Decision #113/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. The vocational rehabilitation plan under NOC 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week is appropriate; and
2. The effective date for the implementation of the deemed earning capacity is appropriate.
A hearing was held on October 13, 2022 to consider the worker's appeal.
1. Whether or not the vocational rehabilitation plan under NOC 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week is appropriate; and
2. Whether or not the effective date for the implementation of the deemed earning capacity is appropriate.
1. The vocational rehabilitation plan under NOC 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week is not appropriate; and
2. The effective date for the implementation of the deemed earning capacity is not appropriate.
The WCB accepted the worker’s claim for an injury that occurred at work on October 22, 2015, when they slipped and fell 5-6 feet off a piece of machinery, striking their right arm and ankle. In the Worker Incident Report filed with the WCB on October 30, 2015, the worker noted right ankle bruising and swelling, as well as right arm bruising. The worker sought medical treatment on October 27, 2015 and was diagnosed with a heel injury. On November 9, 2015, the employer advised the WCB the worker’s employment was seasonal, and that the worker’s last expected day of work was October 30, 2015.
The worker received treatment from their family physician, who referred the worker for physiotherapy. By April 27, 2016, the treating family physician recommended sedentary duties only for the worker and referred the worker to an orthopedic surgeon. At a meeting with the WCB on May 3, 2016, the worker advised the employer had contacted them to return to work for the season but could not accommodate the restriction of sedentary duties only.
On July 7, 2016, the worker attended an initial appointment with the orthopedic surgeon, who noted that while the worker had injured their ankle at work, they also had another medical condition causing issues and making it difficult for the surgeon to evaluate the worker’s ankle. The surgeon recommended treating the other medical condition to have it settle before treating the ankle.
A WCB medical advisor reviewed the worker’s file on August 9, 2016 and outlined a diagnosis of osteochondral fracture of the dome of the right talus, complicated by plantar fasciitis, likely brought on by a change in the worker’s gait due to the workplace accident. The medical advisor recommended restrictions of no prolonged standing or walking of more than one half hour and no repetitive ladder or stair climbing. The medical advisor noted the treating orthopedic surgeon recommended stretching exercises, foot orthosis, injections, and anti-inflammatory medications.
When the worker received a pain relief injection in their right midfoot on November 15, 2016, they indicated almost all their pain was relieved with the first two injections, but at an appointment with the treating orthopedic surgeon on December 22, 2016, the worker advised they only experienced short term pain relief from the injections. Due to ongoing symptoms, the worker was again assessed by the orthopedic surgeon on April 13, 2017, who updated the worker’s diagnosis to tarsal tunnel syndrome and recommended a surgical release procedure, which took place on June 16, 2017.
When the WCB met with the worker on October 2, 2017, the worker advised that they continued to experience pain and swelling but the pain had improved since the surgery. The worker noted experiencing pain only with weight bearing and they no longer required pain medication.
On seeing the orthopedic surgeon on January 25, 2018, the surgeon noted their belief the worker’s tarsal tunnel release surgery was successful but that the worker had other issues including plantar fasciitis, peroneal tendon and tenosynovitis that were causing their difficulties. The surgeon did not recommend further surgery but suggested the worker seek a second opinion.
The WCB arranged a call-in examination that took place on February 21, 2018. On examination of the worker, the WCB medical advisor concluded that the workplace accident caused an osteochondral defect of the talus, noting the worker continued to report symptoms related to the injury including chronic pain and intermittent swelling of their right ankle and foot. The medical advisor further noted the worker’s pre-existing degenerative joint disease, osteochondromatosis of the ankle joint and plantar spur with plantar fasciitis, and recommended restrictions of no walking or standing more than 30 minutes and no repetitive stair climbing.
On March 7, 2018, the WCB notified the employer that the worker could not return to their pre-accident employment and that the WCB would refer the worker for vocational rehabilitation (“VR”) services. The initial VR assessment on March 26, 2018 resulted in a recommendation that the worker receive education upgrading. On April 10, 2018, the worker advised the WCB that their foot and ankle problems were increasing, and they had significant pain with walking. On April 26, 2018, the WCB VR consultant placed the worker’s VR plan on hold due to the worker’s increasing symptoms.
The worker consulted an orthopedic surgeon for a second opinion on May 11, 2018. On examining the worker, the consulting surgeon recommended further investigation to determine if the symptoms were due to neurologic issues. On July 11, 2018, following a CT scan on May 24, 2018 and a nerve conduction study on June 26, 2018, the consulting orthopedic surgeon recommended further surgery to the worker’s ankle.
A WCB medical advisor reviewed the orthopedic surgeon’s report on July 26, 2018 and approved the surgery. The medical advisor noted a 50% probability of success for the surgery, with maximum improvement expected four to six months after surgery. The surgery took place on August 10, 2018.
A WCB medical advisor examined the worker in a call-in examination on March 13, 2019. The medical advisor noted the worker’s report of a decrease in pain level since the surgery but that their functional level had not changed, and concluded the earlier restrictions provided were now permanent. The medical advisor opined that the worker’s chronic anxiety and agoraphobia were unrelated to the workplace accident.
On April 16, 2019, the WCB again referred the worker for VR services and on May 23, 2019, the worker received an introduction to the services. Following discussions to determine the worker’s capabilities and required upgrading, a VR Plan under National Occupational Classification (“NOC”) 6742 – Other Elemental Services was developed to begin March 2, 2020 and end June 19, 2020 at which time the worker would be considered capable of earning $466.00 per week. On April 20, 2020, the WCB advised the worker that due to the global pandemic, the length of the worker’s job search would be extended. On June 16, 2020, an amendment to the worker’s VR plan was put in place extending the job search period to October 16, 2020. The WCB VR consultant placed a progress report to the worker’s file on September 10, 2020 with a job bank listing of available jobs within NOC 6742. On September 22, 2020, the consultant placed a Deem Summary to the worker’s file recommending the worker be considered fully employable within NOC 6742 and that effective October 16, 2020, the worker’s wage loss benefits should be reduced by the starting wage within that occupational group of $466.00 per week. The VR consultant placed further labour market information on the worker’s file on October 21, 2020 and November 4, 2020. On December 9, 2020, the WCB Deem Recommendation Committee convened and agreed with the case manager’s recommendation that the worker was employable within NOC 6742, with a deemed earning capacity of $476.00 per week. The WCB wrote to the worker on December 10, 2020 confirming the deeming decision.
On December 17, 2020, the worker requested reconsideration of the WCB’s deeming decision to Review Office, noting that due to the COVID-19 pandemic, they were having difficulty finding employment. On December 24, 2020, the worker also requested reconsideration of the accepted diagnoses on their file.
On February 8, 2021, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. Review Office noted the worker mentioned a pre-existing psychological condition within their appeal and requested Compensation Services obtain copies of medical reports with respect to that condition to be reviewed by a WCB psychological advisor on the impact to the implementation of the worker’s vocational rehabilitation plan. After a WCB psychological advisor reviewed the information received and the worker’s claim file on March 9, 2021, the WCB advised the worker on March 22, 2021 that a connection between their psychological condition and their October 22, 2015 workplace accident had not been established.
The worker re-filed their request for reconsideration with Review Office on May 11, 2021. The worker again noted disagreement with the development of their vocational rehabilitation plan. Further, the worker disagreed with the reduction of their wage loss benefits due to the deeming provision, describing difficulties finding employment within the VR plan job search period due to the pandemic. On May 28, 2021, the worker provided a submission noting the labour market information provided by the WCB’s vocational rehabilitation consultant listed jobs that were not available in their geographic area, with most outside their travel area.
On June 25, 2021, Review Office again returned the file to the WCB’s Compensation Services to have the VR consultant review the labour market information provided, determine if the worker’s home is within the criteria of 100 kilometres noted in the WCB’s policies, and update the labour market information. The VR consultant placed a memorandum to file on August 4, 2021, confirming the existence of a labour market within NOC 6742 in the worker’s geographic area. On August 17, 2021, the WCB advised the worker there would be no change to the VR plan, their deemed earning capacity or the implementation date of that deemed earning capacity of December 10, 2020.
On September 13, 2021, the worker requested reconsideration of the WCB’s August 17, 2021 decision to Review Office. The request was also submitted to the Appeal Commission on October 25, 2021 and forwarded to Review Office on October 27, 2021. In the submission of September 13, 2021, the worker noted they continued to experience difficulties from the workplace accident and as such, noted their belief the VR plan, deemed earning capacity and implementation date of that deem was not appropriate.
Review Office determined on December 9, 2021 that the vocational rehabilitation plan under NOC 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week was appropriate. Review Office found the labour market information provided by the VR consultant confirmed NOC 6742 – Other Elemental Services was viable for the worker and there were positions available within that NOC suitable to the worker’s restrictions. Review Office further found any barriers to the worker returning to work were not related to the worker’s compensable workplace injury or the vocational rehabilitation plan and therefore, the plan and the implementation of the worker’s deemed earning capacity was appropriate.
The worker’s representative filed an appeal with the Appeal Commission on June 20, 2022. A hearing was arranged for October 13, 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. 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 sets out how a worker’s loss of earning capacity is determined. Section 40 of 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(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.
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, intended to help a worker establish sufficient vocational potential to eliminate or minimize their loss of earning capacity. Such a VR 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.
The WCB has also established Policy 22.214.171.124, 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. 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.
The worker appeared in the hearing represented by a worker advisor 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 advocate is that the appeal should be granted as the vocational rehabilitation plan within NOC 6742 is not appropriate as the evidence does not support that there is a viable labour market in that job classification within the worker’s geographic region. Further, the timing for the plan implementation was not appropriate given the economic and labour market impacts of the pandemic during the period of government-mandated public health restrictions. As the worker does not believe that the VR plan is appropriate, the worker also submits it is also not appropriate to implement a post-accident deemed earning capacity effective December 10, 2020, upon conclusion of that plan.
The worker’s advocate detailed the worker’s concerns with the earning capacity assessment conducted by the WCB on February 6, 2020 noting that it does not outline a realistic employment goal for the worker, focusing on a different geographic region from where the worker is located. The advocate noted there is not a viable labour market for NOC 6742 where the worker is located. Further, the advocate outlined that the VR consultant incorrectly concluded that the worker was competitively able to obtain employment in NOC 6742 given the worker’s permanent restrictions and functional status. The advocate argued that the Review Office’s findings that there is a “probable potential” labour market and that the occupational goal “may” offer results is not sufficient to meet the requirements set out in the WCB’s VR Policy that the VR plan outline a viable and realistic goal.
The worker’s advocate noted that in a memo dated January 7, 2020, the WCB’s VR consultant outlined that the worker “has several barriers to employment including areas for educational growth to promote competitive employability, few transferable skills, and limited computer knowledge” such that a “viable occupational goal” could not be identified at that time. Further, in the February 6, 2020 Earning Capacity Assessment, the WCB VR consultant noted a “Good!” labour market for NOC 6742 but this was for a different geographic area than where the worker was located.
With respect to the implementation of the deemed earning capacity, the worker’s advocate submitted that the WCB prematurely determined the worker was capable of earning the income for NOC 6742 in that it had not and could not demonstrate that the worker was competitively capable of finding, competing for, obtaining and keeping employment in that NOC and had not demonstrated that work existed in that NOC for this worker. Further, the worker’s advocate noted that the WCB failed to take into account the impact of the pandemic on economic and job opportunities in the worker’s region and did not update its labour market assessments to take the effects of the pandemic and related restrictions into account. The worker’s advocate also noted that the WCB on December 9, 2020 advised its senior staff of an extension of the job search phase for affected workers due to the continuing Manitoba restrictions which placed “known limitations on labour market activity” and that this extension was for the period from December 11, 2020 to January 8, 2021. The worker was not granted this extension of job search and should have been entitled to such an extension. The worker’s advocate also noted, in their June 16, 2021 submission, that this period of “Code Red” restrictions remained in effect in Manitoba from November 12, 2020 through to June 25, 2021.
The worker testified in the hearing that they had been seeking work in their community within the agricultural sector, but that with the pandemic-related restrictions, employers in family-based operations “froze” their hiring of non-family members. The worker noted job search difficulties resulting from the pandemic restrictions in that they could not attend potential employment sites and had to rely only upon using the phone as they did not have home computer access. The worker clarified that driving wasn’t really an obstacle as they could drive using their left foot, with the right foot elevated. The worker stated they are able to walk longer than 10 minutes but not 30 minutes, and that with longer periods of walking their right foot “swells up bad” and their pain intensifies. The worker described having pain “24/7” that impacts their sleep and noted that they have looked into amputation but have not made any decisions in that respect. The worker described their medication usage in relation to the pain, noting that with medication they are able to sleep at night. The worker confirmed that their anxiety and agoraphobia, identified in the file documents, would not impact their employment prospects as the worker has developed strategies to manage those conditions.
The employer did not participate in the hearing.
There are two questions for the panel to determine on this appeal and both relate to the vocational rehabilitation plan for the worker established by the WCB. The panel must first determine whether or not the VR plan established within NOC 6742 is appropriate for the worker, and further, whether the effective date for implementation of a post-accident deemed earning capacity upon conclusion of that plan is appropriate. For the worker’s appeal to succeed the panel must find that the WCB failed to establish that the worker is capable of working within NOC 6742 and further, if the VR plan is appropriate, that the worker was 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 considering whether the vocational rehabilitation plan under NOC 6742 is appropriate the panel reviewed the applicable provisions of the VR Policy. That Policy outlines that in developing a VR plan for a worker, the WCB will define the goals of the vocational rehabilitation program for the worker and describe the occupational group “in which the worker can competitively pursue employment...Where applicable, the description will include any community-specific features of the occupation as determined through job analysis.” The plan is to be developed after “adequate assessment” that identifies not only the worker’s skills but also considers those skills “in comparison to the labour market.” The Policy also requires that the WCB “will reasonably ensure that the plan is based on a realistic goal”, which the Policy defines as a goal “within the worker’s physical, intellectual, vocational, and emotional capacities.”
The panel noted that the VR pre-plan developed by the WCB in September 2019 noted numerous barriers to employment of the worker, including the need for educational growth, few transferrable skills and limited computer knowledge. The file record confirms the worker advised the VR consultant in January 2020 that they did not attend the recommended upgrading program and were not interested in any type of education programming. In the Transferable Skills Analysis prepared by the WCB VR consultant, dated January 22, 2020, “strong barriers” are noted as impacting the worker’s success in a vocational plan involving long term academic upgrading, as well as the barrier of the worker’s physical restrictions. The VR consultant identified the appropriate geographical region to be considered in determining a viable labour market for the worker and concluded that NOC 6742 was appropriate for the worker, in that there were no specific education requirements, and a valid driver's license required for some occupations in the group. The VR consultant stated their opinion that the worker “is physically able to handle the general duties of this occupation” noting this to be “one realistically cost effective vocational rehabilitation option.”
The panel noted that the February 6, 2020 Earning Capacity Assessment prepared by the WCB VR consultant indicated the worker to be “physically capable” of performing job duties in NOC 6742 and that a job market exists in that NOC in the worker’s region, but that the consultant in fact referenced a labour market assessment for a different region. The report contains no information as to the “main duties” for occupations in the NOC other than stating that workers in the NOC perform services “specific to the establishments in which their occupations are found”, but a claim note of the same date lists examples of other support occupations, including various personal service attendant positions (for example, cloakroom attendant, gallery attendant, theatre usher) and positions that would require driving such as garage jockey, parking valet and car jockey. Although the WCB VR consultant considered these kinds of jobs to be within the scope of the worker’s physical abilities, the panel noted the worker’s permanent restrictions include no walking or standing for more than 30 minutes. The panel finds that many of the listed jobs within NOC 6742 would require significant periods of standing or walking. For example, an usher or ticket taker, hotel valet or coat checker typically work on their feet, whether walking or standing. The panel further finds that none of the vocational rehabilitation planning documents prepared by the WCB VR consultant contain evidence that the consultant assessed and compared the requirements of the jobs in NOC 6742 as against the worker’s specific physical capabilities.
The panel also considered that the VR plan does not address the worker’s additional health barriers in relation to their compensable injury, in terms of the neuropathic pain and use of pain relief medications as outlined in the worker’s testimony. When the worker identified a challenge in terms of nerve pain in a discussion with the WCB case manager and VR consultant on January 23, 2020, they stated their intention to get their pain under control before seeking work. Even if the WCB does not accept that the worker’s neuropathic pain is related to the compensable injury, non-compensable barriers to the worker’s employment need to be considered in terms of the worker’s specific physical, intellectual, vocational, and emotional capacities. The panel finds there is no indication that these additional barriers were taken into account by the WCB in developing the worker’s VR plan.
The panel noted as well that the available job bank listings within NOC 6742, as provided to the claim file by the VR consultant in September, October and November 2020, would mostly fall within the service industry, are mostly outside of the worker’s specific geographic region and likely fall outside the limitations of the worker’s permanent restrictions.
On the basis of the totality of the evidence before the panel, we are satisfied that the WCB did not adequately consider the worker’s physical, intellectual, vocational, and emotional capacities in respect of the jobs the worker might reasonably be capable of doing. The panel finds that the WCB did not reasonably ensure that the VR plan for NOC 6742 is based on a realistic goal within the worker’s physical capacities. Therefore, we find that the vocational rehabilitation plan under NOC 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week is not appropriate.
The panel also considered whether the effective date for implementation of a post-accident deemed earning capacity upon conclusion of that plan is appropriate. The WCB Deemed Earning Policy sets out that when a worker has participated in a VR plan, the deemed earning capacity will be used in calculating a loss of earning capacity when the worker has completed the training part of the vocational rehabilitation plan, the worker has been given reasonable job search assistance and the information the plan was based on, including labour market analysis, has not substantially changed.
Having determined that the vocational rehabilitation plan under NOC 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week is not appropriate, the panel finds that it is also not appropriate to implement a post-accident deemed earning capacity upon conclusion of that plan. The WCB’s decision to implement a post-accident deemed earning capacity effective December 10, 2020 was predicated upon the completion of the worker’s VR plan as of that time, and as the panel has determined that the VR plan developed for the worker is not appropriate, the panel is satisfied that the effective date for the implementation of the deemed earning capacity is also not appropriate.
The panel also noted that the WCB did not provide a reasonable further extension of the job search period beyond December 9, 2020 based upon the continuing impact of the Manitoba government-mandated restrictions arising out of the pandemic. While the worker’s advocate provided evidence that the WCB directed the offer of extensions of the job search period to workers in December 2020, this worker did not benefit from such an extension for reasons that are not evident from the panel’s review of the claim file documents. Furthermore, the panel noted that the deemed earning capacity assessment was based upon a labour market assessment undertaken in 2019. The panel considers that the onset of a global pandemic early in 2020, with associated public health restrictions and related economic impacts, some of which are ongoing, should have resulted a review of the labour market conditions by the WCB as these were likely “substantially changed” by December 2020 when the deeming provisions were applied to the worker’s benefit entitlement. There is no evidence that this occurred here.
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 6742 – Other Elemental Services with a deemed earning capacity of $476.00 per week is not appropriate and that it is not appropriate to implement a post-accident deemed earning capacity upon conclusion of that plan. The worker’s appeal on both questions 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 21st day of November, 2022