The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

Many issues have arisen during the worker’s claim. To be clear, only two issues were before the panel hearing the worker’s appeal. Those issues, which are delineated above, revolve around the consequences of the worker’s inability to participate on a full-time basis in his vocational rehabilitation training.

Background

In December 2002 the worker began experiencing psychological symptoms during the educational component of a vocational rehabilitation plan. He was referred to a psychiatrist who recommended a course of pharmacotherapy and counselling.

The WCB determined that the worker’s psychological condition was pre-existing and not related to his compensable injury. That determination was made on the basis of several medical opinions including a January 6, 2003 report and a May 26, 2003 report from a psychiatric consultant to the WCB. Though the WCB did not accept responsibility for the worker’s psychological condition, it did agree to cover medical expenses related to the condition until the end of the worker’s vocational rehabilitation as a means to assist the worker to overcome his barrier to vocational rehabilitation.

On May 26, 2003 the worker began the educational component of a different vocational rehabilitation goal (the “Program”). At that time, it was anticipated that the Program would take six months to complete. There are several memoranda to file documenting the worker’s and the WCB’s expectations about the worker’s level of participation. Though the memoranda are clear that the worker was to commence the re-training on a part-time basis, it is unclear what each party expected to happen over the remainder of the Program; some WCB memoranda suggest that the WCB thought the worker would eventually participate on a full-time basis, but a memorandum in May 2003 speaks of fours hours per day and the Program’s information sheet indicates no time limit; correspondence from the worker and WCB memoranda indicate that the worker would only participate as he felt able. He did, however, hope to accelerate his level of participation and complete the course earlier than expected.

An Individualized Written Rehabilitation Plan (“IWRP”) was drafted in July 2003 for this new vocational goal. The IWRP is silent on the worker’s pre-existing condition. It stipulates that the worker would be provided with 24 weeks of the Program followed by 24 weeks of job search assistance. The IWRP was not signed by the worker.

By July 2003 it became apparent that the worker would not finish the Program within the time frames stipulated in the IWRP. The worker had been attending the Program four hours a day, twice a week for a total of eight hours. He had increased this to four hours per day three days per week. The Program director commented that the worker was an exemplary student who could probably increase his level of participation but that the worker did not respond well to deadlines.

The WCB met with the worker to discuss increasing his level of participation. The worker said that he would try to increase his level of participation but only to the extent that he felt comfortable.

This answer did not satisfy the WCB. The vocational rehabilitation consultant (“VRC”) told the worker that the only thing preventing him from participating full-time in the Program was his non-compensable condition. He was therefore encouraged to work with an occupational therapist to try to come to a schedule that would allow him to complete the Program within the timelines set forth in the IWRP. Then on August 28, 2003, the WCB sector manager, case manager and

VRC decided to consult with a WCB rehabilitation specialist to develop a schedule to increase the worker’s level of participation so that he could complete the Program by October 24, 2003. This schedule was provided to the worker on September 8, 2003. At that same time, the WCB advised the worker that if he failed to attend the Program as indicated in the schedule, his benefits would be suspended and potentially reduced for a failure to participate.

Around that same time however, the worker told the WCB that he was suffering from medication-related symptoms. These medications were for his non-compensable psychological condition. Because of these symptoms, he felt that he was not able to increase his level of participation in the Program and in fact had missed several days. He was however seeking medical attention to deal with the symptoms.

Ultimately, the worker did not participate in the Program to the extent required by the schedule. On October 15, 2003, the worker’s benefits were suspended for non-compliance in accordance with WCB policy 44.10.30.60, Practises Delaying Recovery. On October 30, 2003 his benefits were reduced by a deemed earning capacity consistent with the vocation for which he was training, effective October 16, 2003. He was also advised that payment of his pharmacotherapy and counselling would no longer be paid by the WCB effective November 30, 2003. This deem was later changed at the Review Office to a deemed earning capacity equivalent to a full-time minimum wage job.

What transpired after this date was a worsening of the worker’s pre-existing condition, some attempts by the worker to find employment and re-engage in the vocational rehabilitation process, and a subsequent offer by the WCB in late 2004 to re-offer the same vocational rehabilitation plan to the worker. The worker attended the Program on a part-time basis and was ultimately successful in finding full-time employment.

Worker’s Position

The worker says that it was inappropriate to implement a deemed earning capacity of full-time minimum wage effective October 16, 2003 and to put a time limit on his psychological/psychiatric interventions and medications. Essentially he says that when Review Office determined that it was inappropriate to expect the worker to attend the Program full-time, he should have been returned to part-time vocational rehabilitation with full wage loss benefits and payment for psychological assistance as was done in November 2004.

Employer’s Position

The employer says that Review Office’s Order should stand as the worker was capable of working full-time at minimum wage and as the worker’s pre-existing condition is non-compensable.

Analysis

The issues before us are twofold: the appropriateness of implementing a deemed earning capacity of 40 hours per week at minimum wage and the appropriateness of time constraints on the worker’s psychological/psychiatric interventions and medications. The determination of these issues must be made on a balance of probabilities. To accept the worker’s appeal, this means that we must be satisfied that more likely than not it was not appropriate to implement a deem or to apply time constraints on psychological/psychiatric interventions and medications. While we are able to make the first finding, we are unable to make the second finding. Our reasons follow.

Deemed Earning Capacity

The issue of deemed earning capacity is one that we have had difficulty wrapping our minds around. This is due to our inability to understand why and on what basis Review Office implemented one.

To our mind, the determination of the appropriateness of implementing the deem can only be made in consideration of the position the worker was in on October 16, 2003. That was vocational rehabilitation.

When the WCB decides to offer vocational rehabilitation services, the worker’s entitlement to wage loss benefits and other services is governed under WCB policy dealing with vocational rehabilitation and in particular WCB Policy 43.00, Benefits Administration – Vocational Rehabilitation, WCB Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity, and WCB Policy 44.10.30.60, Practices Delaying Worker’s Recovery, which must be read in conjunction with section 22 of The Workers Compensation Act (the “Act”).

In accordance with the provisions of these Policies and the Act, deemed earning capacity within the context of vocational rehabilitation can only be done in certain circumstances. The overriding principle is that deemed earning capacity should generally only be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted or as a penalty to the worker who has failed to fully participate in vocational rehabilitation efforts.

Neither of those situations occurred here. The evidence is that the worker was participating in the Program at the time of its termination in October 2003 to the same degree he was at the outset, and in fact when reinstated to the same program, he was able to complete the program again on a part-time basis, and later achieve meaningful employment in the area for which he was trained. As such, we do not find any evidence that the worker failed to mitigate, or that the worker’s pre-existing condition (around which the original vocational rehabilitation plan had been built) had changed in any dramatic way so as to affect the plan in any substantial way. Under the circumstances of this case and with the benefit of hindsight which shows the success of the VR plan to gainfully employ the worker with due regard to his pre-existing condition, we find that it was not appropriate to implement a deem of any sort under Policy 44.80.30.20 or section 22 of the Act.

Given this finding, which was also the finding of Review Office, we find that when Review Office determined that the original deem was inappropriate under WCB Policy 44.80.30.20 the worker should have been reintegrated into his same VR plan on a part-time basis without a deem.

For these reasons, we find that it was not appropriate to implement a deemed post-accident earning capacity of minimum wage based on a 40 hour work week effective October 16, 2003. Accordingly, the worker’s appeal is granted on this issue.

Time Constraints

Given our opinion regarding what should have happened when the original deem was determined to be inappropriate, it would follow that the worker should have continued to have received payment for psychological/psychiatric interventions and medications during that period of time, i.e. between the period of time these payments ceased in November 2003 and re-commenced in November 2004.

That is not to say however that time constraints should not be placed on this type of payment. Indeed, the panel finds that the worker’s pre-existing condition is not compensable.

Compensation is generally only available under the Act if a worker suffers an accident by personal injury arising out of and in the course of employment. In the case before us, it is not disputed that the worker’s psychological condition pre-existed his workplace accident. It was therefore not caused by the workplace accident.

Though there are several medical reports to file that indicate that the worker’s pre-existing condition flared-up during his vocational rehabilitation program and the worker’s evidence is that it was only in 2002 that he fully realized the full impact of his compensable injury, we do not find that the increase in the worker’s pre-existing condition is causally related to the compensable injury other than in an indirect manner. Indeed, the medical reports suggest that the worker’s pre-existing condition flared-up because of the consequences of his compensable injury and not the compensable injury itself. For these reasons, we find on a balance of probabilities that the worker’s pre-existing condition was not aggravated by the compensable injury.