Decision #108/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the deemed post-accident earning capacity of $497.15 should not have been implemented. A hearing was held on June 27, 2016 to consider the worker's appeal.
Issue
Whether or not the implementation of a deemed post-accident earning capacity of $497.15 per week effective February 23, 2015 is appropriate.
Decision
That the implementation of a deemed post-accident earning capacity of $497.15 per week effective February 23, 2015 is appropriate.
Decision: Unanimous
Background
In January 2008, the worker suffered a crush injury to his left hand during the course of his employment as a shop labourer. His claim for compensation was accepted and various type of benefits were paid to the worker while he underwent treatment for his injury. In June 2011, the claim was referred to the WCB's vocational rehabilitation branch as the accident employer was unable to accommodate the worker with employment that met his permanent work restrictions.
On October 30, 2012, the worker's claim was considered by the WCB's Review Office to determine whether it was appropriate to implement a post-accident deemed earning capacity (the "deem') of $505 per week effective June 18, 2012. Following review of all the file information, Review Office determined that the implementation of the deem associated with National Occupational Classification ("NOC) 7412, Bus Driver, was inappropriate. The worker was then referred back to the vocational rehabilitation branch for the purposes of establishing a different vocational rehabilitation plan.
As the worker expressed an interest in drafting, a vocational rehabilitation plan (VRP) was developed under NOC 2253, Drafting Technologists and Technicians.
In June 2014, the worker completed a program in Technical Drafting and then participated in an eight week work experience followed by job search assistance from September 22 to December 14, 2014. The job search period was extended to February 22, 2015. On February 23, 2015, the worker's wage loss benefits were reduced based on the implementation of the deem of $497.17 per week.
On August 18, 2015, the worker spoke with his WCB case manager stating that he had not been able to secure employment in drafting. The worker felt that his job search period was not long enough, and his resume had incorrect information that his former employer was telling potential employers that he was disabled.
On October 21, 2015, Review Office considered an appeal by the worker dated August 21, 2015 and determined that the implementation of a deemed post-accident earning capacity of $497.17 per week associated with NOC 2253 effective February 23, 2015 was appropriate.
Review Office referred to specific file information to support that the worker limited his job search options. Based on labour market indicators, Review Office found that there continued to be a valid job market for NOC 2253. Review Office determined that the job search period was reasonable and noted that the worker was given almost double the amount of job search weeks based on the allotted amount outlined in board policy. Review Office indicated that the worker's resume was his personal document and his responsibility to determine what information it contained. Review Office concluded that the worker was employable in the majority of positions in NOC 2253 and that he would likely be able to obtain and sustain this type of employment.
On February 12, 2016 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.
Subsection 4(1) of the Act provides that 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. Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable when a compensable injury results in a loss of earning capacity and are paid until such time as the loss of earning capacity ends.
Pursuant to subsection 27(20) of the Act, the WCB may provide for academic, vocational, or rehabilitative assistance to injured workers.
WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker. The VR Policy states, in part:
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 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.
WCB Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity (the "Deem Policy"), explains when and how a worker can be given a deemed earning capacity. It states, in part:
3. REQUIREMENTS FOR WCB TO DEMONSTRATE DEEMED EARNING CAPACITY:
The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.
b. The WCB must demonstrate that the worker has 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.
The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based.
…
4. DEEMED EARNING CAPACITY FOLLOWING COMPLETION OF A PLAN:
a. Deemed earning capacity will be used in the loss of earning capacity calculation when:
The worker has completed the training part of the vocational rehabilitation plan designed to help the worker obtain new skills or improve current skills;
The worker has been given reasonable job search assistance (i.e., separate from the training part of the plan); and,
The information the plan was based on, including labour market analysis, has not substantially changed;…
Deemed earning capacity will be based on the established actual earnings for a given occupation. This amount will be presumed to be the minimum of the range for an occupation as established at the time of the Individualized Written Rehabilitation Plan and as confirmed after completion of the Plan.
The Worker's Position
The worker was self-represented at the hearing and presented his position with the assistance of his sister. He noted that he finished his training program and was then provided with a work experience program and then given time to find a job. He focused on jobs in his community and in Winnipeg. He was concerned that his job search was hampered by his work injury, in particular, potential employers wondering about his obvious left hand injury and not offering him jobs as a result.
The worker stated that he was very consistent in looking for jobs throughout the job search period. Even when the job postings were low in the winter months, he would still send out resumes and make call-backs to employers. The worker did have concerns about his resume. He stated that the WCB-prepared resume indicated that he had been working until 2012 which was incorrect. He had actually stopped working in 2008 because of his injury but was still considered to be an employee until 2012. The worker stated that "It looks like I was lying" when employers checked with his accident employer for references. He was also concerned that his former employer described him during reference checks as "disabled."
The worker indicated that he never received a job in the job search time allotment that ended on February 23, 2015. He did everything that WCB had asked him to do, until the end of his job search assistance in February 2015. He checked online job websites regularly as well as government job banks, and would send out 20-30 resumes/day. He was motivated to find work.
In response to questions from the panel, the worker advised that he continued to apply for drafting technician jobs as well as any other jobs that he could find. Since February 2015, he worked for only three weeks in September 2015, driving a truck for a potato harvester. His last interview for a drafting position was in early 2015, with the firm that had provided him with a work experience in 2014. He did not get that job. The worker has since revised his resume so that he can apply in other fields as well. He no longer has a car because of his reduced financial position, so this limits his ability to get interviews or even travel to a new job.
The panel asked the worker about whether there were deficiencies in the vocational rehabilitation services that had been provided to him. The worker advised that the "course is too short" and that more training would be better. He also noted that he doesn’t have the work experience that many employers require. The worker acknowledged that the training program that he received does meet the educational requirements set out in the job advertisements that he was reading.
When asked what it was that WCB should be doing for him, the worker suggested that WCB should help place him in an actual job, in the same way that they helped place him in a work experience after he graduated from his training course. He is also seeking full wage loss benefits back to February 23, 2015. Because his wages were reduced, he has had to cut back. He had to sell his car and move in with a family member, so now he can no longer travel to Winnipeg for job interviews or an actual job.
The Employer's Position:
The employer did not participate in the appeal.
Analysis
For the worker's appeal to be successful on this issue, the panel must find that a post-accident deemed earning capacity of $497.17 should not be implemented effective February 25, 2015. In particular, the panel would have to find a deficiency in the worker's vocational rehabilitation plan that demonstrated that the worker was unable to earn $497.17 per week as of that date. The panel is not able to make that finding.
The panel notes that the Deem Policy sets out a number of criteria that must be met, as part of the process of establishing a deem. It is necessary to show that a worker has the physical capacity, education, skills, aptitudes, and where possible, the interests and personal qualities needed to obtain and keep employment in an occupation or group of occupations in the labour market. There must also a demonstrated job market for the occupation or group of occupations on which the earning capacity is to be based.
The panel is bound by the VR Policy and the Deem Policy (as is the WCB), and our analysis is based on the Policy criteria:
Physical capacity: The panel notes that the worker's compensable restrictions essentially limit: lifting with both hand to 30 lb. occasionally and 15 lb. frequently; left hand pushing and pulling to 30 lb.; left hand forceful gripping to 40 lb. and pinching to 14 lb.; left hand fingering and handling to a frequent basis. In response to questions from the panel, the worker confirmed that he was able to complete his school training program and work experience successfully and was not physically hindered in the performance of his work duties by his compensable injury. The one exception being that he keyboards slower on the left side, but this did not lead to a performance issue during his work experience. The worker did not identify any concerns regarding his medical restrictions and this particular occupation. The panel finds that the worker has the physical capacity to work in NOC 2253.
Education, skills, aptitudes, interests: The worker was emphatic at the hearing about how much he enjoyed the career. He did express a concern that the training was too short. However, in describing his work experience placement, he indicated that he was exposed to new software from what he had trained on, but found that he had all the tools necessary to adapt and learn and excel in the workplace. Within three weeks, he was fully up to speed on the new system. He acknowledged that his one year training program meets the educational requirements of the drafting job postings that he is seeking. He also indicated that fellow graduates are being hired. The panel finds that the evidence supports that the worker has the education, skills, aptitude and interest in the field to be considered to be employable in NOC 2253.
Personal qualities: The worker described himself as highly motivated and active in job search, and in the panel's view, this is very much reflected in our review of the worker's file. The panel further notes that the worker had excellent scores in mock interview tests done during his first VR plan. As well, the worker demonstrated versatility in adapting to new technologies and demonstrating competence in his work placement, suggesting to the panel that the worker has the personal qualities to work in NOC 2253. While the worker did express concerns regarding his resume, it is the panel's view that gaps in employment history (and permanent restrictions) are a reality in many claims involving injured workers and vocational rehabilitation programs, but these do not preclude the reintegration of the worker into the workforce. The panel finds that the worker has qualities that make him suitable in a team or individual work setting.
Demonstrated job market in NOC: The panel notes that the WCB Employment Specialist undertook a Labour Market Survey on April 23, 2013, which indicated that 5/5 of their labour market indicators were met, suggesting a strong labour market. The panel notes that the worker's evidence consistently confirmed an active labour market during his job search and subsequently through 2015. The panel finds that that work exists in NOC 2253, as required by the Deem Policy.
The panel therefore finds that the VR plan established for the worker in NOC 2253, Drafting Technologists & Technicians was consistent with the all of the criteria set out in the Policy. While the worker did not actually gain employment in the field, the panel notes that the purpose of the Policy is to ensure that workers are employable and does not guarantee employment. The panel finds that the worker was competitively employable in this field, and that NOC 2253 was an appropriate occupation for the worker. It respected his compensable medical restrictions, as well as his education, skill, aptitudes, interests and personal qualities. There is also a demonstrated job market in that field.
The panel then turned its attention as to whether the deemed earning capacity of $497.15/week was appropriate. The panel considered the criteria in the Deem Policy on how a deem is set, and finds that the date of the deem (February 25, 2015) was correctly set, given the evidence before us: The worker had successfully completed his training; he was given reasonable job search assistance including; resume writing and job search workshops; an interview skills assessment as part of his first VR plan (where he rated out as excellent); extensive contact lists and the tools to find his own leads; and an extended job search period of 22 weeks beyond the normal 12 weeks provided, to account for the low season for hiring.
The labour market had not substantially changed, based on the worker's evidence at the hearing that there continues to be an active labour market in his field.
As to the amount of the deem, the Deem Policy provides that it will be based on the established actual earnings in NOC 2253, and is presumed to be the minimum of the range for an occupation as established at the time of VR Plan and as confirmed after completion of the Plan. The panel notes that an Earnings Capacity Analysis ("ECA") for NOC 2253 was performed through an occupational review, which led to an earnings capacity range of $497.17-$690.00.
The worker did not provide any comments at the hearing as to whether the amount of the deem was correctly set, beyond stating that he was looking for retroactive full wage loss payments and the assistance of WCB to get him hired into a specific job, much like they did for his work experience placement. The panel has reviewed the ECAs and accepts the earnings range as being the most reflective of the worker's earning capacity in NOC 2253 at the end of his job search in February 2015. Further, in keeping with the Deem Policy, the deem was correctly set at the minimum of the range of the occupation.
The panel therefore finds, on a balance of probabilities, that a post-accident deemed earning capacity of $497.17 was correctly implemented effective February 25, 2015.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Finkel - CommissionerOfficer
Signed at Winnipeg this 12th day of July, 2016