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) 6552, Other customer and information services representatives, is appropriate. A hearing was held by videoconference on January 12, 2022 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552, Other customer and information services representatives, is appropriate.

Decision

The vocational rehabilitation plan for the National Occupational Classification (NOC) 6552, Other customer and information services representatives, is not appropriate.

Background

The worker has an accepted WCB claim for a full thickness rotator cuff tendon tear, primary supraspinatus, and partial tear of the infraspinatus tendon, as the result of an incident at work on December 12, 2017 when he slipped and fell on his left arm. At an appointment on February 24, 2018, the worker's treating orthopedic surgeon noted the worker had sustained a traumatic tear of his supraspinatus and recommended rotator cuff repair surgery, which was performed on March 13, 2018. The worker returned to work after the surgery, with modified duties, and continued with physiotherapy and follow-up appointments with his family physician and treating orthopedic surgeon.

At a follow-up appointment on October 29, 2018, the treating orthopedic surgeon opined that the worker's rotator cuff had healed, but noted the worker had difficulty raising his arm to shoulder level and reduced range of motion, all limited by pain. The surgeon recommended the worker continue with physiotherapy in the hopes that his symptoms would diminish, but noted that even if they did not, there was no real option for further intervention.

Due to ongoing reported difficulties, the worker attended a call-in examination with a WCB physiotherapy consultant on December 21, 2018. The physiotherapy consultant indicated the worker had been left "…without functional rotator cuff strength" after the rotator cuff tear repair surgery and noted that the worker would be seeking a second medical opinion. The consultant recommended that home medical equipment be funded and the worker continue working his duties as tolerated, and advised that permanent restrictions would likely be required.

On February 28, 2019, a WCB orthopedic consultant reviewed the worker's file and recommended restrictions, noting these would likely be permanent, of no tasks with the left upper limb above shoulder level; no repetitive resisted tasks with the left upper limb away from the side of the body; no lifting and carrying more than 25 pounds with the left upper limb; and no pushing and pulling with force greater than 25 pounds with the left upper limb. On March 21, 2019, the WCB was advised that the employer had declared bankruptcy and the worker had been permanently laid off.

On April 11, 2019, the worker was referred to a WCB vocational rehabilitation ("VR") consultant for an initial assessment. The worker completed courses between May and July 2019 to upgrade his computer skills and discussions were held between the worker and the WCB's VR consultant with respect to various occupational options, given the worker's employment experience and physical restrictions.

During this period of time, the worker also attempted to obtain work on his own, and in August 2019, he secured employment on a casual, call-in basis, as a pilot driver.

On September 18, 2019, a VR plan for National Occupational Classification (NOC) 6552, Other customer and information services representatives, was established for the worker. The plan allowed for a 16-week job search period from October 7, 2019 to January 26, 2020, with a deemed earning capacity of $466 per week to be implemented after that date.

On November 4, 2019, the worker requested that Review Office reconsider the WCB's implementation of the VR plan. The worker submitted that the plan did not consider his physical capabilities and mobility issues.

On January 6, 2020, Review Office determined that the VR plan was appropriate. Review Office found that the worker's restrictions did not render him totally disabled and met the required demands for occupations in NOC 6552. Review Office further found that at the end of the plan, the worker would have been provided with 16 weeks of job searching and noted the worker had the education, skills and aptitudes required for NOC 6552 and there was a large labour market within the geographic area for that NOC. Review Office therefore found that the worker was capable of finding suitable employment within his restrictions, and concluded that the VR plan in NOC 6552 was based on a realistic goal and was appropriate.

On January 14, 2020, the worker appealed the Review Office decision to the Appeal Commission and 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 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 provides that the WCB may provide academic, vocational and rehabilitative assistance to injured workers, and reads as follows:

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.

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. It is noted that such assistance is referred to as vocational rehabilitation and "…is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness."

Part A of the VR Policy provides, in part, as follows:

I. Goals and Objectives 

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. 

3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness. 

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. 

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

Worker's Position

The worker was self-represented and was accompanied by his spouse who also participated in the hearing and provided information to the panel.

The worker's position was that the VR plan for NOC 6552 was not realistic or appropriate and his appeal should be allowed.

The worker stated that he worked in construction his whole working life, starting in 1981. Following his injury in December 2017 and subsequent surgery, and while his arm was still immobilized, he returned to work with his accident employer who accommodated his limitations "big time". In March 2019, however, the employer went bankrupt and he could not even get his name on the union hall hiring list after that because of his restrictions. The WCB therefore referred him for vocational rehabilitation.

The worker said he met with the WCB VR consultant for an initial assessment on April 26, 2019 and a number of things were discussed with a view to determining what would be a good fit for him. Given his history and experience in the construction industry, one of his main interests was to be an occupational health and safety officer, and the VR consultant told him this would be a good fit and they would consider it. The worker noted the consultant looked at him going back to school and pursuing post-secondary studies related to this. He said that over the years, while working with construction and in the field, he had got to know a lot of the occupational health and safety officers in a professional capacity, and had seen them on all of the job sites where he worked.

The worker stated that the WCB VR consultant went on, however, to select NOC 7302, Contractors and supervisors, heavy equipment operator crews, as being a good fit for him. The worker disagreed with that selection, as he could not do many of the duties which were associated with that NOC and which many employers would ask him to do. The worker and his union representative made a presentation to the worker's VR consultant and the WCB case manager, who then decided to look into this further. The consultant eventually agreed that NOC 7302 was not a good fit for the worker, given his restrictions, and that they would be moving forward with a plan for NOC 6552, Other customer and information services representatives, which took effect on October 7, 2019 with an end date of January 26, 2020.

The worker indicated that he had been looking for work well before the VR plan was put in place. In August 2019, he had found a position as a pilot driver, being work he had previously done with the accident employer, but the work was casual, with no guaranteed hours. The worker noted that he could do the work with his restrictions and limitations, but he had to be careful, and certain movements would cause him discomfort and strained muscles with excessive pain if he had to do them.

The worker submitted that the VR plan in NOC 6552 was not a good fit for him, given the ongoing limitations with his left arm and left shoulder condition, and he did not meet the criteria for that classification. The worker said he applied for several jobs in customer service, but could not do what was required or expected given his restrictions and had not received any call-backs. The worker said he had always worked in the field, and never in an office, and his computer skills were fairly basic. He noted that while taking the computer courses, he had been able to sit in a chair for a maximum of 4 to 4½ hours a day, and that doing so was an ordeal as he felt a constant pull on his arm.

In conclusion, the worker said he had continued to seek alternate employment, but the pilot driver position is the only job he has been able to secure. He noted that this is not full-time work as required by the WCB, but on a casual, call-in basis, and even though he accepts basically all the calls he gets, he has not been able to meet the minimum wage amount which the WCB has deemed him capable of earning under the VR plan.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552, Other customer and information services representatives is appropriate. 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 6552 was not appropriate.

The worker has a significant left arm and shoulder injury as a result of the December 12, 2017 workplace incident. The worker was able to return to work with the accident employer following the injury and surgery, with modified duties. The worker's evidence at the hearing was that the employer accommodated his limitations "big time". The employer wanted him back on site, but "knew that I couldn't do a lot of the work."

When the employer went bankrupt, however, the worker was permanently laid off. The worker was subsequently advised by his union hall that because of the effects of his injury, he was not a suitable candidate for potential redeployment and he was unable to even get his name on the union hiring list because of his restrictions. The WCB therefore placed the worker on wage loss and referred him to the VR program.

Information on file shows that the VR consultant met with the worker for an initial assessment on April 26, 2019. In an email to the worker dated April 29, 2019, the consultant noted that the worker had expressed interest in working in occupational health and safety, and the consultant thought, "given your vast experience and often directly related working experience within the context of health and safety, this avenue may be also a good option."

A Transferable Skills Analysis dated April 29, 2019 identified two possible options in particular for the worker, being NOC 7302, Contractors and supervisors, heavy equipment operator crews, and NOC 2263, Inspectors in public and environmental health and occupational health and safety (referred to in that Analysis as Occupational health and safety officers). It was noted that the worker was considered physically capable of performing the duties in each of these NOCs and that the employment outlook was determined to be fair in both cases in the geographic region for the 2018 to 2020 period. The consultant went on in the Analysis to recommend supporting a vocational goal within NOC 7302 as being both cost effective and maximizing the worker's pre-accident earnings.

When he was informed of the consultant's recommendation of NOC 7302, the worker expressed concerns that the occupation was much more physical and the job description was not an accurate reflection of the duties of that position. The worker and his union representative subsequently made a presentation to the VR consultant and the WCB Case Manager, following which the consultant advised that they would not be proceeding with a plan for NOC 7302 and would be looking at a different employability occupation.

The WCB subsequently advised that they had determined that the plan going forward would be under NOC 6552, Other customer and information services representatives. Based on our review of the evidence which is before us, on file and as provided at the hearing, the panel is not satisfied that a proper assessment was undertaken in making that determination or that the designation of NOC 6552 was suitable or appropriate in the circumstances.

When the WCB realized that the classification they had initially selected for the worker was not going to work, the plan for NOC 7302 came to halt. The panel is of the view that once it was recognized that the plan for NOC 7302 was not appropriate and would fail, the WCB had an obligation to do a further proper assessment of the worker's capabilities and options in order to establish an appropriate plan. The panel is not satisfied that such an assessment occurred in this case.

The worker stated in his evidence at the hearing that there was no indication as to why the option of NOC 2263 had been dropped following the initial indication that it was a possible option. The worker said he was just told that NOC 7302 was appropriate for him and any discussions with respect to NOC 2263 or occupational safety and health ended.

As previously indicated, the Goals and Objectives of VR as set out in the VR Policy expressly include:

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... 

3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness. 

In the panel's view, no real effort was made in this instance to fully consider the worker's post-injury skills, aptitudes, and interests, in particular with respect to NOC 2263, which had been discussed and looked at initially in the process.

Information on file shows that the worker was a highly skilled and experienced worker. Early in the VR process, he completed computer upgrading courses with very good results, and indicated a willingness and motivation to pursue further training if appropriate. The evidence indicates that this was not a situation where the worker was academically weak, could not be retrained, or was uncooperative or unmotivated to return to meaningful and suitable employment.

The panel also notes that the description for NOC 6552 indicates that this unit group "…includes customer and information services representatives who answer enquiries and provide information regarding an establishment's goods, services and policies and who provide customer services such as receiving payments and processing requests for services." The panel further notes that while the information on file indicates the worker was considered a high income earner prior to his injury, the plan for NOC 6552 indicated that the worker would have a deemed income rate at the minimum wage level at the end of the process.

The worker indicated at the hearing that he had tried to secure employment within NOC 6552, but had been unable to do so because of his restrictions. In response to questions from the panel, the worker further indicated that he had not received any help from the WCB with respect to finding a job within NOC 6552; that "there was no forwarding of possible jobs, or anything like that."

The panel accepts that the worker was qualified to perform duties which are associated with NOC 6552. The issue, however, is not whether the worker is qualified to perform such duties but whether NOC 6552 is appropriate.

In the circumstances of this case, and based on the foregoing, the panel finds that the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552, Other customer and information services representatives, is not appropriate.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of March, 2022