The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing three decisions that were made by the Workers Compensation Board ("WCB") with respect to his compensation claim. A hearing was held on May 24, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after September 9, 2016;

Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6623 Other Elemental Sales Occupations is appropriate; and

Whether or not it was appropriate to implement a post-accident deemed earning capacity of $320.00 per week effective January 1, 2013.

Decision

That the worker is not entitled to wage loss benefits after September 9, 2016;

That the vocational rehabilitation plan for the National Occupational Classification (NOC) 6623 Other Elemental Sales Occupations is appropriate; and

That it was appropriate to implement a post-accident deemed earning capacity of $320.00 per week effective January 1, 2013.

Background

In late December 2005, the worker slipped and fell when climbing down a ladder while working on renovations. Following medical treatment, the worker was diagnosed with a right shoulder cuff strain, a pectoral strain and a lumbar strain.

On September 18, 2006, lumbar spine x-rays were read as follows:

There is mild disc narrowing with some spurring at L5-S1. Isthmus defects are seen in the neural arch of L5 and L5 is slipped forward on S1 by about 5 mm.

IMPRESSION

Grade 1 spondylolisthesis of L5 on S1 with some degenerative disc narrowing at L5-S1.

In a medical report to the WCB dated November 24, 2006, a neurologist stated that he could not find evidence of nerve root involvement.

On November 27, 2006, a WCB case manager wrote the worker to advise that after reviewing the new medical information and the results of the recent WCB call-in examination, the WCB was of the opinion that he may have suffered an injury to the abductor muscles (sprain) in his left leg when he fell off the ladder at work and that his claim would be accepted on that diagnosis.

A CT scan report dated December 20, 2006 was read as follows:

Bilateral pars interarticular defects at L5, associated with a 7 mm anterolisthesis of L5 on S1, resulting in mild indentation of the anterior thecal sac, and severe bilateral neural foraminal narrowing at the same level. Other finding as listed above.

File information contains reports from a clinical psychologist dated November 18, 2006 and January 18, 2007.

On January 8, 2007, the worker's treating physician reported that the worker had swelling in his left ankle, normal range of motion in his back, no neurological deficit and tenderness in the groin area. The new diagnoses were back and groin sprains.

On February 14, 2007, a WCB medical advisor opined that the worker had no barriers to returning to work and that he had recovered from the effects of his compensable injury.

In a memo to file dated April 26, 2007, the case manager noted that the worker continued to experience low back and groin related problems and that his work restrictions for a 12 month period were as follows:

• No prolonged standing or walking
• Limit stairs
• Limit bending, stooping, crouching
• No weights greater than 30 pounds on an occasional basis
• No prolonged sitting

On April 26, 2007, the worker was advised that his case was being referred to a Vocational Rehabilitation Consultant for intervention and that his temporary work restrictions for his low back, right shoulder, chest and groin injury would be reviewed again in April 2008.

The WCB developed a Vocational Rehabilitation Plan ("VRP") for the worker under National Occupational Classification ("NOC") 5523, Call Centre. The plan included upgrading, a customer service program and 24 weeks of job search. Based on earning capacity results, the starting wage for the occupation was $320.00 per week.

On December 10, 2007, the worker advised his case manager that he was depressed and was having problems with anger management. The worker advised that according to his psychologist, "customer service work" was not the best choice for him and that he was not ready to attend the Academy of Learning because of his limited reading skills and anger issues. The worker advised that his friend owned a trucking company and that he would work as a supervisor which did not involve any physical components.

On January 17, 2008, the worker advised the case manager that he was offered a position on a part-time basis as a tow truck operator and that he would haul wrecks to the yard for dismantling. The worker was advised that he could pursue this option but the work had to be within the limitations of his restrictions.

In a decision dated January 25, 2008, the worker was advised that the WCB would support his decision to operate a tow truck on a limited basis instead of pursuing vocational training. This agreement was with the understanding that the tasks he outlined would be within the limitations of his restrictions. The WCB would pay full wage loss benefits until his start date of February 11, 2008. Effective February 11, 2008, the WCB would implement the deemed earning capacity of $128.00 per week. His file would then be transferred to Long Term Wage loss for payment of benefits.

On September 3, 2008, permanent workplace restrictions were implemented by the WCB which included:

No weight above shoulder level

No repeated use of power tools or jacks

No shoveling No weights greater than 20 pounds from floor to bench in terms of the low back and hip

No prolonged standing

No repeated stairs

Limit walking over rough ground

Strain of the adductor muscle

In December 2008, the worker left his position as a tow truck operator as he was not able to tolerate the physical labour of the position.

In a decision dated August 25, 2011, the worker was advised of the WCB's position that his right knee difficulties were unrelated to his compensable injury and that his entitlement to ongoing treatment for psychological/counselling services would no longer be accepted. The case manager stated "The review of reports over the years indicates clearly that the overwhelming majority of the need for psychological counseling has been in response to non-compensable and pre-existing issues rather than in direct relationship to the workplace injury, a left adductor muscle strain."

In a letter dated March 12, 2013, the worker was advised that:

"In 2008, when you chose not to complete the Vocational Rehabilitation plan that was outlined to you, the earning capacity for the chosen NOC (National Occupation Code) of 6623 was a starting wage of $320.00 gross per week. As such, the effect of your choosing not to complete the plan should have been to provide you partial wage loss benefits based on an earning capacity of $320.00 gross per week…For the years 2008 to January 1, 2013, your claim has been overpaid by WCB. However, an overpayment is not being pursued at this time."

On January 24, 2014, the worker advised his case manager that his claim had been mishandled from day one and that he never agreed to the VR plan. The worker indicated that he was not capable of working 8 hours per day or any type of sedentary work.

On April 18, 2016, the worker's legal representative referred to file information to support the following findings:

• That the diagnosed injuries of disc protrusion at L4-L5 and the fact that the L5 is noted to have slipped forward, were both directly related to the workplace accident and must be accepted as compensable injuries rather than the current diagnosis of a strain injury.
• That the worker's compensable groin injury had never healed based on the documented medical evidence and this matter should be adjudicated as a long-term chronic injury rather than a short term acute injury.
•   That the diagnoses of severe depression and related psychological conditions are an enhancement of a pre-existing condition and are a direct result of the workplace accident and remained compensable.
• The March 12, 2013 decision to deem the worker's wage loss under NOC 6623 was unjustified. Due to the worker's compensable injuries, he has not been employed since late 2008 and continued to have a full loss of earning capacity to date. The worker requested reinstatement of full wage loss benefits retroactive to December 2008.

On June 9, 2016, a WCB orthopedic consultant reviewed the claim file and answered questions posed by the WCB case manager.

On June 17, 2016, Compensation Services advised the worker that the file information indicated that he had recovered from the December 28, 2005 workplace injury and that WCB benefits and services would end effective June 24, 2016. The decision stated:

• The disc protrusion at L4-5 and the L5 slipped forward…were long pre-existing conditions and were not the result of the 2005 workplace injury.
• The groin injury was not accepted as being related to the 2005 workplace injury.
• In August 2011, the worker was advised that treatment related to his depression and related psychological conditions were no longer considered related to the workplace injury. In January 2014, the WCB offered 3 to 4 treatment sessions to alleviate present stressors and issues related to his re-location. Treatment coverage beyond this was done so in error and an overpayment would not be recovered.
• On June 9, 2016, the WCB consultant advised that the diagnosis related to the mechanism of injury was that of a lumbar spine strain and right shoulder strain. There was no indication for restrictions that would relate to the results of the workplace injury.
• Based on a review of the claim and the opinion offered by the WCB consultant, Compensation Services was of the opinion that the weight of evidence including history of the injury, diagnosis, expected symptom duration, and the current clinical findings support that he had recovered from the effects of the workplace injury.

On July 18, 2016, Compensation Services advised the worker wage loss benefits would be issued to September 9, 2016 inclusive and final.

On August 5, 2016, the worker's legal representative appealed the June 17, 2016 decision to Review Office.

On August 12, 2016, Review Office asked the WCB orthopedic consultant to clarify whether the worker required restrictions in relation to the workplace accident. A response to Review Office is on file dated August 12, 2016.

On October 6, 2016, it was determined by Review Office that the worker did not have a loss of earning capacity beyond September 9, 2016 in relation to his compensable injuries.

Review Office noted that Compensation Services accepted that the worker sustained a right rotator cuff strain, pectoral strain, lumbar strain and adductor muscles (groin) sprain from the accident that occurred at work on December 28, 2005. Review Office opined that recovery from these injuries occurred within a short duration.

Review Office referred to diagnostic test results dated January 3, September 18, December 20, 2006 and December 5, 2007 and opined that the findings were pre-existing in nature and were not caused or structurally altered by the workplace accident.

Review Office accepted the opinions expressed by the WCB orthopedic consultant dated June 9, 2016 and was not able to account for the worker's ongoing pain complaints to the December 28, 2005 compensable physical injuries.

Review Office concurred with the following comments made by the WCB orthopedic consultant dated August 12, 2016:

Restrictions which were detailed were more preventive in nature, and related to the pre-existing diagnoses of lumbar disc degeneration and L5-S1 spondylolytic spondylolisthesis.

In these notes it was clearly stated that the diagnosis of the compensable injury was sprain lumbar spine.

…the information on file detailed in the notes of June 9, 2016, clearly identified that the worker had recovered from the compensable injury diagnosis of sprain lumbar spine.

Review Office concluded that the worker's pre-existing degenerative changes in the spine were not caused or changed by the December 2005 accident. It found that the worker did not require restrictions in relation to his workplace back injury, diagnosed as a strain/sprain.

Review Office referred to and accepted the opinion expressed by a WCB medical consultant dated August 18, 2011. Review Office determined that the worker's ongoing psychological issues were not causally related to the December 2005 accident and were not compensable. Review Office found the file evidence did not support an enhancement of the worker's psychological condition.

The worker's legal representative asked Review Office to reconsider the case manager's decision dated March 12, 2013 which stated that wage loss benefits would be based on the deemed earning capacity under NOC 6623, Other Elemental Sales.

On November 17, 2016, Review Office determined that the vocational plan for NOC 6623 was appropriate and that the implementation of the deemed earning capacity of $320.0 per week was also appropriate.

Review Office found that the occupations associated with NOC 6623 had limited physical demands and were within the worker's restrictions. Review Office found that the VR plan was a realistic goal based on the worker's transferable skill set and that the VR plan was reasonable considering the worker's psychological status.

Review Office noted that the worker chose not to participate in the VR plan as he found alternate employment (operating a tow truck) and that this demonstrated his employability. The worker therefore was not totally disabled from work activities. Review Office determined that the worker was capable of working full time earning at least the provincial minimum wage which was $320.00 per week in 2008. Review Office noted that an incorrect deemed earning capacity was implemented in 2008 and this was revised in 2013, to reflect the updated earning capacity in NOC 6623. Review Office concluded that the VR plan in NOC 6623 was reasonable and wage loss benefits based on the deemed earning capacity under this NOC was appropriate.

On January 16, 2017, the worker's legal representative appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker is appealing the following issues:

• whether the worker is entitled to wage loss benefits after September 9, 2016
• whether the vocational rehabilitation plan was appropriate, and
• whether it was appropriate to implement a post-accident deemed earning capacity of $320.00 per week effective January 1, 2013.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of WCB's 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.

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."

Worker's Position

The worker was represented by legal counsel who outlined the basis for the worker's appeal. He noted that he was following the written presentation that he provided to Review Office on April 18, 2016. He reviewed the 3 issues and asked the worker questions in support of his submission.

Whether or not the worker is entitled to wage loss benefits after September 9, 2016.

In the April 2016 written submission the worker's representative indicated that:

The worker suffered multiple personal injuries by accident arising out of and in the course of his employment. Due to the worker's lack of education and permanent restrictions, that must include no prolonged sitting, the worker remains competitively unemployable.

The worker's loss of earning capacity has not ended. Due to the worker's compensable injuries, he has not been employed since 2008 and continues to have full loss of earning capacity to date. The worker is asking Review Office to reinstate full wage loss benefits retroactive to his final cheque from [towing company] in or about December 2008.

At the hearing, the worker's representative provided a detailed description of the worker's December 28, 2005 workplace accident. He described the accident as "a high impact injury where he fell on the ladder, hyperextended his back."

In answer to questions, the worker said that:

My legs were, this leg (left) here was stuck in the ladder and plumbing and my shoulder touched the ground, like, I hit the ground and I was still twisted in there and I was trying to get untwisted, so I turned over, and that’s when I felt all the pain. It was all on this side. And that’s the leg I was talking about all the time at physiotherapy --

The worker's representative noted that the WCB has adjudicated the worker's claim as a strain. He disagreed and submitted that the correct diagnoses arising from the 2005 accident are:

• disc protrusion at L4-L5, and slipped disc at L5 S1(spondylolisthesis)
• groin injury which occurred when the worker's groin hit the rung of the ladder
• enhancement of his pre-existing psychological condition - specifically the diagnosis of severe depression and related psychological conditions

In reply to a question about the 2006 CT scan, the worker's representative was asked what he believes are the issues that were enhanced by this?

He replied, in part:

Well, based on the information I had at the time, and making an inference that there is some degenerative stuff going on, based on the fact that [worker] was not running to the doctor weekly, monthly or even yearly with any back problems, and he has this high impact fall on the ladder, that…whatever was going on in his back, and I think we can all agree, at least based on the 1993 x-ray and the 2006 CT scan and so forth, there’s issues with the fall, the high impact fall on the ladder enhanced the already pre-existing condition of his back.

And this is based on his self-reporting and all the visits to the doctors, and all the problems he’s had since the fall on the ladder. And on the balance of probabilities, which is the civil standard, it’s not beyond reasonable doubt, 51/49, we have a triggering effect, a high impact injury, and then all these, both subjective, and based on some of the findings, objective, and I’m talking about the seven millimeter slippage there that wasn’t noted in any other scans or that x-ray and so forth, that as a result of that high impact fall, his back condition previous pre-ex was enhanced by the workplace injury, and hasn’t resolved to date.

The worker's representative provided the panel with an article which indicated that spondylosis can be accelerated by injury. The article indicated that while spondylosis is associated with degeneration of the spine, it does not always result in back pain.

The worker explained that his groin injury impacts the way he walks on uneven ground and climbs out of a truck. He said that he felt the groin pain immediately.

The worker's representative submitted that the worker's psychological condition was enhanced by the workplace accident, with the stressors that came along with not being able to work and support your family.

Whether the vocational rehabilitation plan for the National Occupational Classification (NOC) 6623 Other Elemental Sales Occupations is appropriate.

In the April 2016 submission, the worker's representative indicated that:

It is the worker's positon that his Case Manager's Decision of March 12, 2013 to deem his wage loss under NOC 6623 was unjustified. Based on the worker's documented psychological conditions and physical impairments, the VRP was never a realistic goal. Moreover, a Decision was made in 2008 to discard the VRP, and that decision was not in error. However, there was an error regarding the permitted restrictions breach allowing the worker to endanger himself further by working as a tow truck operator.

At the hearing, the worker's representative submitted that this was not an appropriate plan and that call center work was not "a realistic occupation to choose." He submitted that this was not the best plan for someone who has existing psychological and anger management problems. He also said that the worker's difficulty with prolonged sitting was not taken into consideration.

In answer to questions, the worker advised that:

• he felt he was pushed into the plan and that he was not offered other options.
• he was only at a grade 8 level.
• he was frustrated with the use of a computer and did not understand the terminology used
• he was doing fairly well at the beginning but soon became frustrated
• he found the teachers in the computer program were not helpful
• he was not initially aware the training was leading to a call center type position

The worker's representative noted that the worker's vocational rehabilitation plan was put in place before the worker's permanent restrictions were determined. He commented that, from his experience, it was unusual to start a VR plan until the permanent restrictions were in place.

Whether it was appropriate to implement a post-accident deemed earning capacity of $320.00 per week effective January 1, 2013.

Regarding the worker's deemed earing capacity of $320.00 weekly, the worker's representative submitted that:

The letter stated that in error the worker was provided partial wage loss benefits based on his actual earnings of $128 a week. And I argued at both levels that this wasn’t an error, …his case manager, seemed to, in not so many words, agree with what was going on with regards to [worker's] difficulties in the upgrading process.

It looked like, and based on what [psychologist] was reporting, it was not going to be successful. So it’s our position that there was no error, that it was agreed upon that he would not move forward because it sure seemed, more likely than not, that he was not going to be successful.

The worker's representative explained that:

So what they were doing is basically taking what his actual earnings were driving the tow truck at the time of $128, and then increasing them minimally every year as his deemed earning capacity. And what the case worker basically said was, no, that’s wrong, it should be based on $320 a week based on the NOC code from 2008,… because it should have been based on $320 and not these actual numbers, and that’s the error.

The worker's representative said that it was not an error, the case manager gave his blessing, "go and try this tow truck thing out, we’re going to deem you actual earnings."

Employer's Position

The employer is no longer a registered employer.

Analysis

The worker appealed three issues related to his claim.

Initially, the worker's representative submitted that before the 2005 workplace accident, the worker did not have any back issues or lumbar back pain, and that he did not attend for medical assistance for back pain. In reply to a question from his representative, the worker confirmed that he never had any back issues before the 2005 accident.

When presented with information from a 1993 WCB claim file, the worker's representative explained that he was not aware of this information but acknowledged that the information indicates that the worker had a minor spondylolisthesis of the L5 upon the S1 in 1993.

The worker's representative further noted that in the last 16 months, the worker suffered a stroke and that it has impaired the worker's memory, to the point that he does not remember the prior injury claims and related back injury.

The panel accepts the worker's representative's explanation for the worker's inability to remember events and information. The panel places greater weight on evidence that is more contemporaneous to the accident and less weight on the evidence provided at the hearing.

Whether or not the worker is entitled to wage loss benefits after September 9, 2016.

For the worker's appeal of this issue to be approved, the panel must find that the worker continued to sustain a loss of earning capacity and required medical assistance after September 9, 2016. The panel was not able to make this finding. The worker's representative identified 3 areas of injury arising from the workplace accident:

• disc protrusion at L4-L5, and slipped disc at L5 S1(spondylolisthesis)
• groin injury which occurred when the worker's groin hit the rung of the ladder
• enhancement of his pre-existing psychological condition - specifically the diagnosis of severe depression and related psychological conditions

Lumbar Spine Injury

The panel does not agree with the worker's representative's position that the 2005 injury caused or enhanced the worker's L5 spondylolisthesis. The panel notes:

May 1993 x-ray indicates: Impression: Minor spondylolisthesis of L5 upon S1.

September 18, 2006 x-ray reports: Grade 1 spondylolisthesis of L5 on S1 with some degenerative narrowing at L5-S1.

December 20, 2006 CT scan of the worker's lumbar spine notes, in part:

At L4-L5, there is very shallow posterior disc protrusion with thickening of the ligamentum flavum. However, the neural foramina, spinal canal or lateral recesses are not affected.

At L5-S1, there is mild bilateral facet joint arthropathy. Spinal canal is slightly indented, secondary to the 7 mm anterolisthesis of the L5 on S1…

Conclusion: Bilateral pars interarticular defects at the L5, associated with a 7 mm anterolisthesis of L5 on S1, resulting in mild indentation of the anterior thecal sac, and severe bilateral neural foraminal narrowing at the same level.

The panel finds that the evidence clearly establishes that the spondylolisthesis of L5 upon S1 was first diagnosed in 1993 and pre-existed the workplace accident. The panel attaches weight to the July 6 and August 28, 2016 opinions of the WCB orthopedic consultant that the diagnosis of lumbar disc degeneration at L4-L5 and L5-S1 spondylolytic spondylolisthesis are pre-existing conditions and are not related to the workplace accident. The panel notes that these opinions were based on a thorough review of the medical information on the worker's file.

The panel notes that the worker was examined by a neurologist in November 2006 who reported that he could not find evidence of nerve root involvement.

Upon review of the file, the panel was unable to find medical evidence that the worker's pre-existing back condition was enhanced.

The panel also notes the opinion of the WCB orthopedic surgeon that the compensable injury was a sprain of the lumbar spine. The panel accepts this diagnosis and finds that the strain has resolved. The panel finds, on a balance of probabilities, that the worker's ongoing back complaints are not related to the 2006 workplace accident and are not compensable.

Groin Injury

Regarding the worker's groin injury, the worker's representative noted that the worker did not have any problems with his groin area prior to the workplace accident, and now continues to have ongoing problems in the groin area since he landed on the rung of the ladder with the left side of the groin.

The panel notes the worker complained of groin pain in 2006. The worker was investigated for a hernia. In November 2008, his family physician noted that the worker reported that his groin was normal.

The panel relies upon the July 6, 2016 opinion of the WCB orthopedic consultant that "The soft tissue injury of abduction strain would have resolved in most cases within a six or eight week range". Based on the evidence on file, the panel cannot, on a balance of probabilities, relate the worker's current groin pain to the workplace accident.

Psychological Injury

The worker's representatives submitted that the accident enhanced the worker's pre-existing psychological condition including the diagnosis of severe depression and related psychological conditions. He said that it is the worker's position that his psychological condition was greatly enhanced by the workplace accident, with the stressors that come along with not being able to work and support his family.

The panel notes that the treating psychologist referred to long-standing issues from the worker's troubled past that had caused him to be extremely reactive. He also noted that the worker described a stressful family situation. The panel relies upon the opinion of the February 14, 2007 opinion of the WCB psychiatric consultant that:

There is no current medical or psych information that would indicate that a major component of the psych problems are related to the CI. The panel finds, on a balance of probabilities, that the worker's accident has not enhanced his pre-existing psychological condition.

Regarding the worker's current medical state, the panel notes the discussion between the worker and his representative about his current medical care:

Worker's representative: …you basically told me you hadn’t seen a doctor -

Worker: No

Worker's representative: in years about any problems, correct?

Worker: Nothing with my back, nothing with my legs, nothing at all, all my life.

The panel finds, on a balance of probabilities, that the worker's current loss of earning capacity and need for medical aid are not related to the workplace injury. The panel finds that the worker has recovered from the December 28, 2005, workplace injury and ongoing restrictions are not related to the workplace accident.

The worker's appeal of this issue is dismissed.

Given the panel's findings that the worker has recovered from his workplace injury and that any ongoing restrictions therefore would not be related to the accident, the issues relating to the appropriateness of the VRP and the associated implementation of a deemed earning capacity would generally be considered moot. However, the panel has decided to address these two issues.

Whether the vocational rehabilitation plan for the National Occupational Classification (NOC) 6623 Other Elemental Sales Occupations is appropriate.

Generally, in an appeal of this type of issue, the panel must find that the worker's VRP was not consistent with the goals of the VR Policy. However, in this case, the worker opted out of or removed himself from the plan to pursue a different employment option. The panel acknowledges that this was done with the consent of the WCB.

The VRP was established to assist the worker with returning to work. At the hearing, the worker, through his representative, argued that the plan was not appropriate. Concerns expressed about the plan by the worker's representative included:

1. It did not take into account the worker's physical restrictions --no prolonged sitting
2. It did not take into account the worker's psychiatric condition
3. It was not a good fit for a person who worked in manual labour his entire life.

While the panel understands these concerns, it finds that the plan was in the worker's interest. The plan provided the worker an opportunity to improve his reading skills, introduced him to the use of a computer and related technology, and generally increased his skills and experience to make him more employable. The panel notes that the plan was aimed at providing minimum wage employment. With the worker's training, skillset and limited education, NOC 6623 was appropriate.

The panel finds that the question of whether or not the worker would find employment in NOC 6623 is speculative given his withdrawal from the plan.

Regarding the concern that the plan did not take into account the worker's psychiatric condition, the panel notes the panel's prior finding that the psychiatric condition was not compensable.

The panel notes Section VII. Discontinuation of Vocational Rehabilitation Services of the Voc Rehab Policy which provides in part:

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:

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

The panel finds that the worker's actions fall within this provision and that further services are not mandated by the Voc Rehab Policy.

The panel finds that the worker is not entitled to further vocational rehabilitation services.

The worker's appeal of this issue is dismissed.

Whether it was appropriate to implement a post-accident deemed earning capacity of $320.00 per week effective January 1, 2013.

For the worker's appeal of this issue to be approved, the panel must find that $320.00 per week was not an accurate reflection of the worker's earning capacity.

The worker's representative submitted that, given the worker's restrictions, it was not appropriate for the WCB to allow the worker to attempt working in the towing industry. He noted that towing is a manual labour job. He advised that from March 2008 until approximately December 2008 the worker operated the tow truck but that the worker could no longer tolerate this type of physical labour and left the position as a tow truck operator. The worker remained unemployed to this day.

The panel notes that when the worker ceased to work at the towing job, he did not contact the WCB and did not seek additional vocational assistance.

The panel notes that the worker's vocational rehabilitation plan, when established in 2007, was based on an expectation that the worker would be capable of earning minimum wage ($320.00 per week), and this would result in a deemed earning capacity of $320.00 per week. Had the worker completed the plan, he would have been deemed at this level. It is not appropriate to deem the worker at a lower level when he removed himself from the plan.

The panel finds that the sum of $128.00 per week does not accurately reflect the worker's earning capacity and that this amount is not appropriate.

The panel finds on a balance of probabilities that it was appropriate to implement a deemed earning capacity of $320.00 per week effective January 1, 2013.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of July, 2017