The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the vocational plan for the National Occupational Classification (NOC) 6651 Security Guards and related occupations is appropriate and the implementation of a deemed earning capacity of $500.00 per week effective November 24, 2017 is appropriate. An oral hearing was held on September 13, 2018 to consider the worker's appeal.

Issue

Whether or not the vocational plan for the National Occupational Classification (NOC) 6651 Security Guards and related occupations is appropriate;

Whether or not the implementation of a deemed earning capacity of $500.00 per week effective November 24, 2017 is appropriate.

Decision

The vocational plan for the National Occupational Classification (NOC) 6651 Security Guards and related occupations is not appropriate;

The implementation of a deemed earning capacity of $500.00 per week effective November 24, 2017 is not appropriate.

Background

This claim has been the subject of three previous appeals. Please see Appeal Commission Decision Nos. 47/14, dated April 29, 2014, 87/16, dated June 9, 2016, and 158/17, dated November 23, 2017. The background will therefore not be repeated in its entirety.

The worker has an accepted claim with the WCB for a right wrist injury that occurred in October 2009 during the course of his employment as a machine operator. As a result of the workplace injury, the worker had permanent restrictions of light sedentary type duties with his injured hand and to avoid repetitive gripping/grasping with the injured hand, injured hand to be used as an assist. The worker was able to return to work performing modified duties within his restrictions. However, the employer went into receivership and the worker's employment was terminated on October 26, 2015.

On December 22, 2015, the worker met with the WCB and it was decided that the worker would be enrolled in the WCB's vocational rehabilitation program. On March 16, 2016, the WCB advised the worker that had been enrolled in an English upgrading class to help increase his workplace literacy skills beginning in April 2016.

The WCB provided the worker with a copy of the Vocational Rehabilitation Plan on September 23, 2016. The plan noted that the occupational goal for the worker was in NOC 6651, the plan duration was February 1, 2016 to May 20, 2017 and upon completion of the Vocational Rehabilitation Plan, it was anticipated that the worker would be capable of earning $500.00 per week.

On May 15, 2017, the WCB advised the worker that his Vocational Rehabilitation Plan was ending on May 20, 2017 and his wage loss benefits would be reduced to the earning capacity of his occupational goal of NOC 6651, being $500.00 per week.

The WCB advised the worker on August 8, 2017 that his request for a job search extension was denied. The WCB noted that the request for an extension had been discussed on November 16, 2016 and again on May 23, 2017 and no new information had been provided to support granting an extension of the job search period.

The worker's representative requested reconsideration of the WCB's decision to Review Office on September 20, 2017. Review Office subsequently returned the worker's claim to the WCB for further investigation on September 21, 2017.

On September 22, 2017, the WCB advised the worker that they were extending his job search time for a period of eight weeks and would be providing him with job search assistance. On September 27, 2017, the worker received a Vocational Rehabilitation Plan Amendment noting that the job search supports were now for a period of September 28, 2017 to November 23, 2017.

The worker's representative requested reconsideration of the WCB's decision that the vocational plan for NOC 6651 was appropriate for the worker and the implementation of a deemed earning capacity of $500.00 per week effective November 24, 2017 was appropriate. The worker's representative argued that the worker felt he was not employable within the occupational group relating to a security guard. The worker felt that he did not have the physical abilities, skills or experience to find employment in that occupational group. The worker's representative noted that the worker had applied for positions and had not received employment and, accordingly, the Vocational Rehabilitation Plan stating that the worker would have the skills and abilities to be employable in NOC 6651 and capable of earning $500.00 per week at the end of the plan was incorrect.

Review Office advised the worker on January 9, 2018 that the vocational plan for the NOC 6651 was appropriate and the implementation of a deemed earning capacity of $500.00 per week was also appropriate. Review Office considered the worker's permanent restrictions, his education level, work history and ability to work after the accident, together with his license/training to be a security guard and the employment opportunities available where the worker lived and determined that the vocational plan for NOC 6651 was appropriate. As Review Office had determined that the vocational plan for NOC 6651 was appropriate, the activities outlined in the vocational plan were reviewed. Review Office found that based on the courses and job search assistance provided, the worker would be able to earn $500.00 per week working in security-related positions.

The worker's representative filed an application with the Appeal Commission on January 15, 2018. An oral hearing was held.

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 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 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity, describes when a worker will be deemed capable of earning an amount that he or she is not actually earning and how the deemed earning capacity will be determined.

Worker's Position

The worker was represented by a worker advisor who made an oral presentation and provided the panel with written copies of her presentation. The worker's representative and the panel members asked the worker questions about his vocational rehabilitation at the hearing.

The worker's representative submitted that as of November 24, 2017, the occupational goal of security guard under NOC 6651 was not appropriate. She said that the evidence supports that the worker was not employable in this occupation or its related occupations. She also said that the deemed earning capacity connected to the occupation of security guard was not appropriate.

She noted that the Voc Rehab Policy provides under 3(b) that the VR plan must:

Describe the occupation or occupational group in which the worker can competitively pursue employment upon achievement of the vocational rehabilitation goal.

She said that at the end of the worker's VR plan, the worker was unable to competitively pursue employment because he lacks the skills, the abilities and the requirements connected to this occupation, compared to the general public who are also competing for the same positions.

She also noted that the Policy provided:

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.

She said that in the worker's case there were additional barriers, which included "inadequate writing skills, lack of specific computer skills, the lack of experience," and his compensable physical injury, which contributes to him being unemployable in this occupation.

She said that the worker lacked the language skills for this employment. She noted that his tests results on the Canadian language benchmark tests were below the required score on 3 of 4 basic proficiencies and that a common recommendation for most employment situations is that prospective employees have a complete level 5 benchmark scores in all four areas.

In reply to a question from his representative, the worker advised that in August 2016 he was not able to write detailed reports. He said that using a pen would cause swelling and aching.

The worker's representative noted that job postings in this field indicate the requirement of excellent oral and written skills, but that as of August 24, 2016 there was no evidence to support that the worker achieved a level of excellent oral and written skills.

She submitted that:

In the majority of security job positions provided by the VR consultant, they identified a requirement for excellent writing skills, as well as the job leads from [security firm], security guard providers, who post multiple job advertisements for positions, identified in their postings confirmed a physical requirement that is outside [the worker's] restrictions.

She stated that the worker did not have the skills required by two of the larger security firms which operate in Manitoba.

In answer to a question from the panel about deeming the work at the provincial minimum wage, the worker's representative commented:

Unless the panel can actually determine that there is a specific occupation with a minimum wage deem that he can do, that may be a separate issue. But just giving him a minimum wage deem, I think it's difficult because it may be lesser than a minimum wage deem. He may be only able to do a part-time minimum wage.

She added that minimum wage jobs are more often likely to be part-time.

The worker's wife explained that her husband is registered with an on-line job service which identifies job postings. She advised that the worker's on-line profile indicates a preference for security jobs and those are the only jobs which are being identified. The worker confirmed that he never had an in-person interview for a security job, only on-line interviews. He said that when he advises that he has restrictions, he does not receive further consideration.

Besides security jobs, the worker also applied for paper delivery and courier jobs.

The worker also advised that he spoke to an acquaintance who works in the construction industry who advised him that no employer will hire him due to his restrictions.

At the end of the hearing, the worker's representative submitted:

In this particular case, although the WCB provided some English language upgrading, the WCB failed to provide the training to satisfy the "must have" requirements identified by the security guard companies in order for [the worker] to have a chance in competing for these positions. In evaluating the employability of a person, there must be greater attention put onto the actual job requirements for a position. It is our position that, in this case, the large security guard employers' requirements did not even fit with [the worker's] restrictions, skills and abilities. It is our position to simply have a security guard license does not guarantee a person is employable, even with English upgrading.

Employer's Position

The employer is out of business and is classified as a defunct firm.

Analysis

There are two issues before the panel.

Issue 1: Whether or not the vocational plan for the National Occupational Classification (NOC) 6651 Security Guards and related occupations is appropriate.

The first issue concerns the appropriateness of the vocational rehabilitation plan. 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, the panel finds that the vocational rehabilitation plan goal of employability in NOC 6651 was not appropriate.

The panel notes that the worker was enrolled for upgrading at a learning center. An assessment by the learning center dated January 25, 2016 indicted that with regards to NOC 6651, the worker required additional language skill development. It stated:

Although the occupational areas listed above require the least English skills, we still expect that [worker] would experience difficulties in many of these work places given his present level of English. At present, he would be more suitable for work that required more Speaking/Listening (his higher Benchmark scores) and less Reading/Writing (his lower scores). For occupational groups that do not entail face-to-face contact with the public. Benchmark scores of (5) in all areas would be the minimum recommended.

As [worker] is most concerned with his reading and writing skills, we would suggest that any English up-grading that he receive be prioritized in this order: Writing Skills (with a specials emphasis on spelling and grammar/expression), Reading, Listening, and Speaking.

While the worker expressed concerns regarding his ability to meet the physical demands of the occupations and his lack of experience, the panel places lesser weight on these considerations, given the breadth and types of security positions available, ranging from sedentary to active roles.

However, the requirement for strong English language writing skills was routinely articulated in the job postings and was clearly an important criterion for a successful placement in the security field. That was not met. Accordingly, the panel finds that NOC 6651 was not appropriate, as the evidence on the file does not support that the worker had achieved the skill levels required for employment within NOC 6651.

The worker's appeal of this issue is approved.

Issue 2. Whether or not the implementation of a deemed earning capacity of $500.00 per week effective November 24, 2017 is appropriate.

For the worker's appeal of this issue to be approved, the panel must find that $500.00 per week was not an accurate reflection of the worker's earning capacity, in other words, on a balance of probabilities, that the worker was not capable of earning $500.00 per week as at November 24, 2017 due to his compensable injury.

The panel finds that the $500.00 per week deemed earnings as a security guard effective November 24, 2017 was not appropriate. In reaching this conclusion, the panel refers to its decision in Issue 1 above, in which the panel found that the worker was not capable of working as a security guard under NOC 6651.

However, the panel does find that the worker was capable of working full time at minimum wage. The panel considers his restrictions would not be a barrier to find full-time employment in the minimum wage category.

The panel notes that on November 11, 2017 the WCB Vocational Rehabilitation staff sent the worker an e-mail which indicated:

Instead of sending the same old stuff I figured I would send other jobs. I went looking for jobs where being Spanish Bilingual is an asset…There are some. And I think it is something that has grown.

The panel finds that the above email message was essentially a VR Plan amendment. The Vocational Rehabilitation staff recognized that the goal of employment as a Security Guard was not the only position he should be applying for. The worker was no longer directed to look for only security guard jobs, and he could look for any job. The panel is satisfied that the worker was capable of working full time at a basic level where use of English is not strictly required. In this regard, the panel also notes that the worker's permanent restrictions would not prevent the worker from working full-time in many occupations, including driving positions.

The panel finds that as a result of this change in focus in the VR plan, the worker ought to have been given 8 weeks of job search and be paid full wage loss benefits during the job search period, after which he should be deemed as capable of working 40 hours per week at the provincial minimum wage. The panel finds that the worker has not required the support of the WCB to initiate job search activity. The panel therefore finds that the worker is entitled retroactively to eight weeks of full wage loss benefits, with no further entitlement to vocational rehabilitation assistance.

The worker's appeal of this issue is approved.

Panel Members

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

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of October, 2018