The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that National Occupational Classification 6421, Retail Salesperson and Sales Clerks, was an appropriate vocational rehabilitation plan.  A hearing was held on October 3, 2016 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan for National Occupational Classification 6421, Retail Salesperson and Sales Clerks, is appropriate.

Decision

That the vocational rehabilitation plan for National Occupational Classification 6421, Retail Salesperson and Sales Clerks is appropriate.

Background

While employed as a machine tender on May 2, 2012, the worker injured her right shoulder and back in a work-related accident.  Her claim for compensation was accepted and various benefits were paid which included a permanent partial impairment award of 1.3% for her right shoulder.  In April 2014, the worker was referred to the WCB's vocational rehabilitation branch as the accident employer was unable to accommodate her with a position that met the following permanent workplace restrictions:

1. Limitation of more than occasional use of the right upper extremity above shoulder level and beyond the body frame, and
2. Limitation of repetitive resisted right upper extremity pulling.

The worker underwent assessments for transferable skills and abilities, prior education and training, experience with computers and interests and aptitudes.  The worker also underwent English language proficiency testing, where it was determined that she was a good candidate for upgrading. Based on the recommendations of a WCB Employment Specialist, a Vocational Rehabilitation ("VR") Plan was developed for the worker under National Occupational Classification ("NOC") 6421, Light Retail Sales.  The start date of the plan was July 13, 2015 and was to end on April 22, 2016.  The plan included English language upgrading, customer service training, job search preparation and 28 weeks of job search assistance.  Upon completion of the plan, it was anticipated that the worker would be capable of earning minimum wage or $440.00 per week. 

English language upgrading was completed over 36 weeks on April 10, 2015.  Bench mark testing showed that the worker achieved level 5 in speaking, reading, writing and level 5-6 in listening.

In email correspondence dated November 10, 2015, the worker advised that she still had pain in her right shoulder especially when she is handwriting and typing and that she has to take numerous breaks.  She stated "How can I work if I have a problem with my shoulder the pain is all the way up to my neck and my arm…I feel I need more training with Customer Service.  I was only trained for 4.5 hrs.  Also I would like to request a copy of my resume online so I can apply for jobs online as well."

In a decision dated November 19, 2015, the worker was advised by Compensation Services that she had been provided with appropriate training with regards to the occupational goal of light retail sales and that the file information supported her ability to fully participate in the vocational rehabilitation plan until April 22, 2016. 

On March 4, 2016, the worker wrote the WCB to advise that she continued to have right shoulder pain and was scheduled for an MRI examination.

In a decision dated March 14, 2016, the worker was advised by Compensation Services that the WCB did not have medical evidence to support that she could not work within her permanent restrictions. 

On March 23, 2016, a WCB medical advisor opined that the worker's current presentation of chronic right shoulder pain/right shoulder tendinopathy was medically accounted for in relation to the workplace injury of May 2, 2012.  There was no change to the previously outlined permanent restrictions and there was no substantial medical findings or physical impairment(s) to support that the worker was totally disabled from workplace activities.

On March 30, 2016, the worker was advised that based on the WCB medical advisor's opinion and the report from her treating physician dated March 14, 2016, the WCB remained of the opinion that she was capable of working within the previously outlined permanent restrictions and that the occupational goal continued to be appropriate and within her capabilities.  The worker disagreed with the decision and her case was referred to Review Office. 

On May 4, 2016, Review Office determined that NOC 6421, Retail Salesperson and Sales Clerks was an appropriate VR plan for the worker after considering the restrictions related to her right upper extremity and the educational upgrading, job preparation and job search services that she received during the VR plan.  On July 4, 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.

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." The worker is appealing the WCB decision that the vocational rehabilitation plan for the National Occupational Classification 6421, Retail Salesperson and Sales Clerk is appropriate.

Worker's Position

The worker was self-represented.  She told the panel that the training provided by the WCB was not sufficient to permit her to find employment.  She advised that she attended class for only one and one-half hours per day, 3 days per week.  She feels she needs more assistance, with her English language skills.  She asked that she be enrolled in school again for more hours or on a full-time basis. 

The worker said that she looked for full-time employment at several outlets in a large shopping mall.  She did not receive any call backs.  She said she believes this is because of her age and her language skills.  She also said that many of the jobs are outside her physical ability, given she has restrictions on the use of her right arm.  For example, she said that moving clothing at a clothing store would cause pain.

She advised that she approached a large coffee chain but was told the duties were beyond her restrictions.

The worker advised that during her upgrading she complained about her shoulder to her teachers, in relation to key-boarding.  She said that writing also hurt.

Regarding her current medical condition, she advised that two physicians have recommended that she receive physiotherapy treatments.  She advised that the WCB has not authorized more physiotherapy to date.

In reply to a question from the panel, the worker advised that she never agreed that the vocational rehabilitation plan was appropriate.  She indicated that she did not have a translator to explain the plan. 

In answer to a question about what jobs she could do, she said that she told the WCB she would like to do computer work but that this bothers her sore arm.  She said that she may be able to work in a cosmetic sales positon.

The worker also advised that she is very anxious and is afraid to deal with customers.  She is too nervous to work as a receptionist. Regarding the memos on file that indicate the worker was performing well in her classes, she said good memos were put on the file because the WCB wanted her to complete the program.

Employer Position

The employer did not participate in the appeal.

Analysis

This appeal concerns the appropriateness of the vocational rehabilitation plan.  The WCB provided the worker with vocational rehabilitation assistance aimed at re-employing her in NOC 6421, Retail Salesperson and Sales Clerks.  The nature of the work in NOC 6421 is broad and can include work in selling of goods or services. 

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 not able to make that finding.

The panel notes that an Earning Capacity Assessment was completed which supported the selection of NOC 6421.  This included consideration of the worker's occupational suitability and a labour market summary.  The assessment found that there are sufficient light retail positons for persons with the worker's skills and restrictions.

Regarding the upgrading/training component, the panel finds that the worker was provided with sufficient support, including language upgrading, training and job search assistance.  As well, the panel finds that the provision of 28 weeks of job search time was appropriate.

The panel notes that at the commencement of the plan and throughout the upgrading portion of the plan, the worker appeared to be satisfied with the plan.  The worker did not express concern with the quality or amount of upgrading provided. 

The panel notes that the teacher, in the upgrading program, provided many positive progress reports and noted that the worker enjoyed her assignments and consistently exceeded expectations. It appears to the panel that the worker's concerns arose when her job search activities began. The panel also notes the worker's expression of increased pain accelerated when the job search began. The panel finds the rehabilitation assistance provided to the worker reasonably took into consideration the worker’s post-injury physical capacity, skills, and aptitudes.

The worker's appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer 
P. Challoner, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - A. Scramstad (on behlaf of the panel)

Signed at Winnipeg this 12th day of October, 2016