The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") which determined that he was not entitled to wage loss benefits for April 3, 2013 and that it was appropriate to implement a post-accident deemed earning capacity. A hearing was held on March 4, 2014 to consider the matter and the hearing reconvened on June 17, 2014.

Issue

Whether or not the worker's wage loss benefits should be suspended for April 3, 2013; and

Whether or not it was appropriate to implement a post-accident deemed earning capacity of $410.00 per week effective April 4, 2013.

Decision

That the worker's wage loss benefits should be suspended for April 3, 2013; and

That it was appropriate to implement a post-accident deemed earning capacity of $410.00 per week effective April 4, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to his right hand, wrist and elbow that he related the nature of his job duties as a prep cook. His claim for compensation was accepted by the WCB and benefits and services were paid which included vocational rehabilitation benefits. The compensable diagnosis was right carpal tunnel syndrome and traumatic neuroma. Permanent work restrictions to avoid forceful repetitive gripping or grasping activities and no lifting over 10 pounds were imposed.

As the worker was laid off by the accident employer due to economic reasons, the WCB developed a vocational rehabilitation plan for the worker under National Occupational Classification ("NOC") 2282, User Support Technician/Help Desk Analyst. This involved a 10 month college program starting on September 6, 2012. On January 15, 2013, the worker was withdrawn from the program because of attendance issues and he was falling behind in his courses.

On January 21, 2013, the WCB developed a different vocational rehabilitation plan based on NOC 1453, Customer Services. The plan included training courses at a learning academy commencing January 21, 2013. As of February 11, 2013, the worker had yet to attend the training course.

On February 12, 2013, the worker was advised that wage loss benefits could be suspended if he failed to attend his training course without a reasonable cause.

On March 12, 2013, the WCB received progress/attendance reports from the academy which indicated that the worker attempted to write an open book exam three times but did not pass the exam.

In a memo dated March 13, 2013, the WCB's vocational rehabilitation branch stated:

The worker has demonstrated his unwillingness to participate fully in the IWRP (Individualized Written Rehabilitation Plan) and as a result he has compromised his employability. As such, in accordance with policy 44.10.30.60 and Section 22 of the WCA, I recommend worker's wage loss be suspended for one day and implement his deemed earning capacity of $410.00/wk effective immediately.

On April 5, 2013, the WCB confirmed to the worker that his benefits would be suspended for one day, April 3, 2013, and that effective April 4, 2013, wage loss benefits would be calculated based on his deemed earning capacity identified in his vocational rehabilitation plan of $410.00 per week. On April 30, 2013, the worker appealed these decisions to Review Office.

On July 3, 2013, Review Office confirmed that the worker's wage loss benefits should be suspended for April 3, 2013 and that partial wage loss benefits should be based on a post-accident deemed earning capacity of $410.00 per week effective April 4, 2013.

The worker's position as noted by Review Office was that he had made an ongoing effort to cooperate with and complete the plan and that he complied sufficiently with the process. He attended appointments when required and his absences did not contribute to failing his course. He failed the course as he did not have enough allotted time to complete the coursework.

Review Office referred to specific file evidence to support that the worker had demonstrated an ability to succeed in a post-secondary environment as his marks were high when he attended a community college. The worker had successfully completed several computer courses in half the time that was normally required for other students.

Review Office felt that the worker was capable of managing his customer service courses and that he was given sufficient time to complete his courses. Review Office noted that WCB staff had advised the worker on multiple occasions that his benefits would be impacted if he missed classes. Review Office indicated that the worker did not demonstrate an ongoing effort towards successful completion of the rehabilitation plan and that this led directly to his inability to pass his customer service courses.

Review Office concluded that the worker's choices led to the decision to suspend benefits on April 3, 2013 and to implement the deemed post-accident earning capacity of $410.00 per week as of April 4, 2013. On November 14, 2013, the worker appealed the decision to the Appeal Commission and a hearing was arranged. The hearing was initially held on March 4, 2014, but was adjourned to permit the worker to seek some advice. The hearing was reconvened on June 17, 2014.

Reasons

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Subsection 40(1) sets out how loss of earning capacity is to be calculated and provides as follows:

40(1) The loss of earning capacity of a worker is the difference between

(a) the worker’s net average earnings before the accident; and

(b) the new average amount that the board determines the worker is capable of earning after the accident;

(c) which amount shall not be less than zero.

Subsection 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:

Worker to co-operate and mitigate

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker’s recovery.

The worker’s position:

The worker was self-represented in the appeal. The worker described the injury he sustained in 2009 and explained that despite two surgeries, the damage was not repaired. He was therefore left with permanent damage in his right dominant hand which limited him from being able to lift more than 10 pounds or perform gripping or repetitive work with his right hand.

With respect to the suspension effective April 3, 2013, the worker felt that he had not been given the allotted amount of days to finish the course.

At the hearing, in response to questions from the panel, the worker advised that he did not know why he failed to pass his exam despite three attempts. It was an open book exam and he spent more time on those three exams than he had spent on any other course. The worker did not feel that attendance was a factor as the academy did not take attendance. The worker also took issue

with the WCB's contention that he intentionally failed the exams. He stated that there would be no possible benefit to himself for intentionally failing.

The employer’s position:

The employer was represented by its executive director. It was acknowledged that the worker had suffered an injury at work and that the medical information indicated that he would no longer be able to return to work for the employer. The WCB determined that the worker should be retrained and the employer accepted this. The employer noted, however, that the costs of the retraining affected the amount of its payments to the WCB and indicated that it was their understanding that there would be an end point to that re-training. That end point was April 2013. As the length of the retraining period would have an effect on the employer's assessments, the employer's representative was attending the appeal hearing.

Analysis:

There are two issues before the panel. We will address each one in order.

1. Whether or not the worker's wage loss benefits should be suspended for April 3, 2013.

The first issue deals with entitlement to wage loss benefits and whether they ought to have been suspended for April 3, 2013. In order for the appeal to be successful, the panel must find that the worker was not in breach of his obligation to co-operate and mitigate pursuant to subsection 22(1) of the Act, thereby disentitling himself to wage loss benefits. We are not able to make that finding.

Subsection 22(1) imposes on workers a duty to co-operate with the WCB in developing and implementing programs for rehabilitation, including vocational rehabilitation. If the WCB has determined that the worker is eligible for vocational rehabilitation benefits and services, it is incumbent on the worker to reasonably co-operate with their individualized written rehabilitation plan. A worker who fails to reasonably co-operate is at risk of having his or her wage loss benefits suspended. That is what happened in this case.

In this case, the worker was originally registered in September 2012 by the WCB in a college program to receive training as a microcomputer systems technician. The worker did not attend regularly, fell behind in his courses and eventually he was withdrawn from the program in January 2013. This was despite the provision of extra support by way of a private tutor. The WCB then amended the worker's rehabilitation plan to retrain the worker in the customer services field. Again, the worker did not attend the learning academy on a regular basis. Although there were no regular scheduled classes, the worker delayed in picking up his books, did not complete course materials, and failed to pass the examination.

At the hearing, the worker was unable to explain why he was unable to pass his examinations. The panel notes that before working for the accident employer, the worker had attended both university and college and had obtained a Culinary Arts Diploma. Further, while his individualized written rehabilitation plan was being formulated, the worker had taken some preliminary courses from the academy, achieving an average mark of 89 percent in the three courses he took. Based on this proven academic record, the panel finds that the worker did have the intellectual ability to successfully complete the customer service courses and exams, if focused and motivated to achieve this goal. On a balance of probabilities, we can only conclude that the worker failed to fully apply himself, and in so doing, he was in breach of his duty to co-operate with the WCB in developing and implementing his vocational rehabilitation program.

At the reconvened hearing on June 17, 2014, the worker referred to a traumatic event in his personal life which occurred in October 2012. The worker felt that the effects of this incident affected his ability to complete his courses. The panel has sympathy for the worker for his loss and we acknowledge that events such as these have lasting impact on people's lives. We do not, however, see the incident as being the overriding reason for the worker's failure to succeed in his courses. The progress and attendance report from the technical college showed that even before the event occurred near the end of October 2012, the worker had already been missing significant amounts of class time and was falling behind. Assignments were often submitted late. We therefore do not accept that the worker's poor academic performance was attributable to the sad event. The pattern of not fully applying himself had already been established. The panel also notes that the worker made no mention of this factor when he first appeared before us in March 2014, despite being asked direct questions as to why he felt the vocational rehabilitation plan failed. This would tend to indicate that the event was not as significant a factor as was suggested by the worker at the later hearing.

Based on the foregoing, the panel finds that the worker was in breach of his obligation to co-operate pursuant to subsection 22(1) of the Act and his wage loss benefits were properly suspended for April 3, 2013. The worker's appeal on this issue is dismissed.

2. Whether or not it is appropriate to implement a post-accident deemed earning capacity of $410.00 per week effective April 4, 2013.

For the worker’s appeal to be successful on this issue, we must find on a balance of probabilities that after April 4, 2013, the worker did not have the capacity to earn $410.00 per week. We are not able to make that finding.

The worker's injury was right carpal tunnel syndrome and traumatic neuroma. His permanent work restrictions were to avoid forceful repetitive gripping or grasping activities with his right arm and no lifting over 10 pounds. The panel does not view the worker as being totally disabled and indeed, at the hearing, the worker acknowledged he was not completely disabled from doing any kind of work. The deemed earning capacity of $410 per week is based on earning the minimum wage as at April 4, 2013 at full time hours. The panel is of the view that the worker's compensable restrictions did not prevent him from achieving at least this level of earning capacity and we therefore find on a balance of probabilities that it was appropriate to implement a post-accident deemed earning capacity of $410.00 per week effective April 4, 2013. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of July, 2014