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.

Section 22 of the Act sets out the effect of a worker failing to mitigate the consequences of an accident, stating that 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.”

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 40(1) of the Act provides that a worker's loss of earning capacity is the difference between “the worker's net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.”

WCB Board Policy 44.80.30.20 Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”) defines loss of earning capacity 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 and when 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. The Deeming Policy also states that when a worker refuses to cooperate in or complete a program of vocational rehabilitation, a deemed earning capacity will be used under the WCB’s broader policy on mitigation, Policy 44.10.30.60, Practices Delaying a Worker's Recovery. In this case, the deemed earning capacity will be the earning capacity expected on completion of the vocational rehabilitation plan.

WCB Policy 44.10.30.60 Practices Delaying a Worker’s Recovery expands upon s.22 of the Act and requires that a worker, in order to maintain eligibility for compensation benefits, must demonstrate an ongoing effort towards successful completion of the rehabilitation plan and cooperate with the WCB in carrying out the rehabilitation plan and regularly attend appointments that are part of the plan for physical, medical, psychological, or vocational rehabilitation.

Worker’s Position

The worker represented himself at the hearing. He gave an oral submission and answered the questions posed by members of the Panel.

The worker submitted that he was totally disabled from any employment. He described his ongoing pain as preventing him from doing most things, stating that:

I get headaches – major migraine like headaches and stuff, and pain all over my right side all the way down to my hips and it, there’s nothing they say they can do….I hate taking medication and that’s just covering up the problem. It’s not fixing the problem. So, I mean maybe I could have a bit of a better life if I was totally, I mean did a lot more medication, but I don’t like that. But I am to the point now where I can do a little bit on the yard and I can sort of take care of myself.

The worker expressed his frustration with his ongoing pain and stated that he only wanted to be fixed. He said that everything he tries makes it worse and that nothing works.

In his submission and in answering the questions of the panel, the worker detailed the extent of his capabilities which included attending to tasks that include: looking after his daily personal hygiene requirements, washing dishes, feeding and caring for his cats, driving to town for banking, appointments and grocery shopping, occasional use of his chainsaw to cut deadfall on his property, removing deadfall by hand and lifting heavy weights. He noted that he can do most things for a little while, but that he hurts himself by trying to push through pain and doing too much. The worker stated that when he remains in any position for too long, whether seated, standing or lying down, his pain increases and that there is an accumulative effect so that, after activity, the pain continues for a period of time.

The worker explained that he missed appointments set up as part of the VR Plan because of the challenges involved in driving to Winnipeg for those appointments. He explained that the ride in his car causes pain because the road is bumpy, and that the pain is worsened when the weather is bad.

The worker went on to state he did not believe he was capable of returning to full-time employment and entered into the VR plan only on the basis that he would “try” but without any expectation he would succeed. When pressed by the panel on what he meant by that, the worker stated that:

I felt that I could possibly make the VR, vocational rehab, those appointments and stuff like that. I thought I could make that and, frankly, I wanted to stretch it out as long as I could to get all the money as long as I could and stuff like that, and I could have maybe stretched it out longer but I finally just said no. I, I can’t… I never thought I could do a full-time regular job…It was a waste of time.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether it was appropriate to implement a post-accident deemed earning capacity of $400 per week effective January 4, 2012. In order to decide the appeal, the panel must determine whether the worker failed to mitigate the consequences of his accident.

After reviewing all of the evidence, the panel finds that the worker did not demonstrate an ongoing effort to cooperate in and complete the requirements of the Vocational Rehabilitation Plan and therefore, that it was appropriate to implement a post-accident deemed earning capacity of $400 per week effective January 4, 2012.

The worker's position is that he made an ongoing effort to cooperate with and complete the VR Plan and that, in doing so he complied sufficiently with the process, attending appointments when required and providing notification to the WCB when he was unable to attend appointments.

The evidence before the panel, however, does not support that position. The file shows that the worker missed four scheduled appointments between October 12, 2011 and November 3, 2011. On two of those occasions, the worker did not notify the WCB that he would not attend the appointment until after the scheduled appointment time, and on the remaining occasions, the worker notified the WCB within hours of the scheduled appointment time that he would not attend. When he was notified by letter of November 4, 2011 that his benefits were suspended for failing to cooperate fully in the VR Plan, the worker arranged for and attended an appointment with the VRC soon afterward so that his benefits could be reinstated. After that appointment, the degree of his participation in the VR Plan again declined and the worker missed three more appointments, on December 8 and 14, 2011 and on January 4, 2012.

The worker’s obligation to cooperate fully in the VR Plan and to make an ongoing effort toward completing the plan is set out in the Act and elaborated upon in WCB Policy 44.10.30.60, Practices Delaying a Worker's Recovery. In order to continue to receive benefits, the worker must “demonstrate an ongoing effort towards successful completion of the rehabilitation plan and cooperate with the WCB in carrying out the rehabilitation plan.” A failure to do this may result in the WCB ceasing rehabilitative interventions. The worker was reminded of this obligation on more than one occasion, including by the November 4, 2011 letter advising of the suspension of his benefits, and the December 15, 2011 letter setting the January 4, 2012 appointment date.

In considering this question, the worker’s own comments to this panel cannot be ignored. Although the worker claimed he tried to complete the VR Plan, he admitted that he was participating in the program only so as to extend his benefits for as long as possible. When considered in the context of the facts, his comments demonstrate a lack of ongoing effort and cooperation with the WCB as required by the VR Plan. His view of the VR Plan, as described to this panel, was that it was a “waste of time” and his actions confirm his attitude.

After his benefits were suspended and then reinstated in November 2011, the worker resumed his VR Plan, putting in a minimum level of effort and ultimately, did not heed the final warning to him given on December 15, 2011. The result was that, when he did not attend for his January 4, 2012 appointment, a deemed earning capacity was applied and his ongoing benefits were reduced accordingly.

Based on the whole of the evidence, the panel finds on a balance of probabilities that the worker failed to mitigate the consequences of his accident. As such, the implementation of a post-accident deemed earning capacity of $400 per week effective January 4, 2012 - the earning capacity expected on completion of the vocational rehabilitation plan - was appropriate.