The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 40(1) of the Act defines loss of earning capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.

Worker’s Position

The worker was self represented at the hearing. He disagreed with the WCB’s determination that he was not entitled to full wage loss benefits beyond December 18, 2008. In his Appeal of Claims Decision form, the worker listed the following reasons why he believed his wage loss benefits should be reinstated:

• He fully participated in the vocational rehabilitation program and secured employment;
• He had to quit that employment because one of the required job duties involving lifting which caused his back to spasm;
• While he was taking courses, his back got progressively worse, which caused him to reduce his course load to part time and he reinjured his back while participating in a work co-op program;
• A second work co-op is required for him to graduate;
• He received no pay during his training period, with the employment position he secured;
• He has not yet graduated from his course;
• His WCB employment specialist did not secure him a second work co-op;
• The WCB chiropractic advisor’s report on July 29, 2008 did not determine that he was capable of working on a full time basis;
• He felt that injections in his low back may have helped him through the training period and allowed him to remain employed, but the WCB was slow to respond and was slow in giving approval for the injections.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits beyond December 18, 2008. In order to decide the issue, the panel must review the evidence regarding the worker’s medical condition as of December 18, 2008 and determine whether the effects of the compensable injury prevented the worker from engaging in full time employment in NOC 2231. On a balance of probabilities, the panel finds that the worker was capable of working in NOC 2231 on a full time basis at the relevant time.

At the hearing, the worker described for the panel the difficulties he has with his back which prevent him from maintaining full time employment. He said that he experiences “spasm” in his lower back which extends from his spine in the middle and radiates around to the side. This is usually an aching type of pain, although it is sometimes a sharp pain. It slowly builds through the day, and he has to move around frequently to avoid the tightening. While he was attending school, the pain would also develop in the back of his right leg, approximately mid-thigh, and it would extend down to his toes. In order to manage the pain, the worker stated that he had to walk around and change position to keep things loose. There were a number of stretching exercises he would do frequently throughout the day. He could not sit for any extended period of time; an hour was the most he could push it. Ideally, he should get up every 20-30 minutes to move around and prevent the back from getting worse. He said that maintaining any position or activity for too long would cause him difficulties, so he would have to change what he was doing constantly throughout the day.

The permanent restrictions in place for the worker are avoid repetitive bending, lifting, twisting, no lifting greater than 30 lbs and to have the ability to change positions as required. The panel is of the view that so long as these restrictions are met, the worker should be able to maintain employment on a full time basis.

When making its decision, Review Office had noted that the worker had been able to maintain full time hours while attending school for his voc rehab program. The worker took issue with this observation and stated that he was only enrolled in half the normal course load. Whereas a normal course load would involve 29 hours per week, during his last year at school, he was only taking 13 hours of classes. It appears, however, that even though he was only taking 13 hours of classes, the worker still spent close to a full day on campus. He would arrive on campus at shortly after 7:00 am and he remained there until approximately 3:30 pm. Although he could not sit through a 50 minute lecture, he would spend much of his time in the study lab, where he could get up frequently to take short walks. The panel is of the view that this would be consistent with finding employment which accommodates his restriction of having the ability to change positions as required.

The worker argued that no employer would tolerate an employee who had to get up and walk as much as he did, but the panel does not agree with this contention. On the contrary, the panel notes that the worker had been placed in a full time co-op position where he did get up frequently to stretch and that employer had actually expressed an interest in hiring the worker as a regular full-time employee.

The panel also considered the full time employment which the worker had secured prior to the end of his vocational rehabilitation plan. The worker stated that he had to quit the position because it caused his back to “seize up”. When asked about the duties, the worker indicated that almost everything about the job was ideal; however, there was a requirement to use certain equipment weighing between 25-35 lbs which caused his back to flare up. Although he had been able to put this equipment into place during his training sessions (when he had assistance), on his first solo day on the job, his back flared when he tried to do it alone. The panel notes that lifting this equipment was probably at the edge of, if not outside, his restrictions. If it were not for this aspect of the job, the worker could probably have maintained this employment. We also note that the worker only suffered a fairly temporary aggravation of his back from this incident. The panel is of the view that the worker’s inability to maintain this job does not translate into the conclusion that he could not maintain employment at another position within NOC 2231.

When asked whether there was any medical evidence to support his position for less than full time hours, the worker pointed to a recent chiropractor’s progress report dated August 27, 2009 where his chiropractor checked “no” to the question of whether the worker is capable of alternate or modified work. The panel notes that the treating physician also indicated “no”. The difficulty with these opinions is that neither is supported by objective findings of disability. In fact, the treating physician’s report of August 19, 2009 indicates normal range of motion in the back and no neurological deficiencies. The panel also did not understand the worker to be alleging he is totally disabled. His evidence was that he might actually be able to maintain full time employment if he was able to slowly increase his hours to full time.

At the hearing, the worker argued that the WCB relied on the findings of the WCB chiropractic advisor from the call-in examination of July 29, 2008 to say that he was capable of full time employment, but that nowhere in the advisor’s report does it say that the worker is capable of working full time. Although it is true that the chiropractic advisor does not actually state the worker is capable of working full time, the report must be considered in context of the previous call-in examination notes of July 2003, May 2005 and May 2007. The purpose of the July 2008 exam was to gauge any changes in the worker’s condition, and the advisor noted that the range of motion seemed to have improved in the lumbosacral region and that the worker seemed to have less pain on movements. It is notable, however, that no changes in restrictions were recommended, and in particular, the advisor did not recommend a restriction of limited hours per day. The medical reports will typically indicate what a person cannot do, as opposed to what they can do. In other words, unless the reports specifically note a restriction of less than full time hours, it is generally assumed that full time hours are possible.