The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

This appeal deals with the provision of benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

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.

The WCB Board of Directors established WCB Policy 43.00 which deals with the provision of vocational rehabilitation services and benefits under this subsection 27(20).

WCB Policy 43.00 Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker. The Voc Rehab Policy states 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 Voc Rehab Policy also provides that: “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.”

Worker's Position

The worker was self-represented at the hearing, and had an advisor with her to assist her if needed. Her position was that she fully complied with everything that the WCB had asked her to do, in terms of finding employment through retraining and job search, but has been unable to find a job. Therefore, the WCB should not have reduced her wage loss benefits to zero. She made telephone calls, sent resumes, and made follow-up calls, but has received no call backs. More recently, about a month prior to the hearing, she sought an employment position in the healthcare field where she can work out of her home, organizing home care visits by telephone. This was the last position she had formally applied for. Since her benefits were terminated in April 2011, she would visit an Employment Insurance office once or twice a week to check out job postings, and has sent out about a dozen resumes.

In response to questions from the panel, the worker described her current medications, which include a number of narcotic medications. She indicated that the levels of medication (their side-effects) would not preclude her from working.

As to her WCB vocational rehabilitation ("VR") plan, the worker acknowledged that she was a good student in the training program which was aimed at improving her computer skills and developing her skills to work in a receptionist-type position. By the end of the program, she had increased her participation levels up to full time, 5 days a week. She was also very self-directed in seeking out jobs, both on her own, and from the leads (over 100) that were provided to her by her WCB employment specialists. She looked at jobs both within NOC 6623 and at other job occupations as well, outside of elemental sales, that she felt would be within her restrictions. She considered herself to be employable generally and in NOC 6623, Other Elemental Sales.

The worker also responded to questions from the panel regarding her medical condition. She indicated that her condition had deteriorated since her termination of benefits and that it would be more difficult for her to work now. She initially advised that her inability to work was caused because she now had to change positions more frequently, but later indicated, "To be honest, probably nothing really has changed, except probably my mental state, the way I feel every day, you know." In that regard, she referenced issues with depression and a phobia, which she described as a fear of going outdoors because of her fear of falling again. She has not sought or received treatment from any health care practitioner for her fear of falling. The worker acknowledged that the restrictions in place for her include the requirement of a sedentary position, no lifting greater than 10 pounds, and the ability to change positions frequently. These restrictions were set by her doctor, and were the basis of the VR plan developed for her. She indicated that no additional restrictions have been recommended by her doctor since that time.

The worker discussed other medical conditions that affect her, including the cervical spine, arms, and wrist problems including carpal tunnel syndrome. All of these conditions contribute to her overall pain levels. She feels that her fall would have been responsible for some of these conditions, but acknowledged that these medical conditions had been considered and denied by the WCB Review Office in 2010 as not being related to this work injury. The panel advised the worker that it could only consider the medical conditions (and associated medical restrictions) that were related to her 2008 work injury. In response to questions from the panel, the worker acknowledged that these medical conditions had been present while she participated in her computer upgrading program, and had not constrained her participation or success in the program.

Employer's Position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel concerns the appropriateness of the worker's VR plan, and the decision to reduce her wage loss benefits after the completion of the plan. The WCB provided the worker with vocational rehabilitation assistance aimed at re-employing the worker in NOC 6623, Other Elemental Sales. In order for the worker’s appeal on this issue to be successful, the panel must find that the VR plan provided to the worker did not reasonably take into consideration her post-injury physical capacity, skills, aptitudes and, where possible, interests, and also find that the consequent reduction in her wage loss benefits after taking into account her deemed earning capacity at the conclusion of the plan was inappropriate. On reviewing the facts of this case, we are not able to make these findings.

In reaching our decision, the panel relies on the following considerations:

· The worker's January 7, 2008 compensable injury eventually resulted in an ongoing compensable diagnosis of a chronic L5-S1radiculopathy. Other medical diagnoses of migraine headaches, ulnar neuropathy and carpal tunnel syndrome have been reviewed by the WCB and found not to be causally related to the worker's 2008 injury. The worker has not appealed these other decisions, and accordingly, the panel will deal only with the consequences of the worker's chronic L5-S1 radiculopathy in considering her employability and the efforts undertaken by her and the WCB in that regard.

· At the time that the VR plan was being developed in mid-2010, the worker had been provided with compensable medical restrictions of sedentary duties, no lifting greater than 10 pounds, and the ability to change positions frequently. These restrictions were initially proposed by her attending physician and were established as permanent restrictions by a WCB medical advisor on May 6, 2010. The VR plan was developed with these permanent restrictions in mind.

· As part of the VR plan, the worker was enrolled in a customer service program at a vocational retraining school from August 23, 2010 to November 12, 2010, and then received 24 weeks of job search assistance ending April 15, 2011, following which the worker would be considered capable of earning $380 per week. The worker accepted and participated in the VR plan. A significant portion of the training involved computer skills upgrading, and was targeted at positions that would accommodate her compensable medical restrictions. She successfully completed the training program, and proved to be an excellent student. During this program, she increased her hours and days of work, until she was able to work full time, five days a week. While the worker did have other non-compensable medical conditions at that time (including her cervical spine, migraine headaches, ulnar neuropathy, and carpal tunnel syndrome and other systemic health issues), they did not interfere with the worker's ability to complete the training program, and in the panel's view, would not have offered additional restrictions or barriers that would have had to be accommodated in any way at that time.

· The VR plan was based on NOC 6623, Other Elemental Sales. The evidence on file, and in particular the Earning Capacity Assessment completed on September 4, 2010, suggests that employment prospects for this occupational code were good. Unemployment levels in this category were under 4%, well below the threshold level of 8% used to establish a viable job market. The review also noted a significant number of job postings (68) in the time period assessed. The worker herself was comfortable with the idea of working in the types of jobs contemplated within this occupational code, and in fact was aggressive in seeking a variety of positions both within this NOC as well as other parallel positions that she found to be potentially appropriate. The panel finds that the evidence does not support that the NOC chosen was inappropriate for the worker. She was well-trained and very motivated to find work, and was physically able to work within this NOC.

· Following her training, the worker received 24 weeks of job search support from the WCB, and used the resources of the WCB employment specialist who identified job leads for her, on top of the job prospects that she developed for herself. The panel notes that the worker was very self-directed and focused on identifying real jobs in organizations familiar to her, that she thought that she could do. Ultimately, the worker was not successful in gaining employment. In our review of the WCB Policy, though, the test of the adequacy of a VR plan is one of "employability" and not "actual employment." While we acknowledge the worker's frustration in not actually landing a job, it is our view that the Vocational Rehabilitation Policy is geared toward ensuring that at the end of the VR plan, workers are competitive in an appropriate occupational field where there is a reasonable demand. The Vocational Rehabilitation Policy does not guarantee a job at the end of the process. The panel finds that the worker received an appropriate level of VR support that was consistent with the objectives of the Vocational Rehabilitation Policy.

· Dealing with the worker's ability to work, the panel finds that the medical evidence does not demonstrate that her compensable restrictions were inappropriate, either at the time that the VR plan was developed or now. This was evidenced by the worker's successful return to "full time status" by the end of her computer training program. The medications she was taking for the pain allowed her to complete her training, and the worker's evidence was that her medication usage would not have precluded her from working.

· At the hearing, the worker indicated that her ongoing and current inability to work has been confounded by other medical matters, and not by changes to her compensable injuries. While she continues to be on medications related to her compensable injuries, she is also managing a significant number of other non-compensable medical conditions that are affecting her on an ongoing basis. These multiple health issues have led the worker to apply recently for CPP disability benefits, with medical support being provided by her doctor. However, as to the original injury, the panel notes that her compensable restrictions have remained the same since they were first established by her doctor, and then confirmed to be permanent by the WCB medical advisor on May 6, 2010. In the panel's view, these other factors unfortunately cannot be added into our consideration of the appropriateness of the VR plan that was developed for her in 2010 and her employability upon its completion.

· As to the worker's submission that she had a phobia that should have been factored in to the VR plan, the panel notes her evidence was that it related to her fear of going outside her home and falling again, for example, on ice. At the hearing, the worker advised that it was "a chore" to get out. The worker first identified this concern in a formal way in her Notice of Appeal that was filed with the Appeal Commission. The panel has therefore reviewed the medical evidence on file to assess the nature and extent of this medical issue and its implications on the worker's VR plan or her employability.

· In this regard, the panel notes that the worker had considerable number of sessions with a clinical psychologist, from October 15, 2010 to May 2011 as part of the claim. The medical file contains three detailed reports that describe those meetings and the various psychological stressors in the worker's life during that period of time, which covers much of the period of the VR plan. The psychologist's letter of November 27, 2010, noted that"[the worker's] therapeutic agenda includes the following themes/topics/issues: (a) coping skill enhancement related to her attempts to adjust to symptoms of depressed mood and vocationally related stress, (b) age-related life-stage challenges associated with the uncertainties/losses/limitations/transitions related to her work-related injury and her withdrawal from a type of employment (support worker) which she has enjoyed, (c) uncertainty regarding future employment, (d) frustration tolerance and e) ambiguity, ambivalence, uncertainty and dissonance themes related to work-life balance/boundaries, and employment and health concerns." It is particularly noteworthy that the psychologist's observations, in the three reports on file, make no reference at all to issues concerning a phobia or fear of the outdoors or of falling. As these reports are contemporaneous with the time period in which the VR plan was being undertaken, the panel places considerable weight on their contents. The panel finds that the medical evidence does not support the presence of a phobia issue which the VR plan had failed to deal with.