vocational interests assessments

That’s a good question Tami and I think it depends on the venue you are working in. If you are assessing a person’s employability to see if they meet the disability test to qualify for income replacement benefits, for example, the emphasis is on capacity rather that interest for an occupation. The matter at hand therefore is can they perform the job and not so much whether or not they like it. In those venues, impairments are only compensated if there is medical and vocational evidence to support them. You probably can find court decisions supporting this line of reasoning on the CANLII database. On the other hand, if your focus is career counselling and/or vocational rehabilitation, vocational interests become much more important. I would be interested to hear what others have to say about this.

• This reply was modified 2 years, 2 months ago by 3986.

Hello Tami,

I would tell the client that although interests are a consideration and that you make efforts to make recommendations compatible to such interests, they are not an overriding or decisive factor in disability benefit determinations. Once again, there are nuances according to the venue but in general, the emphasis is on capacity rather than on personal interest for a job. I have done a review of relevant court decisions on the CANLII database and here is some useful information. I am sure there is more out there and hopefully, others on this forum will weigh in on this issue.

WSIB

Suitable Occupation (https://www.wsib.ca/en/operational-policy-manual/rtw-assessments-and-plans)

In determining a SO, the WSIB works with the worker and employer and considers;

• the worker’s functional abilities, transferable skills, education, aptitudes and interests
• the worker’s work-related and non-work related  impairments/disabilities, including non-physical disabilities such as a learning disability, and any other human rights-related accommodation requirements
• the worker’s pre-injury earnings and work hours (a worker would not be expected to significantly increase their work hours in the SO)
• labour market trends and the likelihood of the worker being able to secure and maintain employment in the SO
• whether the SO has a reasonable prospect of continuing in the longer term, and
• whether the SO is achievable within a reasonable cost structure.

Based on the above, interests are a consideration when determining if an occupation is suitable. However, it is not the overriding factor: as outlined in the following court decisions:

Decision No. 1488/21, 2022 ONWSIAT 331 (CanLII)

“…A worker’s interest in a SO may be a consideration when determining the SO, but it is not the overriding consideration, particularly when determining a SO for retroactive FEL or loss of earnings benefits…”

Decision No. 1430/18, 2019 ONWSIAT 1359 (CanLII)

“…The Panel finds that OPM Document No. 19-03-03 sets out a distinction between what is a SO, and what may be considered in determining a SO.  While the worker’s interests are considered in determining or selecting a SO, an occupation is not determined to be suitable solely in reference to the worker’s interests.

[29]  Rather, according to the policy, an occupation is determined to be suitable if it:

• is suited to the worker’s transferrable skills
• is safe
• is consistent with the worker’s functional abilities
• restores the worker’s pre-injury earnings to the extent possible
• is available with the injury employer or in the labour market.

[30] In the present case, the Panel finds that the Board correctly applied and considered the relevant aspects of the applicable policy, since the worker has transferrable skills gained while working as a heavy duty equipment mechanic which could be utilized in an ASA role; the ASA role was consistent with his restrictions relating to his bilateral shoulder injuries and it is not inconsistent with his pre-existing psychological impairment; and the SO of ASA would partially restore his pre-injury earnings with a minimal amount of training.  The fact that the worker did not want to work in the SO is something the Board may consider, but it does not in itself render the SO unsuitable.  It also seemed plausible to the Panel that the worker’s WT training may have been both useful in obtaining, and relevant in performing, his new position as a service manager for a heavy equipment service manager.  The worker had previously been employed as a heavy duty equipment operator mechanic, and did not apparently have “service” experience.  Although the worker did not ultimately obtain employment as an ASA, the WT training was arguably of assistance in his new occupation.  In any event, the Panel is satisfied that the SO of ASA is suitable, and accordingly, the worker’s appeal of this issue is denied…”

Decision No. 43/18, 2019 ONWSIAT 101 (CanLII)

Another case where the claimant was found to be suited for the occupation of telemarketer even though the claimant indicated having no interest for the occupation.

Ontario SABS

Although vocational interest is no longer listed in the SABS, this list is not considered exhaustive. Vocational interests of the claimant should be considered in assessing employability but are not in themselves a reason to reject an otherwise suitable occupation. Once again, the emphasis is on capacity rather than interest. I include below the relevant SABS legislation and a relevant case:

5(2)  The insurer is not required to pay an income replacement benefit,

(b) for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience;

(2) An insured person who is entitled to an income replacement, non-earner or caregiver benefit shall obtain such treatment and participate in such rehabilitation as is reasonable, available and necessary to,

(a)  permit the insured person to engage in employment or self-employment in accordance with the criteria set out in subsection (3), in the case of an insured person entitled to an income replacement benefit; or

(b)  shorten the period during which the benefit is payable, in any other case.  O. Reg. 34/10, s. 57 (2).

(3) The criteria referred to in clause (2) (a) are:

1. The essential tasks of the employment or self-employment are of a type that the insured person,
2. is able and qualified to perform, or
3. would be able and qualified to perform if the insured person obtained treatment and participated in rehabilitation that is reasonable, available and necessary to permit the person to engage in the employment or self-employment.
4. The place of employment or self-employment is in the area in which the insured person lives or it is reasonable for the insured person to engage in the employment or self-employment in that area.
5. The employment or self-employment is of a type in which it would be reasonable to expect the insured person to engage, having regard to the possibility of deterioration in the insured person’s impairment and to the insured person’s personal and vocational characteristics. O. Reg. 34/10, s. 57 (3).

“personal and vocational characteristics” include,

(a)  employment history,

(b)  education and training,

(c)  vocational aptitudes,

(d)  vocational skills,

(e)  physical abilities,

(f)  cognitive abilities, and

(g)  language abilities; (“caractéristiques personnelles et professionnelles”)

Richard Desroches v. Economical Mutual Insurance Company, 2002 ONFSCDRS 89 (CanLII)

“…In my view, the arbitrator is overstating the effect of the guideline. It does not suggest interest should be ignored. It states the variable should be weighted as “less important” in certain circumstances. To my mind, the intent of the guideline is to prevent an inappropriate skewing of a person’s earning capacity in circumstances where a job might be rejected notwithstanding the person would be suited for it by reason of his work history, training, experience, aptitude, and other personal and vocational characteristics…”

• This reply was modified 2 years, 2 months ago by 3986.
• This reply was modified 2 years, 2 months ago by 3986.

Hello Jennifer,

I agree with you that personality or temperaments should be viewed as secondary factors in a forensic setting, such as determining employability for disability benefit claims, in the same manner that vocational interests are considered. The emphasis is on capacity (skills, education, experience, aptitudes and functional capacity) rather than personal preference.