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 considered employable in National Occupational Classification("NOC") 6623, Other ElementalSales, and that it was appropriate to reduce his wage loss benefits as ofOctober 6, 2014.  A hearing washeld on January 18, 2016 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan with a goal of employability in National Occupational Classification (NOC) 6623, Other Elemental Sales, is appropriate; and

Whether or not the worker's wage loss benefits were correctly reduced in accordance with the vocational rehabilitation plan effective October 6, 2014.

Decision

That the vocational rehabilitation plan with a goal of employability in National Occupational Classification (NOC) 6623, Other Elemental Sales, is appropriate; and

That the worker's wage loss benefits were correctly reduced in accordance with the vocational rehabilitation plan effective October 6, 2014.

Decision: Unanimous

Background

On March 21, 2007, the worker injured his left ankle in a work-related accident. His claim for compensation was accepted by the WCB and various types of benefits were paid to the worker. File records show that the worker has permanent restrictions related to his compensable left ankle injury and that the accident employer was unable to accommodate him with work that met his compensable restrictions. As a result, the worker was referred to the WCB's vocational rehabilitation branch and a vocational rehabilitation ("VR") plan was later developed under NOC 6623, Other Elemental Sales.

The worker refused to participate in the VR plan as the VR plan required him to move from his current address. As a result, the worker was provided with three years of full wage loss benefits which ended on October 6, 2014. As of October 6, 2014, the WCB reduced the worker's weekly wage loss benefits in accordance with the starting wage of NOC 6623. Through the worker's advocate, the decision was appealed to Review Office.

On May 29, 2015, Review Office determined that the VR plan's goal of employability in NOC 6623, Other Elemental Sales, was appropriate and that his wage loss benefits were correctly reduced in accordance with his VR plan as of October 6, 2014.

Review Office noted that the worker was provided with a VR plan that met WCB policy as it considered the worker's pre-accident wage, his intellect, physical abilities and the potential for plan success while remaining financially responsible. The additional concerns regarding relocation had been addressed and the worker was provided with three additional years of wage loss benefits, as specifically limited by the policy. In July 2015, the worker appealed Review Office's decision to the Appeal Commission through his advocate and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker is appealing the WCB decisions regarding whether the vocational rehabilitation plan was appropriate and whether his wage loss benefits were correctly reduced in accordance with the plan.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of WCB's 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."

WCB Policy 43.20.40.01, Relocation (The "Relocation Policy") deals with the subject of relocation as an issue in the management of a case. It deals with eligibility for benefits when there is a disagreement between the WCB and a worker about relocation. It deals with situations where a worker declines to participate in relocation as part of a VR plan. It provides, in part:

f. The WCB will consider it reasonable for the worker to decline relocation as part of a plan when the WCB determines that:

i. The relocation is not considered to be in the best interests of the worker from a rehabilitation perspective; or,

ii. The worker's earning capacity in the proposed new community will not support a comparable lifestyle to the one enjoyed in the community in which the worker lived at the time of the injury; or,

iii. The worker has a significant attachment to his or her community.

Where it is reasonable for the worker to decline relocation, this will not affect wage loss benefits for 3 years.

...

e. When the worker's decision to decline relocation as part of a plan is reasonable, the following will apply:

i. Benefits will be provided on the basis of the worker's earning capacity in the original community and may be continued in this manner for 3 years; and,

ii. After the 3 years, the level of benefits may be established on the basis of the worker's deemed earning capacity in other communities; and,

iii. Implementing a deemed earning capacity is subject to Policy 44.80.30.20, Post- Accident Earnings - Deemed Earning Capacity. The exception is that the WCB is not responsible for the worker's marketable skills deteriorating since the worker declined relocation.

Worker's Position

The worker was represented by a worker advocate. The worker's representative briefed the panel on the worker's claim and appeal. The worker representative and worker answered questions from the panel.

The worker representative noted that the worker was permanently injured on March 21, 2007 when he was run over by a forklift while working. The worker suffered a serious leg injury. Due to this injury, the worker underwent four operations and therapy. Permanent restrictions were imposed in October 2010 of walking and standing on an occasional basis, limited crouching, climbing stairs, pushing and pulling up to 70 pounds, carrying weight occasionally up to 40 pounds, and lifting from floor to shoulder of 50 pounds.

The worker's representative noted that the worker requires an ankle and leg brace for ambulation, and a rocker sole modification to his footwear.

Regarding his rehabilitation, he advised that information on file shows the WCB concluded that there are no viable options in the local labour market for employing the worker, and that any other options would require specific education or training. An April 6, 2011 skills assessment, indicated that the worker had no transferable skills as they were outside his compensable restrictions, and the worker had no related computer skills. It was determined at that time that the worker ought to be relocated to Winnipeg where there is a broader job market for elemental sales.

The representative commented that it is hard to believe there were no minimum wage elemental sales jobs in the Brandon and Westman area. He also questioned why the WCB would not retrain the worker.

The worker's representative advised that the worker declined going to Winnipeg because he needed to be near his family doctor, and stay in the area where he had a support group. He noted the worker was also dealing with personal matters and hoped to get his life back together. As well, he noted that the worker's past experience with living in Winnipeg had been negative.

The representative advised that the worker had issues outside of his compensable injury, medically and personally, including anger management, coping skills and addictions. He noted that the worker is still very upset over losing his employment and being permanently injured by an employee who was not licensed to operate the forklift that ran over him.

Regarding employment, the representative noted that the worker had asked the WCB to help him attain his Class 4 driver’s license for a job he believed he could obtain, but the WCB denied any support. He also advised that the worker attempted to return to work with his accident employer but was ultimately let go by his employer, saying that they could not supply alternate work.

The representative advised that the worker has applied for numerous jobs, but due to his physical condition, employers say they are concerned for his welfare and they do not want to be liable if he is injured.

The worker confirmed that in 2011 when the vocational rehabilitation plan was discussed, he told the WCB that he was confident that he could find employment in the local area rather than moving to Winnipeg. The worker also confirmed that since 2011, he has lived in smaller and more isolated communities.

In reply to a question about looking for employment the worker advised:

It’s mostly been in the last year that the jobs that I have applied...for stuff from like gas station attendant, to in-store clerk. And basically I get told that they’re afraid to hire me because I’m so unsteady on my feet that they’re afraid that I’m not only a hazard to myself, but customers and other employees. Or that I just can’t move quick enough.

When asked whether he could work at a till, the worker advised:

I could do the work. Physically, yes. I have other issues that I have a problem dealing with. I have a real hard time dealing with people altogether now...Ideally, I would like to be able to find a job where I don’t have to be around a lot of people, that I could, you know, still work for a living.

The worker acknowledged that he has "done sales" and worked in stores in the past. With respect to working full time, the worker said that he was out of shape and thinks he could work up to full time.

The worker was asked whether he had any plan to find employment knowing that his benefits would terminate in November 2014. The worker replied that:

See I wasn’t completely, how do I say, I don’t know if I was completely understanding what was going on, because I was understanding that they were going to, they couldn’t find anything for me around there so they’re going to put me out in [town name] and, you know like, you’re on your wages and you, we’ll leave you out there. We’re not going to bother you, we’ll let you try and find something. But at the same time I was, I’m taking [medication] 300 milligrams, two, three times a day, plus [three other medications]... There was other stuff on top of that...

When asked whether they objected to the NOC 6623, the worker's representative replied that there might be a job that he can do in this area.

Regarding the outcome of the hearing, the worker said that he is hoping that he can find some way that he can get help in getting back into the workforce.

The worker's representative submitted that the WCB has an obligation to try and work with the worker to help him get back into the workforce.

Employer's Position

The employer did not participate in the appeal.

Analysis

1. Whether the vocational rehabilitation plan goal of employability in National Occupational Classification (NOC) 6623, Other Elemental Sales, is appropriate.

The first issue concerns the appropriateness of the vocational rehabilitation plan. The plan had two major features: It focused on employment in NOC 6623, Other Elemental Sales and it recommended relocation to Winnipeg.

With respect to NOC 6623, the vocational rehabilitation assistance was aimed at re-employing the worker 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.

For the worker's appeal of this issue to be approved, 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 are not able to make that finding.

The panel finds that NOC 6623 took into account the worker's physical restrictions. The strength requirement of this occupation is sedentary and lifting is not a requirement. The panel notes that the worker confirmed that he had previously worked in sales and felt he could work in sales if a position was available, but did express concern about his non-compensable issues. The panel finds that the vocational rehabilitation plan took into consideration the worker's physical capacity, skills, and aptitudes. Accordingly, the panel finds that the vocational rehabilitation plan goal of employability in NOC 6623, Other Elemental Sales, was appropriate.

With respect to relocation, the panel accepts the evidence on file regarding the lack of employment opportunities in NOC 6623 in the worker's community. The panel finds that, in the circumstances, it was reasonable for the WCB to propose the relocation and provide the worker with a choice to relocate to Winnipeg or remain in his community. The panel finds that the VR plan, including relocation to Winnipeg, was appropriate with a positive labour market survey for Winnipeg in NOC 6623. The panel also finds that under the Relocation Policy, it was reasonable for the worker to decline to relocate to Winnipeg. He had family in his community and had bad experiences when he had previously lived in Winnipeg.

The worker's appeal of this issue is dismissed.

2. Whether the worker's wage loss benefits were correctly reduced in accordance with the vocational rehabilitation plan effective October 6, 2014.

For the worker's appeal of this issue to be approved, the panel must find that the worker's wage loss benefits should not have been reduced in accordance with the vocational rehabilitation plan. The panel was not able to make this finding.

This case deals with a worker who declined to participate in a VR plan that includes relocation of the worker to another community. In this case, the worker declined the plan and elected to remain in his community. The panel finds that worker was fully informed of the consequences of his decision to decline to relocate to Winnipeg, as described in the Relocation Policy.

The file record shows that the WCB wrote to the worker on November 14, 2011. In this correspondence, the WCB confirmed that the worker made a decision to stay in his community and to decline any WCB retraining or job search assistance in the Winnipeg area. The letter provided, in part, that:

Based on your decision, you are entitled to 3 years of full WCB wage loss assistance. The timelines associated with this assistance will be from October 6, 2011-October 6, 2014 as indicated in your Vocational Rehabilitation Plan.

The occupational goal identified in your plan was Other Elemental Sales occupations. At the end of the plan, your wage loss benefits will be reduced by the earning capacity of this goal, which is $400.00 per week. This is the amount the WCB has determined you are capable of earning based on your physical abilities, education, skills, and labour market for that occupational group.

The above information was also communicated to the worker in a letter dated October 17, 2011 and in other discussions with the worker.

The panel notes that the worker did receive full wage loss benefits for three years as provided by the VR plan and the Relocation Policy. It appears that the worker did not look for employment until after his wage loss benefits were reduced. He has also moved to smaller communities where there are fewer jobs. In addition, he had numerous personal issues which interfered with his job search. These actions have created a hardship for the worker. While the panel acknowledges these issues, many of which were within the control or personal choices of the worker, the panel nonetheless is bound by the provisions of the Relocation Policy which limits the payment of wage loss benefits. The panel finds that the worker was in fact paid the three years of benefits from October 6, 2011 to October 6, 2014.

On the question of whether the worker's benefits were correctly reduced, the panel finds that the benefits were correctly reduced on October 6, 2014 in accordance with the Relocation Policy and the worker's VR plan.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of February, 2016