The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his post-accident deemed earning capacity effective February 26, 1993 is correct. A hearing was held on May 9, 2019 to consider the worker's appeal.

Issue

Whether or not the worker's post-accident deemed earning capacity effective February 26, 1993 is correct.

Decision

That the worker's post-accident deemed earning capacity effective February 26, 1993 is correct.

Background

This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 227/92 and 427/93, dated July 7, 1992 and January 18, 1994, respectively. The background will therefore not be repeated in its entirety.

On October 1, 1987 the worker slipped and fell, hitting his head and neck region. Initial medical reports by three treating physicians diagnosed neck pain, soft tissue injury-musculoligamentous strain, and muscular neck strain and depression, respectively. X-rays of the cervical spine and both shoulders revealed no abnormalities.

The claim was accepted and the worker was in receipt of full wage loss benefits and participating in vocational rehabilitation services until in or around March 1991 when he suffered a non-compensable health issue. Full wage loss benefits were reinstated in September 1991 when the worker recovered from the health issue. The worker underwent surgery on his left shoulder in August 1992 and December 10, 1992, and wage loss benefits were paid to February 25, 1993 when the WCB's Compensation Services advised the worker that they had determined he had recovered from his compensable injury and no responsibility would be accepted for his left shoulder difficulties. The worker appealed this decision to the WCB's Review Office, then the Appeal Commission.

In Appeal Commission Decision No. 427/93 dated January 18, 1994, it was determined that the worker's ongoing symptoms affecting his left shoulder were related to the workplace accident of October 1, 1987 and that the worker was entitled to benefits after February 25, 1993. It was noted that the worker suffered another non-compensable health issue in March 1993, and as a result, the appeal panel was unable to recommend a time period for the continuation of benefits beyond February 25, 2013.

In February 1994, a WCB vocational rehabilitation consultant deemed the worker capable of earning the minimum wage, and partial wage loss benefits were paid retroactively from February 26, 1993 based on an earning capacity of minimum wage. The worker's bi-weekly wage loss benefits were converted to a monthly pension (special additional compensation - SAC) in October 1994. In February 2003, when the worker turned 65 years old, his SAC award was replaced by a 2% monthly pension supplement, to continue for his lifetime.

On September 5, 2017, the worker's representative requested that Review Office reconsider the WCB's decision to deem the worker capable of earning minimum wage. The worker's representative noted that the worker's symptoms had been ongoing since October 1, 1987 and they were "appealing loss of wages." The worker's representative also noted that the worker's family physician could be contacted for further medical information.

On September 13, 2017, Review Office wrote to the worker's family physician and on September 25, 2017, Review Office received updated chart notes and an updated report from the physician.

On October 30, 2017, Review Office advised the worker that his post-accident deemed earning capacity of minimum wage effective February 26, 1993 was correct. Review Office noted that the worker was referred for a WCB vocational rehabilitation (VR) program in 1989. In their January 18, 1994 decision, the Appeal Commission had determined that responsibility would be accepted for the worker's left shoulder difficulties and he was entitled to benefits beyond February 25, 1993 in relation to the compensable injury. The WCB's Compensation Services implemented permanent restrictions of no lifting greater than 10 lbs., no work above shoulder level and no exertional activities with the worker's left arm, with respect to his left shoulder difficulties. In February 1994, the VR consultant reviewed the worker's previous VR activity and determined that the worker was capable of earning the minimum wage based on the compensable restrictions and the worker's skills and aptitude.

Review Office noted that findings provided by the worker's treating healthcare providers prior to the worker's non-compensable health issue in March 1993 supported that he was not totally disabled in relation to his compensable injuries. Review Office found that the worker's permanent restrictions were appropriate. Review Office found that the evidence on file supported that in relation to the workplace injuries, the worker was capable of work within the compensable restrictions. Review Office found that the worker's compensable injuries did not cause him to be totally disabled, and that the worker's inability to work was due to his non-compensable health issues.

On July 24, 2018, the worker's representative 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. The Act in effect on the date of accident is the applicable legislation.

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

Subsection 24(16) of the Act dealt with vocational training and provided, as follows:

24(16) The board may provide for any injured workman, whose earning capacity in his previous occupation has been permanently impaired by the injury, such vocational training as may be deemed advisable for the purpose of preparing the injured workman for another occupation to which he may seem adapted and which is likely to increase his future earning capacity; and to that end the board may contract with an institution or institutions furnishing such vocational training, and may adopt rules and regulations for that purpose and for the payment of the training.

Subsection 24(21) further provided:

24(21) To aid in getting injured workmen back to work and to assist in reducing or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures from the accident fund as it deems necessary or expedient.

WCB Policy 44.80.30.20.01, Post Accident Earnings - Deemed Earning Capacity (which was in effect in February 1994 when the decision relating to the deemed earning capacity was made), deals with the process of establishing the amount that the worker was capable of earning where that amount is different from the amount the worker is actually earning. This amount is referred to as the "deemed income." The Policy provides that the WCB will use the worker's vocational rehabilitation plan as the basis for compiling and evaluating information about the worker in determining whether a loss of earning capacity exists.

Worker's Position

The worker was represented by an advocate and was accompanied at the hearing by his daughter. The worker also called an occupational therapist as a witness. A written submission was provided in advance of the appeal. The worker and his daughter, the worker's advocate and the witness all participated in the hearing by teleconference.

The worker's position was that the information shows there was no medical evidence that the worker was able to do any job, much less the janitorial job he was "penalized for" when he was deemed capable of earning the minimum wage. It was submitted that according to the information on file, the worker was totally disabled from any kind of employment as suggested by the WCB and its consultant, and the appeal should be allowed.

It was submitted that Review Office placed too much reliance on the employment counsellor and the WCB vocational rehabilitation consultant, instead of medical evidence. The advocate reviewed and commented on the Review Office decision, in detail, both in the written submission and in his presentation at the hearing.

The occupational therapist testified that in the context of a workers compensation matter and vocational activities, questions are typically whether a person can do a particular type of work, what their functional abilities and limitations are and whether or not the person is giving full effort. He described two of several appropriate tools to ensure that a worker is able to succeed in a proposed job as a physical demands analysis and a functional capacity evaluation. He said that for someone with permanent limitations, he would be reluctant to say they could go back to a particular type of work if some functional testing had not been done and there was no appropriate job description. To determine whether a person with restrictions was able to perform an assigned job task, a physical demands analysis or at least a general description of that job and some functional testing would be needed.

The occupational therapist expressed various concerns with the March 9, 1993 letter from the treating physiotherapist which was referred to by Review Office. With respect to sample job postings for cleaners at a mall which had been provided in advance of the hearing, he indicated that there was a significant discrepancy between the worker's restrictions and the job duties, which raised red flags, and he did not believe the worker could do those duties. He noted that other factors such as cognitive ones, should also be considered, and for someone who prefers solitary work, a position at that mall would be overwhelming.

The advocate relied heavily in his submission on a cleaner or janitorial position at a particular mall, which he submitted was the focus of the WCB and employment counsellor. He had provided samples of current job postings for cleaners from the company who operated the mall in 1993, as indicated above, and submitted that the requirements of the position were outside the worker's restrictions and not appropriate. The advocate also referred to photographs of disposal bins at the mall as illustrating some of the challenges which the worker would have faced in that position and which would have exceeded his capabilities.

The advocate agreed with the worker's permanent restrictions. The advocate listed a number of concerns with respect to whether the worker could do the job which was being proposed, given those restrictions, including:

• No job description was presented for the job; 

• No physical demands analysis, functional capacity evaluation or similar assessment was done; 

• What the WCB was talking about was not light duty; the restriction of 10 lbs lifting would not be light duty but sedentary duty; 

• No one took into account that the worker was classified as a total introvert, had no confidence and would not do well working as a janitor in a crowded mall; 

• The worker was never set up for success; 

• Most of the communication from the employment counsellor was verbal and there was very little in writing; 

• No medical professional actually stated the worker could do this job, and as set up, it was in breach of the stated restrictions; 

• The worker suffered other health issues, which made the process more difficult; 

• The worker was functionally illiterate; 

• The WCB vocational rehabilitation counsellor and employment consultant did not inform work leads as to the worker's limitations and restrictions, then penalized the worker for being honest with employers.

In conclusion, the advocate stated that they were not saying the worker was totally disabled. It was more a question of whether the worker was employable in any capacity. The advocate stated that the only way they would have known the answer to that was if the WCB had done their due diligence, but that window of opportunity was taken away from him. They were therefore requesting that the Review Office decision be overturned and the worker be paid the money which was withheld from him over a period of approximately 11 years, and to which he was entitled.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's post-accident deemed earning capacity effective February 26, 1993 is correct. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that implementation of a post-accident deemed earning capacity of minimum wage effective February 26, 1993 was not appropriate or correct. The panel is unable to make that finding.

Based on the information before us, and given the passage of time of 27 years, the panel is unable to conclude that the deemed earning capacity is incorrect.

While the panel acknowledges that the worker likely had ongoing discomfort from his compensable left shoulder injury, the medical evidence does not establish that the worker was totally disabled due to his ongoing pain symptoms or left shoulder difficulties.

The panel accepts that the permanent restrictions of no lifting greater than 10 lbs, no work above shoulder level and no exertional activities with the worker's left arm, were appropriate. The panel notes that the worker's advocate and the occupational therapist agreed with these restrictions.

The panel does not agree that the WCB did anything inappropriate or wrong. The panel does not accept that a functional capacity evaluation, or other such analysis was necessary, as the WCB was not narrowing the options which were being considered. The WCB was not looking at the worker returning to his original job, with restrictions, or targeting a particular job with specific requirements. The panel notes that while a memorandum to file dated February 22, 1993 records that the employment counsellor spoke to the WCB VR consultant about a light janitorial job in a mall which he felt would be a good opportunity for the worker and would pay significantly more than the minimum wage, the information does not indicate that the focus was exclusively or predominantly on this opportunity. The panel further notes that a job in cleaning or janitorial work was in keeping with the worker's experience and skill set.

In her March 9, 1993 letter to the employment counsellor, the treating physiotherapist stated that "As far as work is concerned, I think that [the worker] could do a) light janitorial work or b) any work that does not involve heavy lifting or exertion activities with his left shoulder, i.e. no more than approximately 10 pounds." The physiotherapist went on to suggest other possible options for the worker. The panel notes that these suggested options are not exhaustive and are relatively general in nature.

Based on our review of all of the information before us, the panel is satisfied that the worker was capable of gaining employment in some capacity at minimum wage.

The panel finds that vocational rehabilitation support was provided to the worker as agreed to. The worker was referred for vocational rehabilitation services and benefits in 1989 and a plan was developed and implemented. While the program was discontinued for certain periods of time due to non-compensable health issues and other matters, it was reinstated when the worker recovered sufficiently from those issues. In January 3, 1992, the worker was advised that in keeping with the previous commitment to assistance offered by the vocational rehabilitation consultant, the worker would be allowed six months of job search benefits, following which if he was not successfully re-employed, he would be considered capable of earning a specific amount to be determined based on an assessment of his earning potential.

The panel notes that there were a significant number of comments and indications on the file with respect to the worker's focus on his pain and disabilities, and his reasons as to why he could not return to work. The panel finds that the worker was more focused at the time on his disability than on his re-employability.

Information on file further indicates that the worker amplified his pain symptoms and undermined job interviews that were arranged. While it was submitted that the worker had an obligation to make prospective employers aware of his disability and inform them of the risks, information on file indicates that he went beyond that. When asked by his advocate at the hearing why he would tell employers about his restrictions, the worker said that it was "because I was sore, you know, I just couldn't work." When asked at the hearing whether there was anything he felt he could do in an employment context, his response was "not a thing."

Information on file indicates that the worker presented negatively, leaving the impression that he was not serious about looking for a job. A letter from the employment counsellor to the WCB indicated that the worker had gone to three employers who would hire him for light janitorial and light assembly in a plant. The letter notes that the worker felt when he went to see an employer that he must advise them that he has a serious problem with his shoulder and other physical problems. When asked about this at the hearing, the worker said he remembered going to those interviews, but his arm was too sore and he could not work, so he told them his arm was too sore. He further said that they never offered him a job.

The panel is satisfied that at the time he was deemed capable of earning the minimum wage, the worker was able to work but was not proactive in searching for employment. The panel notes that the worker had an obligation to cooperate and to actively participate in the process.

In response to questions from his advocate, the worker said that he recalled going to lots of job interviews, and that he "went to every place WCB sent me." In response to a question from the panel as to where else he interviewed, he said he had "been all over the place," but when asked for an example of some of the locations, he said "Thirty-three years ago, that's a long time ago."

Based on the foregoing, the panel finds, on a balance of probabilities, that implementation of a post-accident deemed earning capacity of minimum wage effective February 26, 1993 was appropriate and correct. The panel therefore finds that the worker's post-accident deemed earning capacity effective February 26, 1993 is correct.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of July, 2019