The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was employable in the field of NOC 6623 - Other Elemental Sales.  Ahearing was held on November 4, 2015 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan with theoccupational goal of NOC 6623 - Other Elemental Sales is appropriate.

Decision

That the vocational rehabilitation plan with theoccupational goal of NOC 6623 - Other Elemental Sales was not appropriate;however, appropriate services were offered/provided and the deemed earningcapacity was appropriately established at minimum wage.

Decision: Unanimous

Background

On July 10, 2013, the worker filed a claim with the WCB for difficulties with his right shoulder that related to jack hammering and heavy lifting during the course of his employment as a labourer. His claim for compensation was accepted and benefits and services were paid to the worker. The compensable diagnosis was a right partial rotator cuff tear.

In August 2014, the worker met with a WCB vocational rehabilitation consultant to discuss vocational rehabilitation planning as it was determined that his shoulder condition prevented him from returning to his pre-accident employment. Based on a Transferable Skills Analysis and other file information, it was determined that NOC 6623, Other Elemental Sales, was the most cost effective vocational rehabilitation option for the worker. A vocational rehabilitation plan ("VRP") for NOC 6623 was then developed which included 29 weeks of job search assistance. At the end of the job search period, it was determined that the worker was considered capable of earning $418.00 per week.

On November 18, 2014, the worker wrote the WCB indicating that he had no experience or training to work in the field of NOC 6623 and that most of the jobs required grade twelve education or a criminal record check. The worker asked that he be retrained in a field that did not require physical work.

In a decision dated February 3, 2015, Review Office determined that Other Elemental Sales was an appropriate vocational goal for the worker. Review Office noted that the employment requirements for NOC 6623 included some secondary school education, high school graduation and some basic computer skills. Review Office noted that the worker completed grade 11 and was one credit short for grade 12. The worker indicated on his resume that he had basic computer skills.

Review Office indicated that the worker was able to secure employment in the past despite having a criminal record. The evidence did not support that the worker's criminal record was a barrier to obtaining employment in NOC 6623.

Review Office concurred with the WCB employment specialist's conclusions that:

• the worker was physically capable of performing the duties of NOC 6623.
• there was a positive labour marked for NOC 6623 in the Winnipeg area.
• the worker had the skills and abilities necessary to be employable in NOC 6623.

On March 18, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral 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.

Pursuant to subsection 27(20) of the 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 was self-represented. He explained his reason for appealing the WCB decision and answered questions from the panel.

The worker advised that NOC 6623 was not appropriate. He told the panel that about 20 years ago he "worked on phones", doing surveys. He said the position involved collecting information from people over the phone. It did not involve sales. He said he got trained but did not do the job.

The worker advised that he had been trying to take a course to be an addiction counselor but that he became ill. He advised that he recently had some serious medical problems unrelated to the workplace injury. He is still in the hospital but was able to attend the hearing.

Regarding his employment history, the worker advised that basically he worked at construction, demolition, and hard labour. He said that he has built houses and torn down buildings.

In answer to a question about the 29 weeks of job search and the job leads which the WCB provided, the worker said that the job leads did not apply to him and that he did not follow up on the leads. The worker confirmed that he had a counselor through another service provider and that he used her instead of WCB staff. He said that:

She’s basically helping me do my resumes and other things to do, and telling me where to go apply for work. And then giving me information, basically.

He said that he applied at 2 or 3 employers which she had referred him to.

He said that he tried to get a security job but could not get a job because he did not have a driver's license at that time and could not get a surety. He advised that he has since obtained his driver's license.

Regarding looking for work the worker advised that:

And I’ve done a lot of leads by myself, and I’ve done a lot of things by myself... I’ve been trying to get into school...medical trainer.

The worker's partner clarified that he was looking for training for a job as a desk clerk, answering phones and taking messages for medical staff.

In answer to a question, the worker acknowledged that he told the WCB he was not interested in any courses, anything which would require going to school for a long period. He said that:

No, I just wanted something to go into very fast, get out of and go back to work right away. That’s all I was trying to get into...

The worker advised that he had previously been enrolled in a course he was not able to complete due to financial reasons. He also advised that he was accepted to a program to be trained as a counselor and was supposed to start in October 2015 but was not able to proceed due to his current medical condition. He said this would train him to be a counselor at an addiction centre or a youth care worker. He was advised there is a market, especially for youth care workers. The worker and his partner advised that he has all of the necessary clearances and has completed his St. John's Ambulance certificate. The worker advised that he is hopeful of getting into the course in 2016, possibly January or February. He said that his wages would be covered if he is in the course.

When asked about the computer training course he chose to take, the worker advised that they did not teach him anything. He denied that the WCB offered to send him on a course and that he had declined.

The worker acknowledged that he agreed with the vocational rehabilitation plan but said:

I agreed with the plan, yes, to a certain point, but I just told them that no, there’s no way I’m going to be able to do something like that, I told them.

Employer Position

The employer did not participate in the hearing.

Analysis

This appeal concerns the appropriateness of the vocational rehabilitation plan. The WCB provided the worker with vocational rehabilitation assistance aimed at re-employing him in NOC 6623, Other Elemental Sales. The nature of the work in NOC 6623 is the selling of goods or services during home demonstrations or by telephone soliciting, retail exhibitions or street vending. Most commonly, this NOC involves telemarketing.

The issue before the panel was whether or not the vocational rehabilitation plan for NOC 6623 Other Elemental Sales is 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 the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. On reviewing the facts of this case, we were able to make that finding.

Upon reviewing the file and receiving the evidence at the hearing, the panel finds that NOC 6623, Other Elemental Sales, was not appropriate. In the opinion of the panel, the worker did not have the skills, aptitude and interests to work in this area.

However, the panel finds that the worker was offered/provided with sufficient support, job search assistance, job search time (29 weeks) to find employment. The panel notes that the worker chose to self-direct his job search in areas other than elemental sales. He declined assistance from the WCB in resume preparation, declined a computer training course recommended by the WCB, instead choosing to use another service for these purposes. As well, the worker advised that during the 29 week job search period he applied for only 2 or 3 positions.

With respect to his employability, the panel finds that the worker has the transferable skills to find employment at a minimum wage level. The Earning Capacity Assessment, dated September 9, 2014, notes that the worker has grade 11 standing, basic PC skills and good interpersonal skills. While the worker has some physical restrictions, the panel finds that the deemed wages at the minimum wage level are appropriate. This deemed earning capacity is at the same level that was set by the WCB for employment in NOC 6623, Other Elemental Sales. The panel finds that the worker is not entitled to further vocational rehabilitation services.

The worker's appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 14th day of December, 2015