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 National Occupational Classification (NOC) 6541, Security Guards and Related Security Service Occupations is appropriate. A teleconference hearing was held on June 9, 2020 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan for National Occupational Classification (NOC) 6541, Security Guards and Related Security Service Occupations is appropriate.

Decision

The vocational rehabilitation plan for National Occupational Classification (NOC) 6541, Security Guards and Related Security Service Occupations is appropriate.

Background

The worker filed a Worker Incident Report with the WCB on February 5, 2007 reporting an injury to his wrists arising from an incident dated September 1, 2006. He clarified that he first noticed symptoms in September 2006, described as follows:

Initially it started as periodic aches in both hands after working.

In October/November, I noticed that I was waking up at night because numbness, tingling and pain in my left hand. I also noticed that I was starting to lose grip strength in my left hand.

Around mid December, I started to notice that I was have (sic) swelling in the left wrist, thumb and pinky.

Since mid December, I have slowly started to lose my range of motion in the left thumb and pinky on the left hand and any movement creates a tingling sensation in the wrist and hand.

The symptoms in the right hand/wrist have never been too bad as it continues to be periodic aches.

The WCB obtained further information from the worker and the employer, as well as reports from the treating healthcare providers. On March 29, 2007, the WCB accepted the worker’s claim for bilateral carpal tunnel syndrome. The WCB provided surgical authorization and on August 27, 2007, the worker underwent carpal tunnel release surgery on his left wrist, followed by his right wrist on November 5, 2007.

The worker returned to work, on a graduated basis, on January 14, 2008. At a follow-up appointment with the plastic surgeon on April 30, 2008, the worker reported redevelopment of symptoms in both his hands. At a call-in examination with a WCB medical advisor on July 16, 2008 the additional diagnosis of Raynaud’s syndrome was provided. The WCB determined the worker could not return to his pre-accident job duties and the worker was referred for vocational rehabilitation on July 16, 2008.

Beginning in 2008, the worker upgraded his education by completing his GED (General Education Diploma) as well as completing Security Guard Training and CPR/First Aide. On May 7, 2009, the WCB completed a Vocational Rehabilitation Plan (“VR Plan”) for the worker with the Occupational Goal of NOC 6651 Security, with a planned end date of November 24, 2009. On September 8, 2009, the worker contacted the WCB to advise he had completed his training and was starting a new casual, part-time position.

On November 16, 2009, the WCB received a medical report from a second plastic surgeon treating the worker requesting approval for carpal tunnel release surgeries on both of the worker’s wrists due to ongoing and increasing symptoms. The WCB approved the request on December 10, 2009. The worker underwent left carpal tunnel decompression on February 18, 2010. He returned to work on March 7, 2010. On June 18, 2010 he underwent right carpal tunnel decompression and he returned to work on August 2, 2010.

On May 11, 2011, the WCB approved a further request for repeat surgeries, which took place on June 17, 2011 for the worker’s right hand and October 4, 2011 for the worker’s left hand. On February 13, 2012, the worker saw the treating plastic surgeon due to ongoing symptoms; however, this time the surgeon did not recommend further surgical intervention.

To determine the worker’s level of functional capacity, Functional Capacity Evaluations (“FCE”) were undertaken on April 2, 2012 and May 9, 2012, but in each case, the WCB physiotherapy consultant conducting the evaluations determined that the worker could not continue the activities. The worker then attended for a call-in examination with a WCB medical advisor on August 3, 2012. The WCB medical advisor assessed that the worker could perform light work, avoiding the use of vibratory tools and repetitive grasping. The WCB case manager advised the worker on October 26, 2012 that his restrictions still allowed for employment within NOC 6651 Security.

The worker advised the WCB case manager that he would be seeing his treating plastic surgeon for a further follow-up as he continued to experience carpal tunnel symptoms. On October 31, 2012, the treating plastic surgeon recommended against further surgery and advised the worker to continue wearing wrist splints and modify his activities.

The worker’s VR Plan was amended by the WCB on March 20, 2013 to add a 13-week job search period ending June 23, 2013. The plan was later extended to November 4, 2013. On July 25, 2013, the WCB advised the worker that his VR Plan was on hold while the WCB reviewed his restrictions.

At a FCE conducted on August 14 and 22, 2013, a WCB medical advisor recommended permanent restrictions.

A review of the worker’s file on September 19, 2013 noted that the worker expressed an interest in retraining for an occupational goal of NOC 7421 Heavy Equipment Operator and Crane Operator, which fell within the worker’s permanent restrictions. The worker was sponsored by the WCB for the training and on July 18, 2014, advised that he had obtained full time employment.

After experiencing ongoing symptoms in his wrists, the worker was sent for further nerve conduction studies on January 12, 2015. On April 13, 2015, his treating plastic surgeon again recommended repeat bilateral carpal tunnel decompression surgeries. The WCB approved the requests. On May 15, 2015 the worker underwent carpal tunnel decompression surgery on his right wrist and on February 5, 2016, he underwent a left carpal tunnel decompression surgery.

A call-in examination with a WCB plastic surgery consultant was arranged for July 12, 2016. The WCB consultant noted “atypical features” during the examination including immediate, early and/or erratic give-way when assessing resisted strength testing at the wrist, no resistance with resisted finger abduction, and the Jamar grip assessment indicated rapid grip greater than standard grip. A further FCE took place on September 22, 2016, but the results were invalid as the worker “…did not demonstrate a full voluntary effort…” for 5 of the validity checks.

On November 14, 2016, the WCB plastic surgery consultant confirmed the previously provided permanent restrictions would remain in place based on the accepted diagnosis on the worker’s file. On January 12, 2017, the WCB plastic surgery consultant updated the restrictions.

On June 19, 2017, the WCB vocational rehabilitation consultant reviewed the physical demands of NOC 7421 – Heavy Equipment Operator against the worker’s permanent restrictions and determined the physical demands were outside of the worker’s restrictions and noted that the worker’s restriction of limitation on repetitive firmly resisted gripping bilaterally “…would limit his abilities to be able to successfully compete for employment within this occupation.”

After follow-up with the treating plastic surgeon on June 29, 2017, and due to ongoing and increasing symptoms, the plastic surgeon recommended the worker again undergo carpal tunnel decompression surgeries on both hands. The WCB denied coverage for the surgeries on October 16, 2017 noting the low likelihood of sustained benefit for the worker.

On October 20, 2017, a new VR Plan was created by the WCB for the worker within NOC 6541 – Security Guard and Related Security Service Occupations with an end date of April 6, 2018. The WCB advised the worker that effective April 6, 2018, he was deemed capable of the established earning capacity within that NOC.

Due to ongoing symptoms and the submission of new medical information, the WCB arranged another call-in examination with the WCB plastic surgery consultant on July 4, 2018. Afterwards, the WCB plastic surgery consultant discussed the worker’s claim with his treating plastic surgeon and on August 13, 2018 provided the opinion the evidence did not support the worker would receive “…significant improvement in symptoms and function…” from further carpal tunnel release surgeries. As well, the WCB plastic surgery consultant provided that no changes were warranted to the worker’s current permanent restrictions and the job duties noted under NOC 6541 were within those restrictions. On August 14, 2018, the WCB advised the worker there would be no change to the decision to deny approval for the carpal tunnel release surgeries and his permanent restrictions remained appropriate.

The worker’s representative requested reconsideration of the WCB’s decisions to Review Office on September 6, 2018. The representative asked Review Office to consider whether or not the vocational rehabilitation plan for NOC 6541 was appropriate for the worker.

On October 2, 2018, Review Office determined that the vocational rehabilitation plan for National Occupational Classification (NOC) 6541 – Security Guards and Related Security Service Occupations was appropriate. Review Office noted the worker showed interest in working within the field and completed training courses for security work and that in 2009, he obtained employment in the security field. Further, Review Office found that NOC 6541 offered a variety of positions that would be compatible with the worker’s permanent restrictions.

The worker’s representative filed an appeal with the Appeal Commission on January 20, 2020. A teleconference hearing was arranged for June 9, 2020.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and the policies established by the WCB's Board of Directors.

Section 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. Section 27(20) of the Act allows the WCB to 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 s 27(20) of the Act. The VR Policy states, in part, 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.”

Worker's Position

The worker participated in the hearing with a worker advisor. The worker advisor provided a written submission to the panel in advance of the hearing and made oral submissions in the course of the hearing. The worker provided oral testimony in answer to questions posed to him by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the VR Plan established by the WCB for the worker is not appropriate because the worker’s permanent physical restrictions would preclude him from employment in more physically demanding positions within NOC 6541. In particular, the worker’s assessed limitation in written communications does not align with occupational requirements in this field, which typically require strong or excellent written communication skills.

The worker advisor outlined a further objection to the VR Plan in that it was not demonstrated to be the most cost effective compared to other options considered by the WCB. The worker advisor noted that the Policy requires the WCB to demonstrate that the VR Plan is cost-effective, comparing estimated costs to the cost without a plan as well as to other available options.

As well, the worker advisor noted that the WCB failed to engage or consult with the worker as to his occupational areas of interest prior to finalizing the plan, as is required under the provisions of the Policy.

The worker, in his testimony, confirmed that he finds writing very difficult, experiencing symptoms including throbbing, numbness and tingling in his whole hand, fingers and wrist when writing reports in his occupational training program. Similarly, he finds computer work with a mouse and keyboard challenging. He noted that his symptoms have worsened since 2018 and that he has very poor grip strength as a result. He described pain and numbness in his hands at night effecting his sleep.

The worker confirmed to the panel that he has not worked at all since August 2018 and has not applied for any position in that period of time. He stated he can barely accomplish his daily activities of living and has limited functionality beyond his physical restrictions. On questioning by the panel, the worker was not able to advise what other occupational interests he had, but noted he has always been willing to try anything that the WCB suggested to him.

In sum, the worker’s position is that the VR Plan for NOC 6541 is not appropriate as it does not align with the worker’s physical capacity or interests, does not maximize the worker’s income earning capacity and is not the most cost effective of the options considered by the WCB. While the worker wants to work in meaningful and safe work, he requires further assistance from the WCB in determining and moving toward a more appropriate occupational goal.

Employer's Position

The employer did not participate in the appeal.

Analysis

The question for the panel to determine on appeal is whether or not the VR Plan for NOC 6541 Security Guards and Related Security Professions is appropriate. For the worker's appeal of this issue to be granted, 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 and for the reasons that follow, the panel finds that the vocational rehabilitation plan goal of employability in NOC 6651 was appropriate.

The panel considered the medical evidence with respect to the worker’s functional abilities and noted the permanent physical restrictions in place do not fully restrict the worker from all work. Rather, these restrictions provide a framework in which the worker can engage in work that is, in the words of the treating plastic surgeon, “light and non-repetitive.”

The worker described his functional abilities to the panel in some detail and the panel notes that his description of his current abilities is consistent with those outlined in the examination notes from the WCB call-in examination of July 4, 2018.

The panel reviewed the report from the worker’s family doctor dated May 4, 2020, noting it contains no new medical findings. The panel was not persuaded by the conclusions contained in this report as these were based only on the worker’s reporting rather than upon clinical findings.

The panel did put significant weight on the report from the worker’s treating plastic surgeon dated January 20, 2020 which sets out the clinical findings from the assessment of that date and concludes that the worker is:

“…best suited to using his hands in an occupation where light and non repetitive work is required. Physical jobs where there is repetitive lifting or gripping or repetitive activities or occupations that require power gripping or lifting on an intermittent basis would not be suited to him, as he feels uncomfortable with these activities and feels that his symptoms will be made worse by the occupation….As long as he follows the restrictions of non-repetitive and light duties, he should be fine.”

The panel also considered the extent to which the VR Plan addresses the worker’s skills, aptitudes and interests. The worker advisor argued that the WCB failed to take into account the worker’s interests in developing the VR plan, but the panel noted that the worker had previously expressed interest in security work, and had both experience and training in that occupation. Furthermore, the worker was unable to provide the panel with any indication of his interests, other than to note he was interested in safe and meaningful work. While the panel accepts this, it noted with some concern that the worker had not applied for any kind of work at all in the past nearly two years.

The worker advisor also suggested that the VR Plan was not appropriate as it was not the most cost effective option considered by the WCB. The WCB file documents that several other NOC options were considered in developing the VR Plan for the worker and cost estimates of each such plan were compared, as well as the costs of no plan.

The Policy does require the WCB to demonstrate that the VR Plan is cost effective, taking into consideration the expected costs without the plan versus with the plan, as well as against available options. The Policy does not set out that this is a primary consideration nor does it require the WCB to develop and implement only the most cost-effective plan. Rather, the primary goal of vocational rehabilitation as set out plainly in the Policy is to help the worker to achieve a return to sustainable employment in an occupation that reasonably takes into account the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.

The evidence here indicates there are a range of job requirements and opportunities within NOC 6541 that align with the worker’s post-injury physical capacity, skills and aptitudes. Further, and as noted above, the worker had previously expressed interest in this occupational classification and has relevant experience. Although the worker expressed concerns regarding his ability to meet the physical demands of the occupations and, in particular noted his challenges with report-writing, the panel finds that the medical evidence supports that the worker is able to meet the physical demands of this NOC given the breadth and types of security positions available, ranging from sedentary to active roles.

On considering the totality of evidence and on the standard of a balance of probabilities, the panel finds that the vocational rehabilitation plan for National Occupational Classification (NOC) 6541, Security Guards and Related Security Service Occupations is appropriate. The worker’s appeal is therefore dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of July, 2020