Decision #43/24 - Type: Workers Compensation

Preamble

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

1. They are not entitled to additional chiropractic treatment; and 

2. It was appropriate to implement a post-accident deemed earning capacity effective August 6, 2006. 

A hearing was held on April 16, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to additional chiropractic treatment; and 

2. Whether or not it was appropriate to implement a post-accident deemed earning capacity effective August 6, 2006.

Decision

1. The worker is not entitled to additional chiropractic treatment; and 

2. It was appropriate to implement a post-accident deemed earning capacity effective August 6, 2006.

Background

The WCB accepted the worker’s claim for a low back injury that occurred at work on April 14, 2003. After the accident, the worker was treated with physiotherapy. A CT scan of April 7, 2004 indicated a paracentral broad-based disc herniation involving the S1 nerve root, and a follow-up CT scan of May 20, 2005, showed the disc herniation had slightly abated and now a protrusion that still affected the S1 nerve root.

In early 2006, the WCB referred the worker for a physical rehabilitation program focused on work hardening or reconditioning to prepare for a return to the workforce. A physiotherapist from that program assessed the worker on February 7, 2006 and recommended a 12-week program to include daily physiotherapy and biweekly meetings with a psychologist and another physiotherapist or occupational therapist for education sessions and ongoing assessment. The WCB approved the recommendations, and the worker began participating in April, 2006. In mid-June, the treating psychologist indicated that they did not believe further sessions would be of benefit to the worker for several reasons. Around the same time the program physiotherapist and occupational therapist also recommended to the WCB that the program discontinue as they did not see any benefit to the worker due to the worker’s lack of effort in the program. The WCB discontinued the program and the worker’s ongoing physiotherapy as of June 26, 2006.

On June 27, 2006, a WCB medical advisor reviewed the worker’s file and noted that the worker was diagnosed with chronic pain syndrome, and that a multidisciplinary approach to treatment was most appropriate; however, the worker did not put full effort into that program and therefore did not receive benefit from it. The medical advisor stated that if the worker had participated fully, it would be expected that their pain and function would improve to the point where they would be capable of work with restrictions of no lifting greater than 35 pounds, no repetitive or sustained bending or twisting and ability to change position as needed. The restrictions were to be reviewed in 6 months.

In July 2006, the WCB referred the worker for vocational rehabilitation services. A Vocational Rehabilitation (“VR”) Plan was developed based on National Occupational Classification (“NOC”) 6651, Security; however, the worker did not participate in the VR program and the WCB suspended the worker’s wage loss benefits as of August 6, 2006.

The WCB contacted the worker on April 3, 2007 to discuss the VR plan and the worker advised they were not interested in participating in the plan. On April 30, 2007, the WCB deemed the worker to be capable of working within NOC 6651, Security. The WCB reduced the worker’s wage loss benefits by the amount they were deemed capable of earning, effective August 6, 2006. After that date, the WCB reviewed the worker's income and wage loss benefits annually.

On November 14, 2013, the worker contacted the WCB to request coverage for a medical device recommended by their treating chiropractor and the WCB requested a narrative report from the chiropractor regarding the worker's treatment. On November 25, 2013, the WCB received the report, in which the chiropractor outlined the history of their treatment relationship with the worker beginning in 2002, and noted the worker consistently reported pain in the same areas and had a consistent clinical presentation. The treating chiropractor noted the worker's "high self rated pain and disability scores" did not accurately reflect their observations of the worker's ability to ambulate and move. A WCB chiropractic consultant reviewed the worker's file on January 9, 2014, noted the worker received several different modalities of treatment since the accident in 2003, and concluded that active therapy with a home-based exercise program would be the best treatment approach. The WCB advised the worker on January 24, 2014 that it did not approve further chiropractic treatment.

On February 18, 2014, the worker requested Review Office reconsider the WCB's decision, noting their treating healthcare providers supported their request for further treatment. On April 16, 2014, Review Office determined the worker was not entitled to additional chiropractic treatment. Review Office relied upon the opinion of the WCB chiropractic consultant and found further chiropractic treatment was not likely to provide any long term sustained benefit to the worker's function.

On August 25, 2014, the worker requested Review Office reconsider the WCB’s decision that they were not entitled to full wage loss benefits and implementing the post-accident deemed earning capacity. The worker submitted that in 2006 they were not able to attend appointments or classes or treatment as they were living some distance from where those treatments were, but they had since moved and could now attend any treatment, classes, or meetings that the WCB might require to enable them to receive re-training and return to full wage loss benefits.

On October 28, 2014, Review Office determined the worker’s post-accident deemed earning capacity was correctly implemented. Review Office found the evidence indicated the worker was provided multiple opportunities to participate in the WCB VR plan but each time declined to do so. As such, Review Office determined the WCB correctly implemented a post-accident deemed earning capacity for the worker starting on August 6, 2006. Review Office also determined that the file should be returned to Compensation Services to determine if further VR services would be extended to the worker.

The worker filed an appeal with the Appeal Commission on February 6, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In determining the worker’s appeal, the panel is bound to apply the provisions of The Workers Compensation Act (the “Act”) and regulations under that Act as well as the policies established by the Workers Compensation Board. The provisions of the Act in force at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker sustains personal injury by accident arising out of and in the course of employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 37 provides that when a worker is injured because of an accident and sustains a loss of earning capacity, an impairment or requires medical aid, compensation is payable to them as medical aid, an impairment award and wage loss benefits. Section 39 of the Act states that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB or the worker reaches 65 years of age.

Section 22 of the Act outlines the responsibilities of workers to mitigate the consequences of the accident and participate in medical or surgical treatment the WCB believes is reasonably essential to promote their recovery. When a worker fails to comply with those responsibilities, the WCB may reduce the compensation payable to the worker.

Section 27 of the Act permits the WCB to provide medical aid to an injured worker to cure and provide relief from a workplace injury as the WCB considers necessary. The Act also provides in s 27(20) that the WCB may provide academic or vocational training, or rehabilitative or other assistance to a worker when the worker could experience a long-term loss of earning capacity or require assistance to reduce or remove the effect of a handicap resulting from the injury as a result of a workplace accident.

The WCB established Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) to detail the general principles the WCB considers and applies when determining a worker’s entitlement to medical aid, including the following:

o The Board is responsible for the supervision and control of medical aid funded under the Act or this policy. 

o The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. 

o In determining the appropriateness and necessity of medical aid, the Board considers: 

• Recommendations from recognized healthcare providers; 

• Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services; 

• Standards developed by the WCB Healthcare Department. 

o The Board promotes timely and cost-effective access to medical aid. 

o The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. 

o The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

The WCB also established Policy 44.10.30.60, Co-operation and Mitigation in Recovery, (the “Mitigation Policy”) which elaborates on the responsibilities of workers and the WCB in complying with s 22 of the Act. The Policy describes that a worker mitigates the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work. The Mitigation Policy outlines a worker’s responsibilities in relation to return to work and rehabilitation programs as follows:

1. Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker’s recovery; 

2. Reasonably co-operating with the WCB in developing and carrying out/;0 a rehabilitation program designed to promote the worker’s return to work; 

3. Demonstrating to the WCB an ongoing reasonable effort towards the successful completion of a rehabilitation program; 

4. Reasonably avoiding any activity which would result in a slower recovery from the worker’s injuries or negatively impact the worker’s medical ability to return to work; 

5. Reasonably participating in all programs that the WCB believes will encourage a timely and sustainable return to health and work.

The Mitigation Policy confirms that WCB’s responsibilities to a worker under s 22 of the Act are as follows:

• The WCB must advise an injured worker of their responsibilities under s 22 of the Act and this policy and explain what those responsibilities mean in the individual circumstances of the worker's claim. 

• The WCB must assist the injured worker in mitigating the effects of a workplace injury by helping to identify and address impediments to the worker's safe return to health and work. 

• The WCB must advise the worker of the possible consequences of a failure to comply with s 22 and their responsibilities under this policy, including the reduction or suspension of compensation. 

• The WCB may reimburse the costs for a worker to participate in activities or programs designed to mitigate the effects of a workplace injury. 

• If a program or activity designed to change the worker’s personal habits or behaviours began before the workplace injury, the WCB will not reimburse the costs of the program or activity.

The Mitigation Policy also sets out the potential consequences of a worker’s failure to mitigate as follows:

• If the WCB determines that the worker has not complied with s 22 of the Act and the requirements of this policy, it may reduce or suspend the worker's compensation. Before taking this step, the WCB will consider whether the worker has a reasonable explanation for noncompliance. If the WCB considers the worker's explanation for non-compliance to be reasonable, it will not suspend or reduce the worker's compensation. 

• Before reducing or suspending compensation, the WCB will provide the injured worker with a reasonable opportunity to comply with his or her obligations under the Act and this policy. 

• The WCB will communicate with the worker within a reasonable period of time following a reduction or suspension of benefits, to provide a further opportunity to comply with his or her obligations under the Act and this policy.

The WCB also established Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”) which describes when the WCB will determine that a worker is capable of earning more than they are actually earning. In those circumstances, the WCB will deem an amount that the worker could earn and will include it in the calculation of post-accident earning capacity as if it had been earned. The Deeming Policy outlines requirements that the WCB must demonstrate for income to be deemed, which include, in paragraph 3 of the Policy, the following:

a) The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based. 

b) The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market. 

c) The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based. 

d) The WCB will use the Individualized Written Rehabilitation Plan (or similar format) as described in WCB policy 43.00, Vocational Rehabilitation, as the basis for collecting and weighing information about the worker's earning capacity.

The Deeming Policy also outlines expectations of a worker and sets out, in paragraph 8 of the Policy, that:

a) Deemed earning capacity will be used under the WCB's broader policy on mitigation (WCB policy 44.10.30.60, Co-operation and Mitigation in Recovery) when: 

i. The worker voluntarily leaves the workforce by expressing that he or she is not interested in looking for any work. In this case, the deemed earning capacity will be the worker's earning capacity at the time of leaving, unless it is demonstrated that the worker is capable of, through rehabilitation, a higher earning capacity. The WCB must be prepared to undertake this rehabilitation (i.e., must offer it to the worker). 

ii. The worker refuses to cooperate in or complete a program of vocational rehabilitation. In this case, the deemed earning capacity will be the earning capacity expected on completion of the vocational rehabilitation plan. 

iii. The worker refuses to participate or cooperate to a degree that it is impossible to undertake adequate vocational assessment/plan development and reasonably/accurately determine an anticipated earning capacity. In this case, it will be presumed that the worker has no loss of earning capacity until the worker demonstrates a willingness to cooperate in the development of a plan.

Worker’s Position

The worker appeared in the hearing and made a submission on their own behalf. The worker was supported by a family member who also made submissions on behalf of the worker.

The worker’s position in relation to the issue of further chiropractic treatment is that the request is supported by their treating chiropractor and further that they receive benefit from that treatment, which is in relation to and arising from the injury sustained in the workplace accident of April 14, 2003. For these reasons, the worker submits that they should be entitled to additional chiropractic treatment.

The worker’s position in relation to implementation of the deemed earning capacity is that it is not appropriate as they were not able to participate in the VR program in summer 2006 due to their health status at that time and because they were also still seeking to return to their pre-accident employment at that time. The worker confirmed that they did not agree with the occupational group that the WCB proposed for them. The worker further noted that they advised the WCB in 2014 that they were willing to participate in a VR program, but the WCB failed to take any steps to support their request at that time. The worker has not been able to return to their pre-accident employment and because they were not trained in any other employment, they have not returned to work and continue to require full wage loss benefits as a result.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are two questions on appeal by the worker. The first question is whether the worker is entitled to further chiropractic treatment. For the worker’s appeal on this issue to succeed, the panel would have to determine that the treatment is required to cure and provide relief from the compensable workplace injury of April 14, 2003. The second question on appeal is whether the WCB appropriately implemented a post-accident deemed earning capacity effective August 6, 2006. For the worker’s appeal on this question to succeed, the panel would have to determine that the WCB failed to comply with the requirements of the Act and applicable policies in deeming the worker capable of earning income at the level established for the occupational group selected. As detailed in the reasons that follow, the panel was not able to make such findings in relation to either question on appeal and therefore the worker’s appeal is denied.

Is the worker entitled to additional chiropractic treatment?

This aspect of the worker’s appeal arises from the WCB’s January 24, 2014 decision that the worker is not entitled to further chiropractic coverage in relation to the compensable workplace injury. The Act provides that the WCB may provide support for medical treatment “required to cure and provide relief” from a compensable workplace injury” and the Medical Aid Policy outlines the criteria for such support to be provided as set out above.

The panel noted that the worker requested reimbursement from the WCB in November 2013 in relation to treatment received, which they related to the workplace injury, and that the WCB therefore sought a report from the treating chiropractor. The chiropractor’s report of November 25, 2013 confirmed they treated the worker on 12 occasions in 2013, most recently on November 18, 2013. The chiropractor indicated the worker’s report of right buttock pain, sciatic pain, hip pain and leg weakness and diagnosed “mechanical back pain without significant signs of root tension.” The chiropractor further noted the worker’s consistency in terms of areas of complaint and clinical presentation since 2002, before the workplace accident, describing that the worker “…has always been able to move about the exam room without obvious impairment and been able to tolerate the body positioning used during manual chiropractic care. [Their] high self rated pain and disability scores do not accurately reflect my observations of [their] ability to ambulate and move about…. My treatment recommendation for [the worker] is…to attend on an “as needed basis” as [they have] over the last 12 years.”

The panel also considered the January 9, 2014 opinion provided by the WCB chiropractic advisor that approving passive chiropractic therapy was not in the worker’s best interests, noting the worker “appears to be well versed on home exercise activity. In my opinion active therapy in the home environment with exercise activity would be the best approach for [their] current situation.”

The panel further noted the worker’s testimony that they continue to obtain chiropractic treatment as and when they can afford to do so, and that it provides some short term relief from their symptoms. We accept that this may also have been the case in 2013 when this issue was brought forward; however, the evidence before the panel does not support a finding that such treatment is required to address the continuing effects of the workplace injury. We note that even the treating chiropractor did not support a need for ongoing treatment as of November 2013.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that chiropractic treatment is not required to cure and provide relief from the compensable workplace injury of April 14, 2003 and as such, the worker is not entitled to additional chiropractic treatment. The worker’s appeal on this question is denied.

Was it appropriate to implement a post-accident deemed earning capacity effective August 6, 2006?

The worker’s appeal of this question arises from the WCB’s 2007 decision following the worker’s refusal to participate in the VR plan developed by the WCB. The panel therefore considered whether the WCB complied with the requirements of the Act and applicable policies in deeming the worker capable of earning an income at the level established for the occupational group selected as part of the VR planning process.

In reviewing the claim file, the panel noted the process by which the worker’s VR plan was established in July 2006 following their June 2006 discharge from the reconditioning program. At the time, the WCB established temporary restrictions and confirmed to the worker that their continued eligibility for benefits and services depended on their cooperation and participation in the vocational rehabilitation program which began soon afterward. We noted that the WCB VR consultant prepared an initial assessment and secondary assessment after meeting with the worker on July 11, 2006 to assess their interests and transferrable skills as well as the potential barriers to a return to work and assessing the labour market. On identifying possible alternate occupations and comparing these to the worker’s skills and abilities, and noting the financial implications for each, the consultant concluded NOC 6651, Security, would be the most cost effective. The WCB determined on July 25, 2006 to suspend the worker’s benefits effective August 4, 2006 because they were not able to participate in the VR program due to the worker’s lack of openness to obtaining alternate employment based on their ongoing dispute with the employer, transportation issues arising from the worker’s move to another community after the accident, and the worker’s non-compensable medical condition. The WCB therefore suspended the worker’s benefits until they were able to fully participate in the return to work activities.

While in the hearing, the worker expressed their dissatisfaction with the WCB’s selection of NOC 6651 as an appropriate alternate occupation, the panel noted the appeal before us is not in relation to that decision. In relation to the plan established, the panel noted the worker contacted the WCB in November 2006 and confirmed they remained unable to commit to the VR plan due to their non-compensable family situation. In April 2007, the worker again confirmed to the WCB they could not commit to the VR plan for personal reasons, and noted the labour process related to their dismissal was scheduled to soon take place. At that time, the WCB confirmed to the worker that the deeming process would follow based on the worker’s unwillingness to participate in the VR plan.

The panel compared the process followed by the WCB in deeming the worker’s post-accident earning capacity with the deeming requirements set out in the Deeming Policy. We noted the WCB confirmed the worker’s earning capacity for NOC 6651, which occupation remained within the worker’s restrictions, and assessed the job market for that NOC. The recommendation to deem the worker capable of earning the income for NOC 6651 was made on April 17, 2007 and approved by the deeming committee on April 19, 2007. In the implementation of this process, the panel does not find any errors made in applying the Policy requirements. We note the evidence that at the time of the deeming, the worker maintained their belief that they would be reinstated in their pre-accident employment but that by July 2008 this was confirmed not to be the case. On August 19, 2008, the WCB communicated to the worker that their restrictions were reviewed and would not change, and further that they could resume the VR process previously established. The worker stated on August 22, 2008 that they wished to do so but in a meeting with the VR consultant on November 20, 2008, the worker again stated that NOC 6651 was not of interest to them and that they would follow up with other options. Subsequently, the VR consultant outlined a timeline for the plan, beginning with training in January 2009 followed by 19 weeks of job search support, but the worker refused to participate in the offered training.

The panel also considered whether the worker met the statutory obligation to mitigate their loss of earning capacity by fully participating in the process to prepare them for a return to work. We find that the evidence here points to the worker’s pattern of non-participation and refusal of services offered by the WCB through the VR process. The panel is satisfied that by refusing to participate in vocational rehabilitation, the worker did not mitigate their loss of earning capacity and as a result, the WCB initially suspended the worker’s benefits in August 2006, and then, in April 2007, appropriately deemed the worker capable of earning the income from the NOC 6651.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that it was appropriate to implement a post-accident deemed earning capacity effective August 6, 2006. The worker’s appeal on this question is therefore denied.

Implementation of the October 28, 2014 Review Office Decision

During the hearing, the worker submitted that the WCB failed to provide them with an opportunity to participate in a VR program when they indicated that they were able and willing to do so. In considering the worker’s comments in this regard, the panel noted that at the time of their 2013 request for reconsideration of the WCB’s decisions resulting in this appeal, the worker stated their understanding that the WCB had previously advised them that when they were able to continue with the VR plan, the WCB would return the worker to full wage loss benefits. We further noted that the October 28, 2014 Review Office decision sets out the following:

The Review Office notes the worker has not been provided with a formal decision denying VR participation at this time. The Review Office returns the file to Compensation Services to determine if further VR services will be extended to the worker.

The panel’s review of the claim file confirms that at the time of the 2013 appeal to Review Office, the worker indicated they were ready to resume their VR program which the WCB had previously indicated the worker could do at any time. The panel noted the Review Office responded to this information by referring the worker’s file back to the WCB to determine whether the worker is entitled to further VR services. The panel’s review of the worker’s WCB claim file indicates no information that the WCB took any steps to implement this aspect of the Review Office decision and the worker confirmed that to be the case from their perspective as well. Rather, it appears that after the October 28, 2014 Review Office decision, the WCB’s communications with the worker related only to the worker’s annual updates as to their financial circumstances.

As such, it appears that the WCB has not to date met its responsibilities in this regard, with the result that the worker has not been provided with a decision as to the availability of VR services despite their continuing workplace restrictions and their inability to return to their pre-accident employment, meanwhile receiving only partial wage loss benefits based on the deemed earning capacity implemented. The panel therefore returns the worker’s claim file to the WCB with directions to fully implement this aspect of Review Office’s 2014 decision. We make no findings as to the worker’s further entitlement to VR services as the WCB has not yet decided on this question.

Panel Members

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 3rd day of May, 2024

Back