The Appeal CommissionThe Workers Compensation Act of Manitoba

As stated in the preamble, this appeal deals solely with the appropriateness of implementing a deem when the VRP the worker was participating in is ultimately considered inappropriate.

Background

On October 3, 2000, the worker sustained serious injuries to his back and pelvic area that permanently prevented him from returning to his regular employment. Several VRPs were explored and attempted unsuccessfully due to the worker’s physical limitations. The VRP that was implemented in 2005 and considered to be more in keeping with the worker’s physical restrictions was that of telemarketing. As mentioned in the preamble, that VRP has now been considered inappropriate and an alternate VRP has been identified.

A deem was nonetheless implemented as the WCB felt that the worker was not fully participating in his VRP and that he would have been capable of earning minimum wage. It is therefore important to examine the level of the worker’s participation in his VRP to determine whether it warranted implementation of a deem as well as his ability to work full time in a minimum wage job.

A review of the file is noteworthy in that the worker has not been communicating with the WCB about his whereabouts or his medical condition; he has had his phone disconnected and moved, and ceased participating in a VRP because of medical difficulties, without advising the WCB. The file is replete with letters from the WCB reminding the worker of his obligation under section 22 of The Workers Compensation Act (the “Act”) to fully participate in vocational rehabilitation, stay in contact with the WCB on a regular basis, and more generally, be active at every stage of his vocational rehabilitation. Each letter also reminds the worker of the consequences of a failure to comply with these legal obligations. Several examples follow:

- On November 8, 2001, the worker showed up late for an informal interview. The worker was told that he had a responsibility to maintain communication on a regular basis;

- On March 7, 2002, the worker’s wage loss benefits were suspended because the worker had had his phone disconnected. He did not tell the WCB about this nor had he been in contact with the WCB. The WCB tried on multiple occasions to call the worker. A letter was finally sent to the worker suspending benefits until contact was made. Two weeks later the worker called the WCB. At that time, he was reminded of his obligation to inform the WCB about changes to his medical status and home circumstances. The worker said that he was not aware of the need to do this but now that he was he would comply.

- On November 19, 2002 the WCB could not contact the worker because his phone was disconnected. The WCB once again wrote to him advising that if he did not respond by November 29, 2002 benefits would be suspended. The worker called on November 21, 2002. He was told about the importance of keeping in contact with WCB on a regular basis and was asked to check in every 2 – 3 weeks. The worker agreed.

- On April 25, 2003 the WCB wrote the worker reminding him that they had not heard from him since February 2003. Another letter was sent on May 6, 2003. The worker called that day and said that he had tried calling but no one answered and he did not leave a message. He was told to leave a message. The worker said he did not understand why he had to call.

- On May 30, 2003 the WCB wrote to the worker reminding him to contact the WCB, failing which his benefits would be suspended. The worker called on June 6, 2003. At that time he was once again reminded to call every 2 weeks.

- When an alternate VRP was implemented in September 2003 the worker was enrolled in upgrading classes. He proceeded to cancel them without telling the WCB because he needed “to sort things out with WCB”. The worker later informed WCB that he felt he could not attend the courses because he was in too much pain. He refused to go back to school. The WCB examined the medical file which indicated that the worker was able to participate in vocational rehabilitation. As there was no new or contrary medical information, the WCB suspended the worker’s benefits for lack of participation in the VRP.

- On December 18, 2003, the worker was scheduled for a call-in examination at the WCB to assess his physical capabilities. He did not show up or call to explain why. When the WCB was able to contact the worker, he explained that he was ill and unable to get to a phone. The WCB sent a letter on December 22, 2003 reminding the worker of his obligations under section 22 of the Act.

The vocational rehabilitation plan for telemarketing was eventually drawn up by the WCB in March 2005 after the worker was unable to provide any input into an alternate career path. It is noteworthy that before drawing up the VRP, the worker had been medically assessed by a WCB medical advisor, reminded that he was required to actively participate in the VRP, and that his input was very important to the success of any VRP.

As part of this VRP, the worker was enrolled in various workshops and upgrading courses. The worker found participation in the upgrading courses to be physically difficult. He called the WCB on May 3, 2005 to advise that he was experiencing increased pain with attendance at school and felt he could no longer attend. He also called on May 4, 2005 to advise that he could not get in to see his doctor. The WCB called the adult education centre who advised that the worker had only been attending part time and had not attended since May 3, 2005.

The WCB medical advisor that had previously examined the worker called the worker’s treating physiatrist to discuss the worker’s physical ability to participate in the VRP. The treating physiatrist supported full time participation if the worker had a 1 ½ hour break in the middle of the day, as well as micro breaks during the day. The worker was advised of this in a May 27, 2005 letter and of his requirement to re-attend the upgrading courses. The worker never did. On June 1, 2005, the worker told the WCB that he was unable to maintain prolonged seating in the classroom for 5 hours per day as was initially set up and as such, he would not be able to go six hours per day as was now expected.

On June 10, 2005 the WCB sent the worker a letter advising him that if he did not participate, his wage loss benefits would be suspended. The worker still did not contact the WCB. On June 22, 2005 another letter was sent reminding the worker of his section 22 obligations as well as WCB Policy 44.10.30.60, Practices Delaying Worker’s Recovery, and advising that his benefits were suspended from June 6 – 10, 2005 for not attending school.

On August 18, 2005, the worker was assessed by a consultant at the WCB Pain Management Unit who found that the worker did not meet the diagnostic criteria for chronic pain syndrome and there was no evidence of a major depression or any other mood disorder. The WCB then wrote to the worker advising that it was implementing a deem effective August 18, 2005, as that was the date on which his VRP was to end. As stated previously, Review Office upheld the deem but implemented it retroactive to June 13, 2005, as this was one week after his suspension of benefits.

At the hearing, the worker testified that after his suspension of benefits he did not look for work. The worker clarified that he is not totally disabled but is at a loss as to what type of job he could do. He was therefore reliant on the WCB to find him something. After the Review Office decision was issued, the WCB contacted him with respect to another VRP. He did not have any ideas for an alternate career so the WCB chose one. He was waiting to hear back from WCB. File documents indicate that the worker had not called the WCB back with respect to a career path after the Review Office decision.

Worker’s Position

The worker says that it was not appropriate to implement a deem, as a deem cannot be implemented in the middle of a VRP. He cites WCB Policy 44.80.30.20 which requires the WCB to demonstrate that the worker can successfully work in the occupation for which he is deemed. As Review Office found that the occupation of telemarketer is not within the worker’s physical capabilities, he obviously cannot successfully work in this occupation. The deem is therefore inappropriate.

Analysis

A deemed earning capacity can be implemented in several ways - WCB Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity, Policy 44.10.30.60, Practices Delaying Worker's Recovery and, more generally, section 22 of the Act.

While deemed earning capacity is often implemented under Policy 44.80.30.20, this policy clearly states that it is subject to the broader WCB policy on mitigation - Policy 44.10.30.60, Practices Delaying Worker's Recovery and section 22 of the Act.

Policy 44.10.30.60 explains how a deem may be implemented in cases where a worker is determined not to be fully mitigating his losses:

“3. If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to cooperate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.”

In the case before us, we must determine, on a balance of probabilities, whether the worker failed to mitigate his losses, whether he would have been able to earn minimum wage had he adequately mitigated his losses, and whether the June 13, 2005 date was the appropriate date to implement the deem.

A determination of mitigation essentially comes down to weighing whether a worker’s action or inaction can be characterized as a refusal to participate or cooperate to the point that it makes vocational rehabilitation impossible to undertake. In the present case, our opinion is that the worker has failed to adequately communicate with the WCB. We make this finding on a balance of probabilities after weighing all of the evidence before us.

While we accept that the worker was having physical difficulties with the VRP in May 2005 and that he expressed these difficulties on two occasions in May 2005, he remained silent for months thereafter, even when faced with suspended benefits. While this silence might be excusable once, we find that it is not justified in the context of this appeal, given the worker’s previous warnings by the WCB about this type of behaviour and the impact it would have on his entitlement to benefits.

The worker cannot simply refuse to communicate with the WCB. Section 22 imposes an obligation on all workers to take positive steps to minimize their loss of earnings. In this particular case, that positive obligation translates into a duty to fully cooperate with the WCB to find an appropriate VRP, to fully communicate with the WCB with respect to any difficulties that he encounters with the VRP, and to generally remain in contact with the WCB on a regular basis so that all efforts can be maintained in completing a VRP. The worker did not do this even after being warned of the implications of failing to do so.

With respect to the cost consequences of the worker’s failure to mitigate, we find on a balance of probabilities that minimum wage is appropriate.

Policy 44.10.30.60 provides that where a worker is engaged in a VRP and he demonstrates a lack of co-operation, the WCB may pay benefits only to the extent that it deems would have been due to the worker had he adequately mitigated the consequences of his accident.

The worker testified at the hearing that he is capable of working and that he is not totally disabled. The WCB medical advisor, in consultation with the worker’s treating physiatrist, found the worker to be capable of full time sedentary participation in vocational rehabilitation. Though the worker’s treating physiatrist wrote later medical reports stating that the worker is totally disabled, we do not place much weight on these reports given his advice to the WCB medical advisor and the worker’s evidence to the contrary.

As to the issue of June 13, 2005 being the effective date of the deem, the evidence is that the worker refused to participate in the VR plan as of June 1, 2005 and did not contact the WCB in respect to further vocational rehabilitation in spite of numerous WCB letters advising of his suspension of benefits from June 6, 2005. We find that this lack of participation and communication amounts to an abandonment of the vocational rehabilitation process. Given that we find that the worker was able to work full time in a sedentary position at minimum wage, we also find the decision to implement a deem one week after a suspension of benefits on June 6, 2005 is appropriate.

Given the foregoing, we find on a balance of probabilities that it was appropriate to implement a deemed post accident earning capacity of minimum wage effective June 13, 2005.