The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that it was appropriate to implement a post-accident deemed earning capacity effective June 14, 2014. A hearing was held on February 14, 2018 to consider the worker's appeal.

Issue

Whether or not it is appropriate to implement a post-accident deemed earning capacity effective June 14, 2014.

Decision

That it is appropriate to implement a post-accident deemed earning capacity effective June 14, 2014. The post-accident deemed earning capacity should, however, be temporarily suspended for a 13-week vocational rehabilitation program which is to be provided, as set out in these reasons, following which the post-accident deemed earning capacity is to be re-instated.

Background

This claim has been subject to a previous appeal before the Appeal Commission, and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision 90/13 dated July 23, 2013.

The worker has a compensable claim with the WCB for a low back injury that he suffered in the course of his employment on April 24, 2009. The worker never fully recovered from his low back injury, and permanent restrictions were put in place on August 29, 2011.

Information on file shows that the worker's employment term ended in January 2010, as an accommodation within the worker's permanent restrictions was not available. Beginning in June 2011, a vocational rehabilitation ("VR") consultant was assigned to help the worker identify an alternate occupational goal within his permanent restrictions.

Following assessment, interest and aptitude testing, and review of the worker's education, restrictions and transferable skills, the WCB arranged for the worker to attend tutoring and adult education courses.

Discussions took place between the worker, senior case manager and tutor/upgrading learning centre as the worker had significant absences due to some personal challenges affecting his learning, studies and homework assignments. It was subsequently noted that the worker's attendance, effort and learning had improved.

The worker was asked to consider a 10-month industrial electronics course versus a two year civil engineering technologist program. The worker decided to proceed with the civil engineering technologist program. A VR plan for NOC 2231 (Engineering Technologist), was provided to the worker. He received tutoring and support to prepare for his school program.

The worker was accepted to start the civil engineering technologist program in January 2014. On December 30, 2013, he reported that a laptop was required for his program, and arrangements were made for the worker to obtain a laptop by the end of the first week of school. The worker reported, however, that he discontinued the program after one day of class.

The WCB determined that further academic training would not be considered. On January 13, 2014, the WCB advised the worker that after exploring vocational options considering his restrictions and the fact that further academic upgrading would not be considered, they had determined that NOC 6683 (Other Elemental Sales Occupations) best met his restrictions and provided an opportunity for the worker to become employable. The worker was advised that a plan would be developed in the next few weeks.

A WCB employment specialist conducted an earning capacity assessment for NOC 6683, which showed there was a viable job market, the worker met the job qualifications and he was capable of competitively finding and competing for employment in the field.

The VR plan for NOC 6683 outlined the benefits and services that would be provided to the worker. The plan was to begin on February 10, 2014 with a job search and interview workshops and finish on May 16, 2014. It stated that the worker would be entitled to partial wage loss benefits at the end of the plan as he would be capable of earning $418.00 per week, the starting wage for NOC 6683. On March 7, 2014, the worker was advised that the plan had been amended and the job search period extended to June 13, 2014 as he did not have an employment specialist to assist him beginning February 10, 2014.

On May 15, 2014, the worker advised the WCB that he had found a position with an insurance company but could not officially start until he passed the insurance exam, with a potential exam date of June 10, 2014.

On June 6, 2014, the WCB advised the worker that his VR plan would be completed as of June 13, 2014 and his wage loss benefits would be reduced based on his established earning capacity of $418.00 per week, even if he remained unemployed, effective June 14, 2014.

On June 16, 2014, the worker requested reconsideration of the WCB's decision by the Review Office. The worker did not agree with the reduction in his wage loss benefit entitlement prior to starting his new position and asked that his full wage loss benefits be extended until he acquired his provincial sales licence.

In its decision of August 20, 2014, Review Office upheld the WCB's decision that the worker was not entitled to full wage loss benefits after June 13, 2014. Review Office determined that the worker was ready and able to look for employment at the completion of his VR plan. Review Office also found that the worker had been provided with an appropriate amount of job search assistance based on his education and training. Review Office noted that payment of full wage loss benefits does not extend to the start date of a particular position.

Review Office determined that the worker was capable of working within NOC 6683 after June 13, 2014, the end of his VR plan, and that it was appropriate to implement the deem for NOC 6683 effective June 14, 2014. Review Office found that the worker was entitled to partial wage loss benefits based on the implementation of the post-accident deemed earning capacity effective June 14, 2014.

On April 7, 2016, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such 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, or rehabilitative assistance to injured workers.

WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker under subsection 27(20) of the Act. The VR 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 Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity, describes when a worker will be deemed capable of earning an amount that he or she is not actually earning and how the deemed earning capacity will be determined.

Worker's Position

The worker was self-represented, and participated in the hearing by teleconference. The worker provided a written outline of his position in advance of the hearing, and made a presentation to the panel.

The worker's position was that he disagreed with the Review Office decision, and should be entitled to further training.

The worker submitted that the civil engineering technologist course which the WCB sent him to in January 2014 was the hardest course in the school and he was sent there without the required laptop as specified by the program. He was unable to access the majority of the workload because it was to be accessed through the laptop. The WCB did not have a laptop for him until one and one half weeks later, by which time he would have been too far behind in the course work. At that point, he had already dropped the course and made sure that the WCB got their money back for it.

The worker noted that January 2014 was also a very hard time in his life. In addition to a number of personal issues, he was suffering from social anxiety and was under the care of a psychologist. He noted that he had several teeth which were broken and needed to be fixed, and in an attempt to alleviate some of his social anxiety, he had asked the WCB for help, but help was denied. The worker said that he walked into class on the first day of school feeling very vulnerable, and they did not even know who he was. His name was not on the student list, and he felt like a spectacle. He started having severe chest pains that evening and spent 12 hours at the hospital, where he was told that his chest pains were likely due to stress.

The worker stated that he was denied further training and sent to job search with the assumption that he would do elemental sales, which he identified as telephone solicitation. He submitted that the WCB expects him to take a minimum wage job where he would never have benefits. He stated that all he is looking for is a regular, decent job with benefits.

The worker said that he is now unemployed, and is having a horrible time trying to find work. He is tired of struggling with bills and never being able to help his children. He has been told elsewhere that he is not eligible for retraining because he is receiving benefits (a small amount) from the WCB. The worker submitted that it would be cheaper to provide him with training which would enable him to get a job with benefits. He noted that retraining him would certainly be much cheaper than the civil engineering course which he was sent to in January 2014, where the WCB would have had to pay him full wage loss benefits during the course.

In response to questions from the panel, the worker said that he had never followed up with respect to the insurance sales job because of an issue with his car, then his teeth were getting continually worse and he did not feel very comfortable in public.

When asked about six job search leads which had been provided to him during the job search period, the worker did not recall if he had ever applied for any of them. He noted that all six sounded like they did not have benefits.

Employer's Position

The employer provided a written submission dated November 30, 2017 in response to the worker's appeal. The employer did not attend at or otherwise participate in the appeal.

In their written submission, the employer indicated that they supported the Review Office decision. The employer submitted that it was appropriate to implement the post-accident deemed earning capacity. The worker had been assigned a vocational rehabilitation consultant to help him identify an alternate occupational goal within his restrictions, and educational upgrading was provided to prepare him for the program which he decided to pursue. Having been accepted into the program for January 2014, the worker attended one day of the course then determined that he would not be able to pursue it further.

The worker was told that further academic upgrading would not be considered and that NOC 6683 best met his restrictions and provided him with an opportunity to become employable without further schooling. The WCB provided the worker with resume writing, job search and interview skills workshops and with 13 weeks of job search assistance. It was submitted that at the end of that 13-week period, having completed his VR, the worker was appropriately deemed and did not qualify for further training.

Analysis

The issue before the panel is whether or not it is appropriate to implement a post-accident deemed earning capacity effective June 14, 2014. For the reasons that follow, the panel is able to find that it is appropriate to implement a post-accident deemed earning capacity at the minimum wage, but that the post-accident deemed earning capacity should be temporarily suspended to allow for 13 weeks of job search assistance to be provided, as indicated in the following findings.

After considering all of the evidence which is before us, including the worker's submission at the hearing, the panel finds that it was appropriate to implement a VR plan based on NOC 6683 following the worker's withdrawal from the engineering technologist program.

The panel notes that the worker had been provided with significant upgrading opportunities and support in preparation for the course he had decided to pursue under NOC 2231, but that he ultimately withdrew from the course after the first day. In a memorandum to file dated January 13, 2014, it is recorded that the worker indicated on January 10 that "he had walked into the class and the Instructor started talking and he had no idea what he was talking about. He felt that everyone else in the class knew what was going on but him," that he "went home that day and studied for three hours and still couldn't get it" and that he hadn't gone back to school the next day because "he couldn't do it" so "what was the use." In response to a question at the hearing as to whether he believed, in hindsight, that he could have made it through the program, the worker responded "Sure, I could've….but I think they sent me to the wrong course, because when I went to that class he was doing stuff that I have never seen before."

The panel notes that the provision of VR services and benefits under the Act is discretionary. The panel is satisfied that the selection of an alternative VR plan for NOC 6683 was appropriate, taking into consideration the worker's permanent restrictions, the physical activities associated with the occupation and his education, skills and aptitudes.

Based on the evidence on file and at the hearing, the panel is further satisfied that the worker was employable and has been employed for certain periods of times since June 14, 2014, during which he was able to earn at least minimum wage.

The panel is also satisfied that implementation of a deemed earning capacity of $418.00 per week at the completion of the VR plan is appropriate. The panel notes that the deemed earning capacity of $418.00 per week was equivalent to 40 hours per week at the provincial minimum wage. The panel is satisfied the worker has the skills and ability to work full-time in a position that pays the provincial minimum wage.

The panel finds, however, that there was a deficiency in the job search assistance that was provided to the worker under the VR plan. In the panel's view, the evidence indicates that the worker had a number of issues, and was likely to be more challenging and to require more mentoring or direction. In spite of that, the evidence shows that the WCB provided him with only six job search leads in the course of the job search process, not all of which, in the panel's view, were necessarily appropriate or within the worker's home community. The evidence also shows that the WCB employment specialist had very little communication with the worker during the 13-week job search period.

In the circumstances, the panel finds that the worker is entitled to a 13-week period of job search assistance, during which he would be required to fully participate and cooperate with the WCB in that process. The worker's full wage loss benefits would be re-instated during that 13-week period, as long as he continues to participate and cooperate with the WCB as indicated. The job search assistance would also include assistance with the preparation of an updated resume. The post-accident deemed earning capacity would be re-instated at the conclusion of this job search process.

The panel acknowledges the worker's concerns, as expressed at the hearing, with respect to benefits packages that are important to him. The panel notes, however, that the relevant provisions of the Act and the Policies are only concerned with an earning capacity for wages, as opposed to wages and benefits.

Based on the foregoing, the panel finds that it is appropriate to implement a post-accident deemed earning capacity at the minimum wage effective June 14, 2014. The panel finds, however, that the post-accident deemed earning capacity should be temporarily suspended and a 13-week job search program provided to the worker, subject to his full participation and cooperation in that process, with the post-accident deemed earning capacity being reinstated at the conclusion of that job search program.

The worker's appeal is therefore allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of April, 2018