Decision #76/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she was fully employable in National Occupational Classification 6421 and shouldhave a post-accident deemed earning capacity of $410.00 per week effectiveAugust 20, 2013. A hearing washeld on June 3, 2015 to consider the matter.
Issue
Whether or not it is appropriate to implement apost-accident deemed earning capacity of $410.00 per week effective August 20,2013.
Decision
That it is appropriate to implement a post-accident deemedearning capacity of $410.00 per week effective August 20, 2013.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for a left shoulder injury that occurred at work in October 2006. The accident employer was unable to accommodate the worker with a job position that met her compensable restrictions to avoid overhead work and no lifting or carrying more than 20 pounds with the left upper limb. The case was referred to the WCB's vocational rehabilitation branch to assist the worker with finding suitable employment.
File records showed that a vocational rehabilitation plan ("VRP") was developed for the worker based on National Occupational Classification ("NOC") 6421, Retail Salespersons & Sales Clerks. The plan was to run from October 9, 2012 to May 10, 2013 and was later amended to run from February 25 to August 23, 2013.
On July 25, 2013, a WCB vocational rehabilitation consultant ("VRC") provided rationale to reduce the worker's wage loss benefits effective August 23, 2013 by $410.00 per week. The VRC noted that the worker was offered all of the available vocational rehabilitation services including 26 weeks of job search assistance, but made very little use of them. The worker consistently maintained that she was unable to work due to both compensable and non-compensable physical restrictions and during the VRP she was accepted for CPP disability benefits. After the VRP was placed on file, the worker met with the VRC and case manager and was fully aware that the VRP would go forward as laid out and the expectation was for her to fully participate in the plan. Based on the worker's extensive customer service work experience, she was considered to be fully qualified for NOC 6421. The job duties outlined in NOC 6421 were in the light category and were within the worker's compensable restrictions.
On October 23, 2014, the case was considered by Review Office, at the worker's request, to determine whether or not there was an earning capacity of $410.00 per week effective August 20, 2013. The worker's position was that she was unable to work due to ongoing pain and disability and unresolved issues with her shoulder. The worker felt that the restrictions did not capture her lost function and that it hampered her ability to work and earn wages. Reducing her wages was causing financial hardship.
Following its review of all the file information which included the worker's compensable workplace restrictions, the duties associated with NOC 6421, the worker's non-compensable medical challenges and the findings outlined in a transferable skills analysis dated August 28, 2012, Review Office concluded that the worker was employable in NOC 6421 and that there was an earning capacity of $410.00 per week effective August 20, 2013.
Review Office noted in the decision that the worker did not fully participate in the VRP and that this had a direct effect on its outcome. Review Office noted that the worker chose to move to a rural area with limited employment opportunities and did not provide a full effort in the job search portion of the VRP. On January 6, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
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.
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.
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers.
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. 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 attended the hearing with her brother who provided a chronological account of her claim. The worker answered questions from the panel.
The worker advised that she was employed as a waitress for the employer for almost 30 years. She said that she injured her shoulder and could no longer perform her work duties. She had 3 surgeries on her shoulder and it remains painful, a burning feeling, and she cannot use her left arm. She would like to get her shoulder fixed and would consider a 4th surgery. She is waiting for the WCB to refer her to a surgeon, although this has not been discussed with the WCB.
She told the panel that she has other non-compensable medical conditions which make her unemployable. She advised that she has had 19 bone surgeries. She has extreme pain and takes large quantities of analgesic medication to numb the pain. She wears braces on both knees which were prescribed within the last five years. She is being referred to a surgeon regarding a possible knee replacement. She said her back causes significant pain with any physical activity.
The worker has not worked since 2009. She said that because of her knees and back, she has been given a CPP disability pension. She said that she cannot work because she receives the disability pension. She believes that the WCB reduced her benefits because she receives the disability pension.
Regarding the vocational rehabilitation plan, she said that she cannot work in retail sales because she cannot stand. She also said that she cannot work because of the large amount of medication that she takes.
In answer to a question, the worker said that she does not think she applied for any jobs during the job search program. She said that she could not work because of pain. She acknowledged that during the period that her home was being renovated, she could not look for work, with contractors in her home.
Regarding her daily activities, she said that she is not very active. She will walk to her neighbors for coffee, make breakfast for her son and drive him to work. She cannot drive for long periods and can no longer walk her dog, who is too active for her.
Analysis
The issue before the panel was whether it is appropriate to implement a post-accident deemed earning capacity of $410.00 per week after August 20, 2013.
For the worker's appeal to be successful, the panel must find that the worker is not capable of earning $410.00 on a weekly basis as a result of her workplace injury. The panel is not able to make this finding. On a balance of probabilities, we find that the worker's compensable injury does not prevent her from achieving and sustaining this level of earning capacity and that it was appropriate to implement a deemed earning capacity of $410.00 per week after August 20, 2013.
The panel has considered the medical information on file and finds that the medical information does not support the worker's position that she is unable to work as a result of her workplace injury.
The panel reviewed the compensable medical restrictions in place for the worker's return to work, namely:
- no overhead work with the left upper limb
- no lifting or carrying more than 20 lbs with the left upper limb
The panel finds that these restrictions are appropriate and are related to the worker's workplace injury to her left shoulder. The panel notes that a WCB medical advisor reviewed the restrictions and confirmed that the restrictions are appropriate to the worker's continuing clinical presentation and can be considered as permanent. The panel further notes that the worker does have a number of other non-compensable medical issues which are currently affecting her functional abilities. However, the worker was able to work with those conditions, up to the time of her left shoulder injury. As such, those other medical conditions are not factors in considering an appropriate vocational rehabilitation direction for the worker.
The panel reviewed NOC 6421, Retail Sales, which the WCB used in its decision to deem the worker. The panel considers this to be an appropriate NOC given the worker's extensive work history of dealing with the public. The panel finds there are many jobs in this code which can be performed within the worker's compensable restrictions. Information on file confirms there were many employers within reasonable distance of the worker's residence which employed persons in this code. The panel finds that the deeming decision was properly made in accordance with WCB Policy.
With respect to the worker's job search, she advised that she does not believe that she applied for any jobs during the job search period. When asked about the period of time that her house was being renovated, she replied that it was about 6 months and she advised that she had to be home during this time to accommodate the work schedule of the various contractors. She could not leave to look for work. The panel finds that the worker did not seriously participate in her vocational rehabilitation plan.
In answer to questions, the worker told the panel that she is in pain all the time, she takes large amounts of medication which cause her to sleep for significant periods during the day and the pain and medication prevent her from working. The panel notes there is medical information on file from a WCB psychological consultant regarding the worker's pain condition and its relation to the compensable injury. The panel accepts this opinion and finds that the pain condition is not related to the workplace injury and therefore does not give rise to any additional compensable restrictions.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 10th day of June, 2015