The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing thedecision made by the Workers Compensation Board (“WCB”) that NationalOccupational Classification 6683, Other Elemental Services Occupations, had aviable job market and was appropriate.  Ahearing was held via teleconference on July 9, 2015 to consider the worker’sappeal.

Issue

Whether or not the vocationalrehabilitation plan for National Occupational Classification 6683, OtherElemental Services Occupations, is appropriate.

Decision

That the vocationalrehabilitation plan for National Occupational Classification 6683, OtherElemental Services Occupations, is appropriate.

Decision: Unanimous

Background

In September 2009, the worker filed a claim with the WCB for a left elbow injury that he related to the repetitive nature of his job duties. His claim for compensation was accepted and various types of compensation benefits were paid to the worker. The compensable diagnosis was a partial tear of the common extensor tendon left lateral epicondylitis.

On February 14, 2014, a WCB medical advisor noted to the file that the worker’s permanent work restrictions were to avoid lifting more than 5 to 10 pounds with the left hand, no prolonged or repetitive firm grasp with the left hand and no repetitive movements of the left wrist against force. File records show that the case was referred to the WCB’s vocational rehabilitation branch to assist the worker with finding employment that met his compensable permanent restrictions, education, skills, aptitudes and employment history. The worker relocated to a small community in Southern Ontario and registered with an employment service agency who provided him with different resources to help him find employment.

On October 21, 2014, a Vocational Rehabilitation Plan (“VRP”) was developed for the worker under the occupational goal of National Occupational Classification 6683, Other Elemental Services Occupations (“NOC 6683”). The start date of the plan was November 3, 2014 and was to be completed on February 27, 2015. At the completion of the vocational rehabilitation plan, it was anticipated that the worker would be capable of earning $660 per week. In the event that employment was not secured after the “Job Search” period of the plan, the worker’s benefits were to be reduced in accordance with WCB policy.

On December 23, 2014, the WCB received correspondence from the worker indicating that he wanted to appeal his VRP as NOC 6683 did not have a viable job market in either Winnipeg or near his current residence. The worker also provided information to support his position that the earning capacity of $660.00 a week outlined in the VRP was not correct.

On January 15, 2015, the WCB provided the worker with a “Vocational Rehabilitation Plan Amendment” indicating he would be provided with 18 weeks of job search for the period October 27, 2014 to March 27, 2015 with the assistance of an Employment Specialist (“ES”). The WCB also advised the worker the correct starting wage for NOC 6683 was $440.00 per week.

On January 27, 2015, the worker wrote Review Office indicating that he wanted to continue his appeal on the grounds that there were no full time jobs in NOC 6683 within a 100 km radius of his current address. At the request of Review Office, a new analysis of NOC 6683 was developed by a WCB employment specialist dated March 11, 2015.

On March 12, 2015, Review Office confirmed that the VRP for NOC 6683 was appropriate in accordance with WCB policy 43.00. In making this determination, Review Office referred to the worker’s pre-injury work experience and the information outlined in a transferable skills analysis report of June 16, 2014. This showed that NOC 6683 was suitable for the worker as it took into account the worker’s demonstrated learning ability, physical limitations, aptitude levels, vocational interests, work experience and educational training and pre-injury wage capacity.

Review Office noted that the physical activities associated with NOC 6683 were in the light strength category according to the Earning Capacity Assessment ("ECA") on file which stated:

Lifting is not usually required in this area. Workers in other elemental service occupations may handle ‘light’ loads up to 20 lbs. Physical activity requirements vary broadly and are generally not continuous prolonged or repetitive actions. They can expect a combination of sitting, standing, and walking throughout the day.

Review Office focused on the labour market information for NOC 6683 in Winnipeg (and surrounding area) as the worker lived in Winnipeg at the time of the accident. It was also determined the worker's move to his current residence was unrelated to the compensable injury. Consideration was also given to the labour market in Ottawa (and the surrounding area which is close to the worker’s current residence). The worker confirmed that the communities of Brockville and Cornwall were the largest centres within a half hour of where he lives and that he was close to 100 km south of Ottawa, Ontario. Review Office accepted the results of the labour market summary for Ottawa (and the surrounding area) as documented in the ECA dated October 3, 2014.

Review Office also indicated in its decision that the file information supported that a labour market existed for NOC 6683 both in Winnipeg and near the worker’s current residence as outlined in the labour market summary documented in the Earning Capacity Assessments dated October 3, 2014 and January and March 2015. On March 19, 2015, the worker appealed the decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Workers Compensation Act ("the Act") provides that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as a loss of earning capacity ends.

The Board of Directors of the WCB have made policies dealing with the provision of vocational rehabilitation and the payment of benefits.

Vocational rehabilitation assistance is governed in part, by subsection 27(20) of the Act and WCB Policy 43.00, Vocational Rehabilitation ("the policy").

The policy provides the WCB must describe the methods used to establish the worker can compete for the occupation and include the results of the labour market analysis. Further to the policy, the Compensation Services Operational Guidelines speak to the general tests applied to determine the existence of a labour market for an occupation. Those guidelines state that two or more positive indicators are normally required to verify the existence of a labour market.

The policy also provides:

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. (Emphasis added)

The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that he or she actually returns to work. However, services may not always continue until the worker actually returns to work.

[…]

V. Individualized Written Rehabilitation Plan (IWRP)

[…]

4. The WCB will develop the plan after adequate assessment. This assessment is meant to identify the skills possessed by the worker and skills to be acquired by the worker. Further, the plan will establish the worker’s post plan earning capacity through analysis of the worker’s skills in comparison to the labour market.

5. The WCB will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker’s physical, intellectual, vocational, and emotional capacities. In helping a worker establish a goal, the WCB will apply knowledge of the worker’s vocational profile, medical aspects of the worker’s condition, the worker’s interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles.

Worker’s Position

The worker took the position that NOC 6683 was not an appropriate occupational goal for him on the basis it did not have a viable job market in either the Winnipeg or Ottawa regions. In addition, the worker stressed he was not employable in NOC 6683 on account of his physical restrictions. In particular regard to the field of retail sales, the worker stressed that he was bound to fail on account of his psychological inability to work in a retail sales job.

Analysis

To accept the worker’s appeal, we must find that he does not have the physical capacity, education, skills, aptitudes, interests and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market and/or the VRP was not supported by a viable labour market. Based on the evidence before us, we are unable to make either finding.

Labour Market

With respect to the viable job market, the panel notes that a WCB employment specialist (ES) conducted an earning capacity assessment (ECA) for NOC 6683. The results of the labour market summary were documented on October 3, 2014 and confirmed the presence of three (3) positive labour market indicators as defined in the policy and therefore a viable job market in the Ottawa area. Further, in January 2014, the ES completed a further review of the labour market and confirmed that a viable labour job market continued to exist in the Ottawa area for NOC 6683. Finally, in March 2015 the ES reviewed the Winnipeg labour market and noted that there existed a valid labour market in Winnipeg.

The panel agrees with these findings.

Restrictions

We have considered the worker’s submissions and in weighing the evidence, we do not find that the worker is precluded from working within NOC 6683 on account of his restrictions. In coming to this conclusion, the panel notes the following:

The worker’s pre-injury work experience involved bicycle repair and production work (order picking, packaging and assembly line/mechanic duties) including volunteering for a cycling organization/association in positions requiring leadership skills, team work, and event management skills. He reported having computer skills, his high school equivalency (GED) and a valid driver’s license.

A transferable skills analysis report dated June 16, 2014 outlined NOC 6683 was one of the suitable employment options for the worker as it took into account the worker's “demonstrated learning ability, physical limitations, aptitude levels, vocational interests, work experience, education training and pre-injury capacity."

The ECA for NOC 6683 stated the main duties primarily involve the provision of services by a wide range of retail service and other companies. The physical activities associated with NOC 6683 involve light strength. In the panel's view, the compensable physical restrictions established by a WCB medical advisor on February 14, 2014 (avoid lifting more than 5-10 lbs. with left hand, no prolonged or repetitive firm grasp with the left hand and no repetitive movements of the left wrist/hand against force) could be readily accommodated within NOC 6683. While some positions may be outside the worker's compensable restrictions, the panel notes that this is a very broad industry where many positions will be available to the worker.

Based on the evidence, the panel finds, on a balance of probabilities, taking into account the worker’s compensable injury and his established restrictions, NOC 6683 is appropriate for the worker. Although we appreciate that this is not the worker’s ideal choice of employment, nor may it be the type of employment that he is best suited for, the labour market analysis, (for both the Winnipeg and Ottawa markets), the ECA and Transferable Skills Analysis lead us to conclude that NOC 6683 is indeed appropriate.

Accordingly, we would deny the worker’s appeal.