Decision #22/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the vocational rehabilitation plan for employment within National Occupational Classification (NOC) 6541 Security Guards and Related Occupations is appropriate. A hearing was held on January 8, 2020 to consider the worker's appeal.
Whether or not the vocational rehabilitation plan for employment within National Occupational Classification (NOC) 6541 Security Guards and Related Occupations is appropriate.
The vocational rehabilitation plan is not appropriate. The panel makes no finding whether the National Occupational Classification (NOC) 6541 Security Guards and Related Occupations is appropriate.
On October 24, 2014, the worker filed a Worker Incident Report with the WCB reporting that he injured his lower back in an incident at work on July 23, 2014. The worker's claim was accepted by the WCB on January 5, 2015 and benefits commenced.
The worker attended for chiropractic and other medical treatment due to ongoing symptoms. The worker returned to work on May 26, 2015 on a work hardening program. However, after three days of working, the worker experienced an increase in symptoms and the work hardening program was discontinued.
On November 12, 2015, the worker attended for a call-in examination with a WCB chiropractic advisor. The WCB chiropractic advisor opined that the worker's diagnosis was a "…slowly resolving left lumbar radiculopathy, likely level S1." Further, the WCB chiropractor advisor recommended against the worker returning to work based on his current clinical presentation.
At the request of the worker's WCB case manager, the worker's file was again reviewed by the WCB chiropractic advisor on June 21, 2016 to determine if there was any treatment plan and restrictions for the worker. The WCB chiropractic advisor opined that "…there is no evidenced treatment intervention that can be relied upon to lead to sustained improvement in function" and that a Functional Capacity Evaluation should be performed to determine the restrictions for the worker.
The worker underwent a Functional Capacity Evaluation on June 24, 2016 and on August 16, 2016, the WCB chiropractic advisor recommended permanent restrictions of occasional (less than 33% of the workday) lifting of up to twenty pounds; frequent lifting of maximum ten pounds; carrying up to fifteen pounds on an occasional basis and up to five pounds on a frequent basis; maximum overhead lifting of fifteen pounds; occasional driving up to one hour at a time; and alternate sitting and standing as required. The restrictions were provided to the employer on August 17, 2016. The employer advised that they could not accommodate the worker's permanent restrictions and on October 13, 2016, a request for vocational rehabilitation services was made for the worker.
A Transferable Skills Analysis - Stage 2 was completed by the WCB's Vocational Rehabilitation Services on February 6, 2017. It noted "[The worker] also has work experience working in factory production settings as a metal spray painter, film and book printing processor. These jobs were labor intensive requiring a great deal of lifting/carrying and standing throughout a work day. Based on [the worker's] compensable restrictions, he has little transferable skills that translate into tangible employment opportunities." Further, it was noted that the worker resided in a small community, approximately 100 kilometers outside of a major labour market. A Vocational Rehabilitation Plan under National Occupational Classification (NOC) 6651/6541 -Security was developed with a duration of February 27, 2017 to February 27, 2019. It was noted that the worker had the education and abilities to work within NOC 6651/6541. However, he had chosen to remain in his small community and as such, would receive two years of wage loss benefits as set out in the relocation policy. The WCB's vocational rehabilitation consultant met with the worker on April 18, 2017 to review the Plan and the two year timeline related to the relocation policy. The consultant noted that the worker understood the plan and encouraged the worker to continue to seek other forms of employment near his home.
On February 15, 2019, the worker requested reconsideration of his Vocational Rehabilitation Plan to Review Office. The worker stated that he was unable to drive to Winnipeg on a daily basis to work due to his injury related restrictions. The worker stated he was willing to work, but it would have to be closer to his home. In support of his request, the worker submitted a letter from his treating chiropractor noting that the worker was unable to drive for more than an hour on a regular basis that would be required for him to commute to Winnipeg and that he would see a loss in his therapeutic gains every time he drives for more than twenty minutes.
Review Office determined on March 19, 2019 that the implementation of a deemed earning capacity effective February 27, 2019, associated with the National Occupational Classification (NOC) 6651 Security Guards and Related Occupations was appropriate. Review Office found that the worker resided in a small community with no viable occupations for the worker within the surrounding area and a larger, major labour market was established as more viable for the worker. Within that major labour market and based on the worker's education and abilities and taking into consideration the worker's restrictions, the NOC 6541 Security and Related Occupations was determined for the worker. The WCB's vocational rehabilitation consultant had completed an earning capacity assessment for NOC 6541 which determined it was "average to above average (GOOD)" for the major labour market. An updated earning capacity assessment completed in January 2019 noted a similar result. Review Office noted and agreed with a January 7, 2019 memo to file indicating that there was a viable job market for the worker, with his permanent compensable restrictions, within NOC 6541 had he relocated to the major labour market area. Further, it was noted by Review Office that the worker chose to remain in his community and determined that he declined to participate in the vocational rehabilitation plan. Accordingly, Review Office determined that pursuant to the relocation policy, the worker was entitled to full wage loss benefits for two years and effective February 27, 2019, a deemed earning capacity within NOC 6541 was implemented and his wage loss benefits were reduced.
The worker's representative requested reconsideration of Review Office's March 19, 2019 decision on July 23, 2019. The worker's representative presented that the NOC 6541 was not appropriate for the worker as it was not compatible with his skills, it was selected without his input or consideration of his interests and the worker was not presented with the option of relocating or provided with details of how the WCB's relocation program functions. The worker's representative also requested that the worker's entitlement to two year's full wage loss begin on April 13, 2017, being the date the vocational rehabilitation consultant attended at the worker's home to discuss the full details of the plan with him, and not February 27, 2017.
On September 9, 2019, Review Office determined that the implementation of a deemed earning capacity associated with National Occupational Classification (NOC) 6541 Security Guards and Related Occupations is appropriate and that the implementation of a deemed earning capacity was effective April 12, 2019. Review Office found that had the worker participated in the vocational rehabilitation plan associated with NOC 6541, he would have become eligible for employment within that occupation group. Review Office also found that the worker was "…fully informed of the consequences of his decision not to relocate to Winnipeg at various points prior to, during and at the end of the two year time frame." Further, Review Office found no evidence that the worker "disagreed with or expressed concern" with the vocational rehabilitation plan created for him or that he lacked understanding of the consequences of his decision not to relocate.
The worker's representative filed an appeal with the Appeal Commission. An oral hearing was arranged.
Applicable Legislation and Policies
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of the Directors.
Academic, vocational, 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.
This 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 Workers Compensation Act (the Act). For the purposes of this policy, this assistance is referred to as vocational rehabilitation. Vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness.
When a worker is injured or adversely affected by an occupational disease, the WCB's goal is to help that worker return to health and work as soon as possible, ideally with the original employer. However, in some cases injured workers are unable to return to their pre-injury place of employment and, when an injured worker resides in a small or rural community, it can be difficult to find suitable alternate employment. In these cases, the WCB may support the worker in relocating to a different community and labour market.
This policy and guidelines outline the WCB's approach to supporting the relocation of injured workers when it becomes difficult to recover a loss of earning capacity in the home labour market.
The worker was represented by a worker advisor, who made an oral presentation, a written copy of which was also provided to the panel. The worker responded to questions from his representative and from the panel.
The worker advisor identified four issues that he submitted the panel should consider to uphold the worker's appeal:
1) The job classification was not compatible with the worker's skills and aptitudes;
2) The vocational rehabilitation consultant (VRC) selected this job classification for the worker without regard for his interests or input.
3) Despite the VR policy's mandatory language, the VRC did not create an Individualized Written Rehabilitation Plan (IWRP) proposing relocation to the Winnipeg market, inclusive of details to present to the worker; and
4) The WCB either misapplied, or did not apply, many required aspects of its relocation policy. Therefore, the worker did not decline an offer to relocate for retraining purposes; rather, the WCB did not meaningfully present to him the option of relocating
The worker advisor reviewed the various aspects of the vocational rehabilitation and relocation policies and highlighted how many of those procedures were not followed or applied correctly.
In response to questions from the worker advisor as well as the panel, the worker confirmed he had discussions with the WCB about him working in Winnipeg. However, he denied being made aware by the WCB of any details regarding the option of him and his family relocating to Winnipeg as part of the vocational rehabilitation plan. He stated that he was first made aware of the option to relocate to Winnipeg when he read about it in a Review Office decision.
When the worker was asked by the worker advisor about what he might have said if someone from the WCB had advised him they were considering having him move to Winnipeg to increase his chances of finding employment, the worker stated:
A) I would ask lots of questions, like how, I’m going to sell my home, I’m going to find a job at Winnipeg, in Winnipeg a good job, and there’s lot of things to ask. I’ve got a home now, and I live in it, what, for 18 years now at this home, and how to sell the home, and how to buy a home in Winnipeg and everything, all the moving and jobs and --
Q) And do you have children?
Q) At that time, let’s talk about in 2017 --
A) I got three at home at that time.
With respect to the relocation policy in particular, the worker advisor stated the following;
Concluding our remarks on the matter of relocation, moving one’s entire family from a small rural community to a provincial capital city is arguably a life-changing act. With a decision of such magnitude, we believe it is incumbent on the WCB to provide workers sufficient information about their rights and responsibilities, as well as the potential benefit and service consequences associated with such a decision.
Whereas the file information shows the WCB did not follow the relocation policy criteria, we submit the worker did not voluntarily decline a viable vocational rehabilitation relocation plan.
Regarding the WCB determining that NOC 6451 was an appropriate classification for the worker to be deemed to be employable in, the worker advisor stated the following:
…we provided the WCB with labour market information, inclusive of Winnipeg-area security job advertisements that list the requirement for exceptional or superior customer service skills. The vocational consultant indirectly addressed this skill when noting that the worker was not employable in NOC 6552, that being other customer information services representatives, because of the worker’s, using the consultant’s words, thick … accent, somewhat shy and reserved personality and demeanor, and because he would not have the interpersonal or English language skills for the above occupation. We fail to understand how the above-noted insufficient skills and personality traits translate well into a sustainable security occupation.
In summary, the worker advisor stated that compensation services did not provide the worker a fair opportunity to participate in the selection of his future career path. They believed that the WCB received valuable information from the completed educational assessment, but disregarded all of the recommendations. The worker advisor stated that the worker was a motivated and willing participant with the vocational rehabilitation process, which makes it difficult to understand how and why those services ended as they did.
As a result, the worker is requesting that the panel overturn the Review Office decision, and that the panel also recommend compensation services restart the vocational rehabilitation process to allow for the worker’s meaningful input into its decision.
The employer did not participate in the appeal hearing.
In order for the worker's appeal to succeed, the panel must find that the vocational rehabilitation plan for employment with National Occupational Classification (NOC) 6541 Security Guards and Related Occupations is not appropriate. The panel was able to make that finding in this instance for the reasons that follow.
As previously noted, the worker advisor outlined to the panel four general areas that they submitted would be grounds to accept the worker's appeal. The panel will respond to the issues raised by the worker advisor in reverse order.
The panel accepts and agrees with the worker's submission that the WCB either misapplied, or did not apply, all the required criteria of its relocation policy.
It is the panel's understanding that part of the vocational rehabilitation process, in some instances, may involve determining whether it is appropriate for the WCB to pursue relocating an injured employee in order to facilitate the worker obtaining post injury employment. Policy 43.20.40 describes how that determination is to be made.
The relocation policy (43.20.40) contains six steps that will be followed in order for the WCB to make a decision regarding relocation:
1) Employability assessment in the home labour market.
2) Employability assessment in alternate labour markets.
3) Comparison of labour plans.
4) Decision making
1) No significant reduction of overall costs.
2) Positive reduction of overall costs
3) Other considerations
1) Accepted Relocation Plan
2) Declined Relocation Plan
6) Limitations and Amendments
When reviewing the available information on the worker's file and considering the evidence provided at the hearing, the panel is satisfied that 4(3) of this policy was not properly applied in this instance.
Step 4 (3) states the following:
3) Other considerations
Further discussion items with the injured worker will include:
• the worker's psychosocial, medical and motivational factors that may affect a relocation to a target labour market;
• whether or not the combined anticipated family income in the target labour market will be affected;
• whether the employability based earning capacity in the target labour market would support a comparable standard of living to the one already established in the home labour market.
The panel was unable to identify information that the above noted considerations were examined when the WCB was determining whether the worker should relocate.
The panel notes that contained within the February 6, 2017 Transferable Skills analysis - Stage 2 is the following statement:
The worker has resided in his home near (town) for over 15 years, has a working wife, and two children. He has significant attachment to his community and will choose to remain there.
The panel is unable to identify information or clarification with regard to the comment regarding "significant ties to the community." and what that means from a psychosocial perspective as required in the first bullet of Step 4(3) of the policy. It is not explained in the file as to what those significant ties were and how they would be affected by the worker and his family relocating to Winnipeg.
The panel was also unable to identify information on file with respect to the worker's spouse's employment, such as the type of employment she was engaged in, how long she had been employed, her annual income or how relocating the worker and his family would affect the "combined anticipated family income in the target labour market" as required under the second bullet of Step 4(3) of the relocation policy.
With regard to the third bullet in Step 4(3) of the policy, the panel was unable to identify any analysis as to whether relocating and working within Winnipeg would "support a comparable standard of living to the one already established in in the home labour market" as required under the policy. In the panel's view, a detailed analysis of this issue is an essential requirement for a worker to be provided when considering the possibility of relocating.
Without these three criteria being examined, the WCB and the worker, would have been unable to make a fully considered determination regarding relocation.
In addition, it is also the panel's position that a relocation plan was not offered to the worker for him to accept or reject, or if it was, the plan was not offered to the worker in a manner that he properly understood the details or the impact the matter had on his claim.
At the hearing, the worker acknowledged there were several discussions with WCB staff about the prospect of him seeking work in Winnipeg, but the worker stated that he was not aware that a WCB supported relocation plan to access employment opportunities was an option available to him or what that consisted of.
The panel further notes that while there were reports in the file that indicate the worker had chosen to remain in his home community, the panel could not identify appropriate documentation on file that the details of the relocation policy were clearly articulated to the worker.
When the worker was specifically asked by the panel what his understanding was regarding why the WCB advised him in early 2017 that he was only going to continue to be paid full wage loss benefits for a further two years, the worker responded that he thought that two years of full wage loss benefits was all he was entitled to. The worker's response was consistent with the panel's position that the relocation issue was not properly canvassed with the worker.
The panel recognizes that determining whether an injured worker, and their family, should be required to relocate as part of the vocational rehabilitation process is a significant undertaking both by the worker (and their family) and by the WCB. Given the enormous impact relocation decisions will have on the worker, their family and the worker's claim, it is essential that the details of the possible relocation are fully explored by the WCB and that the worker is fully informed of all the factors that are to be relied upon when the WCB is making such a determination in order to ensure the worker is able to make an informed choice. Based on the evidence available, the panel is satisfied that this did not occur, in this instance.
With respect to the third issue raised at the hearing on behalf the worker by his worker advisor regarding the WCB not creating an Individualized Written Rehabilitation Plan (IWRP) that provided a proposal for the worker relocating to Winnipeg, the panel does not agree with the worker's position or interpretation of the policy.
It is the panel's understanding that, as per Policy 43.20.40 (C) Step 5 (1), If it is determined to be appropriate that a worker relocate to obtain employment under a WCB vocational rehabilitation plan, an IWRP is only undertaken if the worker accepts the relocation plan. In this instance, the worker did not accept the relocation plan. The WCB proceeded on this claim based upon the premise that the worker was unwilling to relocate from his home community. As such, the WCB proceeded to Step 5(2) of the relocation policy which outlines the process when a worker chooses to not relocate and that process does not involve the development of an IWRP
The panel is satisfied that the part of the vocational rehabilitation process related to determining whether it was appropriate for the worker to relocate was not done in accordance with the established policy. Therefore, it would be pre-mature for the Appeal Commission to make a determination whether the proposed job classification identified by the WCB for vocational rehabilitation is appropriate until it is determined whether it is appropriate for the worker to relocate to obtain employment, in particular, taking into consideration Step 4 (3) of the administrative guidelines under Policy 43.20.40
As a result of the panel's determination, it makes no findings on the first two concerns raised in the worker advisor's submission regarding the classification of NOC 6541 Security Guards and Related Occupations not being compatible with the worker's skills and aptitudes and whether the WCB selected the above noted job classification without regard for the worker's interests or input.
The panel finds that the relocation policy was not correctly applied and, as a result, the panel directs the WCB to re-commence the Vocational Rehabilitation process taking into the consideration all required aspects of the relocation policy 43.20.40.
Based on the reasons noted, the worker's appeal is accepted.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. Kernaghan - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of February, 2020