The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB")with respect to his vocational rehabilitation benefits.  A hearing was held on June 16, 2015 toconsider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan for NOC 1453, Service Advisor/Writer is appropriate; and

Whether or not the application of a deemed post-accident earning capacity of $769.22 per week effective December 11, 2014 is appropriate.

Decision

That the vocational rehabilitation plan for NOC 1453, Service Advisor/Writer is appropriate; and

That a deemed post-accident earning capacity of $769.22 per week effective December 11, 2014 is appropriate.

Decision: Unanimous

Background

The worker has a previous claim with the WCB for a left wrist injury that occurred in 1996. The 1996 claim file showed that a vocational rehabilitation plan was developed for the worker under National Occupational Classification ("NOC") 1453, Service Advisor.

In January 2013, the worker filed another claim with the WCB for a herniated disc that occurred during the course of his employment as a field technician. The claim for compensation was accepted by the WCB and the worker was paid various types of compensation benefits.

The worker has permanent work restrictions with respect to his compensable accident. As the accident employer was unable to accommodate him with a job position that met his permanent

compensable back restrictions, the worker's case was referred to the WCB's vocational rehabilitation branch in September 2014 to assist the worker in finding suitable employment.

On November 18, 2014, an Employment Specialist ("ES") prepared an Earning Capacity Assessment ("ECA") related to NOC 1453. The main duties of a service advisor were outlined as follows:

• answer inquires and provide information to customers
• explain the type and cost of services offered
• arranging for billing for services
• receive payments and arrange for refunds and credits
• issue receipts and other forms
• receive, log and investigate complaints
• order supplies and maintain inventory
• maintain records and statistics
• perform general office duties
• access and process information
• promote the sales of labour, parts and accessories.

The ECA showed that the worker had the following transferrable skills:

• approximately four years employment in related automotive services areas including some service advising
• service related occupational experience in automotive 15 years
• in an earlier job search, the ES found that the worker had the personality and presentation to be suitable in the position

The ES concluded that there was a positive job market in the field, that the worker met the job qualifications, and was physically capable of performing the duties of a services advisor.

In a decision dated December 4, 2014, Compensation Services advised the worker that based on the ECA results, it was felt that he was still fit to work within NOC 1453, Service Advisor.

The worker was advised that:

"Your current gross weekly benefit amount for [2013 claim] is $714.82

Your current established earning capacity in NOC 1453 Service Writer on [1996 claim] is $769.22.

Based on the above information, your wage loss benefits on [2013 claim] will be paid up to and including December 11, 2014. As of that date, we will consider your loss of earning capacity resolved on this claim."

On December 6, 2014, the worker filed an appeal with Review Office regarding the decision made on December 4, 2014. The worker contended that his transferable skills and his permanent work restrictions did not match NOC 1453.

On February 4, 2015, Review Office determined that the implementation of a deemed post accident earning capacity of $769.22 per week effective December 11, 2014 was appropriate. In arriving at its conclusion, Review Office referred to the ECA findings outlined on November 18, 2014. It was found that the physical activities associated with NOC 1453 were within the worker's permanent restrictions. It found that the worker had the transferable skill set within NOC 1453. It found that the current labour market information on file showed that there was a viable job market in which the worker was capable of competitively finding and competing for employment. Review Office commented that the starting salary associated with NOC 1453 was currently $769.22 per week and that this amount was greater than the worker's average earnings of $714.22. Review Office found that there was no ongoing loss of earning capacity as a result, and therefore no further entitlement to wage loss benefits.

On February 5, 2015, the worker filed an appeal with the Appeal Commission regarding Review Office's decision of February 4, 2015. In March 2015, the Appeal Commission expanded the issue under appeal to include whether or not the vocational rehabilitation plan for NOC 1453 was appropriate.

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.

Subsection 4(1), 4(2), and 39(2) of the Act provide that workers injured in the course of employment are entitled to wage loss benefits until the WCB determines that their 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. Subsection 27(20) provides:

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 explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The 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 contended that the WCB erred when it deemed him to be employable in NOC 1453 Service Advisor/Writer. The basis for his assertion was that his transferable skill set and his restrictions didn’t match NOC 1453 (Service Advisor/Writer). He also asserted that the WCB erred when it deemed him to have a post-accident earning capacity of $769.22 per week effective December 11, 2014.

In terms of a transferable skill set, the worker stated that employers who are seeking out Service Advisors are looking for someone who can take abuse from the employer’s customers. That is not something that he can tolerate. “I’m not the guy to rant and rave at.” He stated that a Service Advisor is expected to sell the employer’s services to its customers. He or she is there to sell as much as possible. He advised that he is not a good salesman. He stated that Service Advisors are expected to input information into the employer’s computer, but his spelling is atrocious and he can’t type “to save [his] life.” He acknowledged however that a previous employer had installed a “spell check” program to address that issue.

The worker acknowledged that he had a wealth of mechanical knowledge, but he contended that the WCB erred when it considered his mechanical knowledge to equate to transferable skills. He said that most dealerships were looking for customer service skills, and as he testified, “that’s not me.”

The worker testified that:

I don’t think that I’m cut out to be a service manager. I don’t have what it takes. You have to have a lot of customer service skills. If you had a problem with your car, I could fix it.

The worker’s permanent physical restrictions, as set forth in a November 2014 Earnings Capacity Assessment, were stated as follows:

Most work should be done with spine in a neutral position

No repetitive heavy lifting

Avoid repetitive bending or twisting of the spine

Ability to sit/stand as tolerated

The worker stated that his limitations left him in a position where he either had to lie on his job application that he could do the job, or tell the truth (that he could not continually stand or sit, and that on occasion, he would need to sit down.)

The worker stated that it was his back, rather than his leg, that was the source of his current issue. His leg functioned quite well, but in terms of his back, it felt like a “pressure build up” when he stood, and that after he stood for some time, the pressure compelled him to sit down once again. He stated that he cares for his back by running 2 1/2 to 4 miles a day. He advised that he can run a “ten minute mile.”

It was the worker’s position that he could only work in a sedentary position. The worker submitted that a Service Advisor position was not sedentary in nature; but rather, a Service Advisor, particularly in a small shop, was “expected to do a lot more than sit there.” He stated that he was looking for a sedentary job where he would have some control over what he could do. “What I need from WCB is for them to introduce me to the workforce.” He was expecting WCB to find him a job.

The worker also stated that he was not working because he didn’t know what to do. He said that people tell him that he is his own worst enemy. In his view, it was up to the WCB to tell him what to do. He expressed a reluctance to do anything, stating that “as soon as I do something, that’s what they will have me do.” He stated “I think that I’m very employable but just don’t know which way to go.” He offered the opinion that he functioned very well as a shop foreman, but the NOC 1453 classification involved a different kind of work. Despite his view that he functioned well as a shop foreman, he hadn’t explored the possibility of applying for such a position.

Although he disagreed that he was employable in NOC 1453, the worker declined to suggest any other classification where he felt that he might be employable. In his view, it was up to the WCB to find him a suitable job. He stated that he didn’t know where to apply. “There are lots of different jobs I can do, but would they fall within the restrictions that have been imposed on me?” The worker stated that he had no idea where he wanted to work.

The worker left the panel with the impression that he was intelligent and well spoken.

Employer’s Position

The employer did not appear and did not take a position.

Analysis

The issues before the panel are as follows:

1. Whether or not the vocational rehabilitation plan for NOC 1453, Service Advisor, is appropriate; and

2. Whether or not the application of a deemed post-accident earning capacity of $769.22 per week effective December 11, 2014 is appropriate,

In order for the appeal to succeed, the panel must find that the NOC 1453 Service Advisor category was inappropriate. We are unable to make that finding.

Issue 1: Was the vocational rehabilitation plan for NOC 1453 Service Advisor, appropriate?

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 his post-injury physical capacity, skills, aptitudes, and where possible, interests. The panel was unable to make that finding.

The panel reviewed the worker’s compensable medical restrictions. The panel is of the view that those restrictions do not present a barrier to performing the type of positions that fall within NOC 1453 (now NOC 6552). While the worker contended that he required a sedentary position, neither his workplace restrictions nor his daily “running regime” would support that contention. The panel notes, each workplace will have its own work flow and job expectations, and many can be modified to deal with matters such as standing and sitting. Despite having acknowledged that “I don’t know what I can do until I do it,” he largely refused to try to do anything.

Paragraph 5 of the Vocational Rehabilitation Policy sets forth guidelines for developing an individualized written rehabilitation plan for workers. It states in part:

The WCB will reasonably ensure that the plan is based on a realistic goal. A reasonable goal is one which is within the worker’s physical, intellectual, vocational and emotional capacities …

The term NOC refers to the National Occupation Classification System that has been developed by the federal government to classify jobs or occupations, and it is that system that is used by the WCB. The 2006 NOC was updated in 2011, and the position of service adviser/writer is now found in NOC 6552.

The nature of the work in NOC 6552 (formerly NOC 1453) is described on the Human Resources and Skills Development Canada Website as follows:

6552 Other customer and information services representatives

This unit group includes customer and information services representatives 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, contact centres, insurance, telephone and utility companies and other establishments throughout the private and public sectors.

The employment requirements for NOC 6552 are stated as:

· Completion of secondary school is usually required.

· Completion of some college or other post-secondary school programs may be required.

· Clerical or sales experience may be required.

The entire list of positions found in NOC 1453 and NOC 6552 include customer service adviser, automobile dealerships service representative, complaints adjuster, service adviser-auto repair, and service writer-auto repair.

An Earning Capacity Assessment (the “Assessment”) completed for the worker in November 2014 provides greater detail. It describes the role of NOC 1453- Service Advisors as follows:

Service Advisors act as the liaison between the customers and the service department and [are] often considered to be the customer’s first contact with the service department. Service Advisors are employed [by employers] within a variety of areas such as: autobody shops, automobile dealerships, RV Centres dealerships, heavy equipment dealerships/shops. Service Advisors assist customers with service and maintenance needs by monitoring the progress of vehicles and keeping the customers updated on the progress.

The Assessment concluded that the physical demands of the Service Advisor occupation were within the worker’s physical capabilities. It stated:

Service advising is considered a sedentary position with changes of positioning common. Workers change positions (from sitting to standing and walking) throughout the day. Occasionally workers may have to briefly sit in vehicles to record mileage for service records or observe problems in vehicle areas identified by customers. None of these actions are considered repetitive. There are no heavy lifting requirements, generally speaking and bending and twisting of any sort is not repetitive.

The Assessment included a Labour Market Analysis, which stated that HRSDC (Human Resources and Skills Development Canada) had listed a “Good employment prospect for this occupation, including for service advisors.” It commented that

The Workers Compensation Board of Manitoba has adopted several tests in the determination of a labour market. Two or more positive indicators are normally required to verify the existence of a labour market.

The Assessment stated that in the worker’s case, the fulfilment of three of the five indicators demonstrated that there was a viable job market for this NOC code.

None of the assessment information was challenged by the worker.

The panel notes that the worker has more than 30 years of experience in servicing automobiles. Included in this were three years as a lead hand, and nine years as a shop foreman with two different employers. A resume on file states that he has “demonstrated team building and leadership experience” and that part of his responsibilities involved “coaching and mentoring mechanics.” One of the dealerships had upwards of 20 mechanics. The worker left the impression that he enjoyed that work and that he was good at working with the mechanics that fell under his supervision.

A Vocational Rehabilitation Initial Assessment completed in October of 2014 stated that the worker had completed a five year apprenticeship program, a Technical College Skills Upgrade (Grade 12), a computer course for Word 2000, and four university courses in physics, calculus, English and chemistry. It also revealed that he had extensive community volunteer experience.

A December 2014 memo to file dealing with the worker’s transferable skill set, stated as follows:

The worker’s previous employment as a Shop Foreman … provided the worker with a significant range of skills …

Employers who hire service writers with service skills and importantly automotive knowledge. The ability to provide efficient service is important in a workplace where the workflow is steady. Organizational ability to manage and schedule multiple service orders is a shared aspect of both a shop foreman and a service writer. [The worker] would have demonstrated these skills. Further (sic) having communicated with mechanics on the services a car requires would be similarly capable of communicating service matters to customers. Shop foremen have the ability to estimate time of service or repair job based on their experience.

A shop foreman has the capacity to explain service work to customers and this is a desired skill by employers given the potential for repeat service and service reputation. For example, automotive service centre's prefer workers with knowledge of automotive systems and varying levels of technical understanding. These are essential skills determined by employers and ones which the worker possesses.

The panel has considered all of the evidence and is satisfied that the worker is capable of being employed in jobs that fall within NOC 1453 (now NOC 6552). The job of Service Advisor meets his restrictions, and he has the transferable skills to meet the requirements of those jobs. He has expressed no other vocational interests for the WCB to consider. The labour market analysis establishes that jobs such as Service Advisor are available within the Winnipeg region.

The worker's evidence was that he has not applied for these or any other jobs. No reasonable explanations were given, with his stated reasons being that he wasn’t one to take “customer abuse”, that he wasn’t one who was prepared to sell services that he deemed to be unnecessary, and that he had no customer service skills. He expressed a reluctance to try any positions, stating that “as soon as I do something, that’s what they will have me do.”

WCB Policy 44.10.30.60 sets forth worker responsibilities to assist in their recovery and their return to active employment. They must demonstrate an ongoing effort towards successful completion of their rehabilitation program. The worker failed in that regard. For example, he stated “There are lots of different jobs that I can do, but would they fall within the restrictions that have been imposed on me?” He made no effort to determine whether they would or would not. Moreover, he adopted an unwarranted assumption about positions in NOC 1453 (now 6552), when he concluded that they all involved having to improperly upsell services or subject ones-self to significant customer abuse, and he did so without ever applying for or interviewing for any of those positions. The panel finds that he made no effort to find employment that fell within his abilities and skill set.

While there may be some jobs within NOC 1453 (now 6552) which are beyond the restrictions arising from the worker’s compensable injuries, the panel finds that the worker is nevertheless employable in an NOC 1453 (now 6552) position.

Issue 2: Whether or not the application of a deemed post-accident earning capacity of $769.22 per week effective December 11, 2014 is appropriate?

On December 4, 2014, the WCB advised the worker that his gross weekly benefit amount for his then current claim was $714.82, and that the current established earnings capacity as an NOC 1453 Service Writer was $769.22. The worker was informed that his wage loss benefits would cease as at December 11, 2014, on the basis that his loss of earnings capacity would end at that time.

In order for the worker’s appeal to be successful on this issue, the panel must find that the implementation of a deemed post-accident earning capacity of $769.22 was not appropriate. Given the panel's findings on issue 1, that the worker was properly deemed employable in NOC 1453, it follows that the current established earnings capacity of an NOC 1453 Service Writer was correctly assessed at $769.22.

The worker’s appeal is therefore dismissed.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 5th day of August, 2015