The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The worker is appealing the suspension of his wage loss benefits for the period from November 17, 2006 to January 7, 2007.

In addressing this appeal, 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, 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 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Section 22 of the Act has been applied by the WCB in this case. It addresses the worker’s responsibility to mitigate the consequences of an accident. It provides as follows:

Practices delaying worker’s recovery

22 Where an injured worker persists in insanitary 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.” (underlining added)

The Board has made WCB Policy 44.10.30.60, Mitigation. The policy sets out the consequences of a worker’s failure to mitigate, providing as follows:

“If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to cooperate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.”(underlining added)

The Board has also made WCB Policy 40.80.30.20, Post Accident Earnings - Deemed Earning Capacity, which is applicable to cases where the WCB reduces wage loss benefits based upon a deemed earning capacity.

Worker's Position

The worker filed an Appeal of Claims Decision form dated March 18, 2011. In the form, the worker states that "Review Office failed to consider that the failure to mitigate concerns were rescinded prior to its review. I did not bring up a travel allowance as a barrier, this issue was also resolved prior to the review by Review Office.

The worker also provided a letter dated March 18, 2011 in support of his appeal. The worker noted that a meeting was arranged with WCB and a learning institution to discuss a vocational rehabilitation plan. The worker noted that he injured his knee and that his elbow, knee and wrist symptoms were progressively increasing. He began taking pain medication and that "…they saw my demeanour react" at the meeting over comments the WCB attributed to the learning institution counselor which the counselor had denied. The worker noted that a few words were exchanged about professional conduct and that the learning institution counselor terminated the meeting.

He wrote that:

"The WCB staff clerks told me my rehab was being terminated over my temperament displayed at the meeting with [learning institution] and that I would be getting a letter. The Board then informed me that it had compiled some stated "negative feedback" allegation reports and reduced benefits to a deem as a result of a staff clerk stating it was his opinion that I had decided not to participate in the program I was actively participating in."

The worker noted that he met with a WCB vice-president on two occasions and that "As a result of his enquiries another meeting was held where the decision that I failed to mitigate, and my rehab rights terminated, was rescinded."

The worker noted that the partial benefits decision was reached following the above meeting and that the WCB vice-president indicated that January 8, 2007 was the first date the worker agreed to meet. The worker indicates that this was incorrect and that there were two prior meetings and two later meetings.

The worker wrote that "…Review Office resurrected a failure to mitigate concern when no such concern was before the Board in any capacity. The issue had been resolved. The Board decided partial benefits were applicable solely on the basis of the date of meeting arrangements, which WCB inaccurately recorded."

The worker submitted that the WCB vice-president concluded that failing to mitigate was wrongfully applied to this case given that the worker was attending the program. He submitted that it was noted that WCB failed to apply the provisions of Policy 43.00 and provide adjustment services. He wrote that it also concluded that the deemed earning capacity was in error as the occupation it was based on was never medically evaluated for physical compatibility and noted there are problems with computer use.

The worker noted that full wage loss benefits applied to the years prior and subsequent to the meetings that were held. He submitted there is no basis for the WCB to conclude that full benefit entitlement should not apply to the November 16, 2006 to January 7, 2007 time period as well.

Employer's Position

The employer did not participate in this appeal.

Analysis

The worker's benefits were reduced during the period of November 16, 2006 to January 7, 2007. He is seeking payment of full wage loss benefits during this period. This appeal raises several questions. The first question is whether the worker failed to mitigate and then, if so, whether it was appropriate for the WCB to reduce the worker's wage loss benefits. Finally, if the answer to these questions is yes, we must determine the appropriate date to reinstate full benefits.

For the worker's appeal to be successful, the panel must find that the worker did not fail to mitigate. The panel was not able to make this finding. The panel finds that the worker failed to mitigate, that his benefits while not mitigating were correctly reduced in accordance with the Act and WCB policy, and further, that he was not entitled to full wage loss benefits until he began participating in the vocational rehabilitation plan which the panels finds to be February 22, 2007.

In reaching our decision we have considered the worker's submission that the failure to mitigate was wrongfully applied to this case. We disagree. A review of the file establishes that the worker failed to mitigate and that his benefits were correctly reduced in accordance with Section 22 of the Act and WCB Policy 44.10.30.60.

As noted earlier, section 22 provides, in part:

22 Where an injured worker … 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 … if the worker … had mitigated the consequences of the accident.”

WCB Policy 44.10.30.60, Practices Delaying Worker's Recovery, provides, in part:

“If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation… or refuses to cooperate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.”

In reaching our decision we have placed weight on the evidence contained in the file from the case manager, vocational rehabilitation consultant, and employment specialist at the time of the decision to suspend benefits, specifically:

• November 17, 2006 memo to file prepared by the employment specialist which describes the November 16, 2006 meeting between the worker, WCB staff and a representative of a potential work experience employer. The memo notes that the worker persisted in discussing claim matters to the point that the employer representative was not comfortable. The meeting was then terminated and the employer representative left. The employment specialist noted that the worker never reviewed the Job Description and did not ask questions about the placement.

• November 20, 2006 memo to file prepared by the vocational rehabilitation consultant (VRC) regarding the same November 16, 2006 meeting. The VRC indicates that at the commencement of the meeting, the worker indicated that he had a number of concerns about documentation on his file. The VRC advised the worker that this was not the venue to discuss these matters but the worker persisted in raising issues not related to the purpose of the meeting. The employer representative indicated that she was not comfortable continuing the meeting. The VRC stated that "It was my opinion that [the worker] was deliberately trying to sabotage the meeting and/or ultimately undermine the work experience."

• November 17, 2006 memo to file by the WCB case manager. The memo notes that he met with the worker and the VRC on the afternoon of November 16, 2006 and discussed the worker's participation. He indicated that the worker's conduct was not an isolated incident when it comes to participation in meetings, assessments or placements with external agencies. The case manager notes that he advised the worker that he is unable to support a continued IWRP and would place the worker in a temporary deem consistent with the earning capacity that he would have earned had he participated in the IWRP.

We find that the worker's conduct at the meeting amounts to a failure to cooperate and falls within WCB Policy 44.10.30.60. We note that the worker explained his conduct was due, in part, to the effect of certain pain medications. In a November 22, 2006 letter he wrote that the Tylenol 3 he had taken that day for pain control had adverse effects on his ability to stay focused and alert with concentration and temperament. The panel notes that this medication is not known for causing the effect attributed by the worker, and in any event, the worker did not demonstrate any re-engagement in the vocational rehabilitation process in the time frame immediately following that meeting.

In reaching our decision we also note that prior to the November 16, 2006 meeting the worker had raised other barriers which were preventing the successful development and implementation of the vocational rehabilitation plan. The evidence on file supports our finding that the worker's conduct derailed the meeting, which compromised the work experience placement and the plan.

The worker argued that the WCB did not properly apply WCB policy in deeming his income. The panel notes that WCB Policy 40.80.30.20, Post Accident Earnings - Deemed Earning Capacity deals with the use of deemed earning capacity under the above noted WCB Policy 44.10.30.60.

The policy provides, in part, that:

8. RELATIONSHIP WITH WCB POLICY ON PRACTICES DELAYING THE WORKER'S RECOVERY:

a. Deemed earning capacity will be used under the WCB's broader policy on mitigation (Policy 44.10.30.60, Practices Delaying Worker's Recovery) where:

ii. The worker refuses to cooperate in or complete a program of vocational rehabilitation. In this case, the deemed earning capacity will be the earning capacity expected upon completion of the vocational rehabilitation plan.

The panel notes that the WCB deemed the worker's earning capacity at the level that was expected upon completion of the plan in the occupation group NOC 4213. The panel finds that this was the appropriate rate to deem the worker's earning capacity. The panel finds that the plan was reasonable given the worker's experience, education and physical condition. While the worker refers to the inappropriateness of the plan and specifically NOC 4213, we note that he did not appeal the plan.