Decision No.: 2014-0481 Page 1

Appeals Commission for Alberta Workers’ Compensation

Docket No.: AC0952-12-76 Decision No.: 2014-0481

Introduction

[1] This appeal relates to a September 17, 2013 decision of the Dispute Resolution and Decision Review Body (DRDRB) for the Workers’ Compensation Board (WCB). By that decision, the DRDRB determined that the full time position of order desk clerk (scaffolding) was suitable employment for purposes of estimating the worker’s post-accident earning capacity/wage loss entitlement.

[2] The worker disagreed with this determination and the Appeals Commission received the worker’s Notice of Appeal of the DRDRB decision on September 23, 2013.

[3] By letter from the Appeals Commission dated November 14, 2013, the employer was given notice of the worker’s appeal. Included with the letter was a Notice of Participation form that was to be completed if the employer intended to participate in the appeal. There was no response from the employer and therefore, it is assumed that the employer chose not to participate in the appeal.

Issue

[4] Is the position of order desk clerk (scaffolding) “suitable” employment for purposes of estimating the worker’s post-accident earning capacity/wage loss supplement entitlement?

Preliminary Matters

[5] At the time of the hearing, the worker’s representative provided two additional documents consisting of:

[5.1] A one-page submission with respect to the appeal issue.

[5.2] A five-page written report from a psychiatrist dated May 10, 2014.

[6] With respect to her one-page submission, the worker’s representative indicated Policy 04-04, Part ll, Application 1 was the applicable policy in regard to the issue of appeal and that the specific documents cited would be argued in greater detai l during her submissions.

[7] The worker’s representative indicated that she had provided the Appeals Commission with the May 10, 2014 psychiatrist’s report as requested by the psychiatrist but would not be referring to this report in her submissions.

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[8] The hearing panel advised the worker and his representative that this additional information would be added to the claim record.

Analysis

Legislation and Policy

[9] The Workers’ Compensation Act, R.S.A. 2000, c. W-15 (the Act) and policies adopted by the WCB direct that workers shall be compensated for impairment of earning capacity that is the direct result of a disablement from a workplace injury.

[10] Section 56 of the the Act provides the authority for the payment of periodic compensation to workers who are temporarily or permanently disabled as a result of a workplace accident.

[10.1] Section 56(6) of the Act states, in part:

“The amount of periodic payment of compensation is

. . .

(b) in the case of permanent partial disability and temporary partial disability, a proportionate part of 90% of the worker’s net earnings based on the Board’s estimate of the impairment of earning capacity from the nature and degree of disability.”

[11] Section 63 of the Act allows that:

“In determining the degree of impairment of earning capacity, the Board may consider as a factor the nature of the injury and the physical and mental fitness of the worker to continue in the employment in which the worker was injured or to adapt himself or herself to some other employment.”

[12] In this case, the WCB has accepted that the worker has permanent work restrictions as a result of his January 26, 2009 workplace accident. Therefore, WCB Policy 04-04, which governs the provision of benefits for workers with permanent disability, is the policy applicable to this matter.

[12.1] Policy 04-04, Part l states:

“When a compensable accident results in permanent disability, the WCB provides permanent disability benefits to the worker for any measurable permanent clinical impairment and for any permanent impairment of earning capacity attributable to the compensable injury.”

[12.2] The Interpretation section of the policy states, in part:

“3.0 Permanent Impairment of earning Capacity

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The WCB determines a permanent impairment [loss] of earning capacity by assessing the impact permanent compensable work restrictions will have on the worker’s ability to earn in any suitable employment. . .”

4.0 Permanent Disability Benefits

When an accident occurs on or after January 1, 1995, the WCB provides the following permanent disability benefits:

. . .

x an Economic Loss Payment (ELP), which is a periodic payment based on the permanent loss of earning capacity caused by the disability. The ELP is subject to reconsideration under s.17 of the Act. The WCB exercises its discretion to reconsider ELP decisions by scheduled and ad hoc reviews of the worker’s impairment of earning capacity. ELPs will be adjusted to reflect changes to impairment of earning capacity and will end if the impairment of earning capacity ends.”

[12.3] Guidance for determining permanent impairment of earning capacity is set out in Policy 04-04, Part ll, Application 1. This application states, in part:

“1. Why does the WCB need to determine the permanent impairment of earning capacity resulting from the injury?

The WCB’s estimate of the permanent impairment of earning capacity resulting from the injury is used to determine the benefits for which the worker is eligible. The Economic Loss Payment (for injuries on or after January 1, 1995) and Earnings Loss Supplements (for injuries before January 1, 1995) are both based on impairment of earning capacity.

2. When does the WCB determine permanent impairment of earning capacity?

The WCB determines permanent impairment of earning capacity when the worker has reached both a medical and a vocational plateau. The WCB will periodically review the extent of the impairment.

. . .

Medical plateau

The medical plateau is normally reached when the worker’s medical condition has stabilized, further significant medical improvement is unlikely, and permanent work restrictions can be confirmed.

. . .

Vocational plateau

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Generally, a vocational plateau is reached when the worker has completed the vocational rehabilitation plan and is considered employable.

. . .

3. How does the WCB determine whether there is a compensable impairment of earning capacity?

Once the worker has reached medical and vocational plateaus, the WCB compares the worker’s annual net earnings at the time of the accident (calculated in accordance with the Act and General Regulations), with the worker’s actual or estimated post-accident net earnings. The WCB then evaluates whether any reduction in earnings is attributable to the permanent disability.”

[12.4] Guidance on the application of Policy 04-04, in cases where the worker’s post-accident earning capacity must be estimated, is set out in Part ll, Application 1, Questions 4, 5 and 6 as follows:

“4. When does the WCB estimate earning capacity instead of using actual post-accident earnings?

The WCB estimates the worker’s earning capacity in suitable employment when,

(a) despite ability, a worker does not engage in employment, or

(b) a worker is unable to secure suitable employment, or

(c) a worker engages in employment which fails to maximize earning capacity.

5. What is suitable employment?

For the purposes of estimating earning capacity, suitable means employment which is consistent with the worker’s ability and which is within the worker’s locale or may be obtainable where relocation is reasonable. The WCB’s assessment of ability will be based on physical, vocational, social, and psychological circumstances and such other factors as the WCB may consider relevant.

6. What is the estimate of earning capacity based on?

The estimate of earning capacity is usually based on information related to the vocational plan. The plan identifies suitable employment and the worker’s earning capacity in that employment. . .”

Discussion/Questions to be Answered

[13] The following facts are relevant with respect to this matter:

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[13.1] The WCB accepted that the worker suffered a compensable accident in the workplace on January 26, 2009 when he tripped over a metal box and fell, twisting his lower back.

[13.2] The WCB initially accepted that the compensable accident resulted in a low back strain injury and contusion to the left leg. Following further investigation, the WCB expanded claim acceptance to include a disc protrusion at the L5-S1 level of the worker’s lumbar spine/aggravation of pre-existing degeneration at the L5-S1 level of the spine (compensable conditions).

On April 22, 2009, the worker underwent left L5-S1 microdiscectomy and decompression surgery which was also accepted as related to the work accident/injury.

[13.3] No responsibility was accepted under the claim for: pre-existing multi-level degeneration in the worker’s lumbar spine at the L2-3, L3-4, L4-5 and L5-S1 levels; L3-4 disc herniation and perianal abscess.

The WCB did agree to cover the November 1, 2010 microdiscectomy and decompression surgery performed relative to the non-compensable L3-4 disc herniation under the rehabilitation surgery program policy.

[13.4] The WCB ultimately accepted that the worker was unable to return to his pre-accident occupation as a result of work restrictions attributable to the January 26, 2009 workplace accident/injuries but was capable of alternate suitable employment within those restrictions. As the accident employer was unable to provide modified work that would accommodate the worker’s compensable work restrictions, the WCB authorized vocational services that included a return to work skills profile, resume writing, job search skills development and career counselling. The WCB initially approved payment of a temporary wage loss benefit (TPD) commencing April 12, 2011, based on the estimated earnings of a lottery booth attendant working part-time.

[13.5] In February 2013, the WCB advised the worker that the current lottery booth attendant position used to calculate his wage loss benefit may not maximize his post-accident earning capacity. Therefore, additional vocational services were authorized, specifically that of career counselling and supported job search, to assist the worker in identifying suitable job options and developing the skills needed to competitively pursue employment. The worker decided not to participate in the further vocational services.

[13.6] In a decision dated July 22, 2013, the WCB determined that the full time position of order desk clerk (scaffolding) was suitable employment for the worker for purposes of estimating his post-accident earning capacity/wage loss supplement entitlement.

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[13.7] The worker disagreed with the July 22, 2013 WCB decision and requested further review by the DRDRB. The DRDRB decision issued on September 17, 2013 upheld the WCB decision.

[14] The worker disputes the September 17, 2013 DRDRB determination that he is capable of full time employment as an order desk clerk (scaffolding).

[15] Therefore, in order to decide whether the position of order desk clerk (scaffolding) is “suitable employment” on which to estimate the worker’s post-accident/ELP entitlement and in keeping with the legislative and policy provisions cited, the panel must answer the following questions:

[15.1] Is the position of order desk clerk (scaffolding) within the worker’s ability? That is, is the position consistent with the worker’s physical, vocational, social and psychological circumstances?

[15.2] Are there any other relevant factors that prevent the worker from working in this position?

[15.3] Is the position reasonably available in the worker’s locale?

Key Submissions

[16] The primary submissions of the worker’s representative with respect to the issue of appeal are summarized as follows:

[16.1] The order desk clerk (scaffolding) position is not physically suitable to the worker as it is not consistent with his physical restrictions. The WCB Employability Profile for the order desk clerk – scaffolding job position indicates the critical job demands of the position involve that of sitting, on a constant basis; walking in or outdoors on an occasional basis; trunk rotation, on an occasional basis; low level activities such as crouching or squatting, on a rare basis and the climbing of stairs on a rare basis.

However, the worker’s compensable work restrictions, as identified in the April 8, 2011 Return to Work Services discharge report, include avoiding prolonged sitting, standing and walking; avoiding low level activities (i.e. crouching, squatting); avoiding climbing of stairs and avoiding trunk flexion or trunk rotation. Therefore the physical demands required of the order desk clerk (scaffolding) position are outside the worker’s identified work restrictions.

[16.2] There has been no further evaluation of the worker’s functional capacity since 2011.

[16.3] The order desk clerk (scaffolding) position is not consistent with the worker’s vocational circumstances as evidenced by the following:

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x The WCB Employability Profile for this position indicates that most employers require the completion of high school or a general equivalency diploma (GED) in lieu of high school education. The worker has not completed high school and does not have a GED.

x It is acknowledged that the WCB approved training for the worker to obtain his GED. However, the worker’s family physician in reporting of July 18, 2013 advised that the worker’s medications and their side effects would likely interfere with him being successful at completing the necessary coursework. Additionally, an academic assessment undertaken on the worker in October 2009 reports that, overall, the worker is not a suitable candidate for long-term academic retraining although he could be considered for short to moderate term retraining.

x While the Employability Profile for this position indicates that most employers would be willing to accept experience in lieu of education, it is also noted that few of the employers contacted had employees with less than the minimum education requirement. Further, the ‘experience accepted’ by the employers in lieu of education is that of scaffolding, customer service and store operation and the worker does not have experience in any of these areas.

[16.4] According to the labour market analysis (LMA) information, the order desk clerk position is a full time position and is not available on a part-time basis.

The DRDRB decision of September 17, 2013 concluded that the worker was employable, full time, in the order desk clerk (scaffolding) position. Yet the Appeals Commission, in a prior decision dated July 23, 2013, determined, based on the accepted compensable conditions, that the worker was capable of working part-time in suitable sedentary employment. It is submitted that there is no medical reporting since the July 2013 Appeals Commission decision establishing that the worker is capable of work greater than the part-time basis decided by the Appeals Commission.

[16.5] The case manager in an October 4, 2013 letter addressed to the worker referred to the July 2013 Appeals Commission decision, indicating that the order desk clerk position would be reviewed with respect to the availability of part-time work in that position. If part-time work was not available, the case manager advised that an alternate position would then be selected.

However, in a further decision of January 16, 2014, this same case manager determined that the Appeals Commission decision was an interim decision that would be reviewed if the worker was found to have additional compensable conditions. The case manager concluded that, as the Appeals Commission in November 2013 upheld the WCB decision to deny chronic

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pain/chronic pain syndrome and there was no psychological condition currently accepted on the claim preventing the worker from returning to full time work, the position of full time order desk clerk was considered a suitable vocational option on the basis of the injuries accepted on the claim.

[16.6] With respect to the July 23, 2013 Appeals Commission decision, it is argued that:

x The wording of this decision shows that the intent of providing an “interim” decision was to allow the representative to pursue acceptance of additional conditions under the claim. The wording of this decision gave the WCB the authority to reduce or eliminate the worker’s benefits only if it was determined that his inability to work was solely due to non-compensable conditions. This has not occurred.

x There is no evidence to support any change in entitlement since the July 2013 Appeals Commission decision. At the time of the Appeals Commission determination that the worker was fit for part-time suitable sedentary work, neither chronic pain or depression was accepted on the claim; this has not changed.

x There is no medical evidence to support that the compensable aggravation of degeneration at the L5/S1 level of the worker’s lumbar spine is no longer contributing to the worker’s inability to work greater than part-time hours.

x In the absence of any new evidence, the WCB’s decision to overturn the July Appeals Commission decision would be in direct contradiction to section 13.3(1) of the Act which states that the WCB is bound by a decision of the Appeals Commission.

[17] The worker provided the following additional information:

[17.1] He has worked in the construction industry since he was 16 years of age. His past employment did not involve customer service and he has never worked in sales. He knows next to nothing about the scaffolding industry.

[17.2] He did not participate in the additional job search services offered by the WCB because he was advised that if he started this and was unable to complete it, his benefits would be terminated.

[17.3] With respect to the WCB offering vocational training so that he could obtain his GED, he feels that the pain medications he was taking at the time would have impacted his ability to successfully undertake any academic upgrading.

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[17.4] He no longer attends the family physician as she is not able to offer any treatment that will help his back condition. He continues to see the pain specialist with respect to his chronic pain.

[17.5] If he could work, he would work.

Evidence/Findings

[18] The suitability of the order desk clerk (scaffolding) position chosen by the WCB for purposes of estimating the worker’s post-accident earning capacity requires a determination of the worker’s physical and functional fitness for suitable employment. In regard to this, we considered the following evidence and find as follows:

[18.1] The worker’s request for review by the DRDRB arose from his disagreement with the WCB case manager’s decision letter of July 22, 2013 in which the worker was advised of the following determinations:

x The position of order desk clerk (scaffolding) was considered suitable employment for the worker in that it was consistent with his ability, accessible within his locale and helped maximize his earnings ability.

x The worker was to be provided with both the vocational training required in order to complete his GED and twelve weeks of job search. The anticipated time for completion of the GED was approximately three months.

x If the worker chose not to proceed with the vocational training at this time, the worker would continue to receive a wage loss benefit, based on the amount he was currently receiving in the (estimated) position of a part-time lottery booth attendant for the three-month period of time it would have taken to complete the GED. After that period of time, the worker’s wage loss benefit would be adjusted to reflect the earnings of an order desk clerk (scaffolding), working 36 to 44 hours per week at estimated annual earnings of $31,285.

[18.2] Of particular significance with respect to the worker’s fitness for suitable employment is the Appeals Commission decision that was issued on July 23, 2013, the day following the July 22, 2013 WCB case manager’s decision. The issue before the Appeals Commission was whether the worker was capable of working part-time hours in suitable employment (as previously determined in a DRDRB decision issued November 15, 2011).

x In the July 22, 2013 decision, the hearing panel for the Appeals Commission reviewed the evidence on the claim file noting that the most

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recent medical information was the most pertinent as that was used as the basis of determination of the worker’s ability to be engaged in employment.

The panel referenced specific documentation on the claim record, including medical evidence pertaining to a March 11, 2011 functional capacity evaluation (FCE), a March 31, 2011 report from a physician in the Return To Work Services program, an April 11, 2011 Return to Work Services program discharge report, a July 14, 2011 WCB medical consultant’s report, an October 19, 2011 report by the treating family physician, an April 18, 2012 report by a physical medicine and rehabilitation specialist, an April 23, 2012 report of an orthopaedic specialist, a July 18, 2012 WCB medical consultant’s report, a further August 27, 2012 report by the physical medicine and rehabilitation specialist, a September 19, 2012 WCB medical consultant’s report and a February 4, 2013 report from a treating physician at a chronic pain clinic.

The Appeals Commission panel made a number of findings, including that of:

“[44] This is a complex case that does not fit narrowly within one provision of policy. . . . We do not find the evidence suggests that this worker’s compensable injuries and the effects of his compensable surgery will resolve to the point that ever it would be reasonably expected that he could return to his pre-accident employment.

[45] We also note that the DRDRB decision of November 15, 2011 recognized that the worker had permanent work restrictions.

[46] The file is also made more complicated by the fact that the worker has multiple non-compensable conditions, at least at this point in time.

[47] As well, the worker’s representative is suggesting that she is pursuing appropriate remedies through the adjudication process and the review and appeal process to attempt to get this worker’s psychological/psychiatric conditions and chronic pain conditions recognized as being related to his compensable injuries. However, acceptance of such conditions has not occurred to this point in time.

[49] We note that the worker did participate in an FCE which however was somewhat truncated as there was clear indication that the worker could not participate in all functional aspects relating to the FCE. Therefore, his work restrictions were based on his level of participation and did result in a determination that it was thought that based on work restrictions related to the compensable conditions that he should be capable of some part-time employment in a very limited manner. That was the basis upon which the WCB estimated the worker’s ability to earn.

. . .

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[54] In this case the worker’s inability to work is not solely due to non-compensable conditions. The WCB has recognized ongoing work restrictions from the worker’s compensable injuries.

[55] Based on the evidence before us and the current level of accepted compensable conditions, we conclude that the determination by the WCB with regards to the worker’s ability to earn in a part-time position was an appropriate basis upon which to estimate the circumstances of this case on an interim basis.

[59] The worker’s non-compensable conditions are an overriding factor in the determination of what should be the appropriate remedies in this case. The policy with regards to permanent disability points out that there is ongoing responsibility unless the worker’s inability to work is solely due to non-compensable conditions. At this point in time, the evidence supports that the worker has ongoing consequences from his compensable accident that prevent [him] from returning to his date of accident employment. Implicitly, therefore he has some work restrictions that probably should now be dealt with under the permanent provisions of policy.

[60] We therefore find that the interim benefits should remain based on the part-time position. However, this decision does not preclude this issue being reviewed once there is final determination of whether the worker actually has chronic pain or chronic pain syndrome, or a psychological/psychiatric condition related to the accident or such other issues that would impact on the determination of whether the worker was fit for employment and what was suitable employment.”

The decision rendered by the Appeals Commission was as follows:

“[61] The appeal is granted in part. The November 15, 2011 Dispute Resolution and Decision Review Body is varied to recognize that based on accepted compensable conditions the worker is capable of working part time in suitable sedentary employment. However, this is an interim decision and is subject to review if the worker is found to have additional compensable conditions such as chronic pain or chronic pain syndrome or an acceptable psychiatric/psychological condition.

[62] The Dispute Resolution and Decision Review Body determination that the worker has permanent work restrictions is also recognized. The Workers’ Compensation Board should therefore use policy provisions that assesses the worker’s entitlements based on permanent work restrictions, unless for some reason that changes in the future.

[63] This interim decision will provide the representative with an opportunity to finalize determinations with regards to what will be accepted compensable conditions on this claim. The worker’s ability to be engaged in suitable employment taking into account all relevant

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factors can then later be determined or alternatively whether it is non-compensable conditions that are solely preventing the worker from employment.” [emphasis added]

[18.3] With respect to the July 23, 2013 Appeals Commission, we find as follows:

x The panel’s decision that, based on the accepted compensable conditions, the worker was capable of working part-time in suitable sedentary employment, was arrived at after review and analysis of all recent medical information right up to the March 12, 2013 date of the hearing.

x While the panel termed the decision an “interim” decision, it also provided specific instruction with respect to the “interim” intent. As evidenced in paragraphs 60, 61, and 63, the panel outlined the following parameters:

– This decision was subject to review if the worker was found to have additional compensable conditions such as chronic pain or chronic pain syndrome or an acceptable psychiatric/psychological condition.

– This decision did not preclude further review should other relevant factors impact the worker’s ability to be engaged in suitable employment or should it be determined that the worker’s earnings loss is caused solely by a non-compensable condition.

[18.4] It is recognized that, subsequent to the July 23, 2013 Appeals Commission decision, the worker appealed the WCB determination to deny acceptance of chronic pain/chronic pain syndrome pursuant to Policy 03-01, Part ll, Application 7 to the Appeals Commission and the Appeals Commission upheld this determination in a decision issued November 4, 2013. However, while the November 4, 2013 decision of the Appeals Commission concluded that this specific policy application was not applicable to the worker’s circumstances, it did find that the worker’s persistent lingering pain resulting from the compensable L5-S1 disc herniation remained part of the aggravation of pre-existing degeneration in the L5-S1 lumbar spine accepted under the claim.

It is also recognized that, currently, the WCB has not accepted responsibility for any psychiatric or psychological condition under this claim.

We do not find that the subsequent decision to deny acceptance of chronic pain/chronic pain syndrome pursuant to Application 7 of Policy 03-01 or, the fact that a psychiatric/psychological condition has not been accepted under the claim, impacts the prior July 23, 2013 Appeals Commission decision in any way. The Appeals Commission determined that, based on the accepted

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compensable conditions, the evidence supported the worker remained with permanent work restrictions and was restricted to working part-time in suitable sedentary employment. There has been no change in the entitlement accepted under the claim since the July 2013 Appeals Commission decision. Further, the WCB has continued to accept that the worker has an impairment of earning capacity due to ongoing work restrictions in relation to his compensable back condition.

[18.5] We also considered the medical documents submitted to the claim file subsequent to the July 23, 2013 Appeals Commission decision. We find that this further medical reporting does not establish that the worker’s work capability is greater than the sedentary part- time functional capacity previously determined by the Appeals Commission.

We base this determination on consideration of the following:

x The medical evidence previously reviewed and considered by the Appeals Commission in arriving at its July 23, 2013 decision that the worker was capable of part-time suitable sedentary employment included February 4, 2013 reporting by the treating physician at a chronic pain clinic.

Further reporting from this same physician submitted to the claim on July 24, August 28 and September 19, 2013 and January 29, 2014 speaks to medication changes/combinations of medications prescribed for the worker’s chronic pain complaints. The reporting does not specifically address work capability and therefore is of limited value in assessing the worker’s physical/functional capabilities. The July 24, 2013 report does indicate that the worker’s “level of function remains poor” and the September 19, 2013 report states that the worker “appears about the same”. We find this reporting does not establish that the worker’s physical abilities are greater than that previously determined by the Appeals Commission in its July 2013 decision.

x There is one other report on the claim record subsequent to the Appeals Commission decision, that of a December 1, 2013 memorandum from a WCB medical consultant. This December 1, 2013 report was generated in response to the WCB case manager’s request for a medical opinion with respect to the permanent work restrictions anticipated based on the injuries accepted on the claim. The WCB medical consultant undertook a documentary review of the claim file information and, based on this documentary review, provided the opinion that the worker would have permanent work restrictions at a sedentary level with the ability to sit, stand and walk as tolerated but there were “no time restrictions” on his work capability. The WCB medical consultant did not physically examine the worker relative to his functional abilities.

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We have considered the WCB medical consultant’s opinion that there would be no time restrictions on the number of hours worked; however, place little weight on this opinion as it simply reweighs the same medical information previously reviewed and considered by the Appeals Commission and provides no explanation for the difference of opinion.

[18.6] There is no indication on the claim record that the WCB considered referring the worker for another FCE for purposes of delineating whether his current physical abilities and limitations were consistent with that reported in 2011.

[19] We find, given our above analysis that, based on the accepted compensable conditions, the worker’s functional work capability continues to be that of part-time hours in sedentary level employment. We also find that, as the worker has not undergone a further FCE, the worker’s functional abilities/work restrictions cited in the April 8, 2011 Return to Work Services discharge report remain the most accurate analysis of his work capacity at this point in time.

[19.1] The April 8, 2011 Return to Work Services discharge report indicated that the worker was discharged at a sedentary level and part-time hours with the following restrictions:

x Limit manual handling to 10 pounds on a rare basis (1-5 % of workday)

x Avoid low level activities (i.e. low level lifting, crouching, kneeling, crawling, squatting)

x Avoid climbing stairs or ladders

x Avoid prolonged sitting, standing and walking. It is recommended that he be able to change positions as needed in order to achieve this

x Avoid walking on uneven terrain

x Avoid trunk flexion or trunk rotation

[20] At issue is the suitability of the order desk clerk (scaffolding) position used by the WCB in estimating the worker’s post-accident earning capacity/ELP entitlement. The claim record shows that the WCB utilized a WCB of Alberta Employability Profile for the order desk clerk scaffolding position as well as three LMA reports (LMA # 53802, 52803, 53804) in their selection of this position.

We find that the three LMA reports for the order desk clerk position are not specific to the “scaffolding” order desk clerk position. Therefore, we have relied on the information provided in the WCB of Alberta Employability Profile which is specific to the scaffolding order desk clerk position. According to the Employability Profile, which is based on information provided by seven Alberta employers in 2011, the

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order desk clerk (scaffolding) job duties include: answering incoming calls from construction companies; arranging for estimators to visit the companies to provide quotes; completing forms and paperwork; contacting customers to arrange deliveries as well as tracking orders and deliveries. Responsibilities may also include receiving, storing and distributing scaffolding; loading machinery for deliveries; entering data for accounts receivable or handling returned goods receipts.

[21] We find that the scaffolding order desk clerk position is not suitable employment for the worker as it is not consistent with the worker’s part-time work tolerances.

[21.1] According to the claim file information, the scaffolding order desk clerk position is a full time work position – the hours for this position are within the range of 36 to 44 hours per week.

[21.2] We find no indication in any of the information that the scaffolding order desk position is available on a part-time basis.

[22] We also find that the physical activity/physical demands of the scaffolding order desk clerk position appear to require job tasks that are outside the worker’s demonstrated physical abilities and compensable work restrictions.

[22.1] The worker has never undergone functional testing specific to the critical job demands required of the scaffolding order desk clerk position. Therefore, our findings are based on comparing the physical and functional requirements of the position with the worker’s demonstrated physical abilities and identified work restrictions.

[22.2] On the surface, the lifting requirements of the scaffolding order desk clerk position appear to fall within the worker’s demonstrated sedentary level manual handling abilities as reported in the March 2011 FCE and April 8, 2011 Return to Work Services program discharge report. The WCB Employability Profile document for the scaffolding order desk clerk position indicates that low level lifting, waist level lifting, above shoulder lifting, front carry and side carry is not required of the position.

[22.3] The WCB Employability Profile for the scaffolding order desk position, however, also lists additional critical job demands required of the position. These include that of sitting (on a constant basis or 67 to 100 % of the work day); trunk rotation, standing and walking (on an occasional basis or 6 to 33% of the work day); climbing stairs and crouching/squatting (on a rare basis or 1 to 5% of the workday).

In comparison, the April 8, 2011 Return to Work Services program discharge report lists the worker’s compensable work restrictions as that of avoiding prolonged sitting, standing and walking; avoiding low level activities (i.e. crouching/squatting); avoiding stairs and avoiding trunk flexion/rotation.

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It could be argued that most of the employers interviewed are willing to accommodate workers with a sit/stand stool in regard to the constant sitting required of the order desk clerk job, which would then provide the worker with the ability to move around and change his positioning to some extent. However, when we also consider the other critical job demands required of the position in their totality, specifically that of: standing, walking indoors and outdoors on an occasional basis, trunk rotation on an occasional basis; crouching/squatting on a rare basis and the climbing of stairs on a rare basis, we are not convinced that the worker could reasonably perform the required job demands given his work restrictions.

[23] We are unable to determine with any certainty whether the worker’s vocational circumstances are such that he would meet the education and/or experience in lieu of education requirements of the scaffolding order desk clerk position for the reasons that follow:

[23.1] According to the WCB Employability Profile for the scaffolding order desk clerk position, the majority of employers require completion of high school although all employers report that a GED is acceptable in lieu of a grade 12 education.

[23.2] We note that the worker has a grade 9 education so would not meet the minimum grade 12 education required by the majority of employers.

[23.3] It is recognized that the WCB approved academic upgrading so that the worker could obtain his GED. As evidenced in the July 22, 2013 letter addressed to the worker by the WCB case manager, completion of the GED would have provided the worker with the necessary education required of the scaffolding order desk clerk position.

With respect to this, the worker relies on his treating family physician’s July 18, 2013 report as confirmation that the medications he was taking would have impacted his ability to successfully complete the academic upgrading and for this reason, he did not enrol in the GED courses.

x The July 18, 2013 report of the family physician states:

“Due to ongoing medication changes and various medication combinations, he continues to experience daytime sedation and somnolence, affecting his ability to concentrate and process information. It is my understanding that he is to start courses 4 hours/day towards his GED. Unfortunately, at this time, his medications and their side effects will likely interfere with him being successful at completing the necessary coursework. He will be seeing [physician’s name] at the Chronic Pain clinic at the end of August, at which time his medication regime will be reassessed.”

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[23.4] Our review of the medical reporting provided by the physician that was treating the worker with respect to his chronic pain symptoms during the July through October 2013 time period in question confirms that the worker was undergoing some adjustment to his pain medications along with the trialling of additional medications. While this physician documents objective findings of “alert patient” in a number of reports, he also states in the July 23, 2013 report that the worker is “stable but not nearly as good as I would like him to be at this point. Level of function remains poor” and, “Appears about the same. Still has his usual pain behavior”, in the September 19, 2013 report.

We find we are not able to determine from this reporting whether the treating physician at the pain clinic shared the same concerns as those voiced by the worker’s treating family physician with respect to daytime sedation, somnolence and concentration difficulties as a result of the prescribed medications and we find no indication on the claim record that the WCB contacted the pain clinic’s physician with respect to this.

Therefore, based on the available medical information, we find we cannot determine whether it was reasonable to expect the worker attend academic upgrading at that time or whether the medications the worker was on would have impacted his ability to successfully complete the GED.

[23.5] We also considered whether the worker’s past work experiences were such that he would qualify for the scaffolding order desk clerk position based on his experience rather than the required education.

x According to the WCB Employability Profile for the scaffolding order desk clerk position, the majority of employers were willing to accept experience in lieu of education; however, it was also noted that few of the employers contacted had employees with less than the minimum educational requirement. Applicable experience included scaffolding, customer service or store operation experience.

x As evidenced in the March 13, 2013 Vocational Services Planning report, and confirmed by the worker at the hearing, the worker’s past employment did not involve scaffolding work, store operation experience or customer service experience.

x We find, therefore, that the worker does not have experience in any of the applicable areas accepted by the employers in lieu of education.

Conclusions and Reasons

[24] The Act and policies allow for the WCB to estimate a worker’s post-accident earning capacity in suitable employment when the worker is capable of, but has not obtained employment, is unable to secure suitable employment or engages in employment which fails to maximize earning capacity.

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The policy further instructs that, for the purposes of estimating earning capacity, “suitable” means employment which is consistent with the worker’s ability and which is within the worker’s locale or may be obtainable where relocation is reasonable. Assessment of ability is based on physical, vocational, social, psychological circumstances and any other factors considered relevant.

[25] On the basis of our above findings and for the reasons cited above, the panel concludes that the order desk clerk (scaffolding) position is not “suitable” employment for purposes of estimating the worker’s post-accident earning capacity/wage loss supplement entitlement because:

[25.1] The position is a full time position and therefore is not consistent with the worker’s part-time work capability;

[25.2] The critical job demands of the position are outside the worker’s demonstrated physical abilities and compensable work restrictions; and

[25.3] It cannot be determined with any certainty whether the worker’s vocational circumstances are such that he would be capable of meeting the education and/or experience in lieu of education requirements of the position.

[26] This matter is referred back to the WCB so that it can revisit the vocational plan with respect to this worker.

[27] In the interim period, until such time as the WCB identifies a suitable employment position for the worker, the panel finds it reasonable that the WCB base the worker’s post-accident earning capacity/ELP benefit on the prior lottery booth attendant part-time position.

Decision

[28] The position of order desk clerk (scaffolding) is not “suitable” employment for purposes of estimating the worker’s post-accident earning capacity/wage loss supplement entitlement.

[29] This issue of appeal is granted. The September 17, 2013 decision of the Dispute Resolution and Decision Review Body is reversed.

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This decision is made with the full agreement of the hearing panel. Decision signed in Edmonton, Alberta on June 10, 2014. C. Kilburn Hearing Chair (on behalf of the panel) Hearing Panel: C. Kilburn – Hearing Chair H. Edge – Commissioner C. S. Enns – Commissioner Typed by: jeb/el DEC08 (20140106)

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