The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that the vocational rehabilitation plan for the National Occupational Classification (NOC) 6651 Security Guards and Related Occupations and implementation of a post-accident deemed earning capacity of $500.00 per week effective September 9, 2017 were appropriate. A hearing was held on March 28, 2019 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan is appropriate; and

Whether or not the implementation of a post-accident deemed earning capacity of $500.00 per week effective September 9, 2017 is appropriate.

Decision

That the vocational rehabilitation plan is appropriate; and

That the implementation of a post-accident deemed earning capacity of $500.00 per week effective September 9, 2017 is appropriate.

Background

On January 19, 2012, the worker sustained a severe crush injury to his right hand in an accident which was described on the Employer's Accident Report as follows:

[The worker] was cleaning the conveyor belt on the second line dough divider. He reached up to clean the pocket and the blade came down and contacted his hand and the cleaning cloth. His hand became trapped and three fingers on his right hand were cut very badly…

The worker was transported to a local emergency room for treatment. He underwent partial amputation of the right middle finger and revascularization of the right ring and small fingers. The worker's claim was accepted by the WCB and payment of various benefits started.

The worker underwent physiotherapy and occupational therapy following surgery, and his recovery was monitored by a hand specialist. Based upon a functional capacity evaluation conducted on September 21, 2012, the WCB noted that the worker would have a limited recovery from his injury, and restrictions of using his left hand only, with his right hand to assist, were identified. On November 5, 2012, the worker underwent revision amputation of the tip of his right small finger.

On March 14, 2013, the worker was seen by a WCB plastic surgery consultant for a call-in examination. The plastic surgery consultant opined that the worker would "likely have difficulties with activities requiring firmly resisted grasping with the right hand and activities requiring pressure to the right small finger." The consultant further noted that the worker should be cautious exposing his right small finger to extremes in temperature or sharp implements, and recommended the use of custom-fitted thermal gloves in cold environments. Temporary restrictions were provided to the employer on April 12, 2013, and on June 24, 2013, the employer was advised that these restrictions would be permanent.

On July 22, 2013, the worker returned to work on modified duties starting at two hours per day. On July 23, 2013, the employer contacted the WCB to advise that the worker had only been able to work 1.5 hours that day and could not continue. The worker's modified duties were subsequently discussed with his treating physiotherapist, and the WCB arranged for an external occupational therapist to conduct a worksite assessment and facilitate any modifications that could assist the worker in his return to work. In a report dated December 20, 2013, the external occupational therapist recommended use of a custom orthotic device to assist the worker in his job duties. Other recommendations included referral of the worker to a pain management clinic, as the worker was reporting significant pain to his right hand, and continued occupational therapy to help the worker transition on a gradual return to work program.

On April 1, 2014, the worker was assessed by an occupational health physician, who encouraged the worker to keep as active as possible with his right hand and recommended a trial of medication to help alleviate the pain.

On May 1, 2014, a return to work meeting was held at the worksite with the employer, the worker, his legal counsel, an interpreter and the WCB case manager. The WCB subsequently arranged for the worker to be seen by the WCB's Pain Management Unit for a call-in examination, which took place on August 14, 2014. Following the call-in examination, the medical advisor to the Pain Management Unit recommended changes to the worker's medications.

The worker was seen by the occupational health physician at a follow-up appointment on September 26, 2014. In an October 2, 2014 report, the occupational health physician recommended restrictions consisting of unrestricted use of the worker's left hand, with use of his right hand for basic support only. On May 20, 2015, the WCB plastic surgery consultant reviewed the occupational health physician's report and opined that the restrictions could be considered permanent. On June 5, 2015, the employer was advised of the worker's permanent restrictions. On June 9, 2015, the employer advised that they could not accommodate the worker, and the WCB case manager referred the worker's file to vocational rehabilitation ("VR").

At an initial VR assessment meeting on September 3, 2015, it was noted that the worker's language and computer skills required upgrading. The worker underwent a language skills assessment on October 16, 2015 and was enrolled in language and computer courses. On April 29, 2016, the WCB VR consultant provided an update on the worker's progress, and a further four months of language and computer training was recommended.

On June 10, 2016, the WCB VR consultant met with the worker and his legal counsel to discuss the next steps for the worker's VR plan. The worker expressed an interest in training for social service work, under NOC 4212 Community & Social Services. The VR consultant also recommended training for NOC 6651 Security Guards and Related Occupations and it was noted that the worker indicated he would be interested in this type of work as a "plan B."

On December 30, 2016, the WCB VR consultant completed a Stage 2 Transferable Skills Analysis and recommended that a VR plan for NOC 6651 be developed for the worker.

On January 20, 2017, the WCB provided the worker with a copy of the VR plan for NOC 6651. It was noted that the duration of the plan was from November 2015 to October 16, 2017, which included training courses and 30 weeks of job search assistance, and that upon completion of the plan, the worker would be capable of earning $500.00 per week. On March 31, 2017, the worker passed the Manitoba Security Guard Licence exam, and on April 3, 2017, the worker obtained his security guard licence.

On April 13, 2017, the worker met with the WCB VR consultant to discuss further training so he could obtain his class 5 driver's license. On May 12, 2017, the VR consultant completed a labour market research study which indicated that having a driver's licence would increase the worker's marketability in NOC 6651, and on June 13, 2017, the WCB approved funding for the worker to pursue driver training.

On July 14, 2017, the worker advised the WCB that he was leaving the province that day and would be returning within the next two weeks. On August 31, 2017, the worker sent a letter to the WCB advising that he had moved out of the province on a permanent basis. The WCB attempted to contact the worker to discuss his relocation and his ongoing VR plan but was unable to reach him. On September 8, 2017, Compensation Services wrote to the worker to advise that his benefits would be suspended until such time as he contacted the WCB.

In a letter to the worker dated October 19, 2017, Compensation Services confirmed that the VR plan was completed as of October 16, 2017, and advised the worker that he was considered capable of earning $500.00 per week, being his deemed earning capacity for NOC 6651. Compensation Services also noted that as a result of his non-participation in the plan when he left the province and his failure to contact the WCB, his wage loss benefits were reduced by the deemed earning capacity of $500.00 per week effective September 9, 2017.

On March 13, 2018, the worker requested that Review Office reconsider the Compensation Services decision. The worker noted that he did not feel safe and did not know how he could defend himself physically with his hand injury in a position as a security guard.

On May 1, 2018, Review Office determined that the VR plan of NOC 6651, with a deemed earning capacity of $500.00 per week effective September 9, 2017, was appropriate. Review Office found that NOC 6651 was an appropriate occupation for the worker, which respected his compensable medical restrictions, as well as his education, skill, aptitudes, interests and personal qualities, and that there was a demonstrated job market in that field.

Review Office further found that the Compensation Services decision to implement the worker's deem on September 9, 2017 was correct, as the worker chose to leave the province while in the final stages of his job search. Review Office found that Compensation Services appropriately notified the worker of the change from his full wage loss benefits to his deemed earning capacity.

On September 7, 2018, 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.

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, in part, that:

1. 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.

2. The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work.

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 assisted by a counsellor and was provided with the services of an interpreter at the hearing. The worker provided a written submission in advance of the hearing. His representative made an oral presentation, and the worker and his representative responded to questions from the panel.

The worker's position was that the VR plan of NOC 6651 was not appropriate, and it was unfair and inappropriate to implement a deemed earning capacity.

The worker's representative noted that the assessment for the VR plan identified two options: NOC 4212 and NOC 6651. He submitted that NOC 6651 was not appropriate from the beginning. It was the WCB's choice, not the worker's, and was selected by the WCB because it was the most cost effective direction. The representative submitted that work in NOC 6651 was physically demanding, risky and unpredictable. In his view, NOC 4212 was more appropriate, as the work was less risky and was more consistent with the worker's past experience as a teacher, community leader and minister. NOC 4212 was not offered to the worker, however, because the WCB considered it to be less cost effective.

It was submitted that the medical reports show that the worker suffered a severe crush injury in the accident and was massively injured. The treating physicians indicated in 2012 that his injuries would have a serious impact on his health and he would likely require further surgery.

Reference was made to the worker's ongoing physical disability or difficulties. It was noted that the worker's fingers are very sensitive and painful. He continues to have wounds at the tip of his right small finger, with fluid draining from that finger. The worker indicated that the small finger becomes increasingly itchy, and increasing amounts of blood and fluid drain off the finger as it gets colder.

It was submitted that the worker's physical limitations cause him problems when he is looking for work. The worker stated that it is difficult to perform his work because of his disability which resulted from the accident. He indicated that he feels unsafe and insecure, and unable to defend or help himself or others, when working as a security guard. It was submitted that the worker's language proficiency limitations also caused him problems in terms of looking for employment in NOC 6651.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the vocational rehabilitation plan is appropriate.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the VR plan for the worker under NOC 6651 is not appropriate. The panel is unable to make that finding.

The panel finds that the VR plan under NOC 6651 and assistance provided to the worker were based on a realistic goal and reasonably took into consideration the worker's post-injury physical capacity, skills and aptitudes. Information on file further shows that the worker had worked in the field of security in the past and had expressed an interest in NOC 6651 during the VR process.

The panel recognizes that not all of the positions in NOC 6651 may have been appropriate for the worker, but is satisfied that NOC 6651 is a broad occupational category which includes a wide variety of security related positions, ranging from sedentary to active roles.

The panel does not accept the suggestion by the worker representative that NOC 4212 Community & Social Services would have been more appropriate for the worker. In this regard, the panel notes that it was indicated in the Stage 2 Transferable Skills Analysis that the worker would have required significant additional training to meet the educational and skill requirements of this occupational area, as well as additional English upgrading to be successful in the programming. It was also indicated that after further consideration, the worker had agreed "that he would be more inclined to pursue alternate employment and training."

The panel is further satisfied that information on file and at the hearing supports that the worker had achieved the skill levels required for employment within NOC 6651.

The panel notes that a memorandum to file dated January 23, 2018 indicates the worker had advised that he had started a job a few weeks earlier earning $13.00 an hour, which was mostly full-time work. On March 15, 2019, the worker sent a fax to the Appeal Commission advising that he had quit his employment in February 2019 "because my hands started to hurt from the cold." At the hearing, the worker confirmed that he had, in fact, been working in security, initially on a part-time basis then full-time. He usually worked at night, and would be patrolling both indoors and outdoors. He said that the hardest part was the weather, and that he left the job because of the cold weather. When asked if he had any issues with the use of his hands, he said that "the problem was just for the winter…because of the weather, otherwise I don't have any problem with the work." He noted that he had a heated glove for his hand, but did not wear it all the time, and that he had not asked his employer about finding a different job where he was not working in the cold.

The panel does note that the worker's ability to find and maintain employment in the security field does confirm both the presence of a viable labour market that can accommodate the worker, and the worker's suitability for this field.

While the worker and his representative referred at the hearing to the worker's ongoing physical disability and issues, including wounds at the tip of his right small finger and drainage from that finger, the panel notes that there is a lack of medical evidence in this regard. In response to questions from the panel, the worker indicated that he had not really gone to see a doctor with respect to his hand for over four years. He said that "when the pain worse, I go to take painkiller, that's all I do and I don't go to any doctor," and acknowledged that for all intents and purposes, the last medical information was from his September 26, 2014 visit to the occupational health physician. The worker indicated that his family physician was referring him to a specialist, but he did not know when this would happen.

Based on the available medical evidence, the panel is satisfied that the VR plan of NOC 6651 was appropriate.

As a result, the panel finds, on a balance of probabilities, that the VR plan for the worker under NOC 6651 Security Guards and Related Occupations is appropriate.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the implementation of a post-accident deemed earning capacity of $500.00 per week effective September 9, 2017 is appropriate.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the deemed earning capacity of $500.00 per week was not appropriate and/or that it was not appropriate to implement such a post-accident deemed earning capacity effective September 9, 2017. The panel is unable to make that finding.

The panel notes that the deemed earning capacity of $500.00 per week was equivalent to what had been identified as the minimum starting wage rate for a position in NOC 6651. Based on our review of the evidence, the panel is satisfied that the worker had the appropriate skills and ability to work full-time in a position which paid that rate.

The panel is further satisfied that it was appropriate to implement the deemed earning capacity of $500.00 per week effective September 9, 2017. The panel notes that the worker was coming to the end of his VR plan when he advised the WCB that he was leaving the province to visit his wife and family, who had moved previously, and that he would be back within two weeks. The worker did not return or contact the WCB after two weeks. Efforts were made to contact the worker, but the WCB did not hear from him. On August 31, 2017, the worker sent a letter advising that he had moved out of the province on a permanent basis. On September 8, 2017, after further attempts to contact the worker had been unsuccessful, the WCB sent him a letter saying that his benefits were suspended.

Based on the evidence, the panel is satisfied that the worker effectively removed himself from the VR program when he left the province. In the circumstances, the panel finds that that implementation of the deemed earning process effective September 9, 2017 was consistent with the VR Policy and appropriate.

In conclusion, the panel finds that the implementation of a post-accident deemed earning capacity of $500.00 per week effective September 9, 2017 is appropriate.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 24th day of May, 2019