B.C. construction worker contested suitable occupation decision, but disability didn't rule it out
The worker was a construction framer in BC, although he had been qualified as a lawyer in India before immigrating.
In 2014, the worker injured his left little finger on a saw. The injury entitled him to wage loss benefits under the BC Workers’ Compensation Act as well as temporary total disability benefits until his finger stabilized.
The worker was diagnosed with chronic regional pain syndrome and chronic pain in the injured finger, which led to the BC Workers’ Compensation Board (WCB) concluding that his injury was a permanent partial disability.
In March 2016, the WCB assessed the worker’s disability based on the degree of functional impairment as a percentage of total disability, which would be applied to the worker’s average earnings.
The worker was also referred to the WCB’s vocational rehabilitation services (VRS) to help him return to work in a suitable occupation. The VRS identified a legal administrative assistant role on the basis that it was physically suitable and available to him and would effectively replace his pre-accident earnings.
Partial permanent disability
The WCB assessed the worker’s permanent disability at 7.5 per cent and awarded him a permanent disability pension at that amount of his earnings. Because his earnings as a legal administrative assistant would be similar to his pre-accident earnings, his circumstances were not considered to be exceptional and warrant a different type of assessment.
The worker appealed the permanent disability award, but he was unsuccessful. He appealed again, and the Workers’ Compensation Appeals Tribunal found that, although the WCB correctly assessed the degree of his functional impairment, it found that the position of legal administrative assistant wasn’t suitable and the WCB should reassess whether his circumstances were exceptional enough to warrant a different assessment of his disability.
The WCB appealed this decision, arguing that the tribunal did not have the jurisdiction to make a decision on the suitability of the worker’s rehabilitation plan.
Despite the WCB’s appeal, the VRS developed a new vocational plan, which it was entitled to do when “significant developments” occurred. The new plan was for a paralegal position, which had an earning capacity equal to or higher than the worker’s pre-injury earnings.
Worker contested suitable position
The worker performed well in paralegal training, but he contested paralegal as a suitable position, arguing that employers were looking for paralegals who could type 45 words per minute, which was beyond his capacity with his disability. A WCB review officer disagreed, finding no occupational requirements for a paralegal to be a “copy typist.” He was provided with speech recognition software, but the worker didn’t complete the training for it.
The worker requested a switch to other forms of career training, but the request was denied.
The appeals tribunal ruled that the rehabilitation plan for a paralegal position was appropriate, maintaining that the circumstances were not exceptional due to the earning capacity of a paralegal.
By Dec. 29, 2019, the worker was unsuccessful in finding a paralegal position and his job search benefits stopped because he didn’t meet the requirement of at least 20 contacts per week to warrant an extension. The worker sought a review of the decision to stop the job search benefits, but the WCB review division denied it.
The worker applied to the BC Supreme Court for a judicial review, claiming that the WCB acted unreasonable by determining that paralegal was a reasonable occupation for him and terminating his job search benefits before he found such a position. He also said that the decisions caused him to suffer from anxiety and depression.
Reasonableness standard
The court noted that the standard of review for the WCB’s decisions was reasonableness for both the rationale and the outcome.
The court found that, although the worker claimed that paralegals had to be able to type 45 words per minute, there was no evidence supporting that claim. In addition, the WCB provided him with speech recognition software to help speed up his typing, but the worker chose not to complete the training, said the court, referring to evidence indicating that the VRS sorted paralegal job postings into highly clerical or a greater reliance on legal knowledge.
“The board’s point, as I took it, is that the relationship between [the worker’s] typing speed and his employability as a paralegal was explicitly addressed in the development of the plan, which he then agreed to," said the court.
The court also found that the worker did not provide medical evidence about an increase in his anxiety and depression, and such evidence would have to be brought to the WCB as additional conditions and not part of a judicial review.
The court noted that the standard job search assistance period is 12 weeks, with extensions justified if the job takes a long time to secure, the worker’s disability is severe, or the worker is actively searching and there is evidence that more time will help them succeed. Neither of the first two requirements were met in this case, and the evidence showed that the worker failed to meet the minimum in his job search, said the court.
Plan addressed worker’s limitations
The board found that the VRS and the worker “specifically turned their minds” to typing speed as a qualification for the paralegal position and they focused on those with lighter typing requirements. As a result, there was nothing contradictory to the worker’s typing deficiency and his employability as a paralegal, said the court.
As for the decision to stop the worker’s job search benefits, the court found that it was based on the extent of the worker’s efforts, which the evidence showed didn’t meet the minimum requirements for an extension of the benefits.
The court determined that the WCB’s decisions were reasonable and dismissed the worker’s application. See Ahluwalia v. Workers’ Compensation Board of British Columbia, 2023 BCSC 196.