The Appeal CommissionThe Workers Compensation Act of Manitoba

The Hearing

The worker attended the hearing with counsel who made a submission on behalf of the worker. The worker answered questions posed by his counsel and the panel.

The employer did not attend this hearing but provided a written submission dated May 16, 2007. The employer noted the worker had been accommodated in a modified duties position up and until May 2, 2001 at which time his employment was terminated for cause. The employer acknowledged that the worker suffered an injury while in its employ and stated that he was treated the same as any other employee. The employer submitted that the worker has been fairly compensated by the WCB.

General Observations

This particular case is complex, and the panel finds it helpful to deal with several preliminary matters, as they will affect, in a more general way, the analysis of the five issues that are under appeal.

a. The non-participation by the Employer at the hearing

Worker’s counsel argues that the panel should draw a negative inference from the failure of the employer or their counsel to attend the reconvened hearing of this matter.

The panel notes that this hearing was actually the second time this matter had been set for hearing before the Appeal Commission. A previous hearing of this matter had been adjourned because of time constraints on that day, and was eventually cancelled when the previous panel chair departed from his position with the Appeal Commission. While the employer was represented at the previous hearing, it was not represented at the current hearing of the matter. Therefore this hearing proceeded with only the worker and his counsel present. A transcript of the first hearing is part of the file record, and was available to the worker, his counsel, and the panel.

The panel will not make the inference requested by the worker’s counsel. The Workers Compensation Act (the Act) contemplates that hearings embrace an enquiry process, and this was communicated to the parties at the beginning of both hearings. As such, the panel is empowered to enquire into the facts of the matter, and can do so at, or subsequent to, the actual hearing, with or without both parties participating in the appeal. It is not limited to the presentations and evidence provided at the hearing, and can consider all evidence on file or other evidence it later considers to be relevant to the matter at hand subject to sharing such evidence with the parties. This evidence does not have to be adduced by an opposing party, nor is it necessary for another party to provide an opinion or countering argument to the evidence or arguments of the worker, for the panel to make its own decisions. This process differs substantially from the role a panel might have in an adversarial process. As such, the panel will look at the worker’s case on its merits alone.

b. The absence of formal findings regarding the worker’s suspension in April 2001, and later termination from work as of May 1, 2001

As noted in the background, the worker had been suspended with pay from work on April 12, 2001, and later terminated by the employer in May 2001. Counsel for the worker argues that there has been no formal external adjudication of that matter, and listed a variety of external proceedings that had yet to look directly at the circumstances of the departure, or make a ruling on them. Among the proceedings listed were a grievance and arbitration (with union representation), actions for unfair representation against the union, and a series of judicial reviews and appeals. Counsel suggests that it is not the panel’s role to make this enquiry or to make findings in that area, and that it was likewise wrong for the Review Office to make those enquiries or make findings as part of its decision-making.

As will be evident in the later analysis, the circumstances relating to the worker’s departure from the employer in May 2001 are relevant to the appeal.

The panel considered this issue during the hearing, and confirms the decision made during the hearing, as stated on the transcript, that it does indeed have the right to look into the surrounding circumstances where the worker’s conduct might have been the cause of a worker’s loss of earning capacity.

The panel further notes that it does not need decisions by external legal entities to satisfy the criteria of section 39. The panel therefore considers itself as having, as part of its enquiry powers, the ability to enquire into the circumstances of the worker’s termination and make such findings on the circumstances of the worker’s termination of his position with the employer, as are necessary for the purposes of the Act.

In passing, the panel notes that its opinion on jurisdiction is consistent with the decisions of the Ontario Workplace Safety and Insurance Appeals Tribunal, Decision No. 1230/01 [2001]O.W.S.A.T.D. No. 1650 and Decision No. 2035 [2003] O.W.S.I.A.T.D. No. 157.

c. Section 22 and the failure to Mitigate

Section 22 of the Act as it existed when this claim arose provided:

“Where an injured worker persists in unsanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.”

This section of the Act has been interpreted by the WCB and Appeal Commission as providing authority to consider the worker’s conduct in certain circumstances. It is seen as placing a positive duty on the worker to take steps to mitigate the consequences of a workplace injury. For example, many mitigation cases involve matters such as a worker’s refusal to return to reasonable modified duties, to look for suitable employment, or participate in medical treatments intended to facilitate recovery. Decisions regarding payment of wage loss benefits or other benefits and services under the Act such as medical aid and access to vocational rehabilitation services are often bundled with mitigation discussions and involve consideration of the worker’s conduct by all levels of adjudication at the WCB and Appeal Commission.

The panel notes this section was amended effective January 2006 and continues to be interpreted by the WCB and Appeal Commission in the same manner as the prior section.

d. Failure by the employer to call witnesses regarding the termination

Counsel for the worker stated the worker’s version of events surrounding the termination should be preferred over that of the employer, since the employer had not participated nor had they arranged for the participation of the individuals (co-workers) who made the allegations against the worker. Counsel asserted that the employer had something to hide, or were afraid of having their witnesses or actions scrutinized.

Again, the panel notes that its broad enquiry role does not require oral evidence at a hearing on every aspect of the case. In this particular case, the Panel had available to it considerable file materials, as well as the evidence of the worker, the submissions and arguments of his legal counsel, a transcript of a previous hearing, and a variety of transcripts, notes, and decisions of other proceedings, which are relevant to the matter of the termination.

For these reasons, the Panel does not, generally or specifically in this case, draw a negative inference from the participation or non-participation at a hearing of the employer or any potential witnesses it may have chosen to invite.

e. Assertions of collusion between the accident employer and the WCB

Counsel for the worker asserted that the employer had colluded with the WCB in the management of this case. The panel asked for documentary or other evidence regarding these assertions. None was forthcoming. The panel finds these assertions to be baseless.

f. The general weighing of the evidence provided by the worker

As noted earlier, the evidence provided at the hearing was provided by the worker, either directly or through his counsel. This evidence also included their interpretation of the substantial materials on the file in respect of the five issues under appeal.

In this case, the panel’s fact finding on the five issues are very much predicated on how the panel has assessed the credibility of the worker. In general terms, the panel found that the worker’s evidence at the hearing was not reliable. The panel’s concern rests with the degree to which the worker has maintained his accuracy with respect to his evidence over the course of the past several years. The panel finds that the transcript – and indeed the file – contains statements made by the worker that are not internally consistent, or are inconsistent with external documents or events, or situations where the worker has changed his evidence to accommodate new questions or evidence presented to him. The panel noted that the worker’s answers often appeared to be tailored to the results he hoped to achieve at this hearing. A selected (not exhaustive) list of examples include:

• The worker’s evidence at the hearing that he was totally disabled from work as of May 2, 2001 because his return to work program prior to that date did not respect his medical conditions. Under questioning from the panel, he acknowledged that he had made no complaints about his work duties in the days or weeks before, had worked full days right up to April 11, 2001, and if he had not been suspended, would have expected to work full days on April 12, 2001 and beyond in those modified duties.
• When asked about accommodation after November 2000, the worker continued to place reliance on return to work problems that he encountered in his earlier attempts to return to work, including human rights duty to accommodate issues. He continued to attribute these problems to the return to work program that he was on at the time of termination notwithstanding that file information and his own testimony established that these problems had been resolved many months before.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits effective May 2, 2001

Worker’s Position:

The worker’s counsel submitted that in making its decision on this issue the WCB considered irrelevant information which was outside the jurisdiction of the WCB to consider. Counsel criticized the WCB for finding there was a voluntary exercise of conduct by the worker that resulted in the discontinuation of his employment. He said this conclusion flies in the face of all medical evidence which consistently expressed the opinion that he was incapacitated from working at his job.

Counsel submitted that the panel does not have authority to determine whether the worker had been wrongfully dismissed. He stated that the Appeal Commission’s authority is to determine whether, after the discontinuation of employment on May 1, 2001, the worker was incapacitated from working in the kind of job that was discontinued. In doing so the panel must rely on medical or similar evidence in accordance with WCB Policy 44.40.10, Evidence of Disability.

While registering his objection to the panel’s authority to enquire into the facts surrounding the discontinuation of the worker’s employment, counsel agreed that the panel could make enquiries of the worker regarding this matter after the panel provided an oral ruling on this matter during the hearing. The worker then provided a detailed account of the circumstances surrounding his employment and discontinuation of employment in May 2001. He also advised of the steps he took to be reinstated in his position.

The worker advised that the allegations of misconduct made by the employer were false. He provided a lengthy description of his dealings with a co-worker who made allegations of misconduct, as well as with his supervisors and management of the employer.

With respect to accommodation by the employer, the worker’s counsel submitted that there had been no accommodation in appropriate modified duties prior to his termination in May 2001. The worker contended that he had not been accommodated and that this caused his condition to worsen. He advised that he complained to the Human Rights Commission about the employer’s failure to accommodate him.

During the hearing, the worker acknowledged that the human rights complaints dealt with a failure to accommodate an earlier time, and that he had been placed into a modified duties position in November 2000. The worker further acknowledged that he had been working 40 hours per week in the months preceding his suspension on April 12, 2001, and that he only missed time from work for medical appointments. He also acknowledged that had he not been suspended on April 12, 2001, he would have reported to work the next day.

At the first hearing on January 22, 2004, the worker was asked questions about his work duties at the time he was suspended. He was asked whether he would have worked on April 13, 2001 if he had not been suspended. He replied “Yes, of course, I’m going because now I was accommodated at that time, so yes, I can go and work there.”

The worker’s counsel submitted that the “…employer unilaterally terminated him, wrongfully, without cause, and simply alleged cause, and then has tried to misuse that allegation, through a whole series of processes, to support denying this gentleman the wage loss and other benefits he’s entitled from the Workers Compensation Board.”

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

In accordance with subsections 39(1) and 39(2) of the Act, wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

Policy 44.40.10, Evidence of Disability provides that compensation benefits are payable only where there is medical, or similar, evidence of a disability arising from a compensable incident or condition.

Analysis

For the worker’s appeal on the first issue to be successful, the panel must find that the worker suffered a loss of earning capacity after May 1, 2001 which was causally related to his workplace injury. In other words, the panel must find that the worker was unable to earn his pre-accident wages as of that date, because of the workplace injury. The panel was not able to make this finding, and therefore concludes that the worker was not entitled to wage loss benefits beyond May 1, 2001.

At the outset, the panel notes that the worker had not medically recovered from his compensable injury as of April 12, 2001 (the date he was suspended from his position) or as of May 2, 2001 (the date he was formally terminated from his position). The worker had compensable medical restrictions at that date that precluded him from working in his pre-accident job duties.

The panel notes, however, that the worker had ultimately been successfully placed in a modified duties position with his employer. Although there had been a series of issues (legal and otherwise) during earlier periods regarding earlier modified duties positions and whether the employer had met its duties to accommodate in those periods, the evidence on file and presented at the hearing establishes that by November 2000, the worker had been placed in a modified duties position with the employer which the worker was able to work in, on a full time basis, for over five months before his suspension in April 2001. The panel further notes that the worker was being paid his pre-accident wages while performing his modified duties. The panel thus finds on a balance of probabilities, that the original compensable injury was not causing a loss of earning capacity as of the date of the worker’s suspension on April 12, 2001, or as of the date of termination on May 2, 2001.

The worker argues that there is ample medical evidence of ongoing medical reports and tests in early 2001 and later that point to a deteriorating medical condition, and that this supports that he was in fact totally disabled as of that date. The panel notes, however, that none of the early 2001 reports state that the worker was unable to work full time or that his modified duties or medical restrictions should be revisited. The panel also places little weight on later reports that state the worker was totally disabled as of May 1, 2001. The panel finds that the worker’s position does not accord with the worker’s evidence at both hearings that he would have expected to be at work full time the following day, if he had not been suspended. The panel also notes that the worker had not been discussing the appropriateness of his modified job duties with either the WCB or his employer in the period immediately prior to his suspension/termination.

As such, the panel finds that there was nothing specifically associated with the worker’s modified duties from a medical perspective to suggest that the worker was unable to perform his job duties in April or May 2001.

While the above findings are themselves determinative of the first issue, at the hearing there was considerable discussion regarding the worker’s loss of employment with the accident employer in May 2001. In the context of a claim for continuing or ongoing wage loss benefits where a worker has not recovered from an injury, the status of a worker’s employment (and in particular any changes to the employment relationship) can be a very important issue.

In the case of a worker who is found by the WCB to be unable to work in any occupation or employment due to a workplace injury, the status of the worker’s employment is not relevant to the receipt of wage loss benefits. Under the Act, such a worker is generally entitled to receive wage loss benefits throughout the period he/she is considered to be unable to work, until the worker has recovered to the point when they can re-engage in their employment. The worker’s loss of earning capacity is said to result from the workplace injury. This is so even if the worker’s previous job disappears due to lay-off, plant closure, or any other reason including dismissal for cause. The worker in this case did in fact receive wage loss benefits during the period from February 2004 to July 2005, when he underwent surgery on his compensable shoulder condition, and for the recovery period following the surgery. During this specific period of time the worker had a loss of earning capacity that was attributed to the workplace injury. He could not work in the modified employment or any employment.

However, when a worker is found by the WCB to be fit for or capable of some level of employment, the changes in (and the reasons for the change in) the worker’s employment relationship may affect the worker’s entitlement to ongoing wage loss benefits. If the employer was accommodating or would be able to accommodate the worker in an appropriate position, but the worker has removed himself from the employment either directly or by his/her conduct, the worker may not be entitled to wage loss benefits. In effect, the loss of earning capacity is not due to the workplace injury but due to the worker’s decision to remove himself/herself from the workplace for personal reasons or by his/her own misconduct. In accordance with subsection 39(1), wage loss is only payable where the loss of earning capacity results from the injury itself.

In this case, on May 2, 2001, the date the worker’s employment ended, the panel has already concluded that the worker was considered fit for work, albeit in modified duties. In fact the worker was working at a modified duty position at the date of his suspension on April 12, 2001. The worker advised the panel at the hearing that had his employment not been suspended, he would have returned to the workplace on the next work day and continued to perform his modified duties. Under questioning from panel members, he acknowledged prior to his suspension (April 12, 2001) he had worked at the position full-time, had not missed time from work except for medical appointments and had not complained about the duties to the WCB. The panel notes that at the first hearing the worker stated that he would have continued to work because he was being accommodated at that time.

Regarding the worker’s medical condition in May 2001, the panel notes that the worker had a shoulder injury and was receiving treatments for the injury. The panel notes that in November 2000 the treating orthopedic surgeon identified restrictions which were accepted by the WCB medical department on April 16, 2001. These discussions took place at the same period of time that the worker was nearing the end of his employment with the employer. The panel finds that the medical evidence does not support the worker’s assertion that he was medically unable to work after May 1, 2001. The panel finds that the worker was fit for the modified duties and was being appropriately accommodated up to May 1, 2001. While the panel acknowledges that the worker had compensable workplace restrictions, the panel finds that the preponderance of evidence suggests that the modified duties were within these restrictions and that the worker was being appropriately accommodated up to May 1, 2001.

Given these findings, the issue of the worker’s employment status becomes important, in that had the worker continued to work with the employer, he would have been paid his pre-accident wages by the employer. As such, but for the loss of his job, the worker would not have suffered a loss of earning capacity.

The employer’s position is that the worker’s employment was terminated for cause. It is alleged that the worker threatened a co-worker with a knife. The employer provided a written submission but did not attend the hearing and did not provide any additional evidence on this point.

The worker has denied the employer had cause for the termination and suggested that the termination was the result of a conspiracy against him by a co-worker and management. It was suggested that the co-worker wanted the worker to be removed because the worker was not pulling his weight. The worker’s counsel stated that the worker was terminated because the employer did not want to accommodate the worker. It has also been suggested that the termination contained elements of racism.

As noted previously, the panel found the worker’s evidence to be generally unreliable. The panel notes that the employer’s allegation of dismissal for cause has not been overruled by any proceeding available to the worker under his collective agreement or otherwise and remains the formal explanation for the worker’s termination. The panel accordingly prefers the employer’s position on this issue.

The panel finds that the evidence does not establish that the worker’s compensable injury had any role to play in the worker’s conduct and the decision to suspend or terminate the worker from his employment. Having considered all the evidence, the panel finds that the worker, through his conduct, removed himself from his employment, in the same way as if he had quit, which for the purposes of WCB wage loss benefits means that the worker’s loss of earning capacity was not due to the workplace injury.

The panel therefore finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits for the period from May 2, 2001 to February 17, 2004 as the worker’s loss of earning capacity did not result from the workplace injury, but from the loss of employment which was not related to the workplace injury.

The worker’s appeal on this issue is declined.

Issue 2: Whether responsibility should be accepted for the worker’s psychological condition and associated treatment including prescriptions

Worker’s Position

The worker’s counsel noted that two psychiatrists diagnosed the worker with a psychological condition which they suggest was compensable. He submitted there was no contradictory medical evidence. He also suggests that it was inappropriate for the Review Officer (and presumably, by extension, this panel), to substitute their own findings for those made by an expert medical practitioner.

Applicable Legislation and Policy

Policy 44.20.60, Psychological Conditions, describes the circumstances under which these conditions might be a consequence of a workplace injury.

Analysis

For the appeal of this issue to be successful, the panel must find that the worker’s workplace injury either caused the worker’s psychological condition or aggravated or enhanced a pre-existing psychological condition. The panel was unable to make this determination.

On August 3, 2002 the treating psychiatrist provided a report to the WCB regarding the worker’s psychological status. The psychiatrist advised that he first saw the worker in June 2002 and reported that the worker stated that since January 2002 he had not been feeling well. He then outlined the symptoms and complaints reported by the worker. The psychiatrist opined that the worker suffers a major depression and stated the worker’s current psychological factors are related to the compensable injury in the sense that he is in constant pain, loss of function and loss of capacity to earn a living and support his family and children. This has affected his self-esteem in the feeling that he’s not able to take care of his family and discharge his responsibility as a father and head of the family.

The panel accepts the diagnosis of the worker’s psychological condition in 2002 as depression. However, the question of determining the relationship between a diagnosis and a compensable injury is a matter that ultimately falls within the jurisdiction of the WCB and this panel in accordance with subsection 60(2) of the Act. While worker’s counsel has asserted that expert medical opinions should not be set aside by lay decision makers, the panel finds that the legislation clearly allows for the appeal commission to examine any causal relationships proposed by medical practitioners, and to make those determinations as a normal part of the adjudicative process. The panel acknowledges that medical practitioners do have an expertise specifically with respect to establishing diagnoses (but even here, this is an “inexact science”). However, in making decisions on the relationship between diagnosed conditions and work, the panel will have regard not only to all the medical information on file, but also other relevant evidence, and legislative provisions and policy, that may have a bearing on the determination of the issue.

Dealing with the relationship between the worker’s depression and the compensable physical conditions, the panel has carefully examined the time frames for the onset of the worker’s psychological condition.

The panel has also reviewed the other medical information on the file. The panel notes that the first reference to depression or anxiety comes from notes provided by the worker’s family physician: “May 4, 2001: “I got fired from work”, upset, anxious, right shoulder pain, restricted use and movement.” This report suggests to the panel that the anxiety and upset arose from the termination of employment which had occurred three days earlier.

A review of the earlier medical reports on file does not disclose that such symptoms were reported or noted by physicians prior to May 4, 2001, while the worker was working at modified duties. Accordingly, there is not sufficient evidence to attribute the worker’s psychological difficulties to his shoulder difficulties or to his earlier work circumstances.

As noted above, the worker’s treating psychiatrist records the onset of the worker’s depressive symptoms, by the worker’s own history, to January 2002. The panel notes that this is approximately 8 months following the termination of the worker’s employment, and was thus not present when the worker was still employed. The panel also notes that the narrative of symptoms attributed to the worker refers primarily to the loss of employment and financial stress, and that the narrative includes incorrect information including that the employer could not accommodate the worker. For these reasons, the panel is unable to give significant weight to the psychiatrist’s opinion on the issue of relationship to the workplace injury.

The panel is aware from a medical report on file that a WCB psychiatric consultant also diagnosed the worker with depression which he related to the workplace injury. The panel is unable to attach significant weight to this opinion. The panel notes that the psychiatrist did not appear to be aware of relevant facts affecting the worker’s employment, such as, the fact that the worker was actually working modified duties on a full time basis at the time of his suspension/termination, without complaints about the suitability of such duties. The panel also notes the emphasis placed by the psychiatrist on administrative and legal issues with the former employer, significant losses related to his workplace situation, including ongoing conflict, loss of work and self-esteem, loss in his role as a breadwinner, and inability for him to continue payments for his son’s private schooling.

As noted in Issue 1, the panel earlier concluded that the worker’s loss of employment was due to his own conduct and was a separate matter that was not a compensable sequela of the workplace accident. As such, any psychological conditions (as described by the WCB psychiatrist and others) associated with the worker’s own conduct and the termination would not attach to the claim but rather to that non-compensable event. The panel finds that the loss of employment and related financial stress do not amount to a consequence of the injury for the purposes of eligibility for compensation as provided by Policy 44.20.60.

The worker’s appeal on this issue is declined.

Issue 3: Whether the worker is entitled to wage loss benefits beyond July 29, 2005

Worker’s Position

The worker was again in receipt of benefits commencing on February 17, 2004 as a result of surgery for his workplace injury. Benefits were provided until July 29, 2005. At the hearing the worker’s counsel argued that the medical evidence establishes that the worker was not employable due to his injury at that date and that wage loss benefits should restart after July 29, 2005.

The worker’s counsel referred to the worker’s alleged failure to attend physiotherapy sessions that had been authorized by the WCB. He explained that one of the worker’s treating physicians arranged for the worker to attend physiotherapy through a hospital clinic and that he attended 24 sessions. He submitted that it was inappropriate to find that the worker failed to mitigate the consequences of the accident by not attending the WCB approved physiotherapy when he attended the alternate physiotherapy.

Counsel submitted that the worker was not fit for employment after July 29, 2005 and wage loss benefits should not have been discontinued. He submitted that the medical evidence supports this conclusion.

Applicable Legislation and Policy

In accordance with subsections 39(1) and 39(2) of the Act, wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

Section 22 of the Act creates an obligation for a worker to mitigate the consequences of a workplace injury.

Policy 43.20.20, Modified and Alternate Return to Work with the Accident Employer, was considered by the panel but found not to be applicable.

Analysis

For the appeal of this issue to be successful, the panel must determine that the worker suffered a loss of earning capacity after July 29, 2005 as a result of the workplace injury. In other words the panel must find that the worker was not fit to work at any employment (as was the case from February 17, 2004 to July 29, 2005) or if fit for modified duties, the employer could not accommodate the worker. The panel could not make either of these determinations.

The answer to this issue depends largely on the status of the worker’s medical condition after July 29, 2005 and his fitness for employment. The panel does not accept the worker’s assertion that he was unemployable after this date. The panel finds that by July 29, 2005, the worker was fit for modified duty employment.

In arriving at this conclusion the panel relies upon the July 11, 2005 and November 30, 2005 reports from the treating orthopedic surgeon. The July report asks if the worker can be retrained for sedentary work. The November report notes that the worker is able to perform sedentary duties. The physician also notes that the worker is keen to be retrained. The panel also relies upon the opinion of a WCB medical advisor who commented in a file memo dated November 15, 2004 that the worker “should have recovered from the surgery of Feb 2004 by this time.”

The panel notes that the worker’s family physician opined in a report dated November 21, 2005 that the worker was disabled from any physical activity. The panel does not place significant weight on this diagnosis or assessment as this physician earlier and incorrectly opined on July 30, 2002 that the worker was unable to work as of May 2, 2001, notwithstanding that the worker had worked at a modified duties position for approximately one year until terminated from his employment on May 2, 2001, and had indicated to the panel that he was in fact able to work full time at the time of his suspension and termination.

Having determined that the worker was fit for modified duties after July 29, 2005, the panel must determine if the worker sustained a compensable loss of earning capacity. The panel notes that the worker was found to be recovered from the shoulder surgery at that time. Again, the worker continued to have compensable medical restrictions. Using the same rationale noted in the first issue, the panel finds that the preponderance of evidence suggests that the worker could have been accommodated in modified duties by his employer as of that date, and would have been paid his pre-accident wage. Again, the worker’s inability to access a job with the employer on July 29, 2005 and to earn that pre-accident wage at that point rests on the conduct of the worker leading to his termination in May 2001. Thus, the loss of earning capacity in July 2005 and later is due to the worker’s loss of employment which was not related to the worker’s workplace injury or the worker’s medical condition.

The panel notes that after several “bumps on the road” between the worker and the employer in earlier stages of the claim, the later history suggests that the WCB, employer and worker had been able to arrange successful accommodations at the workplace. The panel notes that the termination of employment prevented the WCB and the employer from exploring other options for the worker but finds, on a balance of probabilities, that any changed circumstances in July 2005 would have been accommodated as well, particularly given the oversight role that the Human Rights Commission had already undertaken with respect to an earlier accommodation issue with the worker, and the sensitivity to the general need for accommodation of this particular worker that had been established in the employer’s workplace in 2000 - 2001. The panel therefore finds that the loss of earning capacity beyond July 29, 2005 is not related to the workplace injury but to the loss of employment which had nothing to do with the workplace injury.

Regarding mitigation, in this case the worker was not able to return to the modified duties due to the termination of his employment. It cannot, given the panel findings on the reasons for the termination, be said that the worker complied with his obligations under Section 22 to mitigate the consequences of the accident.

At the hearing the worker advised that he has not looked for employment or attempted to work since his benefits were terminated in July 2005. At the same time the worker asked that he be provided with re-training assistance. The panel finds this request for re-training to be inconsistent with the worker’s evidence that he could not work and gives no weight to the evidence of his inability to work. The panel finds that the worker, in not looking for suitable employment, has not taken steps to reduce the consequences of his workplace injury. If the panel had determined that the worker was entitled to wage loss benefits after July 25, 2005, it would have reduced or suspended such benefits due to the failure of the worker to mitigate the consequences of the workplace injury.

The panel does not agree with the WCB decision that the worker’s failure to attend physiotherapy treatments arranged by the WCB amounts to a failure to mitigate under Section 22. The panel is satisfied that the worker attended and received alternate physiotherapy treatments arranged by his physician and therefore section 22 is not applicable in this instance. This finding is however peripheral to the substance of the issues before the panel.

The worker’s appeal on this issue is declined.

Issue 4: Whether the worker is entitled to medical aid treatment consisting of acupuncture, soft tissue therapy, relaxation coaching and postural retraining prior to the November 15, 2006 Review Office decision

Worker’s Position

Regarding the request for approval of various treatments, counsel noted that all proposed treatments are dealing with the worker’s workplace injuries. He submitted that the treatments should have been approved. In answer to questions by the panel at the hearing, the worker confirmed that he did not receive any of the recommended treatments.

Applicable Legislation and Policy

Medical aid is authorized pursuant to Section 27 and 37. Policy 44.120.10, Medical Aid, provides a comprehensive and coordinated approach to delivery of medical aid services.

Analysis

The panel notes that the request from the worker arises from a recommendation made by an occupational health physician in a report dated July 7, 2005. The panel also notes that the request for authorization for treatments was made more than two years ago, there is no current request and no request for payment for services already provided to the worker.

At the hearing the worker advised that he did not receive the treatments. The panel notes that there is no evidence that the services are still required in 2007. The panel, therefore, declines to approve the request at this date.

The panel reiterates the comments made by prior levels of adjudication, and notes that it remains open for the worker to bring forward for consideration by the WCB any revised requests for specific services recommended by his treating professionals on a current basis. In bringing forward such requests, the worker should have regard to WCB Policy 44.120.10.

The worker’s appeal on this issue is declined.

Issue 5: Whether the worker is entitled to vocational rehabilitation services

Worker’s Position

The worker’s position at the hearing was that he is entitled to vocational rehabilitation services. His counsel submitted that the worker required assistance with finding employment or re-training.

The worker’s counsel reviewed WCB Policy 43.00, Vocational Rehabilitation. He noted that the policy purpose states that while vocational rehabilitation is discretionary, it should be consistently provided to all eligible workers. He referred to the Goals and Objectives listed within that policy, and specifically the hierarchy of objectives. He submitted that the WCB did not apply this policy and should have provided services to the worker. He said that this policy should have been applied and services provided to the worker after the termination of the worker’s employment in May 2001 and after the worker’s surgery in February 2004.

Counsel submitted that through the passage of time it is not possible for the worker to get another job. However, he advised that the worker remains keenly interested in retraining.