The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. The vocational rehabilitation plan within NOC 6711, Food counter attendants, kitchen helpers and related support occupations is appropriate; and 

2. It is appropriate to implement a post-accident deemed earning capacity effective December 14, 2023.

A videoconference hearing was held on August 24, 2022 to consider the worker's appeal.

Issue

1. Whether or not the vocational rehabilitation plan within NOC 6711, Food counter attendants, kitchen helpers and related support occupations is appropriate; and

2. Whether or not it is appropriate to implement a post-accident deemed earning capacity effective December 14, 2023.

Decision

1. The vocational rehabilitation plan within NOC 6711, Food counter attendants, kitchen helpers and related support occupations is not appropriate; and 

2. It is not appropriate to implement a post-accident deemed earning capacity effective December 14, 2023.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 95/19, dated August 2, 2019. The background will therefore not be repeated in its entirety.

On September 10, 2008, the worker reported to the WCB that they sustained an injury to their left elbow and shoulder at work on August 11, 2008. The employer filed an Employer's Accident Report with the WCB on September 11, 2008, noting an accident date of September 10, 2008 and that the worker's injury occurred due to "Repetitive Work."

When the worker sought treatment from their family physician on August 7, 2008, the physician recorded mild to moderate tenderness noted over the lateral epicondyle and a normal x-ray taken the following day. At follow-up appointment with the treating physician on September 10, 2008, the worker reported shoulder pain in addition to the pain in their elbow and the physician noted limited abduction to just above the horizontal and that the worker reported pain upon rotation, with tenderness on the back of their shoulder. The physician diagnosed a rotator cuff injury and referred the worker for physiotherapy.

The worker began a graduated return to work program on October 26, 2008, and on December 12, 2008, the employer was advised of the worker's temporary restrictions of avoid lifting weights over ten pounds, no weights above shoulder level and no repetitive pushing and pulling. On December 18, 2009, the worker reported another injury to their left shoulder. Although this injury was initially accepted as a new WCB claim, after reconsideration by Review Office the claim was accepted as an aggravation of the September 10, 2008 workplace accident.

The worker underwent a left shoulder arthroscopic rotator cuff repair, distal clavicle excision, subacromial decompression and biceps tenotomy on December 14, 2010. On December 6, 2011, the worker attended a call-in examination with a WCB sports medicine advisor due to ongoing symptoms. The WCB sports medicine advisor opined that the worker's ongoing symptoms were related to their left rotator cuff, which had been surgically repaired but the improvement in pain and function had plateaued. The sports medicine advisor recommended a Functional Capacity Evaluation (“FCE”) to determine the worker's current restrictions, which took place on December 22, 2011. On reviewing the FCE results, the WCB sports medicine advisor determined on January 3, 2012 that the results were invalid and that the following restrictions, based on the diagnosis of a left rotator cuff tear, would be permanent: limitation of no more than occasional use of the left upper extremity above shoulder level and beyond the body frame and limitation of repetitive resisted left upper extremity pulling, pushing and lifting. The permanent restrictions were provided to the employer the same day, and on October 5, 2012, the employer advised that they were not able to accommodate the worker within their permanent restrictions and the worker was referred for vocational rehabilitation (“VR”) services with full wage loss benefits were reinstated.

On July 7, 2014, the WCB received a note from the worker's family physician indicating that due to medical reasons, the worker was unable to drive for more than two hours. As a result, the worker was asked to attend a call-in examination with a WCB medical advisor on August 14, 2014. On August 30, 2014, after viewing surveillance footage of the worker, the WCB medical advisor reviewed the worker's file and concluded that the video provides evidence that the worker did not restrict the use of their left arm outside of work and did not demonstrate any limitations in movements so that there would be no need for continuing workplace restrictions in relation to the workplace injury. On September 3, 2014, the WCB advised the worker that it determined they had recovered from the effects of the workplace injury of September 10, 2008 and that their current symptoms were not related to the workplace incident. Compensation Services further advised that as the surveillance of their activity was conducted between August 14 and 16, 2014, the worker’s benefits would end as of August 13, 2014, being the date prior to the first surveillance date.

On September 22, 2014, the worker requested reconsideration by the Review Office, submitting reports from their treating orthopedic surgeon and their treating physiatrist. On September 24, 2014, the worker's request was returned to Compensation Services for further investigation regarding the new medical information submitted by the worker. On October 17, 2014, Compensation Services advised the worker that the new medical information had been reviewed, and the decision of September 3, 2014 remained unchanged. On December 2, 2014, the worker again requested that Review Office reconsider Compensation Services' decision. The worker submitted letters in support of their request from their family physician and their treating physiotherapist, together with receipts for medications they had been taking. On December 9, 2014, the worker's file was returned to Compensation Services for further investigation. On February 24, 2015, Compensation Services advised the worker that based on the information provided with their request for reconsideration, the WCB had a work site assessment performed on their pre-accident position on January 21, 2015 and the medical information was provided to a WCB medical advisor to review. On February 19, 2015, the WCB medical advisor provided the following restrictions for the worker:

• no lifting > 30 lbs; 

• no pushing/pulling > 50 lbs; 

• no sustained or repetitive work with the left arm held ≥ 60° of flexion or abduction, where repetitive would be doing the activity several times per hour over most of the typical workday; and 

• no ladder climbing.

Compensation Services further advised the worker that based on the restrictions provided and the work site inspection, the worker would be capable of safely returning to their pre-accident employment; therefore, the worker no longer had a loss of earning capacity and was not entitled to wage loss benefits after August 13, 2014 but would still be entitled to medical aid benefits.

On April 10, 2015, the worker requested that Review Office reconsider Compensation Services' decision. On May 7, 2015, Review Office determined that the worker was not entitled to wage loss benefits after August 13, 2014. Review Office further found that the worker was able to participate in the tasks of daily living and could return to work within her listed restrictions. On March 21, 2017, the worker's legal counsel submitted further medical information and requested that the WCB reconsider the Review Office decision of May 7, 2015. On April 4, 2017, Review Office advised there was no change to their earlier decision that the worker was not entitled to wage loss benefits beyond August 13, 2014. On September 12, 2018, the worker's legal counsel again requested that Review Office reconsider their decisions of May 7, 2015 and April 4, 2017 and submitted further medical information from an occupational therapist. On September 13, 2018, Review Office advised the worker that the new medical information had been reviewed, but there was no change to their earlier decisions.

On December 13, 2018, the worker's union representative appealed the Review Office decision to the Appeal Commission and on August 2, 2019, the Appeal Commission, pursuant to Decision No. 95/19, determined the worker was entitled to wage loss benefits after August 13, 2014 and returned the worker's file to the WCB's Compensation Services.

The WCB contacted the employer on August 27, 2019 to provide an update on the worker's claim and confirm the Appeal Commission's decision. The employer provided the WCB with a copy of a letter they had sent to the worker in 2012, which set out details of the employer's attempts to accommodate the worker to the point of undue hardship. The WCB asked the employer if they could accommodate the worker within their permanent restrictions, and the employer requested time to discuss the request. A formal letter was provided to the employer on the same date.

On the same date, the WCB noted to the worker’s file that the Appeal Commission also found there was a need to explore VR services for the worker, with no recommendations on length of the process or any plan developed. On August 28, 2019, the WCB referred the worker's file for such services. On September 16, 2019, the WCB's VR specialist met with the worker and their WCB case manager. The worker's accepted diagnosis and permanent restrictions were confirmed, along with the VR work previously undertaken. The worker confirmed they understood the permanent restrictions set out and agreed to participate in the vocational rehabilitation process, which required attendance for educational upgrading for a 6-month period, after which time, a labour market review would be completed, and the parties would have a better idea of a timeline for the worker's upgrading. On October 7, 2019, the WCB sent the worker a letter confirming their attendance for upgrading from September 2019 to June 2020. The VR specialist conducted a preliminary labour market review, recording their findings to the worker's file on October 29, 2019. The specialist concluded that National Occupational Classification (NOC) 6552, Customer Service would be suitable for development of the worker's vocational rehabilitation plan once a timeline for the worker's educational upgrading was in place as it was noted there was a positive labour market for that NOC and job duties required by that NOC were within the worker's permanent restrictions.

On March 19, 2020 the educational facility where the worker was attending contacted the WCB to advise that the facility would be closed until further notice due to the COVID-19 pandemic. The worker advised the WCB on June 10, 2020, they had continued their studies at home while the facility was closed. On the same date, the facility advised the WCB, they would be re-opening in September 2020. On September 24, 2020, the WCB advised the worker their upgrading program had been extended to June 2021. After receiving results of academic testing for the worker, the WCB's vocational rehabilitation specialist summarized the aptitude, academic and other testing the worker had undergone in a memorandum to the worker's file on September 8, 2021. As the worker had done poorly on their academic testing, and educational and employment preparation testing had indicated the worker struggled in various areas of testing, the specialist recommended the educational upgrading be discontinued and a review be conducted to find other local occupations that would not require further upgrading by the worker yet would still be within their restrictions. NOC 6711 Food Counter Attendant was considered.

At the request of the WCB, a WCB medical advisor reviewed the worker's file, along with the typical tasks, physical demands and physical activities of jobs that fall under NOC 6711 Food Counter Attendant on September 8, 2021.The medical advisor compared the information provided as to typical job duties with the worker's permanent restrictions and opined that the lifting demands were within the worker’s restrictions and that “All listed tasks are within the restrictions, provided that the use of appliances, serving customers, and stocking can be done within 600 of flexion and abduction.” The medical advisor further stated that all the listed physical activities were within the worker’s restrictions.

On September 15, 2021, the WCB updated the worker on the VR plan. The WCB advised the worker that the WCB medical advisor found the job duties with NOC 6711 – Food Counter Attendant to within their restrictions. Further, a review conducted of the labour market in the worker’s local area found there was not a market for positions within that NOC in the area and as such, the WCB’s relocation policy would be applied. The WCB advised the worker there were two options with respect to the policy, to move to a larger centre, with expenses related to the relocation covered by the WCB or to decline the relocation and remain in their local area and be provided with two years of full wage loss benefits after which time, their wage loss benefits would be reduced based on the starting wage for NOC 6711. The worker advised the WCB they did not wish to relocate and would decline the relocation option. A formal letter confirming the information was provided to the worker on September 16, 2021.

A Vocational Rehabilitation Plan for the worker was completed on December 6, 2021 with a start date of December 13, 2021 and an end date of December 13, 2023. The plan noted the worker declined the relocation program but that resume preparation, job search and interview skills training was available to the worker during the time period noted. At the plan’s end, it was anticipated the worker would be capable of earning the deemed earning capacity of NOC 6711 Food Counter Attendant.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on January 25, 2022. The representative argued the vocational rehabilitation plan developed for the worker under NOC 6711, Food Counter Attendants was not appropriate. The representative noted their belief the WCB had not fully explored the possibility of the worker returning to work for the employer. The representative also disagreed that the worker’s permanent restrictions aligned with the requirements for working in NOC 6711 and that the academic and other testing conducted for the worker had indicated they would not be suitable within a customer service type of occupation. Lastly, the representative noted the worker declined the WCB’s relocation plan and stated it was unreasonable to expect the worker to leave their local area and their familiar ties to find work for a minimum wage or accepted two further years of full wage loss. The representative argued the worker was entitled to further vocational rehabilitation services in order to have an appropriate plan developed and as such, would be entitled to full wage loss benefits while that plan is in place. Alternatively, the representative submitted the WCB should consider the worker functionally disabled and they should be entitled to full wage loss benefits until retirement.

Review Office determined on April 6, 2022 that the worker’s vocational rehabilitation plan was appropriate, and it was appropriate to implement the deemed earning capacity effective December 14, 2023. Review Office accepted the opinion of the WCB medical advisor the typical job duties under NOC 6711 Food Counter Attendant were within the worker’s permanent restrictions and as such, found the vocational rehabilitation plan developed for the worker under that NOC was appropriate. Further, Review Office determined it was reasonable for the worker to decline the WCB’s relocation plan, which was also determined to be appropriate, and noted the worker would be provided with two years of full wage loss benefits, along with vocational support by the WCB. Review Office determined it was appropriate to implement a deemed earning capacity effective December 14, 2023 at the end of the two-year time limit of the vocational rehabilitation plan.

The worker’s representative filed an appeal with the Appeal Commission on April 19, 2022. A videoconference hearing was arranged for August 24, 2022.

Reasons

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. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

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.

The Act further sets out, in s 40, how a worker’s loss of earning capacity is determined. The Act provides, in part, that:

Calculation of loss of earning capacity 

40(1) The loss of earning capacity of a worker is the difference between 

(a) the worker's net average earnings before the accident; and 

(b) the net average amount that the board determines the worker is capable of earning after the accident; 

which amount shall not be less than zero.

Section 27(20) 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.

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, 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. 

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 Policy 43.20.40, Relocation (the “Relocation Policy”) sets out the WCB’s approach to supporting the relocation of injured worker. The Policy reiterates that when a worker is injured or adversely affected by an occupational disease, the WCB's goal is to help that worker return to health and work as soon as possible, ideally with the original employer, but notes that in some cases injured workers are unable to return to their pre-injury place of employment and, when an injured worker resides in a small or rural community, it can be difficult to find suitable alternate employment. In these cases, the WCB may support the worker in relocating to a different community and labour market. The Relocation Policy provides that to accomplish the WCB’s goals of enhancing or establishing an injured worker's employability in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests and cost-effective optimization of an injured worker's post-injury employability, the WCB may propose and assist an injured worker with relocating to a labour market or community with increased employability options. Alternative labour market plans will be compared based on their overall cost effectiveness (the ability to reduce the worker's long-term loss of earning capacity) and the probability of success.

The WCB has also established Policy 44.80.30.20, Deemed Earning Capacity (the “Deeming” Policy) which provides when a worker will be deemed capable of earning an amount that they are not actually earning and how the deemed earning capacity will be determined. Since January 1, 1992 WCB has operated on a wage-loss model that pays a worker based upon the difference between the worker’s average earnings before the accident and what the worker earns, or is capable of earning, after the accident (“post-accident earning capacity”). Usually, a worker’s post-accident earning capacity is the amount that they are actually earning; however, there are some circumstances in which the WCB will determine that a worker is capable of earning more than they are actually earning. In those circumstances, the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned. The Deeming Policy provides that deemed earning capacity will be used in calculating a loss of earning capacity when a worker has participated in a VR plan and:

i. The worker has completed the training part of the vocational rehabilitation plan designed to help the worker obtain new skills or improve current skills; 

ii. The worker has been given reasonable job search assistance (i.e., separate from the training part of the plan); and, 

iii. The information the plan was based on, including labour market analysis, has not substantially changed.

Worker’s Position

The worker appeared in the hearing represented by their union representative who advocated on behalf of the worker, providing an oral submission and relying as well upon the written submission provided in advance of the hearing. The worker offered testimony through answers to questions posed by their advocate and by members of the appeal panel.

The worker’s position as outlined by their representative is that the appeal should be granted as the evidence confirms that the vocational rehabilitation plan within NOC 6711 is not appropriate for the worker, given their accident-related physical restrictions and as it is not based on a realistic goal that is within the worker’s physical, intellectual, vocational, and emotional capacities. Further, given that the VR plan is not appropriate, it is also not appropriate to implement a post-accident deemed earning capacity effective December 14, 2023, upon conclusion of that plan.

With respect to the issue of whether the VR plan for the worker in NOC 6711 is appropriate, the worker’s advocate submitted that the plan is not appropriate as the physical demands are inconsistent with the worker’s physical restrictions arising from the compensable injury and because the job demands do not align with the worker’s capabilities. The advocate pointed out that the June 12, 2014 assessment by a neuropsychologist confirms that the worker has limitations that make educational upgrading impracticable and that limit the worker’s employability, noting the worker’s limitations in reading, attention, concentration, memory and verbal skills. The advocate further noted that the neuropsychologist specifically recommended against academic upgrading for the worker. The worker’s advocate also noted that the WCB VR consultant, on October 15, 2019 noted that employment in NOC 6711 was outside the worker’s restrictions at that time. Further, in a vocational academic assessment of the worker undertaken in June 2021, the assessor noted their opinion that academic upgrading for the worker was not advised and that “exposure to customer service demand would not seem to be advised. The multi-tasking requirements of customer service work are high. [The worker] would struggle with the requirements of computer workstation speed and efficiency, as well as the language-based task demands.” The worker’s advocate confirmed that the WCB VR consultant working with the worker was aware of these assessments as set out in their memo to file of September 8, 2021 and note that the worker had significant limitations which negatively affected their employability and made skills upgrading an impracticable option.

The advocate submitted that the evidence demonstrates that while not totally disabled from all employment, the worker is functionally unemployable; nonetheless the WCB proceeded with the development of the VR plan in NOC 6711 on the basis that the worker was capable of the physical job demands based upon the opinion of the WCB medical advisor of September 8, 2021. The worker’s advocate queried whether the opinion of the medical advisor should be relied upon given their extensive prior involvement in the worker’s claim and that the WCB previously relied on this medical advisor’s opinions in terminating the worker’s entitlement to benefits. The advocate also submitted that the medical advisor’s opinion was based upon insufficient detail of the duties associated with and the physical demands of jobs within NOC 6711, thus limiting the reliability of the conclusions reached by the medical advisor in terms of the compatibility with the worker’s restrictions.

The advocate further noted that there can be significant variation in the tasks and physical demands of work within NOC 6711 as outlined in the two job advertisements provided with their written submission. The advocate also noted that the submitted job advertisements within NOC 6711 outline skills and certifications that the worker does not have, including high school graduation. This evidence does not support that the worker is competitively employable within NOC 6711.

The advocate submitted that the VR plan developed by the WCB for the worker failed to meet the objectives set out in the VR Policy of achieving a return to sustainable employment, of helping the worker as much as possible to be as employable as they were before injury or of returning the worker to their pre-accident salary level. Furthermore, the WCB focused on the cost-effectiveness of the worker’s VR plan and failed to demonstrate any viable alternative plans as required by the Relocation Policy and failed to consider the sustainability of the worker’s employment within the VR plan. In considering relocation, the WCB also did not give due consideration to the worker’s psychosocial, medical and motivational factors that may affect a relocation, nor to whether or not the combined anticipated family income will be affected and whether employability-based earning capacity in the target labour market would support a comparable standard of living to the standard established in the home labour market. The advocate noted that relocation would result in social isolation as the worker’s whole family resides in the home labour market. As well, the worker’s spouse is employed full time and runs a small business, so that relocation would adversely affect the family income.

With respect to the issue of whether it is appropriate to implement a post-accident deemed earning capacity effective December 14, 2023, the worker’s position is that the evidence does not support a finding that the WCB relocation plan within the worker’s VR plan is viable and that the worker is not capable of maintaining employment in NOC 6711 in either the home labour market or in the relocation labour market. Furthermore, even if the worker were employable in NOC 6711, it is unlikely that the worker would be able to earn the equivalent of minimum wage on a full-time basis given that most positions within that NOC are part-time employment.

The worker provided evidence as to their educational background and employment history. The worker testified that they had worked previously in a restaurant for approximately two years but found that work challenging with respect to remembering what was ordered and by whom, as well as in manually reconciling bills. The worker also testified to working for a period of time in a retail environment where they mostly stocked shelves but occasionally worked as cashier as well. Prior to the accident, the worker was employed with the employer since 1991, initially working in another area and then in their pre-accident job. The worker indicated that they loved their pre-accident work as they had the same tasks every day, enjoyed the work environment and colleagues and worked mostly alone. The worker noted that for a period, their post-accident modified duties with the employer involved reading aloud to clients, which they found challenging, and later, preparing food items for serving and cleaning, which was physically challenging due to their injury. The worker stated that they were upset and shocked when the employer discontinued the modified duties and understood that it was on the basis that they could not afford to pay the worker any longer.

The worker described to the panel that they enjoyed the educational upgrading program that the WCB enrolled them in but struggled with several subject areas. The worker indicated to the panel that they did not feel capable of working at the kind of jobs that are within NOC 6711, noting these jobs are often fast-moving and require repetitive arm movements, as well as mental effort. If the job location was a busy place, the worker felt the work would be beyond their restrictions. The worker confirmed that they struggle with using a computer or other technology and noted most jobs require using a computer.

The worker described to the panel the recreational activities they are no longer able to engage in and noted that they have adapted to their injury at home by, for example, changing to lightweight bowls in the kitchen. The worker confirmed that their spouse is working full-time in long-term employment and also runs a profitable small business that the worker assists with on a limited basis. The worker noted that all their family lives nearby and that relocation would take them away from family to a community where they have no connections.

In sum, the worker’s position is that they have limited employability regardless of location due to the restrictions required arising from the compensable workplace injury and the worker’s limited education and cognitive challenges. As such, the worker is functionally unemployable and should be entitled to further and ongoing benefits related to the compensable workplace injury. Furthermore, implementing the proposed deemed earning capacity is not appropriate given that the VR plan was neither reasonable nor realistic and as such a deemed earning capacity should not be implemented as of December 14, 2023.

Analysis

There are two questions on appeal for the panel to determine. Both relate to the current vocational rehabilitation plan for the worker established by the WCB. The panel must first determine whether or not the VR plan established within NOC 6711 is appropriate for the worker, and further, whether it is appropriate to implement a post-accident deemed earning capacity upon conclusion of that plan, effective December 14, 2023. For the worker’s appeal to succeed the panel must find that the WCB has not appropriately established that the worker is capable of working within NOC 6711 and further, that if the VR plan is appropriate, that the worker is not capable of earning the post-accident deemed earning capacity upon conclusion of that plan. For the reasons outlined below, the panel was able to make such findings and the worker’s appeal is granted.

In respect of the questions before us on appeal, the panel gave careful consideration to the September 8, 2021 opinion provided by the WCB medical advisor as to whether the worker was functionally capable of undertaking the duties associated with NOC 6711. The panel noted that the information provided to the medical advisor contained but a limited description of the physical demands of this occupational classification and that the request for their opinion was limited in scope to the worker’s physical ability to undertake the listed job demands. It is noteworthy that while the medical advisor concluded that the worker would be capable of meeting the physical demands of listed tasks in NOC 6711 positions “…provided that the use of appliances, serving customers, and stocking can be done within 60 [degrees] of flexion and abduction.” The panel finds that this limitation or proviso could limit the worker’s capability to undertake the tasks commonly required within this job classification, and as such finds that the medical advisor’s opinion does not fully support the worker’s capabilities in NOC 6711.

The panel also noted that the WCB VR specialist, in their memorandum of September 8, 2021 outlined the various challenges that the worker faced in terms of implementation of the VR plan, including the fact that although the worker attended their upgrading program full time with individual assistance since September 2019, the worker passed only one subject of the five required when writing the high school equivalency examinations in spring 2021. The VR specialist noted that there were few gains as a result of the academic upgrading attempt. The VR specialist also noted the worker’s past work history was a good fit in that the worker was “essentially doing the same thing every day with very little variation” but stated that given the worker’s results to date, it was not realistic to move forward with a plan in NOC 6552 Customer Service, noting that even if the worker could eventually achieve their high school equivalency, “…there would be significant concerns with how [they] would meet the demands of work in Customer Service to be a competitive level.”

In this same memorandum, the VR specialist also referenced a conversation between the VR specialist and the WCB sector manager regarding the development of the worker’s VR plan, noting the sector manager’s apparent direction that the VR specialist consider NOC 6711 in particular. The panel could not locate any other documentation of that discussion in the worker’s WCB claim file. While the file record does indicate that the VR specialist had previously considered this occupational grouping to be outside the functional capabilities of the worker, as outlined in a memorandum to file dated October 15, 2019, on September 8, 2021, this appears to have changed based upon the medical advisor’s opinion of the same date and the conversation with the sector manager.

The panel also considered the evidence and recommendations from two separate assessments of the worker’s academic and learning capacity, the first in 2014 and the second in 2021. In 2014, the worker was assessed by a neuropsychologist at the request of the WCB VR specialist. The June 12, 2014 report based on the assessment contained the recommendation that “The most practical option for [the worker] would be to continue to seek work that would require on-the-job training. In contrast I could not recommend academic upgrading, both in light of the level of frustration for [the worker], as well as there are no easy or viable strategies to help with the school process.” The neuropsychologist concluded that as a result of the worker’s difficulties with reading “…any future schooling will continue to be very frustrating” although noting the worker to be more functional in terms of attention and concentration except when dealing with literary material. The neuropsychologist also noted that “a more significant challenge” for the worker is their memory which had “more substantial limitations, particularly for verbal material”. The VR specialist noted in a memo to file dated June 10, 2014 that the neuropsychologist “felt strongly with the challenges [the worker] has in phonetics and an IQ of 69, [the worker] would not be successful in upgrading and it would be a very frustrating experience for [the worker] that would not result in a successful outcome.” We note that despite these recommendations, the WCB arranged for the worker to participate in educational upgrading beginning in 2019 and continuing through to 2021.

In a follow-up Vocational Academic Assessment completed on June 30, 2021, the academic assessor noted the worker’s cooperative and focused participation, but also noted that the worker’s “scatter in performance scores” is “indicative of idiosyncratic processing issues. Avoiding classroom learning with a language demand, and focusing on hands-on tasks, perhaps with a clerical numeracy task, or a context of visual learning, might be considered.” The assessor noted the testing showed “significant evidence” of both language processing and attentional deficit issues, and that “Remediation has limited effectiveness in resolving these kinds of learning challenge.” They stated that exposure to upgrading or additional schooling can therefore be frustrating and noted as well that “exposure to customer service demands would not seem to be advised. The multi-tasking requirements of customer service work are high.”

The panel reviewed the WCB’s VR plan for the worker in the context of these assessments of the worker’s academic and intellectual capabilities. We note that the worker’s employment history reflects an ability to be successful in work environments that do not require language processing but focus instead on completion of repetitive physical or manual tasks. We further note that the worker has only limited prior work experience where customer service was a component of their job, and that the worker testified to the challenges they faced in completing those job tasks in terms of information retention and multi-tasking.

The VR Policy sets out that the goal of vocational rehabilitation is to “help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests.” The VR process must therefore give consideration not only to the worker’s post-accident physical capacity, as reviewed by the WCB medical advisor, but also to their individual skills and aptitudes. The VR Policy places these three considerations – physical capacity, skills and aptitudes – on equal footing, without giving priority to any of them. Where possible, a worker’s interests will also be considered, but the Policy gives lesser priority to that consideration. The VR Policy also sets out the hierarchy of vocational rehabilitation objectives, with priority to be given to a return to work with the same employer over return to work with a different employer.

The VR Plan developed for the worker in NOC 6711 sets out that the main duties of food service counter attendants and food preparers are to prepare, heat and finish cooking simple food items and serve customers at food counters. Typical tasks described include taking customer orders, preparing food items using manual and electric appliances, preparing foods, portioning and wrapping or plating foods, serving customers at counters or buffet tables, stocking food storage and keeping records of food used and receiving payment for items purchased. While the VR plan outlines that the worker is capable of the physical demands of such positions, we note again the limitation provided by the WCB medical advisor as to limiting use of appliances, serving customers and stock items to be undertaken with the left arm held at no more than 60 degrees of flexion or abduction. The panel also noted that the VR plan fails to specifically address the worker’s skills and aptitudes, omitting any mention of the worker’s known intellectual limitations in respect of language processing and attentional deficit, nor the prior recommendation against any kind of multitasking such as is required in a customer service environment.

The panel also noted that the VR plan was developed without the WCB having received any response from the employer as to the request from 2019 to advise whether the worker’s updated restrictions could be accommodated. As outlined by the worker’s representative, the employer has increased in size and scope due to an amalgamation since the worker’s injury and as such accommodation of the worker’s restrictions might no longer cause an undue hardship to the employer. The panel noted that although the WCB requested the employer to review the restrictions there was no follow-up with the employer after the 2019 request.

The worker’s advocate submitted that the evidence supports that the worker is not totally disabled as a result of their compensable injury, but that the worker’s employability in the NOC 6711 is unreasonably limited given the physical limitations outlined by the WCB medical advisor and further, is not compatible with the worker’s aptitudes and skills as outlined in the academic and learning assessment reports on file. The panel agrees with this position. We are unable to find that the VR plan developed for the worker was reasonable or based upon a realistic goal in terms of the worker’s educational background and unsuccessful attempts at upgrading, the worker’s known limitations in terms of aptitudes and skills, and the further limitations of the worker’s permanent physical restrictions.

The panel further finds that in developing the relocation aspect of the plan, the WCB did not sufficiently take into account the worker’s family circumstances and community connections. The worker’s evidence makes it clear that not only was their spouse the primary income earner in the family, having long-term permanent full-time employment as well as an active and profitable small business in the community, but also that the worker had strong community ties, with their children and grandchildren all residing nearby and many other extended family members in the region. The worker testified that these connections to their home community are so strong that they believed their spouse would not have accompanied them in moving to another community for a job, as the WCB determined was necessary. The panel is satisfied that the financial and social impacts of the worker’s proposed move to another community several hours away were significant obstacles to the reasonable success of the proposed relocation as part of the VR plan.

As the WCB decision to implement a post-accident deemed earning capacity effective December 14, 2023 was predicated upon the completion of the worker’s VR plan as of December 13, 2023 and as the panel has determined that VR plan developed for the worker is not appropriate, the panel is satisfied that it is also not appropriate to implement the deeming provision as of December 14, 2023 based on the completion of that plan.

The panel therefore concludes, on the basis of the evidence before us and on the standard of a balance of probabilities that the vocational rehabilitation plan within NOC 6711 is not appropriate and that it is not appropriate to implement a post-accident deemed earning capacity effective December 14, 2023. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of September, 2022