Decision #148/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the vocational rehabilitation plan for the National Occupational Classification (NOC) 1411, General Office Clerk, is appropriate. A hearing was held on November 26, 2019 to consider the worker's appeal.
Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 1411, General Office Clerk, is appropriate.
The vocational rehabilitation plan for the National Occupational Classification (NOC) 1411, General Office Clerk, is appropriate.
The worker notified the WCB on August 4, 2016 that she suffered an injury to her lungs at work on October 6, 2015. She reported "Over the period of time at work I have developed a shortness of breath, cough, wheeze and tightness in my chest. These symptoms were worse when I was working with a variety of hairspray, bleach powders, coloring agents and perms." The worker was seen by various healthcare providers including her family physician, a physician with an interest in occupational medicine, a respirologist and an immunologist and was diagnosed with occupational asthma. The worker's claim was accepted by the WCB on November 10, 2016 and a permanent restriction of not being able to return to her previous occupation was placed. As the worker's previous employer could not accommodate the restriction, the WCB commenced a vocational rehabilitation plan.
On January 2, 2018, a Vocational Rehabilitation Plan for National Occupation Code (NOC) 1411 General Office Clerk was developed for the worker, which was set to end on January 11, 2019. The worker was accepted into an Office Assistant program on January 25, 2018 with an expected graduation date of August 15, 2018. The worker completed the program on August 15, 2018 and the worker's entitlement to job search services with the WCB vocational rehabilitation department period started on September 24, 2018, to end on January 24, 2019. This period was extended by the WCB to February 15, 2019.
The worker was advised on March 8, 2019 that her Vocational Rehabilitation Plan was completed on February 15, 2019. It was further noted that at the end of the Plan, her wage loss benefits were reduced based on the deemed earning capacity of NOC 1411 General Office Clerk.
The worker's representative requested reconsideration of the WCB's decision to Review Office on April 21, 2019. In his submission, the worker's representative noted that due to the worker's compensable injury of occupational asthma, she was unable to obtain employment. The worker's representative provided examples of the worker becoming "…ill with difficulty breathing…" during both her time while in the training program and while the worker was participating in an internship.
On June 4, 2019, Review Office determined that the vocational rehabilitation plan for the National Occupation Code (NOC) 1411, General Office Clerk was appropriate. Review Office noted that the medical evidence on the worker's file indicated that she continued to have symptoms of her occupational asthma and would continue to have those symptoms when exposed to irritants other than those found in her former occupation. However, Review Office further noted that asthma does not typically mean a worker is totally disabled and is a condition where "flare-ups" due to periodic exposure to irritants may occur. Review Office found that the worker had the training and skills to compete for work within NOC 1411 and that a labour market existed for that occupation. Further, Review Office found that the worker was physically capable of performing the job duties within NOC 1411 as that occupation included a variety of "…possible jobs and environments." It was also noted that the worker should be capable of finding employment suitable for her respiratory problems as any irritants the worker would be exposed to in an office environment would be similar to those she would be exposed to in her daily life.
The worker's representative filed an appeal with the Appeal Commission on August 28, 2019. An oral hearing was arranged.
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.
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.
Subsection 27(20) of the Act states that the WCB may provide academic, vocational and rehabilitative assistance to injured workers who could experience a long-term loss of earning capacity.
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 under subsection 27(20) of the Act. The VR Policy states, in part, that:
1. 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.
2. The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work.
The worker did not attend the hearing but was represented at the hearing by her spouse as the worker's advocate. At the outset of the hearing, the panel advised the worker's advocate of its concerns about the absence of the worker which would prevent the worker from responding to questions posed by the panel. The panel advised of the ability of the worker to participate via teleconference but, after consulting with the worker, the worker's advocate stated that the worker did not want to participate and he confirmed that the hearing should proceed in her absence.
The worker's advocate described the on-going effects of the injury which include sensitivity and negative reactions to cold (including air conditioning), perfume and nicotine. He confirmed that the worker had not worked as a hairdresser for the last three and a half years and that the family home and activities have been modified so as to limit her exposure to things which trigger her asthma. He described the accommodations that needed to be made to allow the worker to complete her training and internship which included removing her from a classroom where a strong nicotine smell was present.
The worker completed her retraining course as a general office worker and submitted numerous applications for positions which appeared to suit her training and capabilities. The worker's advocate stated that the worker had only one interview offered but she didn't attend; he speculated that this was due to illness. He stated that the worker is not currently seeking work, nor is she taking volunteer positions. The worker's advocate indicated that the worker needs to find a job where the employer could accommodate her but stated that the worker is not employable because, even if she were offered a job, she would not be successful since an employer would not accept her absences due to illness. He said that no employment is appropriate because the worker has difficulty breathing and would not be able to work regularly, therefore the NOC 1411 is inappropriate because she is unable to work.
The worker's advocate acknowledged that the worker also suffers from "psychological problems" and that both her general health and her mental health were responsible for her inability to work.
The worker's employer was not represented at the hearing.
In this appeal, the panel was called upon to consider whether or not NOC 1411, General Office Clerk, is appropriate.
The worker is restricted from working in a hair salon environment and a referral was made for vocational rehabilitation services. Following completion of an assessment of transferable skills and an earning capacity assessment, a determination was made that a plan for development under NOC 1411 was the most realistic and cost-effective option to recapture the worker's pre-accident earnings. The worker, with some accommodations to avoid irritants which triggered her symptoms, successfully completed a computer upgrading course and a six month office assistant program. She then completed a four-week internship as part of the office assistant program.
Pulmonary function reports for May, July and September, 2018, indicated that the worker had mild obstructive pulmonary impairment. A lung capacity test conducted in July, 2019 showed the worker to be within the normal range.
The worker is allergic to three chemicals which can trigger her occupational asthma. At the hearing, the worker's advocate maintained that the worker is unable to work in any capacity. However, while exposure to triggers may need to be limited, there was a lack of evidence before the Panel to support the assertion that chemicals which are normally found in workplaces would trigger the occupational asthma and preclude the worker from employment in an office environment. The worker's position that she would be unable to be gainfully employed due to the presence of any of these three chemicals, which would cause her to miss work thus subject to being fired, is speculative.
Further, while there is some reference by the worker's caregiver's that she was experiencing difficulties related to the cold/air conditioning, based on the information available the panel is unable to establish that this medical condition is related to her workplace injury. When asked by the panel why the worker maintains that she is unemployable, the worker's advocate noted that the worker has other medical concerns such as migraines and psychological problems which play a role, equal to the compensable injury, in her inability to work. However, such medical concerns have not been adjudicated by the WCB and it is not within the jurisdiction of the panel to determine whether these concerns are part of the compensable injury and, if so, whether they might affect the worker’s ability to gain employment at NOC 1411.
The panel finds that the worker has the skills and education to work in NOC 1411.
K. Gilson, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of December, 2019