Decision #115/22 - Type: Workers Compensation
The worker is appealing decisions made by the Workers Compensation Board ("WCB") that the worker's current right shoulder difficulties are not compensable and that the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552, and implementation of a deemed earning capacity effective September 28, 2021 in relation to that Classification are appropriate. A videoconference hearing was held on June 28, 2022 to consider the worker's appeal.
1. Whether or not responsibility should be accepted for the worker's current right shoulder difficulties as being related to the April 7, 2014 accident;
2. Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Other customer and information services representatives, is appropriate; and
3. Whether or not the implementation of a deemed earning capacity effective September 28, 2021 in relation to the National Occupational Classification (NOC) 6552 is appropriate.
1. Responsibility should be accepted for the worker's right shoulder difficulties as being related to the April 7, 2014 accident;
2. The vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Other customer and information services representatives is not appropriate; and
3. The implementation of a deemed earning capacity effective September 28, 2021 in relation to the National Occupational Classification (NOC) 6552 is not appropriate.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 98/16 dated June 28, 2016. The background will therefore not be repeated in its entirety.
On April 7, 2014, the worker was untying a tarp strapped to steel columns midway up a 10 foot ladder when the ladder tipped over. The worker fell onto his right arm, resulting in a fracture to his right elbow, and a right rotator cuff tear which was later confirmed by an MRI taken June 16, 2014.
The worker underwent open reduction and internal fixation surgery on his elbow on April 8, 2014. The worker returned to modified duties in May 2014 while undergoing physiotherapy treatment and was paid partial wage loss benefits.
On February 12, 2015, the employer was advised by Compensation Services that the worker continued to undergo treatment for his ongoing elbow and shoulder difficulties and was entitled to ongoing treatment and benefits.
On February 18, 2015, the employer advised the WCB case manager that they were no longer operating in Manitoba, and as such, they could no longer accommodate the worker. The employer asked if they could accommodate the worker in another province. The case manager advised the employer that it would not be reasonable to expect the worker to leave his home to be accommodated in another province as it would likely create a hardship for him.
On March 6, 2015, the worker advised the WCB that he had been laid off from employment. The WCB advised the worker that as there were still restrictions related to his compensable injury, he would begin to receive wage loss again until such time as he returned to work or was cleared for duties.
Medical information showed that the worker was examined by a WCB physiotherapy consultant on March 17, 2015. By letter dated April 10, 2015, Compensation Services advised the employer that based on the March 17, 2015 examination, the worker had ongoing restrictions related to the workplace injury, and a reconditioning program would be of benefit. Compensation Services further advised that based on the file information and WCB policy, the worker was still entitled to wage loss benefits. On April 13, 2015, the employer appealed the decision to Review Office.
On June 2, 2015, Review Office determined that the worker was not entitled to wage loss benefits beyond March 6, 2015.
On September 4, 2015, the worker underwent surgical removal of the plate and screws from the April 8, 2014 right elbow surgery. At a follow-up appointment with the treating orthopedic surgeon on October 15, 2015, the worker was referred to physiotherapy. At an initial assessment on October 23, 2015, the physiotherapist recommended restrictions of no overhead lifting greater than 10 pounds with right arm only, no lifting greater than 15 pounds with right arm only, and avoid working at end range of elbow extension.
On February 9, 2016, the worker's representative filed an appeal with the Appeal Commission from Review Office's decision of June 2, 2015.
On April 1, 2016, the worker was examined by a WCB medical advisor at a call-in examination. At the request of the WCB, the worker also underwent a Functional Capacity Evaluation ("FCE") on April 20, 2016. On May 5, 2016, the WCB medical advisor reviewed the worker's file, including the FCE, and identified permanent restrictions, as follows:
• Can occasionally lift up to 30 lbs; can lift 15 lbs on a frequent basis
• Can occasionally push up to 30 lbs; can push 15 lbs on a frequent basis
• Can occasionally pull up to 40 lbs; can pull 20 lbs on a frequent basis
• Would have no limitation to carrying with left hand, but right hand can only be used in a supportive manner
• No highly repetitive movements of the right upper extremity
• Work within the body envelope - no awkward positions of right elbow or shoulder
• No weight bearing through the right upper extremity (ie crawling, climbing ladders, etc.)
On May 11, 2016, the employer was provided with the worker's permanent restrictions, and on June 14, 2016, the employer advised that they could not accommodate the worker with modified/alternate duties. On June 17, 2016, the worker was referred for vocational rehabilitation services.
On June 28, 2016, pursuant to Decision No. 98/16, the Appeal Commission determined that the worker was entitled to wage loss benefits after March 6, 2015. The Appeal Commission found that the worker was not able to perform his regular job duties up to March 6, 2015, the date of his lay-off, and that he sustained a loss of earning capacity arising out of and in the course of his employment after that date. The worker's file was returned to Compensation Services for further adjudication.
An initial Vocational Rehabilitation Assessment was placed to the worker's file on July 5, 2016, noting the worker was unable to return to his pre-accident duties due to the physical restrictions and could not be accommodated by his employer. Vocational rehabilitation activity was recommended to identify alternate post-accident employment for the worker.
On December 12, 2016, following further assessment and discussions with the worker, the WCB vocational rehabilitation specialist recommended that the worker be retrained for National Occupational Classification (NOC) 1453, Customer Service, Information and Related Clerks, with a relocation plan due to the worker's geographic location, which would allow for a two-year relocation period before his benefits would be reduced based on the deemed earning capacity under NOC 1453. It was noted at the time that the worker had not decided to accept or decline relocation activity.
A vocational rehabilitation progress report dated January 23, 2017 noted that the worker would accept the relocation, as there was no work available in his geographic location, and the WCB would review whether educational upgrading could occur locally. On a further progress report dated April 12, 2017, it was noted the worker's vocational rehabilitation plan would be extended to allow for some upgrading to the worker's education, following which, a final review/ determination of the occupational goal would be made. Monthly progress reports were placed to the worker's file indicating the worker's progress on educational upgrading. On November 30, 2018, the worker advised the vocational rehabilitation specialist that he wanted to decline relocation, indicating he was comfortable trying to find suitable employment locally. On December 6, 2018, a Vocational Rehabilitation Plan was provided to the worker under NOC 6552 Customer Service (formerly NOC 1453), to start on December 10, 2018 and end on December 10, 2020.
The worker's vocational rehabilitation plan was monitored by the vocational rehabilitation specialist who met with the worker periodically. At a meeting on June 28, 2019, the specialist reminded the worker that his plan was to end on December 10, 2020, at which time his wage loss benefits would be reduced based on the deemed earning capacity for NOC 6552, and encouraged the worker to complete his educational upgrading prior to the end date of the plan.
On December 5, 2019, the worker provided the WCB with an update on his educational training and advised he had sought medical treatment for ongoing difficulties with his right shoulder. The WCB requested and received copies of medical reports for the treatment the worker had received. A September 4, 2019 initial assessment from the worker's treating family physician noted the worker's complaints of pain and reduced range of motion in his right shoulder. The physician found mild local tenderness with significantly reduced abduction and flexion, and provided a pain medicine injection. At a follow-up appointment on October 1, 2019, the family physician referred the worker for an MRI of his shoulder, which was performed November 8, 2019 and showed there was "…a large full-thickness rotator cuff tear involving the entire supraspinatus tendon and the majority of the infraspinatus tendon." On November 19, 2019, the treating family physician referred the worker back to the treating orthopedic surgeon, who in turn referred the worker to an orthopedic surgeon who specialized in reverse shoulder arthroscopy on December 3, 2019.
On February 26, 2020, the worker's file was reviewed by a WCB orthopedic consultant, who opined that the worker's initial diagnosis from the April 7, 2014 workplace accident was a right shoulder sprain/strain. The consultant noted that at the April 1, 2016 call-in examination with the WCB medical advisor, the worker reported no complaint of pain regarding his right shoulder. The consultant noted that it was the opinion of the WCB medical advisor who performed that examination that the worker had recovered from the effects of the compensable right shoulder injury. The WCB orthopedic consultant further opined that the worker's current diagnosis was a "Right shoulder massive chronic rotator cuff tear with severe age related degenerative osteoarthritis acromioclavicular joint" and that as there was no reporting of any further injury to the worker's right shoulder, it was not possible to directly relate the worker's current diagnosis to the April 7, 2014 workplace accident.
On March 2, 2020, Compensation Services advised the worker that they were unable to accept responsibility for his current right shoulder difficulties as they could not establish a relationship between his current right shoulder symptoms and his April 7, 2014 right elbow/shoulder injury.
On August 18, 2020, the worker requested that Review Office reconsider Compensation Services' March 2, 2020 decision. The worker submitted that he did not recall any incident that may have occurred to make his right shoulder worse, and noted that tests done by the doctor or physiotherapist hurt his right shoulder or made it worse. The worker also requested that Review Office reconsider Compensation Services' decision with respect to the vocational rehabilitation plan under NOC 6552 as he felt he was not suited for that classification, there were not enough jobs within that classification in his area, and the current COVID-19 pandemic had made his educational upgrading difficult due to closure of schools in his area.
On August 25, 2020, Review Office requested that the WCB orthopedic consultant review the worker's file, particularly the June 16, 2014 MRI findings, to determine if the findings related to acute/trauma or were long standing. On August 26, 2020, the orthopedic consultant opined that "…the MRI report of rotator cuff was not of an acute tear related to the CI (compensable injury), rather a pre-existing and probably asymptomatic tendinopathy." The consultant further noted that there was a lack of clinical information on the worker's file between February 7, 2017 and the December 3, 2019 report from the treating orthopedic surgeon. A copy of the orthopedic consultant's opinion was provided to the worker, who advised Review Office on September 9, 2020 that he had a further appointment with his treating orthopedic specialist on September 16, 2020 and would review the opinion of the WCB orthopedic consultant with the specialist at that time.
In a memorandum to file dated September 15, 2020, the worker's vocational rehabilitation specialist provided a summary of vocational rehabilitation involvement/efforts on the worker's file. The specialist detailed the progress of the vocational rehabilitation program and educational upgrading by the worker and noted a labour market review in the worker's local area did not find any suitable matches within the worker's restrictions, but the labour market for the proposed relocation area remained viable.
Review Office received a copy of a July 7, 2020 virtual consultation report from the worker's treating orthopedic specialist, noting an in-clinic appointment was to be arranged to assess the worker. On October 23, 2020, Review Office received a copy of the September 16, 2020 report of the orthopedic specialist. The specialist noted that the November 8, 2019 MRI showed a "…massive tear involving the supraspinatus and infraspinatus with retraction to the level of the glenoid. Grade II fatty infiltration" and that the worker wanted to proceed with "…lower trapezius tendon transfer, biceps tendonesis and partial rotator cuff repair."
On November 13, 2020, Review Office determined that the worker's current right shoulder difficulties were not compensable and the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Other customer and information services representatives was appropriate. With respect to the worker's current right shoulder difficulties, Review Office accepted and placed weight on the opinions of the WCB orthopedic consultant. Review Office agreed with the consultant's August 26, 2020 opinion, given the call-in examinations with WCB medical advisors in 2015, 2016 and 2017, that the worker had reached full recovery of his right shoulder function, and with no medical evidence to support a further incident or accident occurred, the worker's current right shoulder difficulties could not be related to the April 7, 2014 workplace accident.
Review Office also found the worker's vocational rehabilitation plan was appropriate as it took into consideration the worker's transferable skills, provided a suitable amount of time for the worker to obtain educational upgrading, and allowed for a two year relocation period for the worker to relocate to an area with a more robust labour market, which was noted to be viable for NOC 6552 had he moved to that area. Review Office noted the worker had ample time to complete his educational upgrade and access supports and services to find a job locally during the two-year relocation period, but that he had not accessed these services. It was further noted the plan was to end on December 10, 2020, with the worker then deemed capable of earning the minimum wage for NOC 6552.
On December 4, 2020, it was recommended that the worker be deemed employable in NOC 6552 and that benefits be reduced by the starting wage within NOC 6552 effective December 10, 2020.
On July 28, 2021, the worker's representative requested that Review Office reconsider the WCB's decision to implement the deemed earning capacity as of December 10, 2020, among other issues. The representative noted that correspondence from the WCB related to a decline in the labour market in Manitoba due to the COVID-19 pandemic and the recommendation of the WCB to extend timelines for workers currently participating in vocational rehabilitation plans with businesses closing due to public health restrictions in place at the time. The worker's file was returned to Compensation Services for further investigation.
On August 11, 2021, a report was placed to the worker's file by the vocational rehabilitation specialist, and on August 31, 2021, a Vocational Rehabilitation Plan Amendment was provided to the worker indicating the Plan had been extended to July 5, 2021 due to restrictions from public health directives.
On November 5, 2021, the worker's representative again requested that Review Office reconsider the WCB's Vocational Rehabilitation Plan. Review Office returned the file to the WCB's Compensation Services for further investigation, and on November 30, 2021, the WCB's vocational rehabilitation manager provided a detailed report to the worker's file. In the report, it was noted that the WCB's extensions of timelines for workers on vocational rehabilitation plans due to the COVID-19 pandemic were not intended for workers who declined relocation-based plans, which were noted to provide workers with 104 weeks of full wage loss benefits in lieu of relocating, as was the case for the worker. However, a Vocational Rehabilitation Plan Amendment was provided to the worker on December 9, 2021, extending the plan to September 21, 2021.
On January 21, 2022, the worker's representative requested reconsideration by Review Office of the WCB's decision to deem the worker capable of earning the starting wage of NOC 6552 as of September 21, 2021. The representative submitted that the WCB had not fully taken into consideration the effect a relocation would have on the worker and his family. The representative noted the worker currently resided in a small town and relocating to a large city would have a negative impact on the worker in terms of psychosocial factors and resulted in "…a significantly reduced standard of living and quality of life."
On February 7, 2022, Review Office determined that the implementation of a deemed earning capacity effective September 28, 2021 in relation to the National Occupational Classification (NOC) 6552 was appropriate. Review Office noted that the worker's vocational plan, which was a relocation plan for NOC 6552, was considered appropriate. Review Office further noted the WCB's relocation plan was discussed with the worker, who declined the plan on November 29 and 30, 2018, making a personal choice to remain in his local community. Review Office also noted the vocational rehabilitation plan factored in some educational upgrading, but the worker had not completed that upgrading. Review Office determined that the worker did not have a full loss of earning capacity due to his compensable injury once his vocational plan was completed. Review Office determined that the number of weeks for the worker's relocation plan should be to September 27, 2021, and the deemed earning capacity would be effective September 28, 2021.
On March 24, 2022, the worker's representative filed an appeal with the Appeal Commission and a videoconference hearing was arranged for June 28, 2022.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On October 20, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies of the WCB's Board of Directors. The Act and regulations in effect on the date of the April 7, 2014 accident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.
Subsection 27(20) of the Act provides that the WCB may provide academic, vocational and rehabilitative assistance to injured workers, and reads as follows:
Academic, vocational, rehabilitative assistance
27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines 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.
WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker under subsection 27(20) of the Act. It is noted that such assistance is referred to as vocational rehabilitation and "…is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness."
Part B of the VR Policy provides, in part, as follows:
I. Goals and Objectives
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.
WCB Board Policy 43.20.40, Relocation (the "Relocation Policy"), outlines the WCB's approach to supporting the relocation of injured workers when it becomes difficult to recover a loss of earning capacity in the home labour market. The Policy provides 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. However, 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.
Part B of the Relocation Policy provides as follows:
The goal of vocational rehabilitation is to enhance or establish 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.
The WCB takes a cost effective approach to optimizing an injured worker's post-injury employability. The injured worker's pre-injury earnings level is the primary consideration.
To accomplish these goals, 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.
Administrative Guidelines to the Relocation Policy outline six steps the WCB will follow to make a decision about relocation.
The worker was represented by a worker advisor, who provided a written submission in advance of the hearing, and made a presentation at the hearing. The worker and the worker's representative responded to questions from the panel.
With respect to the first issue on appeal, relating to the worker's right shoulder, the worker's position was that the worker suffered a right shoulder injury as a result of his April 7, 2014 fall, and his current right shoulder difficulties should be accepted.
The worker's representative submitted that the evidence supports that worker's shoulder was subjected to significant forces from his fall and impact which were sufficient not only to shatter his elbow but also to tear his rotator cuff.
The representative submitted that the worker's right shoulder injury as originally accepted was a compensable rotator cuff tear, and the majority of the medical opinions on file support that the tear, and the expansion of the tear, were a result of and directly caused by the accident.
The representative noted that the worker's file was reviewed by two treating physiotherapists, two orthopedic surgeons, three WCB medical advisors and two WCB physiotherapy consultants, none of whom attributed the rotator cuff tear to anything other than the workplace accident. The representative submitted that these medical opinions should outweigh the opinion of the one WCB orthopedic consultant who indicated the tear was unrelated to the worker's fall.
The representative further submitted that the opinion of the WCB orthopedic consultant was based on incomplete and incorrect information. The representative noted that the consultant did not examine the worker and his opinions, which were provided almost six years after the accident, were confusing and based on incomplete and incorrect information.
The representative asked that the panel prefer the opinion of the treating orthopedic specialist, who not only performed surgery on the worker's shoulder, but explained that since the worker was asymptomatic before the accident, the tear likely occurred as a result of trauma and would progress over time.
With respect to the issues related to the NOC code in the vocational rehabilitation plan, the worker's representative submitted that NOC 6552 was not appropriate for the worker. The representative submitted that the worker's compensable restrictions, his lack of experience and his lack of education caused him to be competitively disadvantaged in the labour market and there was little chance he would secure employment in the assigned NOC 6552.
The representative also submitted that if the rotator cuff tear was determined to have resulted from the accident, the increased symptoms from the expanded tear would have impacted the worker's ability to do the tasks under NOC 6552.
The representative further submitted that the relocation plan that the worker declined was not properly assessed or presented to the worker by the WCB. The representative submitted that a favourable assessment that the cost of living was comparable to his current location was not performed as provided by the administrative guidelines to the Relocation Policy, and family income was not taken into account in the decision to proceed with the relocation plan. In addition, the worker's questions with respect to expense reimbursement were not addressed.
The representative noted that the expiry of the relocation plan was the catalyst for the deem date, and submitted that a deem based on the expiry of this relocation plan was not appropriate.
The employer did not participate in the appeal.
Issue 1: Whether or not responsibility should be accepted for the worker's current right shoulder difficulties as being related to the April 7, 2014 accident.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's current right shoulder difficulties are causally related to the worker's April 7, 2014 accident. The panel is able to make that finding, for the reasons that follow.
The panel is satisfied, on a balance of probabilities, that the mechanism of injury was consistent with and of sufficient force to cause a tear in the worker's right shoulder as well as the elbow.
Based on our review of all of the evidence that is before us, the panel is satisfied, on a balance of probabilities, that the initial right shoulder partial-thickness rotator cuff tear was related to the April 7, 2014 workplace accident.
While the initial focus was on the worker's elbow injury, medical evidence indicates that there were also early difficulties and concerns with respect to a right shoulder injury. Due to increased right shoulder pain, the worker was referred for an MRI which took place on June 16, 2014.
The WCB medical advisor on June 28, 2014 opined that the worker's current diagnosis appeared to be a rotator cuff tear and that this was consistent with the shoulder complaints and findings on the June 16, 2014 MRI.
The panel has considered and acknowledges the WCB orthopedic consultant's opinions with respect to a possible pre-existing condition, but is satisfied that there is a lack of evidence to support that the worker had a pre-existing degenerative condition in his right shoulder.
The panel is further satisfied, based on the evidence and on a balance of probabilities, that the rotator cuff tear in the worker's shoulder progressed. The panel places weight on the May 7, 2021 opinion of the treating orthopedic surgeon, who stated, in part, that:
1. [The worker] currently has a massive irreparable rotator cuff tear…
2. I do not have access to the original documents from his injury. However, in the event that the [worker] had a normal shoulder, then sustained a traumatic at work resulting in persistent shoulder pain and an MRI showing a partial thickness rotator cuff tear it is likely that the tear occurred as a result of the trauma. Although asymptomatic patients can have rotator cuff tears from aging this is much less common in patients in the forties (which [the worker] was at the time of the injury).
3. Based on my review of the documents available to me it appears clear the [the worker] has a normal shoulder that was injured resulting in a rotator cuff tear.
4. A recent publication has clearly outlined that partial thickness rotator cuff tears progress to full-thickness tears at a rate of 0.25%/month (or 3%/year).
Following the hearing, the panel asked that a WCB medical advisor review the treating orthopedic surgeon's opinion. On September 11, 2022, a further WCB orthopedic surgery consultant responded, in part, as follows:
It is well established and well accepted in the orthopaedic literature that partial-thickness rotator cuff tears can progress over time into full-thickness rotator cuff tears.
As such, in the absence of any new injuries occurring to the right shoulder between the June 16, 2014 and the November 8, 2019 right shoulder MRIs, the increase in the size of the right shoulder rotator cuff identified in the more recent MRI would be considered related to progression of the right shoulder partial-thickness rotator cuff tear identified in the report from the initial June 16, 2014 right should MRI.
There is thus no issue with the orthopaedic surgon responses to questions 1 and 4 in the June 22, 2022 Appeal Commission Correspondence, as the current diagnosis at the time of the May 7, 2022 Opinion from the orthopaedic surgeon was a right shoulder massive irreparable rotator cuff tear with appropriate surgical management recommended and the right shoulder massive irreparable rotator cuff tear at the time would be considered related to progression of the right shoulder partial-thickness rotator cuff tear identified in the report from the June 16, 2014 right shoulder MRI if no new right shoulder injury had occurred between the 2 right shoulder MRIs on file.
The WCB orthopedic surgery consultant went on to note that:
If the Appeal Commission is in agreement that the initial right shoulder partial-thickness rotator cuff tear was related to the April 7, 2014 workplace incident, then the subsequent right shoulder massive irreparable rotator cuff tear and treatment related to such would be considered related to the workplace incident if no other injuries to the right shoulder had occurred between the June 16, 2014 ad November 18, 2019 right shoulder MRIs.
The panel accepts and places significant weight on the WCB orthopedic surgery consultant's September 11, 2022 report and opinions.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's current right shoulder difficulties are causally related to the worker's April 7, 2014 accident. The panel therefore finds that responsibility should be accepted for the worker's current right shoulder difficulties as being related to the April 7, 2014 accident.
The worker's appeal on this issue is allowed.
Issue 2: Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Other customer and information services representatives, is appropriate.
For the worker's appeal on this issue to be successful, the panel must find that the vocational rehabilitation plan for employment in National Occupational Classification (NOC) 6552 – Other customer and information services representatives, was not appropriate for the worker. The panel is able to make that finding, for the reasons that follow.
The Vocational Rehabilitation Plan was developed based on NOC 6552 - Other customer and information services representatives and the worker relocating to the larger labour market of Winnipeg. The panel is not satisfied, based on our review of the evidence which is before us, that this classification was appropriate in this instance.
After reviewing the information on the worker's file and evidence and submissions provided at the hearing, the panel is satisfied that Step 4 (3) of the Relocation Policy was not properly applied in this case. That Step reads as follows:
Step 4: Decision making
3) Other considerations
Further discussion items with the injured worker will include:
• the worker's psychosocial, medical and motivational factors that may affect a relocation to a target labour market;
• whether or not the combined anticipated family income in the target labour market will be affected;
• whether the employability based earning capacity in the target labour market would support a comparable standard of living to the one already established in the home labour market.
With regard to the last bullet in Step 4 (3) of the Policy in particular, the panel was unable to identify any real analysis as to whether relocating and working within the target labour market of Winnipeg "would support a comparable standard of living to the one already established in the home labour market."
The panel is of the view that a detailed analysis of this issue is an essential requirement for a worker to be provided when considering the possibility of relocating. Without these criteria being examined, the WCB and the worker would have been unable to make a fully informed determination with respect to relocation.
Information on file indicates that the worker wished to remain in his home community, or to at least retain his residence in his community and return there over the weekends. The panel is not satisfied that the details of the Relocation Policy were clearly articulated to the worker.
The panel is of the view that determining whether an injured worker and their family should be required to relocate as part of the vocational rehabilitation process is a huge undertaking by the worker and their family and by the WCB. Given the huge impact relocation decisions will have on the worker, their claim and their family, it is imperative that the details of the possible relocation are fully explored by the WCB and the worker be fully informed of all the factors that are to be relied on when the WCB is making such a determination. Based on the available information, the panel is satisfied that this did not occur in this instance.
In a memorandum to file dated August 11, 2021, the vocational rehabilitation consultant noted with regard to considerations such as comparable standard of living in the targeted market vs the home labour market, that the worker stated he owned his home and would have a higher cost of living in a larger centre. The consultant stated that these are factors for the worker to assess with their family circumstances to determine if relocation is a good fit for their family and "It is not for the WCB to make this determination for the worker." The panel does not agree with the statement. In the panel's view, the WCB has an obligation to also consider and take into account what relocation would cost the worker.
In this regard, the panel notes that the evidence indicated the worker owned his own home in his community, with no rent or mortgage to pay. The worker indicated that the community consists of approximately 20 residences, and the worker did not want to sell his home and that in any event there was little or no market for houses in that area. The worker further indicated at the hearing that this was his family home, where he was raised and had lived most of his life, and his mother and several family members lived in the area. On questioning from the panel, the worker also indicated that the worker does not in fact own the house outright, and there was some question as to whether he would even be able to sell it.
The panel further notes that the evidence indicates the worker did not receive answers to his questions as to how the vocational rehabilitation plan would impact him financially if he were to give up his family home and move to Winnipeg. The panel notes the cost of comparable housing and the costs of living in Winnipeg would be much higher. The panel is satisfied that it would have been an unreasonable hardship on the worker to expect him to sell his home and move to Winnipeg.
Based on the available evidence, the panel is not satisfied that it was reasonable or appropriate to expect the worker to relocate to the target market of Winnipeg in this instance. The panel therefore finds that the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Other customer and information services representatives, is not appropriate.
The worker's appeal on this issue is allowed.
Issue 3: Whether or not the implementation of a deemed earning capacity effective September 28, 2021 in relation to the National Occupational Classification (NOC) 6552 is appropriate.
Given our decision on Issue #2 above, that the vocational rehabilitation plan for the National Occupational Classification (NOC) 6552 - Other customer and information services representatives, is not appropriate, it necessarily follows and the panel finds that the implementation of a deemed earning capacity effective September 28, 2021 in relation to the National Occupational Classification (NOC) 6552 is not appropriate.
The worker's appeal on this issue is allowed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of November, 2022