The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors. Subsection 4(2) of the Act provides that where a worker is injured in a workplace accident, wage loss benefits are payable for the loss of earning capacity that results from the injury. Subsection 39(2) of the Act provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends.

The WCB Board of Directors made Policy 44.80.30.20 which deals with when the earnings a worker is deemed capable of, but not actually earning will be included in the loss of earning capacity calculation. It also deals with how the deemed earning capacity will be determined. This policy was applied in the worker’s case.

Worker’s Position

The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by her representative and the panel.

The worker’s representative reviewed the employer’s attempts to accommodate the worker. She noted that the worker was placed in several positions for varying periods of time but none resulted in full time employment. The worker advised that other positions were identified, however she was not placed in these positions because she did not meet the minimum qualifications for the positions.

The representative noted that as the accommodation process did not result in employment, the worker’s file was transferred to the WCB’s vocational rehabilitation program. Non-traditional nursing was identified as an appropriate occupational goal and vocational rehabilitation services were provided.

With respect to finding employment in the non-traditional nursing field, the worker indicated that she applied for 100 to 150 positions and received only six interviews. In answer to a question she stated that she met all qualifications for only two of the positions that she was interviewed for. She advised that she was not successful in finding a position in this field.

The worker’s representative stated that the worker, who had less than two years nursing experience and lacked specialized training, did not meet the minimum qualifications for this field. She referred to Policy 44.80.30.20 and stated that the WCB failed to adequately explore the requirements for employment in the non-traditional nursing field in the context of the worker’s specific experience and qualifications.

The worker’s representative indicated that it was inappropriate to deem the worker because she does not have the qualifications to work in the field that has been identified. She stated there is a requirement to ensure that a worker is competitively able to apply for jobs and have an equal chance compared to other people applying for the same positions. She argued that implementation of the deemed earning capacity should have been delayed until the worker had the opportunity to develop qualifications through further vocational rehabilitation activities.

The worker’s representative advised that the worker is currently working in an accommodated position. The worker expressed concern about the position as it requires working with patients who may need to be physically restrained. It was noted that the worker’s physician has said that she cannot physically restrain patients. The worker confirmed that to date she has not restrained any patients. She also acknowledged that she has been able to do the job but has missed three days of work. The worker indicated that she does not feel safe in this position and continues to look for other positions. It was noted that the position is only a .8 eight position. The worker advised that she has not taken any extra shifts to bring her up to full time.

The worker’s representative advised that the worker is seeking further vocational rehabilitation assistance to enable the worker to compete for jobs within the deemed occupation. In response to questions about the type of vocational rehabilitation services that would assist her, the worker identified further training in several areas, including a course in occupational health and a masters degree. She also noted that job shadowing would help her acquire experience.

Employer’s Position

The employer was represented by an advocate and its disability management consultant.

The employer’s representative submitted that the decision to deem the worker capable of earning the deemed rate was appropriate as it was based on her restrictions, transferable skills, education, labour market, and was in keeping with WCB policy. She noted that a comprehensive labour market survey was done by the WCB that confirmed the worker could compete for a position in this field and submitted that the worker does have the prerequisites required to obtain a non-traditional nursing position.

In answer to a question, the employer’s disability management consultant confirmed that the employer identified the worker’s current position and arranged for the worker to be accommodated in the position. She also confirmed that the accommodated position includes a restriction on the worker restraining patients.

Analysis

The issue before the panel was whether a deemed earning capacity of $842.17 per week should have been implemented effective March 25, 2007. The panel notes that the appeal is concerned with the effective date of the deemed earnings. The appeal does not address the selection of non-traditional nursing as the appropriate employment goal nor the calculation of the deemed earnings.

For the appeal to be successful the panel must find that it was not appropriate to implement the deemed earning capacity as of the stated date. The panel was not able to make this finding.

The focus of the worker’s submission was that she did not have the necessary experience and education to obtain employment in the non-traditional nursing field. The worker’s representative noted that the worker had less than two years nursing experience and lacked specialized training in the areas of non-traditional nursing. She stated that it is an inappropriate deem because the worker doesn’t have the qualifications to work in the occupational field under which she has been deemed. The worker provided information regarding her efforts to and inability to find employment in the non-traditional nursing field.

The panel notes that the worker is a registered nurse with a Bachelor of Nursing degree and has experience in various areas of nursing including vascular, respiratory, oncology and geriatrics. Since her injury she has gained experience working on a medical research project and in occupational medicine. She is currently working in the mental health field.

The panel has considered all the evidence including the evidence provided by the worker at the hearing and the arguments submitted by the parties and concludes, on a balance of probabilities, that the deemed earning capacity of $842.17 per week was properly implemented effective March 25, 2007. The panel has considered the type of positions included in the non-traditional nursing field. The panel finds that the worker does have the necessary experience and qualifications to obtain employment in a non-traditional nursing position.

The panel finds that Policy 44.80.30.20 has been properly applied and specifically finds that the worker is capable of competitively obtaining and keeping employment in the noted occupation and that a sufficient labour market exists in the noted occupation.

The worker’s appeal is denied.