Decision #70/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. The vocational rehabilitation plan with National Occupational Classification (NOC) 6421, Retail Sales is appropriate; and
2. It is appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective August 18, 2017.
A hearing was held on April 18, 2023 to consider the worker's appeal.
1. Whether or not the vocational rehabilitation plan with National Occupational Classification (NOC) 6421, Retail Sales is appropriate; and
2. Whether or not it is appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective August 18, 2017.
1. The vocational rehabilitation plan with National Occupational Classification (NOC) 6421, Retail Sales is not appropriate; and
2. It is not appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective August 18, 2017.
The worker filed a worker Incident Report with the WCB on July 9, 2015 reporting that on July 3, 2015, they were bitten on their left hand by a resident. The worker was provided with a decision letter by the WCB on August 14, 2015 indicating their claim for the bite injury was accepted however, the WCB was unable to accept responsibility for their reported stress symptoms and time loss from work after July 16, 2015 related to those symptoms.
On December 1, 2015, the worker’s representative requested the WCB reconsider the August 14, 2015 decision the worker was not entitled to benefits after July 16, 2015. The representative noted the worker’s reporting of being too scared and traumatized after the July 3, 2015 incident to return to work and noted the worker “…experienced an acute reaction to a traumatic event.” Further, the worker’s representative noted the file documented a history of “…long-standing, pre-existing, personal stressors…”, which did not preclude the worker from performing their duties until the workplace incident, after which the worker was unable to return to work and their treating healthcare providers recommended they remain off work after July 16, 2015. The WCB requested and arranged a call-in examination for the worker with a WCB psychiatric consultant, which took place on February 24, 2016. After examining the worker, the WCB consultant opined the worker “…experienced an Adjustment Disorder with mixed anxiety and depressed mood. This Adjustment Disorder has been in remission since sometime around Christmas or early January.” The WCB provided the worker with a decision letter on April 18, 2016 advising it had been determined they suffered an acute reaction to a traumatic event and were entitled to wage loss benefits from July 16, 2015 to December 15, 2015, at which time it was found the worker had recovered from the compensable workplace injury. On July 8, 2016, the worker’s representative requested the WCB reconsider its decision. After discussing the issue further with the representative, on July 13, 2016, the WCB issued a further wage loss payment to the worker to February 24, 2016, being the date of the call-in examination.
The worker underwent a further call-in examination with a WCB psychological advisor on September 14, 2016, who placed their opinion to the worker’s file on October 5, 2016. The advisor opined the worker had pre-existing Mood Disturbance and Substance Use, and after a traumatic workplace incident, “…developed a Trauma and Stressor Related Disorder, an Adjustment Disorder…” The advisor further concluded that the worker continued to experience residual symptoms. As a result, the advisor provided a permanent restriction of “This claimant should not work in situations with a high risk of volatility with child, adolescent, or adult clients, where there is a high known risk of volatility, assaultiveness, self-injurious behavior, suicidal behavior, and/or the need to implement physical, non-violent crisis intervention strategies, or work in situations or proximity where these parameters would need to be in place.” The WCB determined the worker was entitled to further wage loss benefits and issued a retroactive payment to the worker from February 25, 2016 to September 13, 2016.
The employer was provided with the worker’s permanent restrictions on December 6, 2016 and during a subsequent meeting with the WCB, advised that they could not accommodate the worker within the restriction. The WCB referred the worker to vocational rehabilitation services the same day. After assessing the worker’s transferable skills, a vocational rehabilitation plan was developed for the worker for National Occupational Classification (NOC) 6421, Retail Sales with a start date of April 25, 2017 and an end date of August 18, 2017 during which time job search and other workshops would be offered to the worker and the worker would be paid full wage loss benefits. At the end of the plan, it was anticipated the worker would be capable of earning $440.00 per week. A letter dated August 16, 2017 but not placed to the worker’s file until October 10, 2017, indicated as the worker’s vocational rehabilitation plan ended, effective August 18, 2017, the worker’s wage loss benefits were reduced based on a deemed earning capacity of $440.00 per week.
On November 16, 2018, the worker contacted the WCB to request the WCB consider their ongoing psychological treatment and place them back on full wage loss benefits. The worker advised the WCB they were in a non-compensable motor vehicle accident on November 8, 2018 and as a result, their back and neck were sore. Further, the worker advised they did not believe they were able to work due to their back difficulties, their ongoing post-traumatic stress disorder symptoms and continued left hand difficulties and requested the WCB place them back on full wage loss. The worker’s file was reviewed by a WCB psychological advisor on November 17, 2018 and on November 19, 2018, the WCB advised the worker there would be no change to their permanent restriction. The WCB advised the worker the review by the advisor indicated the worker was employable within their permanent restrictions and had been involved in job search activities; it was noted in a July 16, 2015 medical report, their compensable left hand injury was “well healed” and their claim did not involve their back, neck or right hand; and their permanent restriction remained appropriate.
The worker requested reconsideration of the WCB’s November 19, 2018 decision to Review Office on November 22, 2018 indicating they continued to suffer the effects of post-traumatic stress disorder and pain in their left hand. On January 15, 2019, Review Office determined the worker’s deemed earning capacity of $440.00 per week effective August 18, 2017 was appropriate. Review Office accepted and agreed with the opinion of the WCB’s psychological advisor and found the worker was not totally disabled from work. Accordingly, Review Office concluded the worker was employable within NOC 6421, Retail Sales, effective August 18, 2017 with a deemed earning capacity of $440.00 per week. On January 27, 2020, the worker’s representative requested Review Office reconsider the January 15, 2019 decision regarding the worker’s deemed earning capacity. Review Office confirmed the decision the worker’s deemed earning capacity of $440.00 per week, effective August 18, 2017 was correct on February 5, 2020.
The worker’s representative filed an appeal with the Appeal Commission on October 24, 2022 and a 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. The legislative provisions in effect at the time of the accident are applicable.
A worker is entitled to benefits under subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. Where the WCB determines that a worker has sustained a loss of earning capacity, an impairment, or requires medical aid as a result of an accident, compensation is payable under section 37 of the Act.
Section 40 of the act sets out how a loss of earning capacity is determined. The Act provides, in part, as follows:
Calculation of loss of earning capacity
40(1) the loss of earning capacity of a worker is the difference between
(a) the worker’s net average earnings before the accident; and
(b) the net average amount that the board determines the worker is capable of earning after the accident;
which amount shall not be less than zero.
Subsection 27(20) of the Act provides that the WCB may provide academic, vocational, or rehabilitative assistance and training to the worker where the worker could, in the opinion of the board, experience long-term loss of earning capacity, require assistance to reduce or remove the effect of a handicap resulting from the injury, or where the worker requires assistance in the activities of daily living.
WCB Policy 43.00, Vocational Rehabilitation, (the “VR Policy”) sets out the goals, terms, and conditions of academic, vocational, and rehabilitative assistance that is available to workers under Subsection 27(1) of the Act. 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.
In other words, the goal of vocational rehabilitation is to assist a worker in returning to some form of employment, ideally at the same salary level as the worker was earning prior to the injury or illness. An effort is required to be made to return a worker to the same work with the same employer. Where a return work to the worker’s previous position or with the previous employer is not feasible, alternative options for returning the worker to employment will be considered in the order specified in Section 4 of the Policy as set out above.
WCB Policy 18.104.22.168, Post Accident Earnings – Deemed Earning Capacity, (the “Deemed Earning Capacity Policy”) is also applicable. It sets out the approach to determining when a worker will be deemed capable of earning an amount that the worker is not actually earning and how the deemed earning capacity will be determined. Generally speaking, the WCB will pay the worker the difference between the worker’s average earnings before the accident and what the worker earns, or is capable of earning, after the accident. The Deemed Earning Capacity Policy provides in part:
I. VOCATIONAL REHABILITATION
1. DEEMED EARNING CAPACITY AND REHABILITATION
a) Deemed earning capacity will typically be demonstrated in the context of vocational rehabilitation activity. Generally, vocational rehabilitation is designed to maximize the worker’s post-accident earnings and keep the loss of earning capacity to a minimum. Detail on the goal and process for vocational rehabilitation within the WCB is provided in WCB policy 43.00, Vocational Rehabilitation.
b) The decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan. Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted.
Section 3 of the Deemed Earning Capacity Policy sets out the requirements for the WCB to demonstrate deemed earning capacity. That Section provides:
3. REQUIREMENTS FOR WCB TO DEMONSTRATE DEEMED EARNING CAPACITY
a) The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.
b) The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.
c) The WCB must demonstrate that the work exists for the occupation or group of occupations on which earning capacity is to be based.
d) The WCB will use the Individualized Written Rehabilitation Plan (or similar format) as described in WCB policy 43.00, Vocational Rehabilitation, as the basis for collecting and weighing information about the worker’s earning capacity. At minimum, the rationale presented in the initial plan must:
i. State and describe the occupation or group of occupations the worker is qualified to work in. The description of the occupation will be based on nationally-recognized methods of occupational classification. Where applicable, the description will include any community-specific features of the occupation as determined through job analysis;
ii. Clearly show how the identified occupation matches the worker’s vocational profile (i.e., physical capacity, education skills, work history, aptitudes, training, interests, personal and important occupational traits). Analysis of the worker’s transferable skills will be based on methods clearly recognized in the field of vocational rehabilitation. This analysis and its results will be documented; and,
iii. Describe the methods used to establish that there is a labour market in which the worker can compete for the chosen occupation. As well, the results of this labour market analysis must be described.
The Deemed Earning Capacity Policy further provides in Section 4 that the deemed earning capacity will be used in the loss of earning capacity calculation when the worker has participated in a VR plan and:
i. the worker has completed the training part of the vocational rehabilitation plan designed to help the worker obtain new skills or improve current skills;
ii. the worker has been given reasonable job search assistance (i.e., separate from the training art of the plan); and
iii. the information the plan was based on, including the labour market analysis, has not substantially changed.
The worker was represented by a worker advisor.
It was the worker’s position that the vocational assessment and services provided to the worker were not in accordance with the requirements, goals, and objectives of WCB Policies and, further, that the WCB implemented a deemed earning capacity in the absence of an updated healthcare opinion, despite the fact that the worker had not yet received a particular form of recommended medical treatment and while he continued to require further treatment. As a result, the worker says that the WCB chose an improper vocational rehabilitation (“VR”) plan and, further, that the implementation of the deemed earning capacity effective August 18, 2017 was inappropriate.
The worker explained that, in his view, the VR consultant selected a new career plan for him that failed to take into consideration his past work experience, skills, aptitudes, and interests. The worker noted that he had worked virtually all of his adult life in para-social work, a fact which was known by the VR consultant. The worker says that he had also expressed interest in working in similar duties within his restrictions. No effort, however, was made to explore a possible lateral move for the worker to a different employer that would capitalize on his skills and experience.
Further, and although retail sales was selected as the chosen occupation, it is not clear whether postsecondary education or prior experience in sales, both of which the worker did not have, were required for any of the then-available positions. Consequently, the worker submitted, it was not established that the worker possessed the prerequisites for a position in the retail sales field.
According to the worker, not only was the new career plan inappropriate for him given his background, education, and skillset, but it was also made prematurely. The worker says that the initial referral to VR was made January 6, 2017. He says that the VR consultant initially led him to believe that he had 21 weeks to identify a new occupational goal and plan. The worker says, however, that he was not provided with any advice or suggestions on where or how to explore alternate occupations. Further, when the worker did express interest in an alternate occupation, namely work as a bicycle courier, the VR consultant did not undertake an assessment of that option. Instead, the VR consultant advised the worker on March 28, 2017, and well before the expiry of the 21 week period, that ‘retail sales’ was the plan that had been determined as appropriate for him.
The worker says that, as the plan was adopted without providing him sufficient time to explore and identify alternative occupations, the WCB did not properly consider the timing of the deeming implementation. The inappropriate timing of the deeming implementation was further aggravated by the fact that the worker experienced a triggering event in June 2017 which led to a deterioration in his mental health and which resulted in a need for further treatment.
The heightened symptoms, together with the worker’s inadequately controlled anger management issues, posed a significant obstacle to the worker’s ability to sustain employment during this period.
The worker therefore submitted that the decision with respect to deemed earning capacity was not only inappropriate given his background and aptitude, but was also implemented prematurely. As such, his appeal ought to be allowed.
The employer did not participate in the hearing.
There are two issues before the panel. The first is whether the VR plan established within NOC 6421 – Retail Sales Clerk is appropriate for the worker. The second is whether the effective date for implementation of a post-accident deemed earning capacity of August 18, 2017 is appropriate. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the WCB failed to establish that the worker is capable of working within NOC 6421 and further, that even if the VR plan were appropriate, the worker was not capable of earning the post-accident deemed earning capacity as of August 17, 2018. For the reasons that follow, the panel was able to make such findings.
Compensation Services accepted responsibility for the physical and psychological injuries sustained by the worker as a result of a human bite injury to his left hand in July 2015. Although the worker physically recovered relatively quickly from the hand injury, the psychological injury lingered. The WCB psychological consultant who assessed the worker in September 2016 concluded that the worker had continued symptoms and ongoing need for treatment. As such, a workplace restriction was necessary which would limit the worker’s involvement in situations with a high risk of volatility or the need to implement physical, non-violent crisis intervention strategies, or work in situations where these parameters, among other things. The restriction was considered permanent. As the employer was unable to accommodate the worker within the restrictions, the worker was referred to VR Services to assist him in finding alternate employment. The earning capacity assessment that was completed concluded that the NOC 6421 Retail Sales was an appropriate goal.
In considering whether the VR plan under NOC 6421 was appropriate for the worker, the panel reviewed the applicable provisions of the VR Policy. The VR Policy sets out the goal of the VR plan as providing assistance to an injured worker to achieve a return to sustainable employment. The VR plan is to reasonably take into consideration the worker’s post-injury physical capacity, skills, aptitudes, and interests.
The panel considered the VR plan in the context of the worker’s restrictions. The medical evidence indicates that the worker was not totally disabled from work and demonstrated the physical ability to work within his compensable restrictions. The panel does not dispute, therefore, that the worker is capable of physically performing the job duties in NOC 6421. The panel also does not dispute that the worker may historically have developed a number of the skills conducive to employment in retail sales. The issue, however, is whether the worker’s ongoing psychological injuries would have made it difficult for the worker to find and maintain sustainable employment within the NOC 6421 and whether the skillset that the worker had developed was diminished as a result of the compensable injury.
The panel gave careful consideration to the medical evidence on file, including the evidence from the worker’s treating practitioners and the WCB psychological consultant. All of the medical evidence indicated that the worker continued to experience mental health symptoms throughout the summer of 2017 and beyond August 18, 2017. The panel notes that the worker was assessed again in November 2018 by the WCB psychological consultant. Following that assessment, the WCB psychological consultant confirmed that the permanent restrictions previously identified for the worker remained relevant and appropriate, and noted that it would be appropriate for the worker to continue to be seen by a psychologist to mitigate further symptoms related to his reaction to the compensable injury.
The WCB psychological consultant further commented that the worker’s pre-existing issues, trauma and stressor-related symptoms can vary over the course of time, depending on a number of related and non-related factors. In other words, the worker’s psychological issues rendered him susceptible to decompensation.
Consequently, while the worker may historically have had the skillset to obtain employment in retail sales, it was evident, based on the evidence before the panel, that following the compensable injury, that skillset was greatly diminished as a result of the worker’s psychological injuries. In the panel’s view, therefore, while the worker may have been able to find employment in retail sales, it was likely that he would have experienced difficulty and challenges in maintaining that employment as a result of his psychological diagnosis.
The panel also considered the evidence that suggested that the worker was not actively engaged in a job search. However, the medical information in the file suggests that he would not have been successful in engaging in sustained employment in retail sales in any event given the conclusions in the WCB psychological consultant’s reports.
Given the panel’s conclusion that the worker’s ongoing psychological compensable injury would have made it difficult for the worker to find and maintain sustainable employment in retail sales and, as such, a VR Plan in NOC 6421 Retail Sales was not appropriate, the panel also finds that the deemed earning capacity effective August 18, 2017 was also not appropriate.
The panel therefore concludes, on the basis of the evidence before us and on the standard of probabilities, that the vocational rehabilitation plan within NOC 6421 is not appropriate and that it is not appropriate to implement a post-accident deemed earning capacity effective August 18, 2017. The worker’s appeal is granted.
K. Wittman, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of June, 2023