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(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.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

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 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 under subsection 27(20). 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.”

WCB Board Policy 44.80.30.20 Deemed Earning Capacity (the “Deemed Earnings Policy”) sets out the process used to establish the amount that the worker is considered capable of earning where this amount is determined to be different from the amount that the worker is actually earning.

Employer’s Position

The employer was represented by an advocate and a claims officer. The employer's position was that the worker was not totally disabled as a result of his compensable injuries. It was submitted that the sedentary position for which the worker was retrained by the WCB was appropriate, and within his physical capabilities, skills and interests. It was not denied that the worker had significant limitations due to his compensable injuries superimposed on major degenerative back and left knee conditions. The pain and discomfort from these conditions was acknowledged and the employer was not asking that his benefits be terminated. The employer asked only that the worker's benefits be reduced based upon the deemed earning capacity commensurate with the training provided by the WCB. The extensive medical information on file from not only the WCB medical consultants but also from the worker's own medical practitioners all indicated that morbid obesity, deconditioning and other health factors were the determining factors in the worker's current level of functioning.

Worker’s Position

At the hearing, the worker was assisted by a worker advisor. The worker agreed with the WCB's decision that he was unemployable by reason of his compensable injuries. It was noted that although the worker was surgically treated for his compensable low back injury in November 2001, he was able to return to his duties as a chef in 2003 with no restrictions. When he sustained a twisting injury to his left knee in March 2006, arthroscopic surgery was performed to address a possible meniscus tear. The arthroscopy revealed that the meniscus was intact but there were moderate to severe degenerative changes in the knee. The WCB medical advisor determined that the surgical treatment represented an enhancement of his pre-existing degeneration. Permanent restrictions were recommended.

With respect to the worker's weight, diabetes and deconditioning being a barrier to employment, it was noted that Review Office stated that the worker was of substantial weight and had a sedentary life style prior to the compensable injuries, yet he successfully returned to his duties as a chef without restrictions in 2003 following back surgery. It was therefore submitted that these factors were not a barrier to employment. The worker's position was that he was now not able to perform any activities due to constant pain from his lower groin down to his knee. He basically remained in his home every day and used a wheelchair to ambulate around the house. Any activity caused him to have increased pain. The worker stated that he would love to return to his job as a chef and that his goal was to lose weight so he could get back to his pre-accident position and work for another 15 years. Unfortunately, however, it was noted by the worker advisor that the evidence suggested that the deterioration in his knee and back would progress, and that it may be unrealistic to assume that the worker would be employable at the present time, or at any time in the future.

Overall, it was submitted that the primary cause for the worker's disability was the progressive deterioration of both his compensable injuries and that the WCB's decision should be affirmed.

Analysis

There are three issues being appealed before the panel. All three issues revolve around the extent to which the worker's compensable low back and left knee injuries disable him from working. In order to determine the appeal, the panel must consider whether or not the worker is capable of working in NOC 1453 on a full time basis. On a balance of probabilities, we find that the worker's compensable injuries do not prevent him from achieving and sustaining this level of earning capacity.

There is no doubt that the worker possesses the cognitive and interpersonal skills to be employed in NOC 1453. He has many years of experience in the service sector and has a demonstrated ability to work with the public. With respect to the physical job requirements of NOC 1453, the panel finds that the mainly sedentary physical demands of NOC 1453 are within the worker's compensable restrictions of no continuous walking over 15 minutes, limited use of stairs, no ladders, sitting as tolerated up to 15 minutes with ability to change position and possibly stand and move around. The panel does not accept that, as at February 27, 2010, the worker was totally disabled from working in any kind of employment. We believe that he would be capable of employment in a sedentary position.

The worker raised a number of concerns regarding his ability to work in NOC 1453. He claimed that as a result of a pre-existing left hand injury, he was unable to type more than 7 to 11 words per minute. With respect to his business college courses, he said he did not know how he finished with a mark of 78 percent and felt that they "kind of pushed me through." Although the vocational rehabilitation plan had him on a graduated increase to full-time attendance, he never progressed to more than 3 hours per day, three times per week. When applying for jobs, he sent out over 150 resumes, but did not secure a position anywhere. He applied at seven or eight different call centres and the rest of the jobs were all office jobs and customer service jobs.

At the hearing, the worker's evidence was that he wanted to work, but no one would hire him because he could not work more than four hours per day. When applying for jobs, the worker asked for a position that was limited to 16 hours per week but was told that he needed to work for at least 20 hours a week plus some weekend days. The worker was asked by the panel where the restriction of four hours per day came from. He said he did not know, but that his physical abilities were such that he could not sit for more than four hours.

The panel had some concerns regarding the reliability of some of the statements made by the worker at the hearing. He denied that he was diabetic and denied problems with coronary artery disease, despite references in his physicians' reports to the contrary. He claimed that when he fell in 2006, he injured not only his left knee, but also twisted his back. The WCB file, however, does not reference a recurrence of low back pain until 2009. The claim of inability to type more than 7 words per minute seemed suspect, even when using the "hunt and peck" method. The worker denied that he was ever weighed through the course of both claims and that his stated weight at various points in time were nothing but a "guesstimate" and not reliable. There is reference, however, to the use of two scales to weigh the worker during a WCB call-in examination.

The inconsistent accounts lead the panel to approach the worker's evidence with a critical eye. We do not accept his assertions that he is completely unemployable by reason of his compensable injuries. We find that his inability to secure employment in NOC 1453 was significantly influenced by his self-imposed limitation to a 4 hour work day. This was never accepted as a compensable restriction. The panel also finds that the worker's deconditioned physical state has had a large impact on his current status and has also caused him to suffer a loss of earning capacity. His compensable low back and left knee injuries prevent him from performing his pre-accident occupation, but do not prevent him from performing sedentary duties in NOC 1453 on a full time basis. To the extent that he is not able to perform sedentary duties full time, the panel finds that this is due to non-compensable factors.

The panel therefore finds that:

• The occupational goal of NOC 1453 is appropriate;
• A deemed earning capacity based on NOC 1453 should be implemented effective February 27, 2010; and
• The worker is not entitled to full wage loss benefits effective February 27, 2010.

Although we have found that as of February 27, 2010, the worker's compensable low back and left knee injuries did not prevent him from performing sedentary work in NOC 1453, we acknowledge that as a result of workplace accidents, the worker is left with enhanced degenerative conditions in his low back and left knee and that the natural progression of such conditions is to worsen. It therefore remains open to the worker at a later date to provide the WCB with medical evidence of his degenerative conditions and ask the WCB to consider whether these conditions have progressed to the point where his ability to be employed in NOC 1453 on a full time basis has been effected, in which case he may be entitled to further wage loss benefits.