The Appeal CommissionThe Workers Compensation Act of Manitoba

Issue #1: Whether or not the worker's retroactive wage loss benefits have been correctly calculated.

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.

The first issue in the worker's appeal deals with the WCB's calculation of retroactive wage loss benefits.

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. Subsection 39(5) provides that wage loss benefits must not exceed 90% of the worker's loss of earning capacity. Subsection 45(1) provides that the WCB will calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such periods of time, as the board considers fair and just.

The WCB Board of Directors has also enacted a number of policies relevant to this issue. WCB Policy, 44.80.10.10.01, Average Earnings provides guidance to the WCB in calculating a worker's earnings for the purpose of wage loss benefits. WCB Policy 43.00, Vocational Rehabilitation deals with vocational rehabilitation services. WCB Policy 44.80.32.20, Post Accident Earnings: Deemed Earning Capacity, states, in part:

Usually, a worker’s post-accident earning capacity is the amount that he or she is actually earning. However, there are some circumstances in which the WCB will determine that a worker is capable of earning more than he or she is actually earning. In those circumstances, the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned.

Worker's Position

The worker was self-represented at the hearing. The panel questioned the worker extensively to ensure it had a clear understanding of the worker's position. He acknowledged that he had received retroactive full wage loss benefits after an earlier Appeal Commission decision in 2007. His specific concerns are related to a two year period, from November 2009 to November 2011.

The worker has advanced a number of positions on this issue at various points in the file history. On the worker's appeal to Review Office, he asserted that: "The retro pay I received was at an entry level rate." During the hearing, the worker clarified that "entry level rate" referred to the WCB having deemed him capable of earning minimum wage (an entry level rate), with which he disagreed.

The worker acknowledged that his retroactive wage loss benefits were properly calculated for much of the period of the claim, but asked the panel to focus on the calculations from November 2009 to November 2011. He described extensively his changing physical and mental condition over the course of the claim, and particularly on this period of time when he resided in Ontario. The worker's evidence was that he moved to Ontario for his emotional health and for medical reasons and that he was not capable of working when he left Winnipeg. He said his condition improved dramatically while he lived in Ontario. The worker's position was that he was unable to work at minimum wage in that two year period, and thus his wage loss benefits were improperly reduced by the WCB. As he was unable to work, his wage loss benefits should be paid to him in full, without any reduction for the Ontario minimum wage.

The worker did not oppose the use of the Ontario minimum wage rate (rather than the Manitoba minimum wage rate) but submitted that it was not appropriate to deem him capable of working in that period of time. He asked the panel to restore full wage loss benefits to him while he was in Ontario, less any actual income earned by him during that period of time.

Employer's Position:

The employer did not participate in the appeal.

Analysis:

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's wage loss benefits were incorrectly calculated. Based on the arguments submitted, the panel would have to find the worker should not have been deemed as being able to earn the Ontario minimum wage while he lived in Ontario. For the worker to succeed in his appeal on this issue, the panel would have to make one or more of the following findings:

· the specific calculations of the worker's average earnings were incorrect, and/or

· the worker was not capable of earning at least the Ontario provincial minimum wage during the time frame in question, because of his compensable injury.

The panel was unable to make any of these findings, for the reasons that follow.

Dealing firstly with the calculations of the worker's average earnings, the panel notes that the worker did not point to specific deficiencies in the calculations at the hearing. The panel therefore reviewed the calculations referenced on the file in a memo prepared by a senior payment assessor dated December 5, 2011, as well as the supporting financial documentation on file and finds that the retroactive wage loss benefits were properly calculated and in accordance with WCB Policy.

Dealing with the worker's position that he was unable to work when he left Winnipeg and while he was in Ontario for two years, the panel must consider the evidence regarding the worker’s post-accident condition and abilities, and determine whether the worker was capable of earning at least the Ontario provincial minimum wage during the time frame in question, or whether his compensable injury prevented him from achieving this level of earning capacity. The panel finds that the worker was capable of working 40 hours per week at the Ontario provincial minimum wage, and placed particular weight on the following evidence in support of its findings:

• The panel notes that the worker was provided by the WCB earlier in his claim with the compensable physical restrictions of "avoid functional use of the left hand." This formed the basis of a January 19, 2006 earning capacity analysis for NOC 663, Other Elemental Sales. The panel notes the reservations expressed by an earlier Appeal Commission panel in Decision 138/07 about additional potential pain and deconditioning issues that led it to restore benefits at that time. The panel finds that the worker's subsequent decision to return to full-time work on September 9, 2007 on a sustained basis demonstrated that those additional medical issues were no longer in play, and that the worker's ongoing restrictions at that point were those that preceded that 2007 Appeal Commission decision, that being to avoid functional use of the left hand.

• At the time of the worker's departure from Manitoba in November 2009, he had been working for a significant period of time in Winnipeg in a shipping/receiving position. Although it was later determined (during subsequent considerations in 2011 by the WCB of vocational rehabilitation options) that the worker had been working beyond his physical restrictions, his steady work history immediately prior to his departure to Ontario demonstrates to the panel that the worker was physically capable of full-time work.

• As of November 2009, and indeed throughout the following two year period while he resided in Ontario, there is no medical information on file suggesting that the worker was physically incapable of working. Accordingly, the panel finds that the medical evidence does not support that the worker was totally disabled from work.

• A WCB case manager memo, dated November 2, 2010, describes a September 14, 2010 telephone conversation with the worker while he was in Ontario, which the panel notes was midway through his stay in Ontario. The worker states that he had no complaints and no concerns regarding his physical status, and that he was "super physically fit." He indicated he was physically active and lifting light weights. He had changed pain medications which better controlled his symptoms. He was able to lift up to 75 lb with both hands. He also indicated that he had been working in a vineyard and that there was a lot of bending, standing, moving and tying with wire. He had done this for two months at the end of the season, and anticipated going back to that job in the spring. He was working 40 hours a week. He was doing a two hour workout per day. At the hearing, this memo was reviewed with the worker who agreed that it accurately represented his physical status at that time (but not his mental status). In the panel's view, this evidence again does not support the worker's position that he was physically unable to work while he was in Ontario.

• At the hearing, the worker referred to mid and low back problems and to general pain issues that limited him from work while he was in Ontario. The panel notes that the worker did not receive any medical treatment for his back while he was in Ontario, and further notes that the WCB has not accepted any mechanical back issues as being compensable or a part of the worker's claim. Furthermore, the medical evidence does not disclose any specific medical restrictions being placed on the worker (compensable or otherwise) for his back. As to pain issues, the panel finds that the worker's evidence at the hearing regarding his work limitations due to pain from his compensable injuries is not consistent with the worker's actual work history and the level of functioning and fitness he had described to his WCB case manager in September 2010. As such, the panel finds that the worker's back issues and pain issues likewise did not preclude the worker from working full-time in a minimum wage position while he was in Ontario.

• Following the worker's return to Winnipeg in 2011, he underwent two FCE's in August and October 2011 to determine his physical status and compensable medical restrictions at that time which led to a WCB orthopaedic consultant outlining the following permanent restrictions on November 16, 2011: "No pinching, grasping activities left hand. No weight bearing activities through left hand e.g., crawling. Left hand use for guiding and supporting activities only. Permanent." The worker also had some lifting restrictions with his right upper extremity. A WCB physiotherapy consultant on November 23, 2011 declined to add restrictions for standing and sitting, noting that "The previously noted latissimus dorsi graft and sural nerve graft would not limit sitting or standing activities. There are no other patho-anatomic conditions that would limit sitting or standing activities."

• At the hearing, the worker agreed that the FCE was a valid reflection of his physical status upon his return to Winnipeg. The panel notes that the FCE findings shortly after the worker's return to Manitoba were substantially similar to those established for the worker prior to his departure to Ontario two years earlier. The panel notes that there is no contrary medical evidence to support changes in these restrictions. In the panel's view, these findings taken together with the worker's status as described to his WCB case manager in September 2010 do not support that the worker was totally disabled, physically, from working while he was in Ontario, or unable to work less than full-time.

• Similarly, the panel finds that there is no medical support on the file that the worker could not work because of his emotional or psychological state. In this regard, the panel notes that there was no compensable psychiatric diagnosis on file from 2009 and forward to have rendered the worker totally disabled from work. The worker acknowledged at the hearing that he did not seek any medical or counselling attention in Ontario beyond having his prescriptions filled, nor was he aware of a specific psychiatric diagnosis that applied to him.

• Rather, the file evidence and the worker's evidence at the hearing points to very significant relationship and family issues as having being the major precipitators of the worker's departure to Ontario. As well, other personal matters affected the worker's ability and availability to work in any capacity for certain periods of time in Ontario. While the worker suggests that his relationship issues and thus his decision to relocate were a consequence of his compensable accident, the panel cannot establish this causal relationship. As noted earlier, the worker had been gainfully employed in Manitoba prior to his departure. In the panel's view, it was the worker's significant personal issues that forced him to relocate, and not the compensable accident and its aftereffects. In particular, as noted earlier, a psychiatric diagnosis of any sort, compensable or otherwise, had not been established for the worker at that period of time, nor is there medical evidence stating that his emotional state in November 2009 was a sequela of his compensable work injury in 2002. The panel finds that the worker's decision to leave Winnipeg was a personal choice by the worker. While it clearly affected his ability to earn an income, his decision to leave was related to non-compensable matters in the worker's life which would not be the responsibility of the WCB.

Based on these findings, the panel concludes on a balance of probabilities that the worker's retroactive wage loss benefits have been correctly calculated. The worker's appeal on this issue is dismissed.

Issue #2: Whether or not it is appropriate to implement a deemed post-accident earning capacity of $400.00 per week effective March 11, 2012; and

Applicable Legislation

The second issue in the worker's appeal deals with the appropriateness of implementing a deemed post-accident earning capacity of $400.00 per week.

WCB Policy 43.00, Vocational Rehabilitation deals with vocational rehabilitation services. WCB Policy 44.80.30.20, Post-Accident Earnings: Deemed Earning Capacity, states, in part:

Usually, a worker’s post-accident earning capacity is the amount that he or she is actually earning. However, there are some circumstances in which the WCB will determine that a worker is capable of earning more than he or she is actually earning. In those circumstances, the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned.

Worker's Position

The worker's position at the hearing was that he was not able to work as of March 11, 2012, and that the vocational rehabilitation services offered to him, being a thirteen week job search, was inappropriate. He should be on full wage loss benefits either way. His evidence was that he was waiting for a neuro-stimulator for his neck to control the pain and that it was unreasonable for him to seek employment or start a job while that was in the works.

In response to questions from the panel, the worker acknowledged that he did not have an appointment at the pain clinic until June 14, 2012, well after the job search period had been completed. He advised that he was on the same level of pain medications for the previous 2.5-3 years. The worker also advised that he had in fact been sending out resumes for jobs ranging from telemarketing to sales to dishwashing, and had a couple interviews. At the same time, he advised the panel that he was considered to be permanently disabled by his attending physician in his report dated May 15, 2012.

Analysis

The panel notes that the worker had been deemed by the WCB as being able to work full-time at minimum wage prior to and while he was in Ontario and prior to his return to Winnipeg in November 2011. By our decision on the first issue, the panel has already confirmed that the worker was physically and mentally able to work full-time at minimum wage from November 2009 to November 2011.

On his return to Winnipeg, the worker was then placed back on full wage loss benefits while being provided with vocational rehabilitation assistance, in the form of job search assistance directed toward NOC 6623, Other Elemental Sales. He was provided with 13 weeks of wage loss benefits which ended March 10, 2012, following which the worker was again deemed as being able to work full-time at the provincial minimum wage. This resulted in a reduction of wage loss benefits received by the worker as of that date. He is appealing that reduction.

For the worker to succeed on his appeal on this issue, the panel would have to find that the worker’s post-accident medical condition and abilities were such that he was not capable of earning at least the Manitoba provincial minimum wage effective March 11, 2012. Alternatively, the panel would have to find that the worker's vocational rehabilitation plan was inappropriate or terminated too early. The panel was unable to make these findings for the reasons that follow.

As to the worker's medical condition, the panel has already undertaken an extensive analysis of the worker's physical and psychological conditions for the years 2009 to late 2011 as part of our consideration of Issue #1 in this appeal. The panel concluded that the worker was able to work full-time in a minimum wage job up to November 2011. At the hearing, the worker acknowledged that his medical conditions at the time of the hearing were unchanged from his status when he returned to Winnipeg in November 2011. However, his position at the hearing was that a recent recommendation by a pain clinic physician that he have an operation to allow for the installation of a neuro-stimulator means that he is and was medically unable to work as of March 2012.

The panel has considerable difficulty in accepting this assertion, for the following reasons:

• The panel notes that the issue of the neuro-stimulator only came into play when the worker attended a pain clinic in June 2012. This is well after the job search period. There was no discussion of this matter between the worker and the WCB prior to this date.

• Furthermore, the worker's evidence is that the purpose of the neuro-stimulator is to replace the medications that he had been taking. The worker confirmed at the hearing that the specialist has not considered him to be unable to work.
  
• The worker relies on an Initial Opioid Management Form completed by a physician dated May 15, 2012 who checked off that the worker was not capable of performing alternate or modified duties, and was "permanently disabled." The panel notes, however, that there are no supporting medical findings. In response to questions from the panel, the worker acknowledged that this was a new doctor and he did not discuss any specific jobs or occupations with the doctor. The panel places greater weight on the preponderance of medical evidence that supports the worker being able to work (such as the Functional Capacity Evaluations) as well as the worker's stable medical, medication, and functional status over the past few years.
  
• The worker acknowledged that he had had many conversations with his WCB case manager prior to and during the 13 week job search period, and did not reference pain complaints, medication issues, or the need for additional medical aid as barriers to his participation in the job search. Rather, his reluctance to participate in the program was based on non-medical concerns, including the length of job search, the impropriety of the field that had been identified for him to pursue, his age and his visual disability.

Based on these findings, the panel concludes that the worker was not medically precluded from working full-time in a minimum wage job, effective March 11, 2012.

As to the length of the worker's job search period or the appropriateness of the vocational rehabilitation services offered to the worker upon his return to Winnipeg, the panel notes that the worker was provided with 13 weeks of full wage loss benefits during which time the worker was expected to seek a job consistent with his compensable restrictions. The worker did not find a job in that period. The worker advised that he did send out many resumes in a number of fields ranging from telemarketing to sales to dishwashing, and had a couple interviews.

In the panel's view, the totality of the evidence discloses that the worker was not motivated to find a job, although he says he was. Rather than activate a job search, the worker immediately challenged the plan, arguing that 13 weeks was insufficient; that he was too old; that no one would hire him with his obvious disability; that he would be appealing immediately; that he was affronted by WCB's efforts to move him on; that WCB was shirking its responsibilities to him. At the hearing, the worker was asked about what length of job search assistance he would have

wanted. The worker could not provide an answer to the panel. The panel also notes that even when offered a job in February 2012, the worker did not show up, for reasons that were not satisfactory in the panel's view (which is discussed more fully below, in Issue #3).

The panel finds the worker was set up for a job search in NOC 6623, Other Elemental Sales which was consistent with his compensable restrictions. The earning capacity analysis on file indicates that this occupational field had a good labour market. The worker had an updated resume, was given leads, had the resources of an employment specialist available to him, and had the personal skill set to seek and obtain employment. The panel further notes that the WCB system works to make a worker "employable" but does not guarantee employment. In this case, the panel finds that the 13 week job search assistance period was appropriate, and that the worker was appropriately deemed as being able to work at the provincial minimum wage following the completion of that period, being the starting wage of NOC 6623, Other Elemental Sales.

Issue #3: Whether or not the worker is entitled to further vocational rehabilitation services including retraining.

Applicable Legislation

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. Where a worker is entitled to benefits, these benefits may include vocational rehabilitation assistance and services. Subsection 27(20) of the Act provides for vocational rehabilitation assistance.

WCB Policy 43.00, Vocational Rehabilitation, states, in part, that:

5. The WCB will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker's physical, intellectual, vocational, and emotional capacities. In helping a worker establish a goal, the WCB will apply knowledge of the worker's vocational profile, medical aspects of the worker's condition, the worker's interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles.

9. The WCB will demonstrate that the IWRP (Individualized Written Rehabilitation Plan) is cost-effective. The test of cost-effectiveness takes into consideration the costs which are expected without the plan versus with the plan. As well, it is necessary to compare costs against available options.

10. For an IWRP to be implemented there must be a commitment by all parties participating in the plan.

VII. Discontinuation of Vocational Rehabilitation Services

1. The conclusion of vocational rehabilitation services is a natural part of the vocational rehabilitation process. Vocational rehabilitation services will be reduced or discontinued under the following circumstances:

a) The worker completes a vocational rehabilitation plan and has achieved her or his maximum earning capacity;

b) The worker does not have a loss of earning capacity and does not require, because of the compensable condition, assistance with activities of daily living, counselling services, or an allowance.

c) The worker chooses not to, or reports the inability to reasonably participate in a suitable program of vocational rehabilitation.

d) The worker chooses not to, or reports the inability to accept suitable employment for reasons not related to the compensable injury or condition.

g) The worker has completed a plan which has resulted in a certain level of earning capacity and (or) it is not cost-effective to provide additional or any services.

Worker's Position

The worker's position at the hearing was that he has been unreasonably denied an opportunity to get appropriate vocational rehabilitation services since his return to Winnipeg in late 2011. He variously proposed being allowed to complete his high school education (Grade 12 Chemistry) followed by a health and safety course at a technical college, retraining/certification as a fork lift operator, or other any field other than elemental sales. The worker indicated that he had been working with a variety of employment centres in Winnipeg and had seen a variety of free programs advertised including high school upgrading, but acknowledged that he had not followed up on any of them, even though he had not been working. He pointed to his potential surgery for the neuro-stimulator as the reason for not taking any courses, as it would interrupt his education. The worker advised that a forklift operator would earn $12-13 per hour, which was above his pre-accident wages and would take him out of WCB wage loss payments. It was a short course and would be to WCB's advantage to pay for this program.

The panel questioned the worker extensively about the level of his participation in his job search program, and in particular the telemarketing position that was offered to him in February 2012.

Analysis

For the worker to succeed on this issue, the panel would have to find that the worker is entitled to additional vocational rehabilitation services including retraining.

The panel notes that vocational rehabilitation services are discretionary under the Act. While the WCB does have the obligation under the Act to pay wage loss benefits where there is an ongoing loss of earning capacity that is attributable to a compensable injury, the provision of vocational rehabilitation services is described in discretionary language -- "may" -- in subsection 27(20) of the Act. Thus, a worker is not automatically entitled to vocational rehabilitation services if he is suffering an ongoing loss of earning capacity.

The language of the WCB policy indicates that the WCB can choose whether or not to invest in a worker for retraining and thus recoup some of those wage loss benefits that would otherwise be paid to the worker. The WCB can also stop the program and reinstate a deemed post-accident earning capacity if it simply isn't working out.

The panel has reviewed the worker's file and notes that there have been extensive involvements between the worker and the WCB in terms of vocational rehabilitation services over the years. Of note and of concern to the panel is a recurring theme in the file of the worker placing barriers that would preclude a successful re-engagement in the workforce. The panel has considerable reservations about providing the worker with additional vocational rehabilitation services, and finds that the worker is not entitled to additional vocational rehabilitation services. The panel places particular weight on the following:

• The worker did not participate actively in his last vocational rehabilitation program, being the 13 weeks of job search assistance in NOC 6623, Other Elemental Sales. The file record indicates that he kept introducing barriers to his participation. This was discussed in detail in Issue #2 above, and included the worker immediately challenging the plan, arguing that 13 weeks was insufficient; that he was too old; that no one would hire him with his obvious disability; that he would be appealing immediately; that he was affronted by WCB's efforts to move him on; that WCB was shirking its responsibilities to him.

• The file record indicates that the worker was in fact interviewed and offered a job by a telemarketing firm starting with three days of training. The worker did not show up and did not call the employer in the days and weeks following. The panel has considerable concerns regarding the worker's version of what happened and what is recorded on the file. The worker suggested at the hearing that there really wasn't a job, that there was no real phone follow-ups with him, and that he would not have been able to perform the job because of his inability to sit. The file record presents a very different story, through numerous memos and emails, suggesting that the worker willfully undermined this job opportunity. The potential employer was very pleased with the interview and had clearly made an offer; the WCB case manager attempted to contact the worker for several weeks through phone messages and emails to which the worker did not respond; the worker would have been able to move around while on the job, between sitting and standing; the worker did not express the reservations about the job that he expressed at the hearing, to either the potential employer or to the WCB case manager at that time. The panel further notes that the worker was able to sit at the hearing for at least two hours without obvious discomfort, suggesting that his self-described inabilities to sit for prolonged periods does not accord with his actual ability to sit, then or now.

• The panel further notes the worker's evidence at the hearing was circular and contradictory regarding his ability to work at any given point in time, reviewed in this appeal, depending on the areas that were being explored by the panel. Within this issue, his medications either were a serious problem in terms of his cognitive ability or weren't a problem. He could sit for some jobs (forklift) but not others (elemental sales). He had the mental capacity and ability to manage his pain for schooling and forklift operator jobs, but not for sales jobs, or in other cases (as per his attending physician in June 2012) he is unable to work at all, in any position.

• The panel also has concerns regarding the disconnect between the worker's stated ambitions to get back to work including the significant research he states he has undertaken, and to his actual performance in this regard. The worker acknowledged that he had not registered for anything, even though he was not working. He claims that he did not do so since he had an impending surgery. Yet, this surgery did not even become an option until he attended a pain clinic on June 14, 2012, just weeks before this hearing.

• The panel also notes that the worker recognizes the cost-benefit model underlying the vocational rehabilitation process, and under careful questioning, declined to identify a reasonable occupational goal that would make sense for him and for the WCB, given the minimal top-up now being paid to him, between his post-accident deemed earning capacity and his pre-accident wage level.