The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with an injured worker's vocational rehabilitation gone awry.

The injured worker was participating in a vocational rehabilitation program when he stopped for alleged medical reasons. The Workers Compensation Board (the "WCB") did not accept this reason and suspended the worker's compensation benefits. It found him capable of working within National Occupation Classification 1453, Customer Service, ("NOC 1453") for which he was being retrained and deemed him capable of making the average salary within NOC 1453. The worker appealed this decision to the Review Office which, in a decision dated March 24, 2005, agreed that the worker was able to work within NOC 1453. However, it extended the date at which the deem came into effect to March 1, 2004 as it accepted the worker's temporary absence from the vocational rehabilitation program for medical reasons.

The worker appealed Review Office's decision to the Appeal Commission. An appeal panel hearing was held on July 12, 2006. The worker appeared and was represented by counsel. Three witnesses, one of whom was the accident employer, attended to provide character evidence in favour of the worker. A vocational rehabilitation consultant also appeared and provided evidence.

Issue

Whether or not an occupational goal of working within National Occupational Classification 1453, Customer Service, Information and Related Clerks, is appropriate; and

Whether or not an earning capacity of $379.00 per week should have been implemented as of March 1, 2004.

Decision

That an occupational goal of working within National Occupational Classification 1453, Customer Service, Information and Related Clerks, is appropriate; and

That an earning capacity of $379.00 per week should have been implemented as of March 30, 2005.

Decision: Unanimous

Background

Reasons

Background

On August 18, 1998 while working construction, the worker suffered a compensable injury to his lower back when he suffered a herniated L5-S1 disc with nerve root compression. He underwent a discectomy on two occasions which unfortunately did not relieve his back pain and right radicular leg pain and numbness.

The worker's medical treatment since the compensable injury has, other than the surgeries, consisted of pain management with an anaesthesiologist at a Pain Clinic. Pain management has essentially focused on the use of a spinal cord stimulator, that was permanently inserted on January 5, 2000, and pain medication, which has generally increased over the years.

Given the nature of the worker's compensable injury, he was found to be permanently restricted to sedentary duties. As a result of this determination, he was not able to return to his pre-accident employment and needed to be retrained.

As a preliminary step, the worker was referred for a psychological assessment to better understand his pain behaviour. Two reports in this regard are of interest in that they record the worker's reported level of functioning as well as his psychological approach to his pain:

• A June 21, 1999 psychological report notes:

  "…For recreation, [the worker] reported that he enjoys playing with his children, even though it is difficult to keep up with their energy levels. He also said that he attempts to go for walks, drives in the car, to the zoo with the children, and swimming whenever he can but often pays the consequences of increased pain and exhaustion afterward…on the MPI [Minnesota Multiphasic Personality Inventory], [the worker]'s response profile suggests that despite reporting a higher level of pain than most other chronic pain patients, he also tends to engage in a higher level of daily activity than most other chronic pain patients. This pattern of coping may contribute to and maintain his high level of experienced physical pain because it may not allow [the worker] sufficient time for rest and recuperation…" (emphasis ours)

• An August 28, 2000 report from the WCB Pain Management Unit ("PMU") reiterates much of this earlier report and adds:

  "His scores…indicate that he fits the dysfunctional category of pain coping styles. His scores are characterized by a much high [sic] than average level pain severity, a higher than average level of interference with daily activities, a much higher than average level of perception of loss of control over his life, a much lower than average level of affective distress and a relatively average level of activity when compared with other individuals placed in the dysfunctional category of pain-coping styles…His scores…were notable for a very low tendency to catastrophize or to be overly fearful or negative about his pain and a relatively average level of activity in spite of his pain…[His] scores…indicate that he had little in the way of symptom expression and no symptom exaggeration; nor was there a tendency on his part to present himself in an overly positive light. Based on this, it is felt that the following is likely an accurate representation of his current level of psychological functioning, although he may have a tendency to underreport some symptoms. Thus, he may actually be somewhat more distressed than the following profile indicates…" (emphasis ours)

At about this time, a WCB medical advisor placed temporary physical restrictions on the worker of no standing more than 15 minutes, no lifting more than 10 pounds and the ability to change position often. Although these restrictions were initially put into place for 3 months, they have not changed significantly since then.

In September 1999, the worker expressed an interest to begin a vocational rehabilitation program. The accident employer was contacted and an alternate position of construction estimator was offered. Unfortunately, the employment was not pursued given the worker's physical restrictions.

In November, 1999 the worker was referred to a registered psychologist for vocational testing. The test results indicated a high aptitude in visual and spatial abilities but low in reading, spelling and math. The registered psychologist thought that pain and sleep disturbance could impact the worker's performance levels. However, he did not advise long term university training. Rather, he thought hands-on re-training would be most suitable. Vocational interests identified at the time of the testing included industrial, construction or retail sales clerking, clerical and administrative work, merchandising and social service assisting.

As the worker had surgery in January, 2000 for the spinal cord stimulator implant, his vocational rehabilitation was postponed until the fall of 2000 at which time he was enrolled in a computer upgrading course starting September 5, 2000. The worker enjoyed the courses but found that he had increased pain with prolonged sitting.

Unfortunately, the worker's vocational rehabilitation was once again put on hold when his spinal cord stimulator malfunctioned on October 13, 2000, requiring exploratory surgery on October 25, 2000 and surgery to insert a new stimulator lead on January 11, 2001.

In the interim, he saw a sports medicine and rehabilitation specialist to assist with his physical rehabilitation. A November 18, 2000 report outlines the sports medicine and rehabilitation specialist's opinion regarding the worker's ability to work:

"…At this time, [the worker]'s L5-S1 discopathy with chronic radiculopathy secondary to perineural fibrosis likely represents a permanent partial impairment associated with permanent partial disability. He will likely have difficulties with any work requiring repetitive sitting, standing, flexion, or rotation of the spine. He will also have difficulties performing tasks requiring lifting of objects requiring a valsalva maneuver…"

The sports medicine and rehabilitation specialist recommended trunk strengthening exercises to increase the worker's functional capacity. He did not however think that it would decrease his pain levels.

The worker was also referred for a functional capacity evaluation ("FCE") on May 22, 2001 to determine his functional capacity. The FCE revealed a limited range of movement of lumbar flexion with no ability to squat or crouch. His participation was identified to be a full voluntary effort passing 5 out of 5 validity checks. It was at this time that the temporary restrictions of no lifting more than 10 pounds, no excessive repetitive movement of the LS spine and ability to change positions often were considered to be permanent (June 12, 2001 WCB medical advisor memorandum).

In June, 2001, the worker once again expressed interest in continuing with vocational rehabilitation. Though a referral was made to vocational rehabilitation services ("VRS") at that time, he was not contacted by VRS until March 14, 2002.

A second referral for vocational testing was made to a clinical psychologist in May, 2002 which confirmed the first vocational test results. Once again a vocational goal utilizing the worker's strong visual spatial skills - inspection or quality assurance, design and drafting - was suggested. Other goals included assembly and repair, child or adolescent care, marketing or creative communications.

The worker also resumed computer training. Unfortunately, by June 2002, the worker began reporting increased back pain and reduced his attendance to 4 hours per day, 5 days per week, though he often missed the Friday. An ergonomically designed chair was provided to the worker. However, the worker found that he had a difficult time managing his pain levels and retaining the program information. A July 18, 2002 memorandum to file by the vocational rehabilitation consultant ("VRC") notes her concern over the worker's ability to attend a full-time school program; she thought that the school program and travel and sitting demands were excessive relative to his back function.

The issue of the worker's functional ability to work full-time was explored with a WCB medical advisor in August, 2002. On August 13, 2002 the medical advisor opined that the worker would likely always suffer some degree of pain. He suggested a 6 month reduction in the worker's training to 3 hours/day/ 5 days per week. He was not however prepared at that time to make this restriction permanent.

The worker's anaesthesiologist was also consulted. The anaesthesiologist responded on April 23, 2003 as follows:

"…the fact that [the worker's] pain control is not absolutely stable makes it difficult to state in absolute terms whether or not he has the ability to perform school activities and workplace activities on either a full-time or part-time basis. There may be periods of time when he is able to perform on a full-time basis but due to the fact that he is prone to exacerbations of pain this may certainly limit his activities, at times significantly. I feel that the restrictions are appropriate recognizing, however, that during an exacerbation even lifting 10 lbs or less may be very difficult and even prohibitive.

If it is possible to have his activities limited to part-time with the flexibility to perform for a longer duration, if he is physically capable and his pain control allows, this would be optimal and realistic."

It was on this basis that the WCB determined that the worker was only capable of participating in vocational rehabilitation activities on a part-time basis.

In November, 2002 a vocational rehabilitation goal of drafting in NOC 2253 was explored. A technical college was consulted to determine if part-time participation was possible. This technical college was chosen given the worker's academic level of functioning. Entrance level testing was done in February, 2003 which showed that the worker would need some upgrading, which he did from March to June, 2003 2 ½ hours per day, 3 days per week.

Unfortunately, NOC 2253 was not approved by the VRS as there was no employment market for part-time workers. The worker's restriction to part-time employment was therefore re-visited.

A second FCE was done on July 14, 2003 but the tester concluded that the worker did not demonstrate a full voluntary effort. The report noted that similar results were not obtained on the same testing done while seated, standing or lying supine.

A WCB medical advisor reviewed the results of this second FCE and the entire WCB file and found that there was no evidence that the worker could not work full-time, with his restrictions.

With this medical information in mind, the WCB determined that the worker could proceed with full-time studies in drafting at the technical college. An earning capacity assessment ("ECA") was done on August 13, 2003 which revealed that the worker would be suited both academically and physically for employment with NOC 2253. The worker was therefore enrolled in the full-time program and an Individualized written rehabilitation plan ("IWRP") was drawn up for this vocational rehabilitation goal.

This vocational rehabilitation plan never went through. The VRC determined that the starting wage for graduates of this technical college were lower than expected, and the worker's counsel expressed his opinion that the technical college program was not accredited and therefore did not agree to the worker attending. A program at another technical college was examined. However, this program was very demanding in terms of classroom work and attendance and homework hours. It was therefore thought that the worker would not be able to cope in this type of program. The vocational rehabilitation plan in NOC 2253 did not therefore proceed. An alternative vocational rehabilitation plan in NOC 1453 was developed by a second VRC on the basis that there was a short term course which would provide the worker with a more hands-on learning environment which was not academically challenging and would allow the worker to enter the labour market relatively quickly.

An ECA was therefore completed for NOC 1453 which revealed that the worker would be able to adequately find employment within this NOC. A September 18, 2003 memorandum to file by the employment specialist (ES) notes that NOC 1453 includes clerks 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. Employment is found mainly in retail establishments, insurance, and telephone and utility companies.

A letter of November 13, 2003 was sent by the WCB case manager to the worker confirming this vocational rehabilitation goal and reminding the worker that non participation would result in a suspension of benefits. An IWRP was drawn up for NOC 1453 on November 14, 2003. The IWRP indicates that a call centre/customer service course would take place from November 10, 2003 to January 30, 2004, followed by 12 weeks of work experience and 4 weeks of job search assistance. The worker was not keen on this vocational goal but did attend. Memoranda to file indicate that the worker did well in the program.

Unfortunately, once again, the worker's vocational rehabilitation was interrupted by a breakdown in his pain relief regime. A September 26, 2003 report from his anaesthesiologist indicates that the worker was complaining of increased pain, numbness and tingling in his right leg and foot in September. He was also more clumsy than usual and was experiencing more back pain. Attendance records from the centre where the worker was taking his training indicate that the worker missed classes on November 21, December 4, December 10 afternoon, and December 11 - January 1, 2004. He did come in to work on his own for 1 ½ hours on January 2, 2004.

A December 30, 2003 letter from the anaesthesiologist explains the reason for these absences:

"Since September 26, 2003, [the worker] was seen in the Pain Clinic November 27, 2003. He was experiencing increasing lower back pain and also required an adjustment of his spinal cord stimulator. With the stimulator adjustment he continued to experience stimulation involving his area of pain…I did recommend an increase in Oxycontin to 60 mg tid in hopes that this might also provide further improvement in his pain control.

[The worker] was again seen in the Pain Clinic December 4, 2003, and at that time he described a change in the stimulation sensation. Testing of the stimulator at this time demonstrated difficulty in obtaining satisfactory coverage of his pain with the stimulation and in fact he described a cramping sensation in the back and leg when the stimulator was increased in amplitude. With this stimulation [the worker] found that he did not experience any benefit from the spinal cord stimulator and this produced a significant exacerbation of his pain. He found the Oxycontin to be less and less effective with the inability of the stimulator to contribute to his analgesia. It was at this time that the decision was made to try Methadone. The plan was to begin on a small dose of Methadone and gradually titrate the Methadone dose upward while decreasing his dose of Oxycontin.

I saw [the worker] again December 12, 2003. He continued to experience very spotty stimulation from the spinal cord stimulator and continued to experience a grabbing and cramping sensation along the right flank.

I gave him a prescription for Methadone at this time to use in addition to his Oxycontin…

I note your comment that he seized [sic] participating in his vocational rehabilitation plan due to a reaction to the new medication - Methadone. I was unaware that he had a reaction to Methadone. I am aware that his pain was certainly more severe due to the lack of stimulation contributing to his pain control and if this was the reason for him discontinuing the rehabilitation plan, hopefully further titration of Methadone or reinstitution of improved stimulation can provide overall improvement in his pain.

[The worker] did inform me that the vocational rehabilitation plan did at times produce flare-ups of his pain and that lying on his side was a much more comfortable position versus standing or sitting…"

The worker explained these difficulties with his medication and pain to his case manager, VRC and the training centre. On December 17, 2004 he called his case manager advising he had seen his anaesthesiologist on December 17, 2004 and was prescribed Methadone and was "stoned" and could not attend school. His counsel also called the case manager and advised that the worker could not attend school because his back pain was severe, the worker was dizzy and nauseous and was awaiting another surgical procedure for his spinal cord stimulator.

A January 6, 2004 memorandum from the VRC to the case manager noted that the worker had called in promptly each day he was unable to attend training. She noted that he had begun the training with regular attendance. In conversation with her, the worker said that his need for medical intervention was due to the full-time program; after a couple of weeks he was unable to stand the pain. Though he thought a change in his medications would allow him to attend full-time, the VRC was not overly optimistic given the worker's reported difficulties. In conversation with the training centre it was noted that they might be able to accommodate the worker by extending the program. It was also noted that the worker had attempted to return to the training centre in January, 2004 to try to catch up.

Then on January 19, 2004 the case manager reviewed surveillance video that had been taken of the worker from May 2, 2003 to December 23, 2003. The case manager found that the worker did not demonstrate any physical signs of discomfort with his back or show any signs of pain behaviour with activity. More importantly, it showed the worker attending church in December at a time when he said he was "stoned" and only able to lay on his side. Given the worker's displayed level of functioning on the surveillance video, the case manager found the worker was capable of performing the activities required of him at the training centre and that given his lack of full-time attendance his benefits would be suspended.

A letter to this effect was sent to the worker on January 20, 2004. The case manager also called the worker and clarified that this did not mean that the WCB thought that he had recovered from his injury but rather that he would participate full-time in training.

A deem committee met that same day and deemed the worker capable of earning $432.00 per week in NOC 1453. Based on this decision, the case manager wrote to the worker that same day advising:

"WCB board policy 44.10.30.60 provides that "Deemed earning capacity will be used under the WCB's broader policy on mitigation (WCB Policy 44.10.30.60, Practices Delaying Workers Recovery) where:

The worker refuses to cooperate in or complete a program of vocational rehabilitation. In this case, the deemed earning capacity will be the earning capacity expected upon completion of the vocational rehabilitation plan."

There was no indication that this decision was simply a suspension of benefits nor that the worker was invited to contact the WCB to recommence vocational rehabilitation.

The worker's anaesthesiologist responded to the January 20, 2004 letter on January 28, 2004. He reviewed the worker's breakdown in his pain relief regime and the significant side effects of the Methadone. It was his opinion that due to these problems it would be "probably very difficult for him to concentrate on the work and also very difficult for him to stay in one position for a period of time due to his poorly controlled pain."

The case manager did not change her decision and on July 9, 2004 the worker appealed to Review Office. Shortly after, the worker and his family moved out of the city to a remote northern community as his wife was able to find a job there which would support the family.

The Review Office further investigated the worker's claim. They wrote to the worker's anaesthesiologist, met with the worker and his counsel and sent the worker for another FCE, which again revealed the worker's participation not to be a full voluntary effort mainly because of the discrepancy in range of motion results from the seated versus standing and supine positions. They also asked for a medical advisor to Review Office to provide a medical opinion on the effects of Methadone and the worker's functional capacity. On March 17, 2005, the medical advisor described Methadone as a long-acting opioid that could have led to the worker's reported symptoms of nausea, vomiting, dizziness, lightheadedness, inability to think straight, slurred speech and difficulty focussing, and which could have impacted on his ability to participate in his vocational rehabilitation program. She thought however that given that Methadone has a terminal half life of 190 hours, it most likely would have cleared the worker's system by the end of February, 2004. She also thought that recovery time from the February 10, 2004 surgery would be 2 weeks.

The medical advisor also reviewed the surveillance that had been taken of the worker during the course of 2003. She found the worker's actions to be fluid without any sign of distress. She also found that he was capable of sustained activity and therefore capable of a full-time sedentary vocational rehabilitation program. She also commented that the FCE was not an appropriate tool to assess the worker's functional capacity. She therefore felt that the worker's functional capacity should be determined by the medical reports and the video surveillance.

After compiling this information, Review Office rendered a decision on March 24, 2005 allowing the worker's appeal in part. It found that the worker was capable of full-time retraining as of March 1, 2004 and applied a deem of $379.00 given a correction in the average earning capacity for NOC 1453. Review Office clarified in the decision that the worker was entitled to the remainder of his vocational rehabilitation plan (or an alternate one), once he indicated to the WCB that he was prepared to fully participate. It also noted that the worker should be provided with the necessary support to allow him to complete the IWRP and be reinstated on full wage loss benefits for the duration of the IWRP.

A conversation between the Review Officer and the worker's counsel on March 24, 2005 regarding the worker's mitigation which is of interest is reported on file:

"[Counsel] stated that nothing further had been offered to the [worker]. I told him that the worker has not, even to date, indicated a willingness to continue in his participation in the VR plan and that he could have re-engaged in the process. I further explained that the worker was immediately deemed, as this allowed him to continue to at least receive partial wage loss benefits, rather than receiving nothing at all."

Then on March 30, 2005, the worker's case manager wrote to the worker with respect to the Review Office decision and stated in particular:

"With respect to provision of further WCB Vocational Rehabilitation (VR) Services, I note you are currently living in a remote location. Due to your current living arrangements, participation in a VR plan is not viable. Should you relocate back to an urban centre and be willing to fully participate in further VR, please contact the WCB and we will assess your eligibility for further services. Please note that the provision of further VR services is at the discretion of the WCB."

Despite this advice, the worker has not, to the date of the hearing, contacted the WCB.

On January 30, 2006 the worker, through his counsel appealed the Review Office decision to the Appeal Commission.

In preparation for the appeal the worker's counsel retained a physiotherapist and a VRC.

A September 21, 2005 27 page report from the physiotherapist records the results from a two day FCE. It notes the worker's functional ability for sedentary work with the following restrictions:

• Static sitting or standing to be up to 10 to 15 minute durations with the ability to regularly alternate between these two positions;
• When seated to use a neutral trunk posture;
• For lifting to be on an occasional basis to a maximum of 15 pounds from mid shin to overhead level;
• For carrying to be on an occasional basis to a maximum of 18 pounds;
• To avoid prolonged forward flexed or awkward trunk postures.

A December 5, 2005 report clarifies that at the time of the FCE, the worker demonstrated a functional ability to work at a sedentary level on a full-time basis.

On the basis of this information and file information, the VRC prepared a report on June 30, 2006 which indicates that the worker would be best suited vocationally and physically for the position of Inventory/Purchasing Clerk (NOC 1474), Dispatcher (NOC 1475) and Collection Clerk (NOC 1435). With respect to NOC 1453, the VRC opined that call centre work would not be appropriate but that there are other occupations within NOC 1453 that may be suitable, specifically customer service.

The Oral Evidence at the Hearing

Character Evidence

Much evidence was led at the hearing to attest to the worker's credibility and character. In our view, this appeal does not revolve around the worker's credibility. We have therefore not dealt with this evidence in our reasons. That said, some of this same testimony spoke to the worker's displayed pain behaviour, or rather lack of it. We find this evidence relevant at it lends credence to the psychological findings that the worker tends to under-report and over-do.

One of the witnesses (a Reverend) testified that he knew the worker as a friend. He described him as someone who does not talk about his pain. He is also someone who pushes himself beyond his physical capabilities. He related a story when he and the worker played a game of badminton after the Reverend had mentioned he had not played since high school. The Reverend noticed that the worker was not physically able to play well. When he called the next day to find out how he was feeling after the game he learned that the worker had spent the entire morning in bed.

The Reverend also recalled December, 2003 as being a bad month for the worker. He explained that he and the worker usually went to the gym together but that during the month of December, 2003 the worker did not go because he was "not in good shape".

The worker's wife described her husband as a man who was reticent to talk about his pain and his functional abilities. He, with her encouragement, tried to lead a normal family life without letting the pain interfere.

Functional Evidence

The worker and his wife both testified that the worker's condition has essentially remained the same since 2003 with good days and bad days and periods where the worker's pain relief regime fails. That said, his pain medication has increased since that time.

The worker described his pain as bearable versus unbearable. A bearable day was when he could make it through the pain - the pain level being between a 6 and 8. He stated that this depended greatly on his spinal cord stimulator which, through frequency transmissions, causes his legs to shake. This masks his pain. His back pain is managed by medication.

His spinal cord stimulator has failed on occasion and required surgery. More pertinent to the appeal is in December, 2003 when the worker's spinal cord stimulator failed. An adjustment to it electrocuted the worker and he was put on Methadone for alternative pain relief.

The trial of Methadone was catastrophic. The worker testified that he was "stoned" and unable to get out of bed much of the time. He did manage to go to Church on December 22, 2003 as the surveillance has revealed. He could not however drive.

The worker's wife testified that the worker was in such a state that the worker essentially slept, got up to vomit, eat a banana and a piece of toast and go back to sleep. As the dosage of Methadone increased, his behaviour became very erratic.

She explained that after the operation in February, 2004, they began a 6-7 week period of Methadone detoxification that lasted until the end of March 2004. She testified that the detoxification was not much easier. He had severe weight loss, irritability, heart palpitations, fatigue and severe bowel problems. He had become hostile and "totally out of it". She found him to be more like himself by May 30, 2004. He continued to improve and gain strength after that date. The worker also thought that he was better by the end of the summer, 2004.

His wife described his current functional status as being able to do most of the meal preparations, care for their youngest daughter in the afternoon and generally participate in family life. She did find however that the medication he takes has generally caused him memory loss, difficulty in holding a conversation, fogginess, delayed thinking, confused speech, slow reflexes, sweating, dizziness, rapid breathing and twitching.

She thought that her husband would be able to work but only part-time. She expressed her concern that if he did work full-time he would essentially go straight to bed when he got home from work.

The worker appeared to disagree with his wife's assessment. He expressed his desire to be actively employed and thought that he might be able to do so on a full-time basis.

Counsel's Submissions

Counsel for the worker submits that the vocational rehabilitation goal which was chosen by the WCB - NOC 1453 and its focus on call centre work is not an appropriate goal; he is not interested in it and is not physically able to perform the duties of a call centre employee. He says that he is capable of some employment but that it is more likely only part-time employment in a job where he is able to move around as needed - a job in NOC 1474 - Purchasing and Inventory Clerk.

Counsel further submits that not only is NOC 1453 inappropriate, but that the WCB unfairly deemed the worker on the basis of lack of participation, when the worker has never refused to participate.

Analysis

To accept the worker's appeal, we must find that NOC 1453 was not an appropriate occupational goal for him and that the deem should not have been implemented. We are unable to make those findings. On a balance of probabilities we find that the worker was capable of full-time sedentary employment within the restrictions set forth by WCB as of August 2004 in NOC 1474. We also find that the deem should be implemented as of March 30, 2005, as the worker and his counsel were clearly advised of the onus incumbent on the worker to contact the WCB for vocational retraining given his relocation to a remote community as of that date.

Vocational rehabilitation assistance is governed in part, by subsections 27(2) and 40(1) of The Workers Compensation Act (the "Act") and WCB policies 43.00 and 44.80.30.20, the relevant provisions of which are as follows:

Policy 43.00:
1. 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.

V. Individualized Written Rehabilitation Plans (IWRP)

4. When developing the worker's vocational profile as part of an assessment, the WCB will include the worker's personal characteristics (e.g., age in terms of how it affects prospects for success), education, work history, occupationally significant characteristics, and transferable work skills.

Policy 44.80.30.20:
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 work exists for the occupation or group of occupations on which the earning capacity is to be based.

a) The appropriateness of NOC 1453

Counsel for the worker submits that NOC 1453 is not appropriate for two reasons - the worker is not interested in it and the IWRP is geared solely towards call centre employment which is not physically appropriate for the worker. We are unable to accept this submission.

Though interest is a factor which is taken into consideration in determining the appropriateness of a NOC, it is not an overriding factor. The panel notes that the worker's preference for alternate employment was drafting or construction estimation. Employment in these fields are considered inappropriate by both the WCB and the worker's own VRC due to their physical requirements. The worker's preference is therefore not a realistic factor in determining an appropriate NOC.

With respect to the physical requirements of NOC 1453, the worker's VRC expressed concern with a call centre position. She testified that most call centre positions require prolonged sitting with the added stress of production quotas. Given the production requirements and typical office space set-up, she did not think that the worker would be given any real opportunity to move around as required.

That said, the worker's vocational rehabilitation consultant did concede that other jobs with NOC 1453 which were customer service jobs, would be physically appropriate for the worker. She was unfortunately not able to provide any evidence as to the percentage these customer service jobs were of the total NOC.

She did however express her opinion that other NOCs - for example NOC 1474 Purchasing and Inventory Clerk - would be more appropriate than NOC 1453 as they had a "built-in" mobility requirement. The worker was qualified for employment within these other NOCs and the job market was good.

Vocational rehabilitation of a worker is at the discretion of the WCB. While the WCB must ensure that a NOC is appropriate for the worker in terms notably of his physical and educational capacities, it is not a requirement that the chosen NOC be the most appropriate.

The evidence before this panel, including the worker's own VRC, is that NOC 1453 is an appropriate NOC. Though concern has been expressed over call centre work having difficulty accommodating the worker's restrictions, we do not find sufficient evidence that this work could not accommodate the worker's restrictions.

We therefore find, on a balance of probabilities, that NOC 1453 is an appropriate NOC.

b. The worker's ability to be employed in full-time sedentary work

Counsel for the worker urged this panel to find that he not capable of full-time employment. We are unable to make that finding.

The evidence before this panel is that the worker has been willing and physically able to work at alternate employment as of 1999. While we do accept that the worker suffers from a permanent partial disability that has left him with some physical restrictions, the medical reports, including the worker's own physiotherapist's report, indicate that he is capable of full-time sedentary work with restrictions.

The evidence does suggest that the worker has not been able to complete his full-time training programs. However, this inability appears to be due to a breakdown in the worker's pain relief regime.

The evidence is that the worker relies upon the spinal cord stimulator for leg pain relief and upon medication for back pain relief. The spinal cord stimulator requires revisions and adjustments to maintain its effectiveness. On occasion, it becomes ineffective, either because of the different frequency settings, the batteries or the screws. Sometimes surgery is required to rectify these problems. Other times a visit to the Pain Clinic suffices. There are therefore occasions when the worker's pain relief regime does not provide adequate pain relief. At these times, the worker's ability to be employed (or to participate in training) is impacted. We accept that this was the case in December 2003. It may later prove that the worker is not capable of sustained full-time employment. However, only time and a sustained vocational rehabilitation participation will tell. At this point in time, and based on the evidence before us, we find on a balance of probabilities that the worker is capable of full-time sedentary duties with restrictions.

c. The deem

Counsel for the worker submitted that a deem can only be implemented if the worker fails to participate in the vocational rehabilitation plan set out for him. Counsel relies on WCB Policy 44.80.30.20 as establishing that the WCB can only deem an earning capacity as a last resort, where a vocational rehabilitation plan has failed. He argues that was not the case here; the worker stopped his training for medical reasons. No one from the WCB has contacted him since, and therefore the WCB has no right to implement a deemed earning capacity. We are unable to accept this submission.

The panel notes that this is not the proper policy to apply in this case, and therefore is unable to accept this submission. The panel finds that the policy referenced by counsel only deals with specific cases where a vocational rehabilitation plan is unsuccessful. It is not the only circumstance under which the WCB can deem an earning capacity for a worker.

The Act establishes a broader series of responsibilities between an injured worker and the WCB , which can result in the termination or suspension of benefits. This is effectively a different type of deeming. These are enumerated in section 22 of the Act and in Policy 44.10.30.60, "Practices Delaying Worker's Recovery". Stated briefly, section 22 states that if a worker fails to mitigate the consequences of the accident, the WCB may reduce the compensation paid to a worker to the level that would have been payable otherwise. The Policy indicates, for example, a worker's general responsibility as follows:

"workers are responsible for taking reasonable steps to assist in their own recovery from the effects of a compensable accident, and from refraining from actions or inactions that will have an effect on that recovery".

We do accept that the worker's cessation of training in December 2003 was genuinely due to a malfunction in his pain relief regime. Though the worker's benefits were originally suspended due in large part to the surveillance, we find the surveillance consistent with the worker's reported level of functioning to the WCB, as well as with the psychological assessments of the worker's pain behaviour and the worker's and his wife's evidence at the hearing.

We also accept that the worker's change in pain relief to Methadone was a major factor contributing to both of his inability to continue in the training program in December 2003, and to a prolonged recovery period following the cessation of the use of the medication.

We also find that the recovery from the Methadone took longer than the period initially accepted by the Review Office. We make this finding on the basis of the wife's evidence that following the February 10, 2004 surgery the worker underwent an extended period of detoxification under her direct care, and had not fully recovered from the effects of this medication until the summer of 2004.

Given, however, that the worker had essentially recovered from the effects of the Methadone, we find that the worker was at that stage able to participate again in his vocational retraining program.

However, we find that the worker did not mitigate his damages as required under section 22 of the Act. In particular, the worker failed to contact the WCB with respect to further vocational rehabilitation.

At the hearing, the worker testified that he thought he had been "cut off". He said that he has not actively looked for a job though he is willing to work as he was under the belief that if he found alternate employment and injured himself he would not be covered by WCB. He is also unsure of what to advise prospective employers about his physical condition and his WCB claim. He is essentially looking for guidance.

Though the panel sympathises with the confusion arising out of the status of his vocational rehabilitation within the context of the appeal process, section 22 of the Act requires a worker to mitigate his losses. This section imposes a positive obligation on the worker. This positive obligation to contact the WCB was clearly explained in the March 24, 2005 Review Office decision, as well as in the March 24, 2005 conversation to the worker's counsel and the case manager's letter of March 30, 2005.

At the hearing, counsel for the worker submitted that the onus should be on the WCB to contact the worker for further vocational rehabilitation training during this period in time. This submission flies in the face of the March 24, 2005 Review Office decision and the subsequent conversation and letter noted above. This position also flies in the face of the general requirements of the Act, in particular section 22 which clearly propose a positive and not a passive partnership between a worker and the WCB.

In these circumstances, we find that the worker should have contacted the WCB at the very least by March 30, 2005. As he failed to do so, he failed to mitigate his damages. A deem of $379.00 per week is therefore appropriate as of that date. As noted by the Review Office, this deem is as a result of a suspension, not a termination of benefits. It is therefore in the hands of the worker to contact the WCB in the event he wishes to pursue further vocational rehabilitation initiatives.

Accordingly, the worker's appeal is denied with respect to the appropriateness of NOC 1453 and partially successful with respect to the adjustment of the date for a deemed earning capacity.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 11th day of September, 2006