depression, rendering the Customer Service NOC as being inappropriate for the worker. The director stated:

With respect to the worker having anxiety and depression, there is information documented of reports from the worker however there is no evidence to suggest the level of anxiety and/or depression was an issue or barrier throughout the claim process including ongoing discussions with different staff, with the accident employer, through the upgrading program, or work experience. The deemed employment for the worker in customer services effective Jan, 2012 should stand. It wasn't a barrier along the claim process, the worker was able to participate in the re-education, work experience and although it was noted in several medical reports, it was not a limiting factor for the worker to the extent that it would be considered a barrier to employment at the time of the deem.

While I acknowledge that the worker has a pre-existing anxiety/depression issue, this is not related to the compensable injury. A worker struggling with the decisions of the WCB or having to deal with the WCB is not compensable. Therefor (sic) the temporary services that were meant to bridge the worker should be discontinued with the latest approval of 10 treatments in January being the final allowance for the worker.

On March 27, 2014, the WCB case manager advised the worker that based on the comments made by the Director of Case Management, the recommendation to return him to full wage loss benefits was not accepted.

On May 2, 2014, a worker advisor wrote Review Office outlining the opinion that there was overwhelming information to support that NOC 1453, Customer Service, was an inappropriate vocational plan for the worker and that he should be entitled to full wage loss benefits retroactive to January 28, 2012. The worker advisor noted that in 2012, the worker told his employment specialist that his anxiety with people and groups of people was a barrier to finding employment. The worker advisor referred to the following documents on file to support her position:

• December 7, 2013 report from a psychiatrist who stated that the worker, with an appropriate vocational plan "will thrive and his emotional conditions will resolve."

• December 23, 2013 WCB medical advisor's comments:

At this time I am able to make some comments on his Anxiety Disorder. He has not been able to fully participate in his VR program which requires him to work in customer service. I am able to recommend that to increase the likelihood of a successful VR program he should not work in customer service or be in an occupation that requires frequent interaction with the public.

• February 10, 2014 WCB medical advisor comments:

Regarding clarification on my previous comments about his VR program.

Given [the worker's] psychiatrist's report that [the worker] suffers from significant social anxiety, it is recommended that in the workplace, he not be in a position to work directly with the public either face to face or by telephone.

The above recommendation does not indicate a cause-effect relationship to his injury and social anxiety; the social anxiety has been reported as being present since childhood. The recommendation is made to increase the likelihood of a successful return to work.

• A March 28, 2014 report from the treating clinical psychologist:

As you are aware, I have been providing psychological services to [the worker] since June 2010. He has been receiving treatment for both anxiety and depression. [The worker] has had long standing history of social anxiety, panic attacks and depression. His symptoms remain quite severe as they are compounded by his inability to find employment due to his injury. Vocational rehabilitation would be of great benefit to [the worker]. However, an individual with severe symptoms of social anxiety and depression should not be in the field of customer service.

• The Summary of Qualifications on file indicated that [the worker's] work history had primarily been in truck driving and there was no employment history in customer service.

On July 9, 2014, Review Office determined that the vocational rehabilitation plan for NOC 1453, Customer Service Information and Related Clerks was appropriate and that there was only entitlement to partial wage loss benefits based on the implementation of a post accident deemed earning capacity effective January 28, 2012.

Review Office felt that NOC 1453 took into consideration the worker's restrictions for his right shoulder and left arm as well as his education, skills and background/training. On his left arm claim, a functional capacity evaluation in July 2013 demonstrated a medium strength demand level. Review Office indicated that the VR plan for NOC 1453 involved 13 weeks of job search assistance based on the worker's education and training and it was in keeping with Board Policy 44.80.30.20 with regards to the minimum length of job search assistance required before a deem can be implemented.

With respect to the worker's pre-existing social phobia/anxiety and depression, Review Office found the file evidence to show that the worker was gainfully employed prior to his accident and was an active participant in his post accident work experiences and job search activities. This was based on positive feedback from the worker and the employers during his work experience programs and from the comments made by a clinical psychologist in a vocational assessment report of February 2009 and from another clinical psychologist in June 2010.

Review Office found that the worker fully and actively participated in his job search activities for NOC 1453 and it did not find evidence to support that the worker's pre-existing psychological condition(s) were a barrier to his employability.

With respect to the worker's psychological difficulties documented as of June 2013, the WCB psychiatric advisor clarified in February 2014 that recommendations to not work in customer service or have frequent interaction with the public "does not indicate a cause-effect relationship of his injury and social anxiety; the social anxiety has been reported as being present since childhood." Review Office's opinion was that the file evidence supported that the onset of the worker's subsequent psychological difficulties were more reasonably associated with his personal (financial/living) circumstances at the time and his perception of interactions/decisions conveyed by the WCB. This was not considered a compensable condition.

Review Office concluded that the NOC 1453 was appropriate in accordance with Board Policy 43.00 and it followed that there was entitlement to partial wage loss benefits based on the implementation of the deem effective January 28, 2012. On July 14, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was held on November 6, 2014.

Reasons

Applicable Legislation and Policy:

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.”

Worker's Position:

The worker appeared at the hearing accompanied by his father and was assisted by a worker advisor. It was submitted that due to his pre-existing condition of social phobia, the VR plan for NOC 1453 was not appropriate and the worker should not have been deemed. At the hearing, it was acknowledged that the worker had a pre-existing psychological condition. The worker indicated that his current condition was extremely poor and that he suffered from Major Depression, severe anxiety/anxiety attacks, panic attacks and trouble breathing. His sleep patterns were disturbed and he suffered from headaches. He was taking prescription medication for depression and anxiety and was seeing his psychiatrist on a monthly basis. It was submitted that the worker's pre-existing psychological condition of social phobia was a barrier to his ability to work directly with the public. In order for the worker to have a successful return to the workforce he should not be involved in working directly with the public and therefore NOC 1453 was not appropriate.

The worker's evidence was that he did enjoy the work in his first occupational goal of NOC 2282 as a User Support Technician. Unfortunately, he did not have much practical experience in the field. Shortly after finishing his schooling, several companies in Winnipeg downsized and work was outsourced. The few remaining job positions were given to individuals with more experience.

When the VR plan was revisited, the worker stated he was given two options: NOC 1453 (Customer Service) and NOC 1411(General Office Clerk). The worker denied that he ever chose NOC 1453 and stated that the WCB simply proceeded with the implementation of this occupational goal. The worker felt that it would only have made sense for him to pursue NOC 1411 due to his problems with social phobia, anxiety and depression. An earlier psychological vocational assessment noted that the worker preferred to work alone as opposed to working in or with groups of people. It also noted that the worker's verbal communication skills were at the low end and that the occupations he most wished to avoid involved sales.

Overall, the worker felt that if his concerns were listened to and appropriate measures were taken into account to find a more suitable VR plan, he would not have been deemed and he would have been provided with proper measures to find appropriate and meaningful employment.

Analysis:

The issues before the panel are whether or not the vocational rehabilitation plan for NOC 1453 is appropriate and whether it is appropriate to implement a post-accident deemed earning capacity effective January 28, 2012.

The issues before the panel essentially concern the appropriateness of the amended VR plan. In order for the worker’s appeal on this issue to be successful, the panel must find that the VR 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 not able to make that finding.

The key issue in this case concerns the effect of the worker's psychological condition on his ability to be employed in NOC 1453. The nature of the work in NOC 1453 is described on the Human Resources and Skills Development Canada website as follows:

This unit group includes clerks who answer enquiries and provide information regarding an establishment's goods, services and policies and who provide customer services such as receiving payments and processing requests for services. They are employed by retail establishments, call centres, insurance, telephone and utility companies and other establishments throughout the private and public sectors.

It is important to note that the NOC is not an occupation in sales. It deals with the provision and exchange of information to customers and the public, either in person or on the phone. In the panel's opinion, the essential duties are similar to the worker's earlier identified NOC 2282 as a User Support Technician. While NOC 2282 would require greater specialized knowledge and expertise regarding computer systems, the duties of interacting with the public and providing information and guidance are similar. The job description for the worker's Systems Technician work experience position indicated:

A Systems Technician is primarily responsible for providing first line technical support, cabling, warranty repair, desktop and entry level server deployments, consulting services and to assist in other information technology projects for [the employer] and its customers. This may also include some pre-sales support activities and other activities as required to assist in sales opportunities. You will also have to travel to and from customer sites....

In the panel's opinion, there is significant overlap between the nature of the service duties between the two NOC's.

When the worker was participating in the first VR plan for NOC 2282, he experienced significant success. In January 2010 he attended a four day job search workshop and it was noted that he "willingly and actively participated in the discussions. [The worker] was very tentative to the discussions and was not afraid to have input." It was also noted that the worker "demonstrated an ability to get along with others. He was very soft spoken and extremely polite. [The worker] eased up as the week progressed." Information on file indicated that the worker was well liked by his work experience employers and they would have liked to have retained him. It was only due to the unfortunate shift in the industry and widespread downsizing that the worker's VR plan had to be amended and his occupational goal changed. At the hearing, the worker acknowledged that he was happy during his work experiences and that this was a good period for him. The panel finds that the worker's pre-existing psychological condition did not constitute a barrier for the worker to be employed in a field which involved interaction with customers and the public. There is indication that he may have been tentative, but this was not a total barrier. We feel that the evidence establishes that the worker was capable of dealing with the public to some degree, and while not all the available positions in NOC 1453 would be appropriate for an individual with social phobia, anxiety and depression, we find that there are jobs available within the NOC which do not require intensive interpersonal skills.

It is therefore the panel's decision that NOC 1453 was within the worker's abilities, in the presence of a known psychological condition. Although the medical reports from 2013 indicate that the worker's psychological status is a barrier to employability, we find that this was not the case in 2010 and 2011. The panel is inclined to agree with the Review Office's finding that the onset of the worker's subsequent psychological difficulties are more reasonably associated with his personal (financial/living) circumstances at the time and his perception of interactions/decisions conveyed by the WCB, which are non-compensable.

We therefore find that the vocational rehabilitation plan for NOC 1453 is appropriate. It therefore follows that it was appropriate to implement a post-accident deemed earning capacity effective January 28, 2012.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 4th day of December, 2014