Decision #159/07 - Type: Workers Compensation
Preamble
A hearing was held at the Appeal Commission on May 30, 2007. The worker appeared and provided evidence. No one appeared on the employer’s behalf.
Following the hearing, the Panel met and decided to obtain additional medical information about the worker’s left knee. This information was later received and provided to the worker for comment.
On July 31, 2007, the Panel considered arguments and comments put forth by the worker at the May 30, 2007 hearing related to the question of age discrimination. The Panel then asked the worker to clarify whether he was suggesting that Workers Compensation Board (WCB) Policy 43.00, Vocational Rehabilitation violated sections 9 and 13 of The Human Rights Code of Manitoba (the Code). On August 7, 2007, the worker confirmed that he was. On August 21, 2007, it was determined by the Chief Appeal Commissioner that the WCB was a party with a direct interest in this matter and the WCB was given an opportunity to comment on the matter.
On September 27, 2007, the worker was provided with a copy of a letter dated September 25, 2007 from the WCB’s legal services branch and was asked to provide comment. The worker offered additional comments on this point on October 3, 2007. On October 23, 2007, the Panel met and made its final decision with regard to the issues under appeal.
Issue
Whether or not the Individualized Written Rehabilitation Plan was appropriate; and
Whether or not the worker is entitled to full wage loss benefits subsequent to September 19, 2005.
Decision
That the Individualized Written Rehabilitation Plan was appropriate; and
That the worker is entitled to full wage loss benefits subsequent to September 19, 2005.
Decision: Unanimous
Background
On March 5, 1997, the worker was employed as an industrial mechanic when he injured his left knee in a work related accident. Based on an MRI examination that was carried out on August 8, 1997, the worker sustained a horizontal cleavage tear and a parameniscal cyst involving the left medial meniscus. He then underwent a partial meniscectomy on November 5, 1997.
Following convalescence from the November 5 surgery, the worker returned to his regular work duties but as time went on, he complained of problems with both knees and felt his left knee problems were related to his compensable injury. The WCB agreed that the worker’s left knee difficulties were related to his accident and the worker was placed back on WCB benefits. On October 8, 2002, the worker underwent a cemented MIS unicompartmental knee arthroplasty based on the diagnosis of left knee osteoarthritis.
On July 26, 2004, the worker was interviewed by a WCB vocational rehabilitation consultant (VRC) for the purposes of establishing a vocational rehabilitation plan goal. It was noted that the worker had a number of restrictions related to his left knee which were expected to become long term. They included no lifting greater than 30 pounds, to avoid kneeling, squatting, bending and stair climbing, to avoid continuous walking over 30 minutes without the opportunity to rest and continuous standing over one hour without the opportunity to rest for 30 minutes in between. The worker also had issues related to his right hip and both shoulders. The worker thought about returning to the workforce as either a massage therapist or a truck driver. It was later determined that the occupational goals of a truck driver or massage therapist were not viable options due to his work restrictions.
On November 22, 2004, the VRC provided a transferable skills analysis summary and outlined vocational rehabilitation options for the worker. This included Security Guard, National Occupational Classification (NOC) 6651, Other Repairers and Services, NOC 7445, and Community and Social Service Worker, NOC 4212. On December 1, 2004, the worker advised the VRC that he had decided upon security guard as his occupational focus.
An earning capacity analysis was performed on December 3, 2004 for NOC 6651. It showed that the unit group included security guards and other related workers who guard property against theft and vandalism, control access to establishments, maintain order and enforce regulations. Some example titles were airport security guard, bodyguard, armored car guard, commissionaire, etc. It was indicated that for this occupational group, lifting was light in nature and was not repetitive throughout the day. The opportunity to adjust one’s body position for comfort was also typical.
The Employment Specialist (ES) determined that physical or environmental requirements associated with the majority of positions within NOC 6651 were within the worker’s documented restrictions. He said a labour market existed for NOC 6651 in the Manitoba region. An Individualized Written Rehabilitation Plan (IWRP) was then developed and signed by the worker on December 16, 2004.
On March 17, 2005, the file shows that the worker was issued restrictions for one year based upon his 2003 WCB bilateral shoulder claim which consisted of avoiding lifts over 25 pounds repetitively, avoiding work above shoulder height and twisting of the shoulders. It was determined also that these restrictions would not impact the worker’s ability to perform the duties of a security guard.
In a memorandum dated June 6, 2005, the ES documented his contacts with the worker between March 15, 2005 and June 3, 2005. He noted that the worker had been provided with job leads in the area of security in addition to his security training, copies of his resume and offers to make any changes he would like. The worker however maintained that he was not keen on security guard as an occupational goal and had been looking for alternate work outside that occupation. The ES therefore recommended closing the file within employment services and referring the worker to long term wage loss. With regard to earning capacity, it was considered that the worker would be capable of earning a minium of $305 per week with maximum earnings of $432 per week at an annual increment factor of 3.4%. This decision was relayed to the worker on July 5, 2005.
On July 4, 2005, the worker advised the WCB that he obtained part-time employment with a security company. He indicated he worked two shifts on the weekend in an apartment block which involved quite a bit of walking to perform the rounds. He had to walk each floor and check the stair wells. Shifts were 6 hours long and he was not certain if he could have done another shift. He stated that he wanted to see how things would go for him with the next location he was assigned to.
On September 14, 2005, the worker indicated that he was still working with the security company but he was experiencing swelling in his knee. His last day of work as a security guard was in mid September 2005.
In a Therapist’s Report received by the Board on November 10, 2005, a physiotherapist reported:
[The worker] attended x2 to date. On the 1st assessment there was only slight swelling suprapatellar area & ROM was only mildly limited . . . On the 2nd visit, 5 days later, he reported doing many stairs at work. On this visit, his (L) knee was markedly swollen especially in suprapatellar area. . . . .There was marked tenderness & pain laterally.
A report from a surgeon dated December 15, 2005 noted that the worker had appeared on that day with an effusion. A “needle was introduced into the knee and 10 cc of frank blood was obtained.” The worker was told to avoid extensive walking or stair climbing. He was also told to stop taking ASA on a daily basis.
On December 29, 2005, the worker requested reconsideration of the WCB’s decision to implement a deemed earning capacity upon the completion of the IWRP. He indicated that he found his security job to be interesting however the company he worked for could only offer him part-time work. He said he applied to two other companies and they too could provide him with part-time work if he was hired. He also stated that a good percentage of his work involves extensive walking or stair climbing which was now a problem because of his left knee swelling and internal bleeding.
In a decision dated February 21, 2006, Review Office determined that the WCB had met the requirements of Policy 43.00 and Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity and that it was appropriate to implement a deem upon completion of the worker’s IWRP.
The worker was seen at the Concordia Hospital emergency room on February 28, 2006. His left knee was aspirated.
Medical information was received from the worker’s surgeon dated March 6, 2006. The surgeon indicated that it was two years post unicompartment knee arthroplasty which had been problematic since the time it was implanted with ongoing pain and recurrent swelling. The worker had an episode of hemarthrosis a few months back which required drainage and aspiration from his knee at that time which was negative for infection. The surgeon did not reference the February 28, 2006 aspiration at the Concordia Hospital. A total knee replacement was recommended but the worker was not anxious to proceed. The surgeon stated the worker’s job as a security guard was relatively high demand which required a significant amount of walking and stair climbing and he has been unable to return to this position.
On March 10, 2006, a WCB orthopaedic consultant reviewed the file information. He advised that in his view, the worker’s present work restrictions were appropriate. He stated that the presence of frank blood in the knee on December 15, 2005 was a new and unusual finding. It might be due to trauma to the knee or inflammation (synovitis) or it might be partly due to a bleeding tendency. There could be some systemic problem or if the worker is using ASA excessively. Otherwise he did not feel there was any other objective evidence that the worker was totally disabled because of his knee. The WCB orthopaedic consultant did not reference the February 28, 2006 aspiration at the Concordia Hospital.
In a decision dated March 21, 2006, the worker was advised of the WCB’s position, based on the comments made by the WCB orthopaedic consultant, that there was no evidence to support a change in his current work capabilities and restrictions and no evidence to support total disability in relation to the March 5, 1997 work injury.
The treating physician, in a report to the WCB dated March 2006, stated that the worker had a hemarthrosis of his left knee and ASA 81mg/day would not cause bleeding into a joint unless there was something wrong with the knee to begin with. He said ASA would accelerate bleeding but not cause it. Also, there was no apparent recent trauma except those related to his work related activities as a security guard.
On April 11, 2006, the worker asked Review Office to reconsider the decision it made on February 21, 2006. He also asked Review Office to address the matter of entitlement to full wage loss benefits after September 2005 due to medical reasons.
On April 12, 2006, the family physician wrote to the Board and indicated:
The first time that I can find that I have noted any evidence of an effusion of the left knee was on the 24th of October, 2005. At the time, I described the joint fluid as an effusion; however it may have been a hemarthrosis at that time.
I am not one hundred per cent sure what the cause of the hemarthrosis is, however it is likely that it relates to inflammation within the knee joint or trauma to the synovium. Either of these conditions may relate directly or indirectly to complications of the surgery in 2002 and likely a new or recent injury.
On May 1, 2006, Review Office confirmed that the IWRP was appropriate. It stated the worker did not provide any new information that would alter its decision of February 21, 2006. It also noted that it could not address the issue of wage loss benefits after September 2005 as this issue was being considered by the WCB case manager.
On May 17, 2006, the worker’s surgeon wrote to the Board. He noted that the worker’s “main problem at this time is ongoing pain and recurrent effusions which have prevented him from returning to normal activities.”
In a May 19, 2006 decision, the case manager determined that there was no new evidence to support a change to the worker’s current work capabilities/restrictions and no evidence to support the worker’s contention of total disability in relation to his March 1997 work injury. He also determined that there was no evidence to support a clear relationship between the worker’s current knee problems and his work related accident of March 5, 1997 and he was unable to approve the worker’s request for physiotherapy.
On July 19, 2006, the case was considered by Review Office at the worker’s request. In making its decision, Review Office made reference to the advice of a WCB orthopaedic consultant who was of the view that:
In the absence of a significant intervening event, any problem such as swelling and hemarthrosis the worker has with his left knee can be indirectly linked to his original compensable knee injury and the subsequent treatment.
Review Office accepted the consultant’s opinion and determined that the ongoing knee complaints were compensable. It took the position that the worker was capable of working full-time with certain restrictions:
No lifting over 30 pounds;
Avoid kneeling, squatting, bending, stair climbing;
Avoid continuous walking over 30 minutes;
Avoid continuous standing.
It took the position that since June 2005, the worker was capable of working full-time within these restrictions. However, it went on to note:
That in order to respect his restrictions within the security field, the worker would have to initially limit his work as he did not have the seniority to obtain placements that did so. Review Office considers that after one year of working at selective positions the worker would be able to obtain full-time work which respects his restrictions.
Review Office determined that the worker's deemed post accident earning capacity should be $152.00 (50% of $305.00) from June 11, 2005 to June 10, 2006. As of June 11, 2006, his deemed post accident earning capacity would revert to $305.00. The worker was found eligible for additional wage loss benefits for the period June 11, 2005 to June 10, 2006. In making its decision, Review Office made reference to sections 37, 39(1), 39(2), 40(1) and 60(2) of The Workers Compensation Act (the Act).
In a letter dated September 7, 2006, the treating surgeon indicated that the worker was anxious to proceed to a total knee replacement and was also asking that his right knee be done at the same time because it had increasingly bothered him over the past year. The treating physician noted that the worker was “still having recurrent hemathroses into his left knee and is still unhappy with his result as he has a constant ache in the knee.”
On September 26, 2006 the WCB orthopaedic consultant indicated the proposed surgery was a WCB financial responsibility but the worker’s right knee problems would not have a cause and effect relationship to the worker’s work related injury to his left knee.
On March 12, 2007, the worker appealed Review Office’s decisions dated February 21, 2006, May 1, 2006 and July 19, 2006. A hearing was arranged to consider whether: The May 30, 2007 Hearing The IWRP In considering whether the IWRP was appropriate, the worker argued: “I was lured into retraining . . . I was told that WCB would sponsor up to a two year course, and to come back with my suggestions. When I did this, I was told that because of my “age”, the cost would be too high, therefore, I could not be considered. Then, I was told to return with my ideas for a ten month course. I did this, and was told again, that because of my “age”, these were inappropriate. Finally, I was told that security, was the only retraining (two weeks) that WCB would support, and failure on my part to cooperate, could result in a loss of all benefits. Furthermore, this Panel should be aware of the fact, that of all the questionares (sic) I completed, regarding transferable skills and type of work desired – never once did I mention security work. Is this age discrimination on the part of WCB, acceptable to this Panel?” Later in the proceeding in terms of security work, the worker made the point that he had advised the WCB that “I felt I could be doing the security job at the Compensation Board”. He confirmed that for the most part he felt he “could do that.” Full Wage Loss Benefits In describing his work duties at or about September 19, 2005, the worker indicated that he was working with a security company. “The job also was primarily for the Manitoba Housing Authority. The 16-story complex at [address] is one example. I must continually walk 16 floors and all stairwells and remove intoxicated persons, people on drugs. There were two stabbing attempts in one month against another guard. On one occasion I confronted two car thieves. At a different location, my shift ended two hours before an Asian street gang decided to tear up the basement parking lot on [address]. The work is primarily confrontational.” The worker went on to explain that at the places where he has worked “you're a first responder if there's domestic violence . . .”. At the request of the Panel, the worker detailed his experience with his knee from September 2005 to the present. He noted regular problems with his left knee which were drained both by his surgeon and by a physician at the Concordia Hospital. The worker drew a connection between his work and his inability to recover from swelling. “What usually happens when it starts to swell up, I lay down on the sofa, I put my leg up over the back and put an icepack here, and over the period of a day, I get it under control. And I’m able to do that. If I’m working a 12-hour shift at [address], I cannot do that.” The worker indicated that he had some contact with other security firms in 2005 and they indicated that they would only be offering part time work and that they were not hiring at that time. The worker suggested that his surgeon and his family doctor had “effectively removed” me from my security job by way of his restrictions. The worker confirmed that he had his knee aspirated by his surgeon in December 2005. He suggested that further procedures were undertaken on his knee at the Concordia Hospital. The worker also noted that his knee was scheduled for surgery in the summer of 2007. Following the oral hearing, the Panel contacted the Concordia Hospital on June 5, 2007 to request “all hospital chart notes pertaining to the left knee aspirations.” A response was received from the hospital and shared with the worker. On February 28, 2006, the worker had his left knee drained at the hospital. He also appeared at general emergency with left knee complaints on May 1, 2006 and June 17, 2006. The Argument Relating to Age Discrimination The issue of age discrimination was referred to by the worker in his May 2007 submission when he asked “Is this age discrimination on the part of WCB, acceptable to this Panel?” On August 7, 2007, the worker confirmed he was suggesting that WCB policy 43.00 Vocational Rehabilitation, violated sections 9 and 13 of the Code. In a letter dated September 25, 2007, the WCB denied that “taking age into consideration in the circumstances of this case amounts to discrimination within the meaning of The Human Rights Code.” In his letter dated October 3, 2007, the worker expressed his view that “age was the sole deciding factor in WCB’s decision.” He cited two conversations with WCB employees in which he was told he would not be eligible for the retraining he had requested “because of my age.” He noted he had read section 9 of the Code and offered his view that “it applies, in its entirety, to this case.”
Reasons
The IWRP
a) The Allegation of Age Discrimination
A threshold issue relating to the question of the IWRP relates to the allegation of age discrimination. The worker alleged that he was denied access to more appropriate vocational rehabilitation and pigeon holed into an inappropriate plan because he was discriminated against on the basis of age.
When I did this, I was told that because of my “age”, the cost would be too high, therefore, I could not be considered. Then, I was told to return with my ideas for a ten month course. I did this, and was told again, that because of my “age”, these were inappropriate...Is this age discrimination on the part of the WCB, acceptable to this Panel?
b) The Argument of the WCB
While the WCB notes the provision of vocational rehabilitation is within the discretion of the WCB, it acknowledges that it cannot exercise its discretion in a discriminatory manner. At pages one and two of its letter under the heading Vocational Rehabilitation, it suggests that:
The primary 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, interest.” This goal, however, must be balanced with the WCB’s overall program purpose and must, among other things, be cost effective. Paragraph 9, under the heading “Individualized Written Rehabilitation Plan (IWRP)” makes this point directly:
The WCB will demonstrate that the IWRP is cost-effective. The test of cost-effectiveness takes into consideration the costs which are expected without the plan versus with the plan. As well, it is necessary to compare costs against available options.
The cost to provide vocational rehabilitation must be proportional to the cost of providing wage loss benefits in order for the plan to be approved.
In the context of a cost-benefit analysis, the age of the worker is a relevant consideration. Pursuant to subsection 39(2) of the WCA, wage loss benefits are payable either until the loss of earning capacity ends or the worker attains the age of 65 years. Where a younger worker sustains a long-term loss of earning capacity, the cost to the WCB will be much higher than when an older worker sustains a long-term-loss of earning capacity. As such, a longer and more expensive retraining program may be justifiable for a younger worker, while it may not [be] justifiable for an older worker, because of the reduced overall cost to the WCB that will result.
At page two and three of its letter under the heading Facts, the Board goes on to note:
The material on file indicates that [the worker’s] interests, skills and aptitude were all taken into consideration in developing the IWRP under appeal. It also indicates that his age, and number of years remaining in the work force, were taken into consideration.
Two possible plans, which required retraining of 10 and 20 months respectively, were rejected because the cost of those plans was too high . . . The memo does not specifically say that the cost was too high because of [the worker’s] age. However, it is reasonable to assume that the cost of the program was considered in light of the maximum wage-loss benefits which the WCB would otherwise have to pay. As the maximum wage-loss benefits are a function of age, it is accurate to say that age was a factor in determining a suitable IWRP.
In terms of the central issue before the Panel, the WCB argues “the question in this case is whether considering age, as one of many factors in an IWRP, is discrimination on the basis of age within the meaning of the Code. The WCB submits that it is not.”
In the view of the WCB, “it is now clear that courts considering claims of discrimination under human rights legislation will use a similar analysis to that applied to section 15 of the Charter.” The WCB suggested that the three part test analysis employed by the Supreme Court in Law v. Canada (Minster of Employment and Immigration), [2002] 4 S.C.R. 497 was applicable.
In the view of the WCB, “none of the elements of the Law test are present in this case.”
Neither the legislation nor the Policy makes a formal distinction on the basis of age. Further, a formal distinction on the basis of age was not made in the application of the Policy to [the worker]. [The worker] was not denied vocational rehabilitation assistance because of his age nor was the IWRP that was eventually developed based solely, or even primarily, on age. As such, neither of the first two questions can be answered in the affirmative.
Even if the Appeal Commission finds that a formal distinction was drawn, however, it is the WCB’s position that the human dignity of [the worker] was not adversely affected by the manner in which the IWRP was developed or the result. The purpose of equality law is to ensure that individuals are not treated based on broad generalizations attributed to the group to which they belong, rather then on the individual characteristics of the person subject to the law. The individualized approach used when developing an IWRP is exactly the opposite of the generalized use of irrelevant personal characteristics that human rights legislation seeks to eliminate. To the extent that age was considered in developing the IWRP, it was considered along with many other factors in the context of the overall regime of the WCA.
Necessarily implicit, if not express, in the Board’s argument on page 2 and again on page 5 of its letter is its position that in the event the policy or its application are found to be discriminatory, bona fide and reasonable cause exists for the discrimination in that:
i) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
ii) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
iii) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that it could not accommodate persons with the characteristics of the claimant without incurring undue hardship.
c) Discrimination under the Code
Read together, subsections 9(1) and 9(2) of the Code define discrimination to include differential treatment of an individual on the basis of age.
Subsection 9(3) of the Code provides that discrimination includes any act resulting in discrimination within the meaning of subsection 9(1) regardless of the form that the act takes and regardless of whether the person responsible for the act intended to discriminate.
Subsection 13(1) of the Code prohibits discrimination with regard to the provision of a service, right, benefit or program accessible to the public or to a section of the public “unless bona fide and reasonable cause exists for the discrimination.”
In broad strokes, in a claim of discrimination under the Code, the onus is on the claimant to establish on a balance of probabilities, a prima facie case of discrimination. Where such a case is established, the onus then shifts to the respondent to prove bona fide and reasonable cause exists for the discrimination. (Pasternak v Manitoba High Schools Athletic Assn. Inc. [2006] M.H.R.B.A.D. No. 2, para 111)
To establish a bona fide and reasonable justification, the respondent must establish, on a balance of probabilities:
1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the respondent cannot accommodate persons with the characteristics of the claimant without incurring undue hardship (British Columbia (Superintendant of Motor Vehicles) v. British Columbia (Council of Human Rights, 1999 3 S.C.R. 868, para 20).
d) Is the Panel bound to follow the Law approach?
In the course of this proceeding, the WCB has suggested that the Law analysis used with regard to Charter matters is the appropriate analytical tool for the Panel in considering whether there is a prima facie case of discrimination.
However, the Panel is of the view that there is no binding authority that the Law analysis should be applied in considering a complaint of discrimination under the Code. In this regard, the comments of Human Rights Adjudicator Harrison in the matter of Pasternak v Manitoba High Schools Athletic Assn. Inc. [2006] M.H.R.B.A.D. No. 2 are quite helpful.
There is certainly no consensus and no authority binding on me to the effect that the Law analysis should be applied with respect to a complaint of discrimination under human rights legislation. In fact, in Gwinner (v. Alberta (Human Resources and Employment) (2002) 217 D.L.R. (4th) 341), the Court noted that many human rights tribunals have resisted application of the Law analysis or any arguments that the decision in law has imported a requirement that the claimant establish a violation of human dignity as an element of a prima facie case under human rights legislation. (para 126)
. . .[I]n three important human rights cases considered by the Supreme Court of Canada, since Law, the Court continued to apply the traditional approach to the establishment of a prima facie case of discrimination, and did not employ the dignity analysis from Law. (para 127)
Given the uncertainty in the current state of human rights jurisprudence, the Panel will consider the argument with regard to discrimination using both the Law approach and the more traditional human rights approach.
e) Findings with Regard to the Complaint of Discrimination
Based upon its review of the Act, regulation and policies, the Panel accepts the Board’s description of the vocational rehabilitation program found at pages one and two of its letter of September 25, 2007. The Panel notes that the Board in enacting Policy 43.00 was working within the statutory bounds set out in the Act. In particular, it observes that pursuant to ss.39(2) wage loss benefits are payable either until the loss of earning capacity or the worker attains the age of 65 years.
Based upon a balance of probabilities and considering the record as a whole, the Panel accepts the specific facts of this case which are found on page two and three of the Board’s letter. The Panel notes that the Board and the worker are in general agreement that two rehabilitation plans were rejected and “that age was a factor in determining” the IWRP.
The Panel also accepts the worker’s submission that he felt the security job was “the most demeaning job possible” and that he believed he had suffered a loss of opportunity.
f) Applying the Law test
Given the candid admission by the Board that age “was a factor in determining a suitable IWRP” and its implicit admission that a younger worker may have qualified for either of the two IWRPs which the worker was found not to be eligible for, the Panel believes that it is arguable that the worker has established differential treatment based upon a protected personal characteristic.
In turning to the third element of the Law test, the Panel notes the dignity analysis is to be conducted from the perspective of a reasonable person fully informed of the facts. Based upon this approach, the Panel finds, based upon a balance of probabilities, that the human dignity of the worker was not adversely affected by the manner in which the IWRP was developed or by the result.
The Panel finds persuasive the argument of the Board that:
The purpose of equality law is to ensure that individuals are not treated based on broad generalizations attributed to the group to which they belong, rather then on the individual characteristics of the person subject to the law. The individualized approach used when developing an IWRP is exactly the opposite of the generalized use of irrelevant personal characteristics that human rights legislation seeks to eliminate. To the extent that age was considered in developing the IWRP, it was considered along with many other factors in the context of the overall regime of the WCA.
In short, the IWRP was developed based upon the individual situation of the worker given the overall mandate under the Act. From the perspective of a reasonable person fully informed of the facts, the worker was judged upon his merits given the lawful mandate of the Board. From this perspective, no message was sent that the worker was less worthy of dignity and respect as a Canadian citizen.
For these reasons, based upon a balance of probabilities and applying the Law test, the Panel is not prepared to make a finding of discrimination within the meaning of subsection 9 of the Act.
g) Applying the traditional human rights approach
In applying the traditional human rights approach, the Panel is of the view that it is arguable that the worker has satisfied his onus of establishing a prima facie case of discrimination. Given the candid admission by the Board that age “was a factor in determining a suitable IWRP” and its implicit admission that a younger worker may have qualified for either of the two IWRPs which the worker was found not to be eligible for, the Panel believes it is arguable that the worker has established differential treatment based upon age.
However, considering the record as a whole, and based upon a balance of probabilities, the Panel is of the view that the Board has discharged its onus of establishing there was a bona fide and reasonable justification for any such discrimination.
More particularly, the Panel finds, based upon a balance of probabilities, that the consideration of age among other factors in the IWRP of the worker is rationally connected to the function of providing cost effective vocational rehabilitation within the context of a statutory scheme for which wage loss benefits are payable until the worker attains the age of 65. The Panel also concludes, based upon a balance of probabilities, that the Board adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal. Finally, the Panel concludes, based upon a balance of probabilities, that the standard is reasonably necessary to accomplish its goal.
More particularly, the Panel finds persuasive, based on a balance of probabilities, the following arguments presented by the Board:
The primary 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, interest.” This goal, however, must be balanced with the WCB’s overall program purpose and must, among other things, be cost effective. Paragraph 9, under the heading “Individualized Written Rehabilitation Plan” (IWRP) makes this point directly:
The WCB will demonstrate that the IWRP is cost-effective. The test of cost-effectiveness takes into consideration the costs which are expected without the plan versus with the plan. As well, it is necessary to compare costs against available options.
The cost to provide vocational rehabilitation must be proportional to the cost of providing wage loss benefits in order for the plan to be approved.
In the context of a cost-benefit analysis, the age of the worker is a relevant consideration. Pursuant to subsection 39(2) of the WCA, wage loss benefits are payable either until the loss of earning capacity ends or the worker attains the age of 65 years. Where a younger worker sustains a long-term loss of earning capacity, the cost to the WCB will be much higher than when an older worker sustains a long-term-loss of earning capacity. As such, a longer and more expensive retraining program may be justifiable for a younger worker, while it may not [be] justifiable for an older worker, because of the reduced overall cost to the WCB that will result.
Accordingly, based upon a balance of probabilities and using the traditional analysis, the Panel finds that the Board has discharged its onus of establishing there was a bona fide and reasonable justification for such discrimination.
h) Conclusion
Employing either the Law test or the traditional human rights analysis, the Panel rejects the argument of the worker on this point.
The IWRP
Considering the record as a whole and based upon a balance of probabilities, the Panel finds that the IWRP was appropriate.
WCB Policy 43.00 addresses the subject of Vocational Rehabilitation. It notes that while the Policy is discretionary, it should be consistently applied to all eligible workers.
Part V of Policy 43.00 deals with the subject of the IWRP. Under Part V, the WCB will develop the plan after adequate assessment. It will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker’s physical, intellectual, vocational, and emotional capabilities. Vocational rehabilitation goals will generally be based on the “loss of earning capacity” principle stipulated in the Act. Within this limit, the WCB will make every effort to meet the worker’s needs, aspirations, values, preferences, sensitivities, and goals.
In developing the IWRP, the WCB is directed to demonstrate that the plan is cost-effective. This analysis is done via a Financial Implications Report (FIR). The Policy goes on to note that “the WCB and the worker may not be able to agree completely on the content of the plan. For example, the type of plan desired by the worker may be inconsistent with the loss of earning capacity for which the WCB is responsible. Under such circumstances, the WCB will expect the worker to participate in a different plan.”
In the Panel’s view, based upon a balance of probabilities, the IWRP prepared for the worker was developed after adequate assessment and based upon a reasonable goal. The process considered the worker’s restrictions, contained a transferable skills analysis and developed options for consideration within those restrictions and transferable skills. All of the options were analyzed for cost-effectiveness via a FIR. Some of the other options had lengthy educational parts (a couple of months to two years). These options were not pursued, in part, because they were not cost effective.
Once the worker chose to focus upon the security guard occupation, an earning capacity analysis was performed coupled with a consideration of whether the physical or environmental requirements associated with the majority of positions within this classification were within the worker’s documented restrictions. A labour market within this field was also identified.
In making this finding, based upon a balance of probabilities, the Panel is supported by the worker’s candid admission in the oral hearing that “I felt I could be doing the security job at the Compensation Board”. He confirmed that for the most part he felt he “could do that.”
While the worker was temporarily unable to perform his work duties as a consequence of the medical condition of his knee, the Panel finds, based on a balance of probabilities, that the IWRP was designed to be and continues to be within the designated restrictions of the worker. In other words, although the worker expressed concerns with the duties at his worksites we find that overall, employment within NOC 6651 was an appropriate vocational rehabilitation goal.
In the Panel’s view, the IWRP was appropriate. The appeal on this point is denied.
Whether or not the worker is entitled to full wage loss benefits subsequent to September 19, 2005.
In the Panel’s view, based upon a balance of probabilities, the worker was entitled to full wage loss benefits after September 19, 2005.
The Statutory Framework
Before addressing its factual findings, it may be helpful to set out the statutory framework upon which the Board relies.
Section 37 of the Act provides:
Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
. . .
c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
Subsection 39(1) states:
Where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits shall be payable to the worker calculated in accordance with section 40 and equal to
(a) 90% of the loss of earning capacity for a maximum of 24 months; and
(b) 80% of the loss of earning capacity after the 24 months.
Subsection 39(2) indicates:
Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends, as determined by the board, or
(b) the worker attains the age of 65 years.
Subsection 40(1) provides:
The loss of earning capacity of a worker is the difference between
(a) the worker's net average earnings before the accident; and
(b) the net average amount that the board determines the worker is capable of earning after the accident;
which amount shall not be less that zero.
The Issue
The central issue before the Panel in determining whether or not the worker is entitled to full wage loss benefits after September 19, 2005 is the determination of the magnitude of the loss of earning capacity as calculated under subsection 40(1) of the Act. The calculation is performed by taking the difference between a) the worker’s net average earnings before the accident and b) the net average amount that the board determines the worker is capable of earning after the accident.
There is no dispute regarding the worker’s net average earnings before the accident. What is at issue is the determination of the amount that the worker was capable of earning after the accident for the period subsequent to September 19, 2005.
Review Office held that the worker’s deemed post accident earning capacity from June 11, 2005 to June 10, 2006 should be fifty percent of what he would be expected to earn in a full time security job. For the period from June 11, 2006 on, Review Office was of the view that the worker’s deemed post accident earning capacity should be one hundred percent of what he would be expected to earn in a full time security job. It based this conclusion on its view that by June 11, 2006, the worker should have been able to obtain full-time work in a security position which respected his restrictions.
The worker takes issue with this. In his view, for the period after September 19, 2005, he was not medically capable of any earnings.
The Panel’s Findings
The Panel concludes that the worker is entitled to full wage loss benefits from September 19, 2005. It finds, based on a balance of probabilities, that the worker suffered a temporary inability to do his job from September 19, 2005 which left him incapable of any earnings.
In making this determination, the Panel has considered the record as a whole including the oral proceeding and all written materials. The Panel found the worker to be credible in his description of his symptoms post September 19, 2005 as well as their impact on his ability to work and upon his ability to recover from pain and swelling in his left knee.
In particular, the Panel places heavy emphasis on the continuity and consistency of the worker’s description of his symptoms including pain and swelling and their impact on his ability to work along with the medical and other reports documenting both these symptoms and their impact upon his ability to work.
In particular, the Panel notes and relies upon the following material which it considered:
- the job desription provided by the worker in the oral hearing in which he noted that "the job also was primarily for the Manitoba Housing Authority. The 16-story complex at [address] is one example. I must continually walk 16 floors and all stairwells and remove intoxicated persons, people on drugs.”
- the oral evidence provided by the worker in which he confirmed his work duties both led to pain and swelling in his left knee and inhibited his recovery from these symptoms.
- the report by the physiotherapist in the fall of 2005 who examined the worker's knee before and after he walked many stairs at work and noted a marked swelling as well as pain in his left knee after walking many stairs;
- the report by his family physician identifying effusion of the left knee in October, 2005;
- the documentation of hemarthrosis in the worker's left knee and aspiration of the knee during the worker's examination by his surgeon on December 15, 2005;
- the December 15 recommendation by the surgeon that the worker avoid extensive walking or stair climbing;
- the aspiration of the worker's left knee at the Concordia Hospital on February 28, 2006;
- the March 6, 2007 statement by the worker's surgeon noting the worker's job was relatively high demand requiring a significant amount of walking and stair climbing and concluding the worker was unable to return to this poisition due to his left knee;
- the worker's appearance at Concordia Hospital Emergency with a left knee complaint on June 17, 2006;
- the July 2006 conclusion of the WCB orthopaedic consultant that "in the absence of a significant intervening event, any problem such as swelling and hemarthrosis the worker has with his left knee can be indirectly linked to his original compensable knee injury and the subsequent treatment";
- the September 7, 2006 notation by the treating surgeon that the worker was "still having recurrent hemarthrosis into his left knee".
The Panel notes that one contrary medical opinion which appears on the record is the March 10, 2006 report of the WCB orthopaedic consultant. However, the consultant seemed to view the presence of blood in the December 15, 2005 examination by the surgeon as a “new and unusual finding” rather than as part of a pattern. The orthopaedic consultant does not reference and does not appear to have been aware of the February 28, 2006 aspiration at the Concordia Hospital or the findings by the family physician in October 2005. Given their greater familiarity with the symptoms as a whole, the Panel prefers the opinion of the worker’s surgeon and his family doctor to the views of the WCB orthopaedic consultant.
Considering the record as a whole, the Panel finds that the continuity of medical symptoms and reports support a temporary inability of the worker to do his job from September 2005 to the date of his later surgery. He is therefore entitled to full wage loss benefits.
The appeal is allowed.
Panel Members
B. Williams, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
B. Williams - Presiding Officer
Signed at Winnipeg this 29th day of November, 2007