The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their vocational rehabilitation plan should not be extended. A videoconference hearing was held on October 25, 2023 to consider the worker's appeal.

Issue

Whether or not the worker's vocational rehabilitation plan should be extended.

Decision

The worker's vocational rehabilitation plan should be extended.

Background

The employer provided the WCB with an Employer's Accident Report indicating on October 30, 2017 the worker injured their right knee after slipping on outdoor steps while at work. The worker submitted their Worker Incident Report to the WCB on November 2, 2017 reporting they slipped on an icy patch on stairs leading to an outdoor deck and fell, hurting their right knee and shoulders. They advised they continued to work their shift then sought medical treatment but couldn't be seen at a local emergency department due to volume of patients. The worker attended for an appointment with their treating chiropractor on November 1, 2017, was diagnosed with an anterior cruciate ligament (ACL) tear and placed off work for one week. The worker was seen by their treating family physician on November 2, 2017 who noted the worker's reporting of twisting their knee and feel a tearing sensation. The physician queried a diagnosis of a right knee ligamentous injury and recommended the worker attend for a pre-arranged MRI study of their knee and appointment with an orthopedic specialist.

In a discussion with the WCB on November 8, 2017, the worker confirmed the mechanism of injury and noted they had a previous fracture to their right knee in 2013 that they were still being seen by an orthopedic specialist for. The specialist had already arranged for an MRI study for their right knee, which was moved up to November 6, 2017 due to the October 30, 2017 accident. The worker noted they were to meet with the orthopedic specialist the following day, November 9, 2017. The MRI study on November 6, 2017 indicated "The large osteochondral fracture posteriorly at the medial femoral condyle has become unstable since the previous exam now with complete separation of the fragment with rotation. Essentially this fragment has become a large intra-articular loose body. Joint effusion and large Baker's cyst. Orthopedic referral recommended." At the appointment with the orthopedic specialist on November 9, 2017, the specialist noted concern regarding the osteochondral fracture being unstable, recommended a further CT scan and reassessment. The CT scan on November 9, 2017 found "Large osteochondral left fracture fragment posterior to the distal radial femoral condyle with corticated margins and slight sclerosis and diastases related to previous remote trauma and displacement. Second smaller loose body is seen in the anterior lateral joint space, the donor site uncertain." At a follow-up appointment with their family physician on November 14, 2017, it was noted the orthopedic specialist felt they could not perform the necessary surgery and the worker was referred to an orthopedic surgeon at a tertiary hospital. The WCB accepted the worker's claim and the payment of benefits commenced November 10, 2017.

The worker was admitted to a tertiary hospital on November 15, 2017 and underwent a right knee arthroscopy and open reduction internal fixation of their right knee on November 19, 2017. After the surgery, the worker was seen in follow-up with the surgeon, their family physician, and physiotherapy. At a follow-up appointment with the orthopedic surgeon on March 13, 2018, an x-ray indicated a loose body fragment in the worker's knee after the worker's complaints of pain and feeling of a moveable loose body. A further surgery to remove the loose body was arranged for April 6, 2018. On April 21, 2018, the worker attended a local emergency department reporting pain and swelling in the area of the surgical incision on the right knee. The worker was diagnosed with an infection and was placed on intravenous antibiotics and underwent a further surgery on April 23, 2018 to aspirate fluid from their right knee. The worker’s file was reviewed by a WCB medical advisor on July 4, 2018 who opined the diagnosis related to the October 30, 2017 workplace accident was a right knee osteochondral fracture from medial femoral condyle, which was an aggravation of the worker’s pre-existing previous right knee medial femoral condyle osteochondral fracture and noted the surgeries the worker underwent were related to that diagnosis and should be accepted by the WCB. On July 31, 2018, a WCB physiotherapy consultant spoke with the worker’s treating physiotherapist and provided restrictions of sedentary duties only for the worker, which restrictions were provided to the employer on August 3, 2018. The employer advised the WCB on August 9, 2018 they could not accommodate the worker.

The worker attended for a call-in examination with a WCB medical advisor on September 26, 2018, who placed their opinion to the worker’s file on October 9, 2018. The advisor noted the infection the worker developed after the April 23, 2018 surgery may have caused structural damage to the worker’s medial femoral condyle and recommended the worker be referred for a further MRI study to determine if any structural damages occurred. If there were no structural damages found, the medical advisor recommended further rehabilitation to get the worker’s range of motion and strength back, then the worker’s function could be evaluated. The WCB medical advisor recommended restrictions of sedentary duties as previously recommended by the worker’s treating healthcare providers.

A further call-in examination with a WCB physiotherapy consultant took place on April 16, 2019. The consultant provided the worker was fit for “…sedentary duties with the ability to position change as needed” and occasionally stair climb. It was recommended to improve tolerance; the worker could start with reduced hours with weekly increases. Further physiotherapy was recommended to improve the worker’s strength. Restrictions of able to work reduced hours initially and increase weekly; able to perform sedentary duties with position change as needed; able to occasionally climb stairs; able to occasionally lift/carry/push/pull up to 10 pounds; and able to frequently lift/carry/push/pull up to 5 pounds were provided to the employer on April 29, 2019.

On October 2, 2019, the worker attended for a Functional Capacity Evaluation (FCE) with the athletic therapist providing their report to the WCB on October 17, 2019. After assessing the worker, the athletic therapist found the worker was capable of performing within a light to medium level of work for physical strength, with lifting/carrying/pushing/pulling 20 to 31 pounds on an occasional basis as a minimum. In addition to the FCE, the worker also underwent a psychoeducational assessment on October 1, 2019 and October 2, 2019. The psychologist opined the worker was diagnostically matched to Specific Learning Disorder, with impairment in mathematics, moderate and recommended the worker attend for a year of adult high school upgrading and once completed, could seek further educational training through a local college. The WCB provided the employer with the worker’s updated restrictions on October 22, 2019, with the employer advising the WCB they could not accommodate the worker on November 27, 2019. On December 27, 2019, the worker’s WCB case manager requested the worker be referred for vocational rehabilitation services.

A Vocational Rehabilitation Initial Assessment was placed to the worker’s file on April 15, 2020. The vocational rehabilitation specialist noted the WCB would be assisting the worker in obtaining their Grade 12 and would review the labour market in the worker’s local area. Further, it was noted a reconditioning program would be arranged after restrictions due to the global COVID-19 pandemic had lifted. The worker began the reconditioning program on May 25, 2020, with a progress report received by the WCB on June 22, 2020. The physiotherapist assessing the worker advised the worker had made considerable improvements in strength and walking in the four weeks they had been attending the reconditioning and recommended the worker attend for a further two weeks. A Transferable Skills Analysis – Stage 2 was placed to the worker’s file on September 3, 2020. The WCB vocational rehabilitation specialist noted a review of the local labour market for the worker in their local area found no matches and recommended the worker relocate to a larger urban area, which would be the most cost effective plan. The specialist concluded a vocational rehabilitation plan for the worker should be developed in National Occupational Classification (NOC) 6552 Customer Service.

A Vocational Rehabilitation Plan for NOC 6552 Customer Service was developed on January 19, 2021 with an end date of January 19, 2023. It was noted in the Plan, the worker had declined relocation and as such, according to the WCB’s policy, after the 2 year relocation period ended on January 18, 2023, the worker’s wage loss benefits would be reduced based on the starting wage for NOC 6552. The WCB vocational rehabilitation specialist indicated the worker would be provided with support and services during the 2 year period to find employment within their local area. In a discussion with the WCB on February 19, 2021, the worker indicated they had received and understood the Plan developed for them.

The WCB contacted the worker on August 18, 2021 to offer further support and services. On November 3, 2021, the WCB wrote to the worker to advise at the end of their Vocational Rehabilitation Plan on January 19, 2023, their wage loss benefits would be reduced by the earning capacity for NOC 6552 Customer Service. Further letters offering support and services was sent to the worker by their WCB vocational rehabilitation specialist on January 12, 2022 and May 25, 2022. The specialist met with the worker on August 11, 2022. The worker advised the specialist of their interest in taking courses towards certification in a community and social services worker position, under NOC 4212 Community and Social Services Worker, which was now being offered in their local area. The vocational rehabilitation specialist wrote to the worker on September 29, 2022 and advised a change in their vocational rehabilitation plan to NOC 4212 would not be accepted as it could not be determined the worker could obtain the necessary education pre-requisites for the program.

On October 21, 2022, the WCB vocational rehabilitation specialist and the worker met with an employer to discuss a trial in a clerical position. It was noted a 3-week orientation could be arranged for the worker, to begin on November 28, 2022 and end on December 16, 2022. On December 21, 2022, the work trial was extended to December 30, 2022 as the worker had not attended some scheduled work days due to illness. On December 22, 2022, the potential employer contacted the WCB and advised the work trial was now concluded as the worker had failed to attend for their shift that day. The WCB provided a letter to the worker on January 17, 2023 to advise effective January 19, 2023, their wage loss benefits would be reduced to the earning capacity of NOC 6552 Customer Service.

The worker requested reconsideration of the WCB’s decision to Review Office on January 16, 2023. In their submission, the worker noted they entered the 2 year relocation period during the COVID-19 pandemic, which limited their ability to look for work or attend for educational upgrading and requested an extension of their vocational rehabilitation plan. On February 13, 2023, Review Office determined the worker was not entitled to an extension of their Vocational Rehabilitation Plan. Review Office noted there was no provision within the WCB’s legislation to allow for an extension to a vocational rehabilitation plan. Further, Review Office found the evidence did not support the worker’s ability to find employment was affected by the COVID-19 pandemic, as the evidence indicated the worker had not attempted to find employment until the last few months of the plan at which time a work trial was unsuccessful.

The worker filed an appeal with the Appeal Commission on July 10, 2023 and a hearing was arranged.

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 section 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 section 37 of the Act.

The Act further sets out, in section 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.

There are two WCB policies that are relevant to this matter. They are WCB Policy 43.00, Vocational Rehabilitation (the "VR Policy") and WCB Policy 43.20.40, Relocation (the “Relocation Policy”).

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. For the purposes of this policy, this assistance is referred to as vocational rehabilitation. Vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness.

The Relocation Policy sets out the WCB’s approach to supporting the relocation of injured workers. The Relocation 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.

Part B of the Relocation Policy provides as follows:

General Principles: 

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. These six steps will be referred to in more detail under the analysis section below.

The Administrative Guidelines to the Relocation Policy also set out the process to occur when a worker chooses to decline a relocation plan. Specifically, the Administrative Guidelines state that benefits payable to the worker will be provided on the basis of the earning capacity in the home labour market and that these benefits may continue for up to two years. After two years, the level of benefits payable will be established by the earning capacity of the Suitable NOC Occupation associated with the relocation plan and target labour market.

Worker's Position

The worker made a presentation to the panel at the hearing and answered questions posed by the panel.

The worker commenced his presentation by indicating that due to the COVID-19 pandemic he had less opportunities to look for employment and had difficulties obtaining transcripts and records from schools that were closed in Manitoba, Alberta and British Columbia, where the worker has previously lived and gone to school.

The worker noted that he wished to remain in his home community. The worker provided information as it relates to his children and girlfriend (his common law partner). The worker confirmed that he is originally from another province and has no family in Manitoba. He relayed that his girlfriend did not want to move away from their home community as that is where her family and supports are. The worker stated that had he decided to move to another city in Manitoba to pursue work he would have had to leave his children and girlfriend behind and that it likely would have been the end of his relationship with his girlfriend. The worker submitted in essence that he felt that the process and the vocational plan was not done correctly.

Employer's Position

The employer did not participate in the appeal.

Analysis

In order to answer the issue at hand, the panel must review the Relocation Policy and determine whether it was properly and fully applied. In doing so, the panel finds that the relocation plan that the worker declined was not properly assessed by the WCB and therefore the worker's vocational rehabilitation plan should be extended in order to do so. The panel is able to make that finding, for the reasons that follow.

Based on the evidence provided by the worker at the hearing and the panel's review of the information on the worker's file, the panel is not satisfied that Step 4(3) of the Administrative Guidelines to the Relocation Policy were applied in this case.

Step 4(3) 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.

The panel was unable to confirm in the information before it that the WCB inquired about the motivational factors that may affect a relocation by the worker, such as the worker's common law partner, their children, child care costs, availability of child care, etc.

The panel notes that the worker's evidence was that his girlfriend would not agree to move and that should the worker have decided to relocate he likely would have to move without his girlfriend or children and that this was not an option he could realistically entertain. It is further noted that the worker had no family of his own in Manitoba and after moving to Manitoba had only ever lived in his home community.

The panel was also unable to identify in the information before it that the WCB inquired about the worker's family income or how it would be affected by relocation. The worker confirmed that no inquiries were made regarding the worker's girlfriend's employment or their living expenses.

In this regard, the panel notes that the evidence indicated the worker, his girlfriend and their children lived with his girlfriend's parents for a period of time, with no rent or mortgage to pay. The panel also notes that the worker provided evidence that his girlfriend's father assisted with child care at times.

Furthermore, the panel was unable to confirm that any analysis or assessment was completed as to whether relocating and working within the target labour market "would support a comparable standard of living to the one already established in the home labour market." The panel notes that the cost of living in the target labour market would be higher.

The panel is satisfied that it would have been an unreasonable hardship on the worker to expect him to move and this was not reasonable in the circumstances.

The panel recognizes that the Relocation Policy sets out a timeframe in the instance that a worker declines relocation and has given weight to same in its deliberations. However, given the significant and far-reaching impact of relocation on a worker, their claim and their family, it is imperative that all criteria be carefully considered and assessed in determining if relocation is appropriate. It is also imperative that 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 and therefore the panel is of the view that the worker's vocational rehabilitation plan should be extended to allow the appropriate considerations under Step 4 of the Administrative Guidelines to the Relocation Policy to be properly assessed.

The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of December, 2023