Decision #39/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. Their permanent partial impairment rating and monetary award have been correctly calculated; and
2. Their vocational rehabilitation plan is appropriate.
A videoconference hearing was held on March 16, 2022 to consider the worker's appeal.
1. Whether or not the worker’s permanent partial impairment rating and monetary award have been correctly calculated; and
2. Whether or not the worker’s vocational rehabilitation plan is appropriate.
1. The worker’s permanent partial impairment rating and monetary award have been correctly calculated; and
2. The worker’s vocational rehabilitation plan is not appropriate.
The WCB accepted the worker’s claim for burns sustained to their right foot and lower leg from an incident at work on July 4, 2019 when they accidently stepped into a bucket of hot tar. In the Worker Incident Report provided to the WCB on July 5, 2019, the worker reported they were transported to a local emergency room by paramedics. On July 8, 2019, the worker confirmed to the WCB the mechanism of injury and advised they were still in the hospital awaiting skin grafting surgery for third degree burns to their right lower leg and ankle area. The worker also sustained superficial burns to their arms, face, and neck. On July 22, 2019, the worker was discharged from the hospital.
On August 4, 2019, the worker attended for an initial physiotherapy assessment, reporting pain in their lower leg, decreased range of motion, stiffness and inability to weight bear. The physiotherapist noted the worker had healing burns and skin grafts to the worker’s right lower extremities. At follow-up with the treating plastic surgeon on August 12, 2019, the surgeon noted the skin grafting was “largely successful” and that the worker had maturing skin grafts throughout most of the burnt areas. The surgeon also noted two areas of concern that would require additional treatment and that recovery would “…be months and [the worker] will likely have permanent functional change secondary to” the compensable injury. On October 21, 2019, the worker attended for an occupational therapy assessment. The therapist noted the worker’s function was impacted by loss of range of motion and delayed healing, with the worker still having some open wounds on their foot and ankle. The therapist further noted the worker was using crutches to ambulate with limited ability to crouch or climb stairs.
The treating plastic surgeon provided a note indicating the worker could return to work on January 21, 2020 on modified duties with shorter hours, beginning with half days and the worker returned to work on January 27, 2020 at four hours per day. On February 6, 2020, the surgeon indicated the worker could return to full regular duties. Due to an ankle injury, the worker was off work February 24 to February 28, 2020 and returned to full regular duties again on March 2, 2020. On June 24, 2020, the worker contacted the WCB to advise they were having ongoing issues with an open wound on their ankle. On the advice of the WCB, the worker attended a local emergency room on the same date where the treating emergency physician noted a “Chronic wound likely from work boots” and recommended the worker attend for a follow-up appointment with their plastic surgeon for further treatment. At the follow-up appointment on June 29, 2020, the treating plastic surgeon noted the worker had “…numerous accidents at work involving ladder climbing and some of the more physical activities…” and recommended a functional assessment to determine the worker’s ability to perform their job duties.
The worker underwent a two-day functional capacity evaluation (“FCE”) on August 17 and 18, 2020. In the FCE report dated August 31, 2020, the consulting therapist summarized that the worker was able to perform within a medium to heavy level of work and could lift/carry/push/pull 40 to 65 pounds on an occasional basis. The WCB medical advisor who reviewed the worker’s file and the FCE report on September 9, 2020 was of the view that the functional limitations were likely to be permanent given the worker’s job duties and reduced range of motion due to the injuries, which was not expected to improve; however, the advisor also noted it was premature to say those impairments were permanent.
On September 16, 2020, the WCB established temporary restrictions for the worker to be reviewed in 6 months to allow for maturing of the skin graft and improvement in the worker’s overall physical function. At that time, the WCB medical advisor indicated “The limitations on ladder / stairs and crouching will likely be permanent impairments given the reported loss of range of motion from the circumferential full thickness leg burns.” The WCB advised the employer of the worker’s restrictions on September 16, 2020.
On October 9, 2020, the WCB referred the worker for vocational rehabilitation (“VR”) services on an early intervention basis as it identified the worker was not a candidate to return to their pre-accident occupation. A Vocational Rehabilitation Initial Assessment was completed October 26, 2020. On January 27, 2021, the worker advised the WCB they would not be continuing with the upgrading or educational services offered by the WCB as part of the VR process.
A WCB medical advisor reviewed the worker’s file on March 3, 2021 and provided permanent restrictions as follows: limit walking/standing to less than 30 minutes without a break; limit squatting/crouching to an occasional basis; limit stair/ladder climbing to an occasional basis; limit lifting/carrying/pushing/pulling greater than 40 pounds to an occasional basis; avoid stair/ladder use without a rail. The WCB advised the worker of the permanent restrictions on March 4, 2021.
The WCB developed a VR plan for National Occupational Code (“NOC”) 6742 Other Service Support Occupations for the worker with a start date of April 12, 2021 and an end date of November 12, 2021. Due to the Covid-19 pandemic, the end date of the plan was extended to November 24, 2021 by the WCB on May 28, 2021 and to December 10, 2021 on June 10, 2021.
The worker attended for a permanent partial impairment (“PPI”) rating examination on June 4, 2021 with a WCB physiotherapy advisor. After examining the worker, the advisor opined the worker’s impairment rating for loss of range of motion and fused ankle was 7.1%, plus a cosmetic rating of 3%, for a total permanent partial impairment rating of 10%. The WCB advised the worker of the rating and provided a monetary award on June 11, 2021.
On July 5, 2021, the worker requested reconsideration of the WCB’s decisions to Review Office. The worker indicated on their submission that they were permanently injured and unable to work. Further, the worker noted their belief the PPI rating and monetary award did not adequately reimburse them for their permanent injuries. On July 12, 2021, Review Office determined the worker’s PPI rating and monetary award had been correctly calculated and that the worker’s vocational rehabilitation plan was appropriate. Review Office accepted the measurements performed by the WCB physiotherapy advisor during the PPI assessment of the worker and agreed with the rating and the monetary award that was provided pursuant to the WCB policies. With respect to the worker’s vocational rehabilitation plan, Review Office noted the plan was established for NOC 6742 – Other Services Support Occupations and did not require educational upgrading, which the worker indicated they were not interested in. Review Office noted the worker indicated their ongoing difficulties rendered them unable to work, but found the FCE assessment indicated the worker was able to perform some job duties and was not totally disabled from pursuing employment. Review Office further found the occupations associated with NOC 6742 were appropriate for the worker and within their permanent restrictions.
The worker filed an appeal with the Appeal Commission on October 26, 2021 and a videoconference hearing was arranged for March 16, 2022.
Applicable Legislation and Policy
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. 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.
Section 27(2) of the Act provides that the WCB may make expenditures to provide academic or vocational training, 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.
Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment.
Manitoba Regulation 132/2020, Adjustment in Compensation Regulation, made pursuant to the provisions of the Act provides in Schedule A to that Regulation that a permanent partial impairment award made in respect of an injury sustained in 2019 shall be $1,430 per full percentage point of impairment rating.
The WCB Policy 43.00, Vocational Rehabilitation, (the “VR Policy”) outlines the goals, terms and conditions of academic, vocational and rehabilitative assistance available to workers under s 27(20) of the Act. The VR Policy sets out 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.
3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness.
4. To meet these objectives, the following solutions (hierarchy of objectives) will be considered and pursued in the sequence below:
a. Return to the same work with the same employer.
b. Return to the same work (modified) with the same employer.
c. Return to different work with the same employer.
d. Return to similar work with a different employer.
e. Return to different work with a different employer.
f. Retraining and re-education.
While retraining and re-education is one of the last options it may be provided as part of one of the other options.
7. Return to work with the pre-injury employer involving the first three of the hierarchy of objectives is principally the responsibility of the Case Manager. When a Case Manager determines that return to work solutions with the pre-injury employer listed in paragraph 4 a, b and c above are not possible, then the worker may be assessed for vocational rehabilitation services by a Vocational Rehabilitation Consultant who will consider the solutions listed in paragraph 4 d, e, and f above.
The VR Policy goes on to describe when a worker is eligible for VR services, what kind of services can be provided and the requirements for development of an individualized VR plan, which is intended to help a worker establish sufficient vocational potential to eliminate or minimize their loss of earning capacity. Such a plan will define overall vocational rehabilitation goals, describe the occupation or NOC group in which the worker can competitively pursue employment on achieving the VR goals, detail the steps to attaining the goal and methods by which the WCB will provide supports. The VR Policy sets out that the plan will be developed after adequate assessment of the worker’s skills and skill gaps and requires that the WCB reasonably ensure that the plan is based on a realistic goal, defined as a goal that is “…within the worker’s physical, intellectual, vocational, and emotional capacities” taking into account the worker’s vocational profile, medical aspects of their condition, the worker’s interaction with the environment and the effort and persistence the worker exhibits in the face of obstacles. Each plan must contain a financial implications report (“FIR”) that indicates associated costs and that the plan is cost-effective as against no plan or other available options.
The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.
Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits:
• loss of a part of the body;
• loss of mobility of a joint(s);
• loss of function of any organ(s) of the body identified in the Schedule; and
• cosmetic disfigurement of the body.
In respect of cosmetic disfigurement, Schedule A provides that when a worker is permanently disfigured due to an injury, the WCB may determine the disfigurement is a permanent impairment to which the worker is entitled to an impairment benefit. The rating calculation for disfigurement is done by a WCB Healthcare Advisor and determined based on their judgment. The maximum rating for disfigurement is 25% in extreme cases, but typical ratings are between 1 - 5%. For consistency in disfigurement ratings and to make the ratings as objective as possible, the WCB's Healthcare Advisor is required to reference a folio of disfigurement ratings established in previous cases in determining a rating.
The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s). For the loss of movement to be ratable using the Schedule, the examining WCB Healthcare Advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid.
Schedule A defines "expected range of motion (ROM)" as the “expected ROM is the measured active guided ROM of the non-injured symmetric joint. This value is compared to the measured active guided ROM of the affected side. The difference is the loss of ROM of the injured joint.”
For lower limb impairments, Schedule A sets out that the process for calculating the loss of range of motion is as follows:
1. Measure the "Expected ROM" of the symmetric non-injured side. Record in 5° increments. When the symmetric body part is rendered abnormal by pre or co-existing injury or disease, refer to section 4.5 to determine the "Expected ROM", then continue with the steps below.
2. Determine the "Measured ROM" of the injured side. Record in 5° increments.
3. Determine the difference between the Measured ROM and the Expected ROM.
4. Multiply the difference by the Maximum Impairment Rating for the appropriate body part, as indicated in section 4.3 (which is 15% for ankle mobility)
5. The result is the PPI rating for loss of ROM.
The worker attended the hearing and made submissions to the panel on their own behalf, accompanied by their parent who provided information to the panel in support of the worker’s position. The worker provided testimony through answers to questions posed by members of the appeal panel.
The worker’s position is, with respect to the Permanent Partial Impairment award, that the WCB has not taken into account, in calculating the worker’s impairment, that they continue to be limited in their use of their leg. Specifically, as a result of the compensable workplace accident, the worker is not able to do many of the things they could before, including playing soccer with their children, running or jogging. The worker described that sometimes their leg “freezes” for a few hours such that they cannot use it. The worker indicated that their function and mobility is quite reduced because of the injury and that the testing undertaken by the WCB medical advisor conducting the PPI assessment was not sufficient and felt rushed. The worker noted that different mobility findings were made during the August 2020 functional capacity evaluation. Further, the worker noted their ongoing difficulties in finding appropriate footwear for their right foot and that they continue to seek medical treatment related to the injury.
With respect to the vocational rehabilitation plan, the worker’s position is that the plan is not appropriate as they are interested in other kinds of work and are capable of earning an income that is greater than that established for a worker in National Occupational Code (NOC) 6742 – Other Services Support Occupations. The worker believes that the WCB failed to consider their interests and aptitudes in developing the VR plan and also did not support or facilitate the removal of obstacles to the worker’s employment in other fields.
The worker noted that they have several personal barriers to employment that impact their employability outside their pre-accident profession. Specifically, the worker has a criminal record that could disqualify them from certain employment and further, the worker does not have and never has had a driver's license due to a debt owed to the public insurer. The worker noted that they would nonetheless be able to operate heavy equipment on a worksite through a specialized insurance available.
The worker also stated that they have a learning disability that makes retraining in other fields more challenging to them, although the worker was unable to provide confirmation of a formal diagnosis in this regard. The worker’s parent provided verbal confirmation to the panel that the worker was diagnosed with a learning disability from the age of 12 years. The worker noted that the training program provided by the WCB did not offer accommodation to the worker for their learning challenges and that when the worker was hampered by their disability and expressed frustration to the WCB VR consultant, they simply indicated that the worker did not have to continue the program. The worker confirmed they are not able to operate a computer.
The worker noted that on making job applications post-injury they would always provide potential employers with their physical restrictions together with the application, stating that they believed this was important. The worker confirmed to the panel that they applied for “seated jobs” within their restrictions as well as some jobs outside the restrictions and hoped to return to their pre-accident industry in a “safety rep” role.
In sum, the worker’s position is that the PPI assessment did not appropriately measure the full impacts of the worker’s compensable injury upon their function and mobility, and further that the VR plan is not appropriate as it does not fully take into account the worker’s personal barriers to employment and retraining and does not align with their aptitudes, interests and capabilities.
The employer participated in the hearing, represented by its payroll administrator. The employer’s representative did not take any position with respect to the issues on appeals but indicated that they were present to answer any questions or provide any information that the panel might require.
There are two questions on appeal for the panel to determine. Firstly, the panel must determine whether the worker’s PPI rating and monetary award have been correctly calculated. For the worker’s appeal of this question to succeed, the panel would have to determine that the WCB did not correctly apply the provisions of the Act, regulations and applicable policy in calculating the worker’s degree of permanent partial impairment and associated monetary award. As outlined in the reasons that follow, the panel was not able to make such a determination and the worker’s appeal is therefore denied on this question. Second, the panel must determine whether the worker’s VR plan is appropriate. For the worker’s appeal of this question to succeed, the panel would have to determine that the WCB did not correctly apply the provisions of the Act and applicable policy in developing the worker’s vocational rehabilitation plan. As outlined in the reasons that follow, the panel was able to make such a determination and the worker’s appeal on this question is therefore granted. The panel’s reasons for decision on each question are set out below.
Is the worker’s PPI rating and award correctly calculated?
The Act provides that a worker injured as a result of a workplace accident may be entitled to compensation for any impairment resulting from that accident even if the impairment does not result in any loss of earning capacity. The Act further provides that rating of permanent partial impairment is determined as a percentage of total body impairment and permits the WCB to make an award based upon each full percentage of whole-body impairment.
The process of determining a permanent impairment rating is set out in the PPI Policy which allows for assessment of impairment in respect of loss of a part of the body, loss of mobility of a joint(s), loss of function of any organ(s) of the body identified in the Schedule and cosmetic disfigurement of the body. The PPI Policy sets out in detail how such impairments are to be assessed and the associated ratings calculated.
In the worker’s case, a WCB physiotherapy advisor conducted a review of the worker’s claim file on March 19, 2021 and noted that the worker was likely at the point of maximum medical improvement and therefore eligible for assessment for a PPI rating. The physiotherapy advisor outlined that the worker should be evaluated for active guided left vs right ankle mobility and for cosmetic impairment ratings.
The WCB claim file documents that the WCB assessed the worker for a PPI rating on June 4, 2021, noting the parameters set out in the March 19, 2021 memorandum. At that time, the worker reported that their right foot was sensitive to temperature changes and needed to be covered from sun exposure. The worker also reported that their right Achilles tendon develops sores easily from rubbing of shoes and that it functions better when they keep moving. The worker further noted colour changes in their right ankle. The WCB physiotherapy advisor who conducted the assessment indicated that they measure both right and left ankle “active guided” mobility, which resulted in calculation of a deficit of 40 degrees in right ankle mobility (dorsiflexion, plantar flexion, inversion and eversion) versus left ankle mobility. This represented a deficit of 47.1% of ankle range of motion, which was calculated to be equivalent to 7.1% of whole-body impairment. The WCB physiotherapy advisor also documented their taking of digital photos of the scarring of the worker’s right ankle, left thigh and face. These photos were compared to the WCB’s folio of images and also reviewed by two other PPI advisors. By consensus, the PPI advisors determined that the cosmetic impairment rating related to the worker’s compensable injury is 3%. The combined total, of 10.1% was rounded to the nearest whole number, being 10% which is the rating that the WCB determined was appropriate and used to determine the amount of the worker’s PPI award amount.
The worker noted a difference in the findings from the PPI assessment in June 2021 and the FCE in August 2020. At the time of the FCE, the panel notes, the worker was not yet assessed as being at maximum medical improvement. While the WCB physiotherapy advisor who reviewed the FCE results in September 2020 opined that the functional limitations noted on the evaluation were likely to be permanent given the worker’s job duties and reduced range of motion due to the injuries which was not expected to improve, it was premature then to say those impairments were permanent. The panel also noted that the FCE was not conducted with reference to and in accordance with the requirements of the PPI Policy and as such the measurements from that assessment would not be valid for use in establishing the worker’s mobility impairment for PPI purposes.
The panel is satisfied on the basis of the evidence before us and on the standard of a balance of probabilities that the WCB appropriately applied the provisions of the PPI Policy in calculating the degree and extent of the worker’s right ankle loss of mobility and cosmetic impairment arising out of the compensable workplace injury. The worker’s right ankle active guided mobility was measured according to the provisions of the PPI Policy resulting in a finding of 7.1% impairment. Further, the photos taken of the worker’s resulting scarring were appropriately compared to the folio of images with a rating of 3% established and confirmed by two other WCB PPI advisors. The worker’s total body impairment rating of 10.1% was rounded to 10% and the WCB provided the worker with an impairment award based on that rating in an amount of $14,300 based upon the provisions of the Act and Regulations that provided for an award of $1,430 for each full 1% of impairment for a permanent partial impairment arising out of an accident occurring in 2019.
The worker’s appeal of this issue is therefore denied.
Is the worker’s VR plan appropriate?
In considering whether the WCB correctly applied the provisions of the Act and applicable policy in developing the worker’s vocational rehabilitation plan, the panel reviewed the process undertaken by the WCB in developing the worker’s VR plan for NOC 6742 Other Service Support.
As noted above, the WCB’s VR Policy outlines the process the WCB must follow in establishing a VR plan for any worker. The VR Policy requires that the WCB develop a VR plan for a worker after adequate assessment of a worker’s skills and skills to be acquired. The VR plan must be based on a realistic goal, defined as being within the worker’s physical, intellectual, vocational and emotional capacities. The WCB must apply knowledge of the worker’s vocational profile, medical aspects of the worker’s condition, the worker’s interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles. The plan should help a worker to establish sufficient vocational potential to eliminate or minimize their loss of earning capacity. The plan must include a FIR and demonstrate that it is cost effective, comparing costs against available options.
In the worker’s case, the WCB determined on September 29, 2020 to initiate the VR process upon determining that a return to the worker’s pre-accident employment was unsafe and as a result, made a referral on October 9, 2020 to a VR consultant. The employer was advised of the referral and on October 20, 2020 advised that they could not accommodate the worker in an alternate position at that time. The VR consultant obtained information from the worker as to their transferable skills and referred the worker for interest and aptitude testing. In an Initial Assessment dated October 23, 2020, the VR consultant outlined the worker’s employment history, criminal record and compensable restrictions. There are no non-compensable medical issues noted but the panel notes that the worker also reported they receive daily methadone maintenance. The worker is noted to have completed grade 9. The assessment identifies that potential barriers to the worker’s return to work include the worker’s physical restrictions, lack of formal education, minimal computer skills, criminal record and lack of driver’s license due to an outstanding debt. The worker indicated at that time an interest in a foreman position within their previous profession. The VR consultant proposed that the worker might be capable of delivery driver positions in their previous field if the driver’s license issue could be overcome, or other “entry-level occupations which have little to no experiential requirements and are less definitely precluded by the worker’s criminal record status.” The worker confirmed to the WCB on November 9, 2020 that they have never had a driver’s license and would need to pay outstanding amounts owing to the insurer to be eligible to apply for one. The worker advised the case manager and VR consultant on November 24, 2020 of their interest in working as a heavy equipment operator, noting that a valid driver’s license was not required for that work and that they believed the job duties would be within the worker’s physical restrictions.
The Interests and Aptitude Assessment report of November 30, 2020 contained a recommendation that the WCB explore jobs where the worker demonstrated a good match between interests and aptitudes, in the occupational areas of Technology Skilled, Business Skilled and Service Skilled, with specific NOC codes provided. The panel noted that NOC 6742 is not on this list of some 28 occupational groups recommended for further exploration.
On December 17, 2020 the worker again confirmed their interest in pursuing the job of Heavy Equipment Operator, noting connections in that field that could assist them with obtaining a job. The worker also indicated they did not wish to pursue completion of high school equivalency. The VR consultant urged the worker to keep an open mind while the VR plan was developed and noted that labour market targets may not permit consideration of the Heavy Equipment Operator path. The WCB VR consultant arranged for the worker to complete academic upgrading preparation courses in reading and writing and math in January 2021. The worker participated in the math program from January 6 – 21, 2021, actively participating in 5 workshops. The worker indicated to the VR consultant on January 27, 2021 that they were “struggling to learn and maintain the training information and this is causing…stress and frustration.” The worker became upset and stated their belief they are “stupid, this is a waste of money” and noted they have a learning disability. On further discussion, the VR consultant reminded the worker they did not have to continue with education and that this was their choice. The worker confirmed they wanted to terminate the education program immediately, and the VR consultant terminated the worker’s program the same day.
After the worker’s permanent restrictions were established and confirmed to the worker by letter of March 4, 2021, the WCB VR consultant prepared a Transferable Skills Analysis, dated March 10, 2021 with regard to three vocational options: NOC 7521 Heavy Equipment Operators, NOC 9523, Electronics Assembler, Fabricator, Inspector and Tester and NOC 6742 Other Service Support Occupations. The panel noted that this report indicates the worker’s earning capacity would be maximized in NOC 7521 and was least in NOC 6742. Notably, the report does not contain information regarding employment requirements for NOC 7521 (those noted are actually in respect of NOC 9523) and does not contain the required Financial Implications Report (“FIR”) information. There also is no FIR information provided for NOC 9523. The report is only complete for NOC 6742, setting out that there are no educational requirements for this group, but a valid driver’s license is required for some occupations in the group. The VR consultant concludes that NOC 6742 is cost effective but there is no indication that there was any comparison conducted of that option versus the other options considered, and there could not have been given the lack of FIR information for NOC 7521 and NOC 9523.
The panel noted the VR consultant also prepared an Earning Capacity Assessment for the worker in NOC 6742 which indicates that the worker was capable of earning $476-$480 per week as compared to their pre-injury income of $959 per week. This NOC does not appear to eliminate or minimize the worker’s loss of earning capacity as compared to the other proposed NOC categories, with weekly incomes noted of $640-$920 for NOC 7521 and $476-$590 for NOC 9523.
The panel reviewed the listing of potential job titles in this NOC which includes jobs such as theatre usher, beauty salon attendant, cloakroom attendant, fur storage attendant, laundromat attendant, parking lot attendant, hotel valet, car jockey, shoe shiner, ticket taker and door attendant. The panel noted that some of the positions would appear to require the worker to have a valid driver’s license and to require the worker to take possession or control of the property of others. The panel finds that these requirements could be barriers to employment for an individual with no driver’s license and a criminal record. Further, although the VR consultant indicated a positive labour market for this NOC, in March 2021, the panel noted that many personal services and entertainment venues remained at limited capacity or were closed due to the global pandemic and local public health restrictions such that the labour market in this NOC could have been less active than anticipated by the VR consultant. The panel also noted that these proposed jobs do not align with the worker’s identified interests and aptitudes nor their transferrable skillsets.
In considering whether the WCB appropriately developed the worker’s VR plan, the panel also noted that the VR plan that was presented to the worker indicated that the worker declined any upgrading/educational opportunities. While the file record does indicate that on January 27, 2021, the worker declined to continue the high school upgrading program offered, the worker was not provided with any alternative options that might have better accommodated their self-described learning disabilities nor any options other than high school completion. As noted above, the worker repeatedly expressed interest throughout the claim in pursuing training in heavy equipment operation, for example, but this was not an avenue the WCB offered to the worker. Further, the panel noted that the worker made their “choice” regarding further education in the context of a highly emotional and charged conversation in which the worker expressed frustration with their performance in the program, as described by the VR consultant and there was not any follow up or encouragement offered by the consultant, who immediately terminated the worker’s training program after that single conversation.
The panel also noted that the worker’s VR Plan does not reference the specific personal barriers faced by this individual worker although these were identified in the initial assessment report. While these obstacles are not compensable, even non-compensable barriers will impact upon an assessment of whether the VR goal is a realistic one. The worker does not have a driver's license nor ability to obtain one without some effort and fiscal resources. The worker has a criminal record which will doubtless impact their employability in certain work environments. The worker also identified learning impediments that impact their ability to complete the recommended training, and which may require some investigation or assessment and accommodation, but when the worker brought these concerns to the attention of the VR consultant, no options were provided to the worker to address the limitations identified other than to withdraw from the program. The panel finds that the worker’s VR Plan does not acknowledge any of the worker’s employment barriers or limitations, nor is there any plan or assistance offered to the worker in overcoming them. The panel found the worker to be quite candid in speaking about their personal limitations and did not try to minimize the impact of those limitations on their job search and employment options. This is consistent with the candid approach the worker subsequently took in making job applications, offering information about their physical restrictions to potential employers at the time of application despite the advice from the WCB VR consultant to the contrary.
In sum, the panel finds that the worker’s individualized vocational rehabilitation plan as developed by the WCB and presented to the worker in March 2021 does not meet the requirements set out in the VR Policy in that:
• The plan fails to help the worker to establish sufficient vocational potential to eliminate or minimize their loss of earning capacity;
• It is not based upon a realistic goal that takes into account the worker’s physical, intellectual, vocational and emotional capacities and vocational profile including personal and occupationally significant characteristics including their barriers to employment, and transferable work skills; and
• It does not demonstrate cost effectiveness, in that there is no comparison of the costs of the plan against available options.
The panel finds that the worker’s vocational rehabilitation plan was neither realistic nor appropriately established in accordance with the provisions of the WCB’s VR Policy. On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the vocational rehabilitation plan is not appropriate and the worker’s appeal of this question is granted.
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 26th day of April, 2022