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 is appropriate. A videoconference hearing was held on January 21, 2025 to consider the worker's appeal.

Issue

Whether or not the worker's vocational rehabilitation plan is appropriate.

Decision

The worker's vocational rehabilitation plan is not appropriate.

Background

This claim has been the subject of three previous appeals, namely Appeal Commission Decision Nos. 23/15, 137/15 and 23/20. The background to this claim will therefore not be repeated in its entirety.

The worker has an accepted claim for bilateral medial epicondylitis in relation to a workplace accident that occurred on February 10, 2007. Pursuant to Appeal Commission Decision Nos. 23/15 and 137/15, it was determined that the worker's right-sided medial epicondylitis had resolved. Permanent restrictions were placed with respect to the worker's left-sided medial epicondylitis and medical aid benefits regarding medications were continued. The worker was permanently accommodated by the employer and returned to work in September 2010. Appeal Commission Decision No. 23/20, related to coverage for medical cannabis, which was denied, and whether they were entitled to wage loss benefits from January 16, 2019 to March 3, 2019, which was granted.

The worker continued to work in the accommodated position provided by the employer until January 6, 2021, when they discontinued work due to symptoms they began to experience which their treating healthcare providers related to the use of non-steroidal anti-inflammatory medications used to treat their compensable left elbow injury. On May 11, 2021, the worker was seen by their family physician reporting frequent sudden attacks of sharp pain in their left elbow. The family physician recommended the worker stop using the non-steroidal anti-inflammatory medication and referred the worker to the pain clinic for further pain management. A follow-up report from their treating family physician, dated May 20, 2021, described reports from the worker of increased pain in their left elbow, with sudden, shooting pain that radiated into their left hand. On June 2, 2021, a trial of a different pain medication was prescribed by the worker’s family physician. A follow-up appointment on June 16, 2021 indicated the worker did not tolerate the change in medication and no changes to the worker’s medications were recommended until the side effects the worker was experiencing subsided.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on August 31, 2021. After examining the worker, and reviewing the worker’s file, the advisor provided updated restrictions for the worker. On October 21, 2021, the employer was provided with the updated restrictions, including a new temporary left arm restriction of no firm grip tasks in a safety critical environment and advised a recurrence of the worker’s left elbow injury was accepted by the WCB as of April 13, 2021. As a result, the worker was placed back on full wage loss benefits. In a discussion with the employer on January 19, 2022, it was confirmed the employer may not be able to accommodate the worker's newest restriction. On May 17, 2022, in response to an April 26, 2022 follow-up request, the employer advised the WCB they could not accommodate the worker.

The WCB spoke with the worker on July 5, 2022, and advised the employer was not able to accommodate their permanent restrictions and the worker would be referred to vocational rehabilitation services. After an initial assessment with the worker on July 26, 2022, the WCB's vocational rehabilitation specialist advised the worker's WCB case manager that the worker was no longer taking medication which was noted by the employer to be a concern. The worker's WCB case manager contacted the employer on August 10, 2022 to advise of same, which the employer advised they would look into a possible accommodation. On January 6, 2023, the employer confirmed to the WCB they were unable to accommodate the worker's permanent restrictions.

On February 3, 2023, while discussing their claim with the WCB, the worker noted concern regarding their restrictions and requested the restrictions be clarified before the vocational rehabilitation planning started. On February 8, 2023, the worker's WCB case manager noted that due to a cancellation, the worker was able to attend for an evaluation with a physiotherapist. The treating physiotherapist noted the assessment that date was not a formal Functional Capacity Evaluation and recommended a pain management strategy be finalized prior to a more thorough evaluation being conducted. At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on February 22, 2023. After examining the worker, the advisor provided a review of the medical information on the worker's file indicated that in addition to a WCB authorized left medial epicondyle release, the worker also underwent a left ulnar nerve transposition on April 28, 2008, which was not authorized by the WCB. It was further provided that ulnar neuropathy was not an accepted compensable diagnosis on the worker's file. The WCB medical advisor noted the worker's reporting of "…episodic severe pain emanating from the vicinity of the left elbow surgical scar and extending into the ulnar nerve sensory distribution of the left upper extremity" and opined the worker's current difficulties were likely related to left ulnar neuropathy. Further, the advisor opined the worker's treating healthcare providers related the worker's current functional impairment to left ulnar neuropathy and as that condition related to the ulnar nerve transposition not accepted by the WCB, that current functional impairment did not relate to the February 10, 2007 workplace accident. As well, it was noted the worker's restrictions included inability to perform safety critical work as the result of the noted functional limitations, which again were noted to be a result of the left ulnar nerve transposition, not accepted by the WCB and as such, were not in relation to the workplace accident. On March 28, 2023, the WCB advised the worker it had been determined their ongoing difficulties were not related to the 2007 workplace accident and as such, their entitlement to benefits would end 12 weeks after the date of the letter. The worker requested reconsideration of the WCB's decision to Review Office on April 19, 2023, and on May 11, 2023, Review Office determined the worker was entitled to further benefits.

The worker underwent a Functional Capacity Evaluation at the request of the WCB on June 23, 2023, and July 6, 2023. The treating physiotherapist provided their report to the WCB on July 7, 2023. The Evaluation was reviewed by a WCB medical advisor on September 12, 2023, who provided the worker's revised permanent restrictions were: no lifting/carrying greater than 15 pounds; no pushing greater than 25 pounds; no pulling greater than 20 pounds; and no firm grasp tasks with the left hand in safety critical environments. The restrictions were provided to the employer on September 13, 2023, who advised on the same date they could not accommodate the worker.

On December 6, 2023, a Vocational Rehabilitation Plan for National Occupational Classification (NOC) 64409 Other Customer and Information Services Representatives was developed for the worker, with an end date of April 19, 2024. The Plan included 13 weeks of job search help from January 22, 2024 to April 18, 2024.

A narrative report from the worker's treating family physician was received by the WCB on December 8, 2023, indicating the worker was continuing medication for their ongoing left elbow pain. A new medication was discontinued, and another medication was increased as it was found to be beneficial at controlling the worker's pain.

In accordance with the worker's Vocation Rehabilitation Plan (“VR Plan”), the worker was deemed capable of obtaining employment with NOC 64409 as of April 19, 2024 and their wage loss benefits were reduced to the earning capacity within that NOC. On May 16, 2024, the worker requested reconsideration of the WCB's decision and after speaking with the Review Office on May 17, 2024, it was clarified the worker was requesting reconsideration of the appropriateness of the VR Plan. The employer provided a submission in support of the WCB's decision to the Review Office on July 8, 2024 and the worker submitted a response on July 13, 2024. On August 13, 2024, the Review Office determined that the worker's VR Plan was appropriate. The Review Office found given the worker's permanent restrictions and skills, there were viable employment opportunities within NOC 64409 for the worker. Further, the Review Office found the worker raised an issue of a non-work related medical issue when the vocational rehabilitation planning started but also noted the worker confirmed it would not impact the worker's ability to participate in the planning.

The worker filed an appeal with the Appeal Commission on October 7, 2024, and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. As the date of injury is identified as February 10, 2007, the applicable legislation is the Act as it existed at that time.

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.

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational, or rehabilitative assistance to injured workers.

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. The VR Policy states, 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.

The VR Policy further provides that if the VR plan requires revision due to unforeseen developments in the vocational rehabilitation process, amendment of the plan will be acknowledged by all involved parties. The VR Policy also emphasizes that the worker is responsible for notifying the WCB of any difficulties or circumstances which might affect the completion of the plan and states that the WCB will be flexible in its management of the plan and reasonably respond to change.

Worker’s Position:

The worker was self-represented and provided a written submission in advance of the hearing. The worker made an oral presentation and responded to questions from members of the panel.

The worker's position was that the VR plan of NOC 64409 was not appropriate, and it was unfair and inappropriate to implement a deemed earning capacity.

The evidence of the worker is that they began to experience depression and that they promptly notified their case manager. The worker states that they were provided a consultation with a psychiatrist but that there was no review of their VR plan or consideration of the effect of their mental health issues on their VR plan. The position of the worker is that the WCB failed to identify and address impediments to the VR plan, despite these impediments being raised by the worker themselves on numerous occasions.

The worker acknowledges that the plan initially seemed reasonable, but states that when their situation changed, and their mental health started to deteriorate, the WCB did not make accommodations and the VR plan was not altered or changed.

The worker argues that the WCB ought to have reviewed their VR plan due to unforeseen developments and by not doing so, the VR plan cannot be considered appropriate.

Employer’s Position:

The employer was represented by their WCB Coordinator. The representative provided a written submission in advance of the hearing, made an oral presentation at the hearing and responded to questions from the panel.

The position of the employer is that the VR plan was appropriate given the worker’s skills and abilities. The employer submits that there is no reason why a minimum wage job, with full-time hours, would not be reasonable for the worker and further states that there is insufficient evidence to support that the worker was unable to return to work as a client service representative.

The employer states that the VR plan was put into place with input from the worker and that the worker had an obligation to seek employment in the approved NOC. Although the worker applied for 25 job offers, the employer’s position is that this was not a large number of job applications in the span of 14 months.

The employer also notes there were limited job opportunities in the area in which the worker resided, and the worker was not willing to relocate. Therefore, the employer submits that a minimum wage job was reasonable in the circumstances. The employer supports the VR plan and the decision of the Review Office.

Further, the employer states that the issue of the worker’s mental health was not addressed in the Review Office decision and submits that this issue needs to be addressed by the Review Office before the panel can make a decision in relation thereto.

Analysis:

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the VR plan for the worker under NOC 64409 is not appropriate. The panel is able to make that finding.

A review of the file demonstrates that the worker did not appear to take issue with the VR plan initially and was actively participating, by receiving resume assistance and pursuing job opportunities. The worker’s evidence is that they began to experience mental health issues and contacted the WCB in this regard. The file indicates that the WCB provided a one-time referral to a psychiatrist for a medication consult in May of 2024 (one month following the conclusion of the VR plan).

The panel disagrees with the employer’s position that the issue of the worker’s mental health was not addressed by the Review Office in advance and therefore cannot be dealt with by the panel in the hearing at issue. Whether the worker had a recurrence of a mental health injury or whether there was a secondary injury, is not what the panel is determining. Rather, the worker’s argument is that they were suffering from mental health concerns, which affect their job search, and that this was raised with the WCB. The employer acknowledges that the WCB was aware of the issues but submits that there is nothing on the file that indicates the worker raised that their mental health was impacting their ability to continue with their job search activities.

The panel notes that the worker had previously been diagnosed with depression and that the WCB was paying for the worker’s medication for depression during the timeframe of the VR plan. The panel finds that the WCB was aware of the worker’s history, and notes that the file identifies chronic and pre-existing major depression as well as past exacerbation of Chronic Major Depression.

Regarding the job search efforts, the worker advised the panel that they had a strong initial effort but that this declined as their depression worsened. The panel accepts the worker’s evidence that they contacted the WCB and advised them of their mental health issues and the impact thereof on their job search abilities.

The panel agrees with the worker that the VR plan failed to include any mental health support for the worker and ought to have, given the circumstances and history of the worker.

The panel finds, on a balance of probabilities, that the VR plan was not appropriate.

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 13th day of March, 2025