The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are capable of employment in NOC 0711, Construction Manager; and 

2. They are not entitled to wage loss benefits after August 19, 2016.

A videoconference hearing was held on May 4, 2021 to consider the worker's appeal.

Issue

1. Whether or not the worker is capable of employment in NOC 0711, Construction Manager; and 

2. Whether or not the worker is entitled to wage loss benefits after August 19, 2016.

Decision

1. The worker was capable of a return to work in their pre-accident employment as of May 2016; and 

2. The worker is not entitled to wage loss benefits after August 19, 2016.

Background

The WCB accepted the worker’s claim for bilateral head fractures in both their right and left elbows and as well as a right great toe fracture that occurred as the result of an incident at work on September 18, 2013 when the worker tripped on the ledge of a trailer and fell approximately four feet to the ground. The worker advised the WCB their ownership share in the employer’s company was purchased by the employer and their position with the employer was terminated on October 10, 2013.

Following the accident, the worker received physiotherapy treatment. Due to ongoing difficulties with pain in their elbows and numbness in the 4th and 5th fingers in their hands, the worker was referred for a nerve conduction study. The neurologist who conducted the study recommended on March 28, 2014 that the worker undergo interventions including possible “…manipulation under general anesthesia or bilateral elbow scopes.” A June 18, 2014 report from the worker’s treating orthopedic surgeon recommended “…an arthroscopic contracture release with ulnar nerve release…” for both elbows, with the left elbow surgery to be completed first. On June 26, 2014, the WCB approved the surgeries, and the left elbow surgery was completed on July 21, 2014. The right elbow surgery took place on January 27, 2015. After each surgery, the worker was provided physiotherapy.

On June 25, 2015, a WCB medical advisor reviewed the worker’s file and recommended the worker undergo a functional capacity evaluation (FCE) to determine the worker’s capabilities and any required restrictions. The worker attended for the FCE with a WCB physiotherapy consultant on September 30, 2015. Following evaluation, the WCB physiotherapy consultant reported the worker “…demonstrated the ability to lift isometrically at a ‘medium’ rate of work capacity. Regarding the isometric lifting study, [the worker] demonstrated good lifting biomechanics for all the lifts requested.”

A WCB medical advisor reviewed the worker’s file and the results of the FCE on November 19, 2015, and determined the worker’s permanent restrictions to be:

• maximum bilateral lift, waist to chest, of 20 lbs on an occasional basis (0-33% of the workday) and 10 lbs on a frequent basis (34-66% of the workday); 

• maximum bilateral lift, knee to waist, of 40 lbs on an occasional basis and 20 lbs on a frequent basis; 

• maximum bilateral lift floor to knee, of 30 lbs on an occasional basis and 15 lbs on a frequent basis; 

• maximum bilateral carry of 20 lbs on an occasional basis and 10 lbs on a frequent basis; 

• maximum single arm left/right of 20lbs/25lbs on a frequent basis and 10lbs/10lbs on a frequent basis; and 

• maximum push/pull of 30lbs/40lbs on a frequent basis and 15lbs/20lbs on a frequent basis.

The medical advisor also recommended the worker limit prolonged direct pressure on the elbows and prolonged/sustained elbow flexion. The WCB communicated the permanent restrictions to the worker on November 23, 2015. As the worker was unable to return to their pre-accident position, a request for vocational rehabilitation services was made the same day.

Between December 2015 and April 2016, the worker completed some computer training as well as participating in skills analysis and job search preparation. In this period, the worker also received treatment for a non-compensable health issue. On April 27, 2016, a Transferable Skills Analysis – Stage 2 was completed by the WCB and a recommendation made, based on the worker’s permanent restrictions, that the worker was capable of returning to their pre-accident employment; however, additional information regarding the worker’s pre-accident job duties was required to determine the next steps in the worker’s claim. The WCB then contacted the employer who, on May 2, 2016, provided further details on the worker’s job duties in their pre-accident position with the employer.

On May 18, 2016, the WCB advised the worker it had determined they were capable of returning to their pre-accident employment activities and as such no longer had any loss of earning capacity related to the workplace accident of September 18, 2013. As the worker had been in receipt of wage loss benefits for more than two years, the WCB provided the worker with 12 weeks’ notice that their entitlement to benefits would end on August 19, 2016.

On August 17, 2016, the worker requested Review Office reconsider the WCB’s decision. In their submission, the worker noted that they were willing to return to work; however, given their restrictions and current loss of range of motion, they believed they would require retraining in a new field of employment as they could not return to their pre-accident employment. Review Office found on September 16, 2016 that the worker was not entitled to wage loss after August 19, 2016. Review Office accepted that based on a comparison of the worker’s pre-accident job description as provided by the employer and the worker against the worker’s permanent restrictions, the worker was capable of performing the essential duties within NOC 0711, Construction Manager, which Review Office found to be equivalent to the worker’s pre-accident employment. As the worker was capable of returning to their previous profession within their permanent restrictions, Review Office found the worker was not entitled to wage loss benefits after August 19, 2016 as they no longer had a loss of earning capacity.

The worker’s representative filed an appeal with the Appeal Commission on January 7, 2021. A videoconference hearing was arranged for May 4, 2021.

Reasons

Applicable Legislation

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

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Medical aid is provided for under s 27 of the Act which states that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident. Section 27(20) of the Act permits the WCB to provide academic or vocational training, or rehabilitative or other assistance to a worker

“...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.”

Worker’s Position

The worker was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker and relied as well upon a written submission provided to the hearing panel in advance of the hearing. The worker provided evidence in response to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the worker was neither qualified for, nor capable of, employment within NOC 0711, and further, that as a result and considering the worker’s significant physical restrictions and functional abilities, the worker was entitled to further wage loss benefits beyond August 19, 2016 as they continued to experience a loss of earning capacity related to the compensable injury.

The worker outlined to the panel their job history leading up to their employment at the time of the accident, noting they had not finished high school but left school to work in the family business, primarily undertaking physical work. The employer was a friend from school who hired the worker in September 2009 in a supervisory role to oversee small renovation projects. In April 2010, the worker invested in the employer’s business and at that time moved into their pre-accident role as Vice President of Operations. Subsequently, worker’s day to day role did not really change and their work remained somewhat physical, looking after small projects and providing site supervision. In 2013, the worker completed some correspondence courses related to their work. Some three weeks after the injury occurred, the worker and the employer agreed that the employer would buy out the worker’s investment in the company and the worker’s role in the business ended at that time.

The worker advisor outlined to the panel the chronology of the WCB-initiated vocational rehabilitation process that followed the November 2015 determination of the worker’s permanent restrictions. The worker advisor noted that the December 15, 2015 initial assessment highlighted that the worker had limited ability to use a computer at that time, and as a result a plan was put in place to train the worker in the use of voice-activated computer software. The January 2016 vocational aptitude and academic assessment revealed the worker to have grade 10/11 standing. A draft resume was also prepared for the worker as part of the vocational rehabilitation process. After the employer confirmed the worker’s job duties to the WCB in April 2016, the WCB determined that the worker’s restrictions would permit the worker to return to their pre-accident job and the vocational rehabilitation process was terminated.

With respect to the Review Office determination that the worker is capable of employment within NOC 0711, Construction Manager, the worker advisor noted that the worker does not possess either the academic background or experience required of a construction manager as outlined in the April 27, 2016 transferable skills analysis prepared by the WCB case manager. The worker advisor noted that NOC 0711 requires a master’s degree in project management or a degree in civil engineering, as outlined in the materials provided in the worker’s submission of April 27, 2021. The evidence confirms the worker does not possess the academic qualifications for this NOC.

In response to the WCB’s determination that the worker was fit to return to their pre-accident employment duties in August 2016, the worker advisor noted that the worker would not have been able to do so for a number of reasons. The worker was not physically able to undertake those job duties at that time. The worker’s particular position was no longer available, and the worker was not qualified for, in terms of education and experience, any other project manager position. Further, the worker was not able to obtain similar employment due to the permanent restrictions in place. The worker advisor also noted that the worker was also not physically capable of undertaking full-time sedentary, desk-based work at that time as any computer-based work would have required prolonged direct pressure on the elbows and prolonged/sustained elbow flexion, contrary to the worker’s restrictions.

The worker disputes the description of their job duties as provided by the employer, noting that they were initially hired by the employer as a supervisor of small renovation projects. When the worker was offered and accepted the opportunity to invest in the employer’s company, they received a new title of vice president as well as additional perks and a company vehicle. The worker testified that their essential job duties did not change at this time, describing to the panel duties including estimating, completing bonding paperwork, managing jobs and overseeing small projects, ordering safety supplies, implementing safety procedures, setting up schedules, conducting weekly project meetings and distributing meeting minutes. Day to day, the worker described driving from job site to job site to check on project status, talk with workers on-site and engage in problem-solving as needed. Site preparation would involve setting up safety equipment and barriers as well as meeting with site staff. Office time of approximately 1-2 hours daily would have involved computer work as well as making phone calls and other tasks. The worker noted that in the role of vice president they also attended various functions and some educational programming on behalf of the employer, but were not directly involved in strategic planning, business planning, budgeting and finance or general operations. The worker described their position as equivalent to a project manager, although as noted above, the worker does not possess the educational background generally required for project managers in this field.

The worker described to the panel their ongoing physical limitations, noting ongoing difficulties with both arms, but worse on the right. The worker’s symptoms make use of a computer keyboard and driving difficult. The worker noted they continue to rely on pain medication.

The worker also described to the panel the duties associated with a part-time job the worker obtained in December 2017. The worker described working approximately 3 hours per day, from 3 to 4 days weekly with duties that included driving to job sites where the worker would test and install equipment, using power hand tools. As well in this role the worker from time to time gave presentations and staffed a trade show booth. The worker indicated that they left this employment in January 2019 due to their own concerns about safety while driving, given increasing symptoms of numbness and difficulty with grip strength in both arms.

The worker sought further medical attention for the right and left arm symptoms, ultimately resulting in ulnar nerve surgery on the left arm in July 2019 and on the right arm in September 2019. The worker noted that after their recovery from surgeries they remained unemployed and have not looked for any other work since the pandemic was declared early in 2020.

In sum, the worker’s position is that the evidence demonstrates the worker continued to experience a loss of earning capacity beyond August 19, 2016 arising out of the injuries sustained in the compensable accident of September 18, 2013. Further, the worker is not capable of employment in NOC 0711, Construction Manager, as they lack the appropriate qualifications, and as their restrictions would preclude them from obtaining employment in this job classification. Although the WCB found the worker’s restrictions would not prevent the worker’s return to their pre-accident employment, the fact is that this employment is no longer available to the worker and the combination of the worker’s permanent physical restrictions and the worker’s limited functional capacity at that time would not have allowed the worker to return to the pre-accident employment. As a result, the worker continued to sustain a loss of earning capacity beyond August 19, 2016 as well as an ongoing need for medical aid. The worker’s appeal should therefore be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are two issues for the panel to determine arising out of the worker’s appeal from the September 16, 2016 Review Office decision. The panel is asked to determine whether the worker is capable of employment in NOC 0711, Construction Manager and whether the worker is entitled to wage loss benefits after August 19, 2016. In order for the worker’s appeal to succeed, the panel would have to determine that the worker’s permanent restrictions precluded them from returning to work in their pre-accident employment, resulting in an ongoing loss of earning capacity beyond August 19, 2016. For the reasons outlined below, the panel was not able to make such a determination.

The worker’s position is that the Review Office erred in finding that the worker was capable of employment in NOC 0711, Construction Manager and that they are not entitled to wage loss benefits after August 19, 2016. The worker submitted this decision should be overturned as the evidence does not support that the worker was either qualified for or capable of employment in NOC 0711 and further, that as a result and considering the worker’s significant physical restrictions, the worker should have been entitled to further wage loss benefits beyond August 19, 2016.

The panel reviewed the claim file history, with particular attention to the decisions reached by the WCB in respect of whether the worker had any further loss of earning capacity beyond August 19, 2016. We note that after the WCB determined the appropriate permanent physical restrictions for the worker in November 2015 based upon a recently conducted functional capacity evaluation of the worker, a process of vocational rehabilitation commenced as the worker could not return to their pre-accident employment. Over the winter of 2015-16, the worker completed digital dictation training and as well as aptitude testing and job search preparation. As part of the vocational rehabilitation process, a Transferable Skills Analysis – Stage 2 was completed by the WCB in April 2016. The report dated April 27, 2016 concludes that “Based on the workers (sic) permanent restrictions it would appear that [the worker] is physically capable of returning to [their] pre-accident employment activities and there would be no entitlement to VR Services.” To confirm this assessment, the WCB then obtained further information as to the worker’s pre-accident job duties from the employer in early May 2016, and taking that information into account, on May 18, 2016, the WCB determined the worker was capable of returning to their pre-accident employment activities and as such no longer had a loss of earning capacity related to the workplace accident of September 18, 2013. By an email to the worker dated May 27, 2016, the case manager further explained the decision to the worker stating that they were unable to identify any duties from the worker’s pre-accident employment activities that were outside the worker’s permanent restrictions, therefore there was no entitlement to further vocational rehabilitation services.

The panel noted that although the Transferable Skills Analysis completed by the WCB used the NOC 0711 category as a comparator to the worker’s pre-accident employment as part of that process, there was not at any time a determination by the WCB that the worker was capable of employment in that job category. In fact, and as outlined above, the vocational rehabilitation process that commenced in late 2015 was abandoned in May 2016 on the basis of the WCB’s decision that the worker could have returned to their pre-accident employment if it were available to the worker, and not to employment in NOC 0711 more generally.

It was the Review Office, in its September 16, 2016 decision that determined it would consider the general duties and expectations of NOC 0711, Construction Managers as “most relevant” in determining whether or not the worker had a continuing loss of earning capacity on the basis that the worker’s “particular workplace is no longer an option for employment.” Review Office found that the worker’s pre-accident employment fell within that NOC, that the worker was capable of working within that profession within the constraints of their physical restrictions, and therefore the worker was not entitled to further wage loss benefits.

The panel does not agree with the approach taken by the Review Office and finds that the determination the worker was capable of employment within NOC 0711, Construction Manager is not appropriate given that there was no determination by the WCB that the worker was capable of employment within this occupational grouping. Rather, the panel prefers and agrees with the approach taken by the WCB case manager as set out in the decision letter of May 18, 2016. This approach asks whether the worker would be capable of returning to their specific pre-accident employment if that employment were still available.

The panel reviewed the job description information provided to the WCB by the employer as well as the information provided by the worker, both in the claim file and in their testimony to the appeal panel in the hearing. The panel compared this information to the worker’s permanent physical restrictions arising out of the Functional Capacity Evaluation that took place in September 2015. On the basis of the evidence presented by the worker as well as the evidence contained in the WCB claim file, the panel finds that the worker’s permanent physical restrictions set out in the WCB medical advisor’s November 19, 2015 opinion would have permitted the worker to return to their specific pre-accident employment. In other words, the worker’s permanent restrictions did not preclude the worker from doing their pre-accident job in May 2016 when the WCB determined the worker was not entitled to wage loss benefits beyond August 19, 2016. Therefore, the panel finds on a balance of probabilities that as of May 18, 2016, the worker was capable of returning to employment in their pre-accident job.

The panel noted that although the evidence supports a finding that the worker was capable of doing their pre-accident job as of May 18, 2016, the worker no longer had that job at that time. The evidence before the panel is that the worker’s pre-accident employment was terminated by mutual agreement between the worker and the employer for reasons not related to or arising out of the compensable accident. Thus, while the worker continued to sustain a loss of earning capacity beyond August 19, 2016, the reason for that was not due to or arising out of the compensable injury of September 18, 2013 but arose from the mutually agreed upon termination of the employment and business relationship between the worker and the employer. Further, while the worker testified as to their belief that they were unable to obtain other similar work in this field due to their physical restrictions, the panel finds that the evidence, including the worker’s own testimony, rather supports a finding that the barriers to the worker obtaining other similar employment relate to the worker’s lack of formal education and prior work experience, which we find not to be related to or the result of the compensable injury.

On the standard of a balance of probabilities, the panel finds that the worker’s permanent restrictions did not preclude them from returning to work in their pre-accident employment, and therefore did not result in an ongoing loss of earning capacity beyond August 19, 2016. Any loss of earning capacity beyond that date was due to non-compensable factors and did not arise out of the compensable injury. Therefore, wage loss benefits are not payable beyond August 19, 2016.

The panel notes that the WCB subsequently determined the worker was entitled to further wage loss and medical aid benefits arising out of a recurrence of the injuries from the accident of September 18, 2013, specifically in relation to the surgical interventions with respect to both the worker’s left and right elbows that took place in 2019. The panel does not make any determination with respect to these periods of wage loss or other entitlement, nor as to whether there was any additional entitlement, noting that the worker has not appealed these decisions.

The panel also acknowledges that the worker has or may have continuing need for medical aid, noting that the worker was assessed for permanent partial impairment in 2016 and that the worker’s permanent physical restrictions remain in place. We make no findings as to the worker’s ongoing or future entitlement to such medical aid.

The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of June, 2021