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 rehabilitation plan for the National Occupational Classification (NOC) 6421 Retail Salesperson is appropriate. A hearing was held on January 13, 2020 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6421 is appropriate.

Decision

The vocational rehabilitation plan for the National Occupational Classification Code (NOC) 6421 is appropriate.

Background

The worker, who is also the owner of the business where the injury occurred, filed a Worker Incident Report with the WCB on January 9, 2015 reporting that she injured her left thumb in an incident on August 28, 2014. She noted that the injury occurred as she used her hands all day long and "Over the years it has taken its toll." She noted that she was diagnosed with "Osteoarthritis in base of thumb due to repetitive movement" and an arthroplasty was performed on January 6, 2015. The worker's claim was accepted by the WCB on April 16, 2015 as an aggravation of her pre-existing left carpometacarpal joint and the payment of various benefits started.

The WCB was advised by the worker's representative on April 16, 2015 that the worker had returned to work in a limited capacity of approximately 25% of her duties on April 14, 2015.

Due to ongoing symptoms with her left wrist, the worker sought treatment from a physiotherapist, a neurologist who conducted nerve conduction studies and from the surgeon who performed the arthroplasty in 2015. A call-in examination and functional capacity evaluation (FCE) was arranged by the WCB for the worker on September 7, 2017. Due to her symptoms, the worker could not complete the FCE and the WCB medical advisor conducting the call-in examination recommended permanent restrictions of avoiding firm pinching and gripping involving her left thumb.

On September 28, 2017, the worker attended at the surgeon's office for a follow-up appointment. The surgeon noted the worker's ongoing complaints with pain in her left wrist and elbow and indicated "X-ray examination today revealed the arthroplasty is doing well. There has been no subsidence of the implant and no malpositioning of the implant." The surgeon opined that the worker had "…chronic pain within her thumb and her wrist that is likely due to her current line of work."

The WCB met with the worker on November 27, 2017 to discuss her claim and the recommendation for permanent restrictions. The worker noted that as a result of her ongoing symptoms, there were some days that she could not work 25% of duties and that the permanent restrictions were outside of regular job duties. The worker noted that there were not enough administrative duties in her business on a regular basis. The WCB advised that a referral would be made for vocational rehabilitation services for the worker.

A WCB vocational rehabilitation consultant and the worker's case manager met with the worker on December 12, 2017 to further discuss her claim and to review vocational options. It was noted that the worker's situation was unique as she was the owner of her business, had been building her business, and that closing her business was not a viable option. The WCB requested that the worker provide a business plan and payroll information to them for further review.

After receipt of the worker's business plan on May 2, 2018, the WCB's vocational rehabilitation consultant prepared a memorandum to file (dated April 12, 2018) recommending that "…WCB cover the costs incurred to date specific to the move and renovations of the new worksite (including the cost of the vehicle and graphics on the vehicle). The recommendation was reviewed by the worker's WCB case manager and the WCB's manager of vocational rehabilitation on June 7, 2018 and was not approved. An alternate vocational rehabilitation plan for retail sales was recommended in its place. On July 19, 2018, the worker was advised by her WCB case manager and vocational rehabilitation consultant that the WCB could not support her plan "…due to the volatility of any self-employed business venture…" and that an alternate plan in retail sales would be developed and implemented.

A meeting was arranged with the worker, her WCB case manager and the WCB's manager of vocational rehabilitation on December 6, 2018. The vocational rehabilitation plan for the worker for NOC 6421 - Retail Salesperson was discussed with the worker and the worker was advised that once the plan ended, her wage loss benefits would be reduced based on her deemed earning capacity for that NOC. The Vocational Rehabilitation Plan Amendment was sent to the worker on December 11, 2018, noting a thirteen-week job search period of December 3, 2018 to March 4, 2019. On December 21, 2018, the worker advised the WCB that she would not be attempting a job search during that time period as it was the busiest time of year for her business.

The worker requested reconsideration of the WCB's decision to Review Office on January 4, 2019. The worker noted that the vocational rehabilitation plan implemented by the WCB was not feasible as she could not close down her business to "job hunt" or work part time and run her business successfully.

On January 23, 2019, Review Office determined that the vocational plan for NOC 6421 Retail Salespersons was appropriate. Review Office noted that the vocational rehabilitation plan developed and implemented by the WCB would be more cost effective as the worker had the necessary skills, that there was a labour market for employment within that NOC and taking into consideration her restrictions, the plan would lessen the worker's loss of earning capacity. Review Office further noted that the worker was only earning approximately 25% of pre-accident salary and had or would incur significant costs for renovations to her business to accommodate her permanent restrictions.

The worker filed an appeal with the Appeal Commission on February 26, 2019. 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 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.

Optional coverage for employers and directors

74(3) Any employer or director of a corporation in an industry within the scope of this Part may be admitted by the board as being entitled for himself or herself, and his or her dependants, to the same compensation as if the employer or director were a worker within the scope of this Part.

Policy 43.00 - Vocational Rehabilitation

POLICY PURPOSE 

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.

…

Policy 

Goals and Objectives 

…

4. To meet these objectives, the following solutions (hierarchy of objectives) will be considered and pursued in the sequence below:

a. Return to the same work with the same employer.

b. Return to the same work (modified) with the same employer.

c. Return to different work with the same employer.

d. Return to similar work with a different employer.

e. Return to different work with a different employer.

f. Retraining and re-education.

g. Self-employment (Only in unique cases, subject to Policy 44.101, Financial Assistance for Self-Employment).

While retraining and re-education is one of the last options it may be provided as part of one of the other options.

Policy 43.20.25 - Vocational Rehabilitation - Return to Work with the Accident Employer

POLICY PURPOSE 

When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

Under The Workers Compensation Act (the Act), some employers are required to offer to re-employ injured and ill workers. The WCB will provide assistance to all employers, whether or not they are required to offer re-employment, to help them return an injured or ill worker to work.

This policy outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. It also provides guidance and interpretation of the re-employment obligations outlined in section 49.3 of the Act. 

… 

Policy 

Modified or Alternate Work 

…

Criteria for Assistance 

The WCB may authorize any reasonable and necessary expenditures, including wage-loss benefits, training subsidies, job-site modifications, and any other reasonable and necessary costs that will help the worker return to work. The WCB will help a worker return to the accident employer when:

a) The worker cannot return to the full pre-injury work with the employer without accommodation. 

b) The worker has a temporary or permanent loss in earning capacity. 

c) The employer will need assistance to accommodate the worker in modified or alternate work.

Worker's Position

The worker was assisted at the hearing by a co-presenter. The worker and her co-presenter made a presentation to the panel and answered questions posed by the panel. They provided the panel with a written submission related to their arguments during the hearing.

The worker commenced her presentation by providing a history of her business including the changes that she undertook as the owner of the business after her compensable injury. These changes included relocating to a smaller facility and the development of an animal daycare as well as a pet hotel. The worker advised the panel that the workplace relocation and renovations commenced in 2016.

The worker and her co-presenter stated that the WCB vocational rehabilitation consultant who assigned to her in December 2017 had initially been supportive of the changes she was implementing to her business and that the WCB should cover the costs of those renovations ($60,000.00-70,000.00). The worker submitted that she had relied upon the vocational rehabilitation consultant's comments and assurances that the cost of the renovations would be covered by the WCB.

The worker stated:

Many workplace modifications, including the move, were implemented at this time. Being reassured by [the WCB Vocational rehabilitation consultant] that the plan was solid and a new business plan was formulated, with the integration of all the changes that were done, I was on the right path and remuneration would be awarded at this time, as it was the most logical to have the owner/operator stay at the business as myself, I am the face of the company.

The worker's co-presenter stated:

… I find that the most important document in here is of course the VR worker's recommendations and the close work she's done. And her encouragement of the claimant to make these changes to the shop and the indication that it's supported under the terms of Workers Compensation Board's operating procedures.

It makes it, you know, very clear that what she's done is appropriate and so the money has been expended with the expectation that WCB would support it and provide a form of payment towards it, following the review of the bills and the scope of work.

They submitted to the panel that the vocational rehabilitation consultant report submitted to the WCB April 12, 2018 supported the renovations to the worker's business and that this report should be relied on by the panel in determining the appeal.

However, the report dated April 12, 2018 was rejected by the WCB and the alternative vocational rehabilitation plan of NOC 6421 - Retail Sales was instead determined by the Board to be the better option. The worker disagrees with that decision.

With respect to how the vocational rehabilitation plan proposed by the WCB would affect the business owned by the worker, she stated the following:

If the VR plan that WCB was to implement, it would see not only the company, which, and I am the head of the company, not be on-site, but in turn lose clients and lose staff due to shortage of work and having the company close its doors forever.

The worker's co-presenter further stated:

The other ramification is that the worker, who is also the owner, with in turn losing the company and everything that had been built over the last 15 years of business, but in turn would have outstanding debts from trying to move the company and make modifications and be in debt for money that was used from personal sources and also due to this, have a lack of income and would lose her home.

The worker's co-presenter stated:

This is the main idea for why the VR plan doesn't work, it is based off of what the purchased insurance is, which is unrealistic, given the income level that the claimant had prior to the injury. And, again, it's not as cost effective.

The worker and her co-presenter asked the panel to consider the cost effectiveness of covering the workplace renovations that were implemented by the worker ($60,000.00 to 70,000.00) and the FIR (Financial Implication Report) that was prepared by the WCB for the Retail Sales rehabilitation plan which was approximately $90,000.00.

Further, it was pointed out to the panel that even if the Retail Sales vocational rehabilitation plan was implemented, the worker would still be required to pay off the debt incurred by the business to make the renovations to the business that they felt were done with the support of the WCB vocational rehabilitation consultant.

The worker also pointed out to the panel that it is impractical for the worker to work in retail sales in another location and continue to operate a business.

The worker stated:

So because I'm specialized and I cater to client schedules, I can't close my doors for the five days a week, and I can't work part-time and run a successful small business, because business owners that are away from their businesses, they will not succeed. Like, you can't run a small business part-time, unless you're selling Tupperware, I guess. I mean, like but then you're working for somebody else, you're not working for yourself. It's just it's not feasible, it's just not a feasible plan. The most feasible thing and the most productive and cost effective is for myself, the worker, to stay in the business that has made numerous modifications, including even moving to a different, smaller location and then revamping so that I don't have as much hands-on.

In summary, the worker asked the panel to consider the uniqueness of the specific situation of her being both a worker and the employer and that her request that the proposed plan prepared by the worker's WCB rehabilitation consultant dated April 12, 2018 be implemented for the following reasons;

1) The proposed plan was more cost effective than the alternative vocational rehabilitation plan of National Occupation code (NOC 6421) Retail Sales; 

2) The proposed plan would have met objectives (b) and/or (c) of the Hierarchy of Objectives identified in the WCB policy on vocational rehabilitation; and 

3) It would allow the worker's business to recoup the costs incurred from the relocation and construction renovations undertaken to her business.

Employer's Position

The worker was the owner of the business. Therefore, there was no separate employer participating in the appeal hearing.

Analysis

The issue before the panel is whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6421 Retail Salesperson is appropriate. The panel finds, for the reasons that follow, that the rehabilitation plan is appropriate.

The panel's recognizes that the worker is also the business owner of the place of employment where she was injured and that she obtained WCB coverage under S. 74(3) of the Act. S. 74(3) of the Act states that WCB coverage under this section is provided "…as if the employer or director were a worker within the scope of this Part." Therefore, any WCB benefits resulting from the worker's injury would be provided to her as if she was an employee of the business, not the business owner.

The panel also notes that the stated goal of the WCB's vocational rehabilitation policies 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."

Policy 43.00 provides:

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 submitted to the panel that, as a result of her compensable injury and resulting permanent restrictions, she undertook to make changes to her business that would accommodate her restrictions and allow her to be able to work full time with her pre-accident employer.

The panel considered the worker's argument that the relocation and renovations to the business were required to accommodate the worker's compensable restrictions, and therefore would fall under objectives (b) and/or (c) in the Hierarchy of Objectives set out in Policy 43.00.

The panel also considered whether the expenditures for the relocation/renovations were necessary costs to help her return to work, and if they met the "Criteria for Assistance" under Policy 43.20.25; particularly, whether the costs of those renovations ought to be covered by the WCB as "job-site modifications" and/or "reasonable and necessary costs that will help the worker return to work" under that policy.

In the panel's view, the relocation and renovations noted have resulted in changing the essential business model of the employer's business in an effort for the worker to continue being a business owner. While the worker asserted that the intent for the change in business focus and the resulting relocation and renovations was to accommodate an injured worker, the end result is that, if the worker's position was accepted, the WCB would be subsidizing an employer's decision to change their business location and model.

The worker's explanation as to why the decision was made to relocate the business was as follows:

Due to the injury in 2013/2014, at the workplace, a decision was made to downsize and move the company to a smaller location.

Although this may have made sense from a business perspective, the panel is not satisfied that it was necessary to relocate a business to accommodate the injured worker. In general, if workplace modifications were required to accommodate an injured worker's restrictions, they would normally be considered from the perspective of making those modifications to the existing workplace. Even if the WCB was to consider accepting responsibility for the cost of relocating, in this instance, the relocation occurred well before vocational rehabilitation was involved in the claim and able to make an assessment as to whether the relocation was required or necessary in this instance.

Additionally, the panel finds that the expenditures for constructing the animal daycare as well as the animal boarding facility go well beyond what would normally be considered "reasonable expenditures" for "job site modifications". While the timing of these workplace changes may have been influenced by the worker's injury, they were ultimately undertaken to impact the viability of the business.

The panel notes that the costs of the relocation and renovations are significant. While the worker submitted that the relocation/renovation costs were less than the FIR (Financial Implications Report) costs for the alternate vocational rehabilitation plan in NOC 6421 Retail Salesperson, the panel notes that the FIR costs included a period of time for the worker to shut down her business as well as a period of time for the worker to engage in a job search. Both periods noted would occur while the worker would still be receiving wage loss benefits. The panel also notes that the retail sales classification is an entire market of job opportunities as opposed to the worker's position that would involve the WCB financing the renovations to a single small business, which, if it was to fail, would leave the worker without employment and without resources to seek other employment including a period of job search time.

During the hearing, the worker asserted that she felt that the WCB had initially supported the costs of her relocation and renovations; however, the panel notes that vocational rehabilitation was first requested by the WCB Case Manager after the worker had permanent restrictions imposed. An initial meeting with a WCB vocational rehabilitation consultant occurred on December 12, 2017 and a Vocational Rehabilitation Initial Assessment was prepared on December 17, 2017. At the time the report was made, it was noted that the worker had already modified her business by creating a "doggy daycare" as well as a "doggy transport" services. These changes to the business commenced in 2016, prior to any involvement with WCB vocational rehabilitation staff with the claim.

There is also a file note dated January 19, 2018 describing a telephone conversation between the vocational rehabilitation consultant and the worker in which the worker advised the vocational rehabilitation consultant of her plan to expand the "doggy hotel" of her business. The note states: "I reminded her that we may not be able to support any of this or we may be able to support some of it but I would [not] be able to give her definitive answer until I have the information from her."

Further, while the December 7, 2018 vocational rehabilitation consultant's initial assessment does clearly outline the worker's desire to keep her business open and that she wanted the WCB support to ensure that occurred, the document clearly states the vocational rehabilitation consultant could not inform the worker at that time which direction the WCB could support.

Based on the information available to the panel, we are satisfied that the worker was repeatedly cautioned that the proposal to cover the costs of the renovations to her business were always contingent on the final approval by the WCB. As noted, once the vocational rehabilitation consultant's report dated April 12, 2018 was submitted to the WCB for final approval, the plan was not accepted.

The panel is therefore satisfied that it would not be reasonable or appropriate for the WCB to develop a vocational rehabilitation plan based on the workers request to fund the relocation and renovations.

With respect to the reasonableness of the WCB vocational rehabilitation plan based on NOC 6421 - Retail Sales, the panel notes that the worker has not suggested that working as a retail salesperson is outside of her (compensable) restrictions, nor has she indicated that she is unqualified to work in retail sales industry or that a viable labour market does not exist within that classification which are the criteria that would have to be met for the WCB to determine that retail sales was not an appropriate classification for a vocational rehabilitation plan.

The worker's main reason for opposing the WCB proposed vocational rehabilitation plan of retail sales was that, if she was required to work in retail sales for significant amounts of time outside her business, she would not be able to manage the day to operations of the business, and that would place its ongoing viability at risk. However, the business' viability resulting from the absence of a worker is not an appropriate consideration for the panel in determining the appropriateness of the vocational rehabilitation plan for an injured worker, regardless how critical the worker is to the operation of the business. The entitlement to benefits in this instance is to benefit the worker, not the business. The WCB does not provide coverage to employers for potential loss of revenue when an injured worker is required to leave their workplace and seek alternate employment as a result of a compensable injury.

While the panel carefully considered the worker's assertion that the vocational rehabilitation plan of NOC 6421 Retail Sales would not be the most beneficial option for her as a business owner, the panel finds that it is the 

For all the foregoing reasons, the worker's appeal is denied.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of March, 2020