The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, wage loss benefits are paid to a worker when a compensable injury results in a loss of earning capacity.

WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is defined as 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 a 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.

Subsection 27(20) of the Act provides for vocational rehabilitation assistance which may be available to a worker. WCB Policy 43.00 provides that the 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, interests. The Policy provides in part:

2. The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.

Where rehabilitation services are provided, the goals and responsibilities of the worker, the WCB and the employer (when involved) will be identified through an IWRP. The IWRP will, among other things, generally define the goals of vocational rehabilitation, describe the occupation or occupational group in which the worker can competitively pursue employment, detail the steps for it to be obtained, and indicate the expectations for the worker’s earning capacity upon the completion of the IWRP. That expectation will be a factor in decisions regarding the post – accident earnings (i.e. deemed earning capacity) of the worker.

Vocational rehabilitation services will be reduced or discontinued where the worker has completed a plan which has resulted in a certain level of earning capacity.

Worker's Position

The worker attended the hearing and explained his position to the panel. He answered questions posed by the panel.

The worker stated:

" …WCB…tried to find me a job in [name of town] at the beginning and I couldn’t find job there, in [name of town]. I tried but I couldn’t find anything there that I was capable to do because I have problem with my legs, problem with my arm and I can’t stand for a long period of time and I can’t do any typing because of my arm is giving me too much trouble. And, so, the only thing that I could see was if I move to Winnipeg here and they train me on something, that maybe I’d be able to find a job, and stuff like this.

So, I just did the work I was doing there, just Microsoft Office, but I couldn’t type because my hands and my arm gets numb. I lost -- I lose strength in my arm when I do. Because if I could type, if I could type, I could probably do my job that I was doing before…and the problem with me is I couldn’t push button any more or work the joy stick because I was running out of strength.

Yeah, and that’s the only way -- so, for me to find job, I thought it would be to move to Winnipeg but I didn’t know what the customer services was, what kind of job it was. I knew it was servicing customer but I didn’t know that you need it -- to be typing, or whatever, to do this job, because when I went and apply for a job, they were asking me to be able to type at least 40 words a minute so it was possible (sic) for me because I couldn’t type for very long. Because when I put pressure on stuff, like the mouse, when I put pressure and I work with the mouse, I lose my strength in my hands. So, that’s why.

So, they wanted me to type so I went home and I tried to do typing. I tried to type on the computer but I start having problem again with my arms."

The worker explained that he could not find a job in the designated occupational code, NOC 6623 Other Elemental Sales Occupations. He acknowledged that the WCB sent many job referrals but stated that all jobs required typing and he could not type.

The worker advised that he is medically unable to work in this area because he cannot type. He described his symptoms related to a bilateral shoulder condition. He also described other medical problems that interfere with his ability to work including his left knee.

The worker advised that the problem with his hand is muscular and that he is being referred to a specialist who deals with muscles.

In answer to questions, the worker acknowledged that he understood that in relocating to Winnipeg, he would be provided with training and job search assistance, and that if he did not find a job by the end of the stipulated period the WCB would deduct a wage whether he had a job or not.

The worker advised that he has decided to relocate to his home community in another province.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel was whether the worker's wage loss benefits should be reduced based on a deemed earning capacity of $380.00. For the worker's appeal to be successful, the panel must find that it was not appropriate for the WCB to implement a deemed earning capacity. The panel was not able to make this finding.

The panel finds that the WCB properly assessed the worker's deemed earning capacity and that:

• the worker understood the consequence of relocation and willingly relocated
• the worker agreed to the rehabilitation plan
• there were numerous job opportunities in the occupational field
• the worker was capable of performing jobs in the occupational field

The panel also finds that the WCB did its due diligence in preparing the IWRP, and considers it to have been an appropriate plan for this worker. The panel notes that the WCB adjusted the plan to reflect concerns raised by the worker. For example, the WCB sent the worker referrals which required the use of a mouse and tab key rather than general typing.

The panel notes that the worker complained about shoulder and wrist problems. In this regard, the panel notes that an orthopedic specialist reported on April 17, 2011 that:

Clinically he was found to be tender on deep palpitation of the deltopectoral groove. Range of motion of flexion, abduction and lateral rotation appeared to be limited on both sides. The rest of his clinical examination was much the same…his nerve Conduction Velocity Test, which was done on 16^th March, 2011…demonstrated a normal looking median nerve in both wrists canals as well as a normal ulnar nerve travelling behind the medial epicondyle of both elbows…With regards to his shoulder symptoms,…he has had x-rays of these joints which were within normal limits."

The worker was also examined by a WCB medical advisor in November 2007. The medical advisor commented that:

An anatomic explanation for the restricted range of motion at the shoulders is not apparent based on examination today.

…Based on today's history and physical examination, as well as file review, it is likely that the claimant is currently at MMI [Maximum Medical Improvement]. The claimant is not currently undergoing any treatments, and it appears that none are being considered. No medication is prescribed. No upcoming consultations and/or imaging appear to be planned.

Based on that information, it is my opinion that the claimant likely is at MMI and that restrictions on file; that is avoiding lifting of more than 15 lbs, avoiding repetitive flexion and extension at the elbows and avoiding repetitive forceful grasp with both hands should be considered to be permanent restrictions.

The panel also notes that the worker's medical file was reviewed by a WCB medical advisor for the purposes of a permanent impairment award related to the worker's left cubital tunnel syndrome. The medical advisor notes that the worker has osteoarthritic elbow changes. He also notes that the worker has decreased range of motion of both elbows and attributes the decreased range of motion, to the (non-compensable, not work related) osteoarthritic changes rather than the cubital tunnel syndrome.

The panel is unable to find sufficient clinical or diagnostic testing to support the level of disability claimed by the worker or to be used to change the worker's restrictions.