The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. Their vocational rehabilitation plan is appropriate; and 

2. Their permanent partial impairment rating has been correctly calculated.

A hearing was held on August 14, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker’s permanent partial impairment rating has been correctly calculated; and 

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

Decision

1. The worker’s permanent partial impairment rating has not been correctly calculated; and 

2. The worker’s vocational rehabilitation plan is not appropriate.

Background

The worker has an accepted WCB claim for a right eye injury that occurred at work on January 15, 2022, when they were working on a vehicle, a piece of metal broke off and struck their eye. The worker required several surgeries, losing their right eye and eventually having an ocular prosthetic placed. At the time of the injury, it was noted the worker had total right-sided visual loss.

At a January 28, 2022 follow-up appointment with their treating eye specialist, an indefinite restriction of not working with heavy machinery or power tools or heights was put in place. On February 8, 2022, the worker’s file was reviewed by a WCB medical advisor who further provided the worker had lost depth perception and should always wear protective goggles when performing any activity that could result in ocular injury to preserve vision in their remaining left eye. The medical advisor further stated that the worker should not operate heavy equipment or perform tasks requiring stereoscopic vision/fine depth perception. The employer was provided with the worker’s permanent restrictions on April 22, 2022 and during a conversation with the WCB on the same date, advised they could not accommodate the worker. The WCB referred the worker for vocational rehabilitation services. On April 28, 2022, the employer contacted the WCB to advise after further review of the worker’s permanent restrictions, they could accommodate the worker in a different position at minimum wage. The worker’s WCB vocational rehabilitation specialist placed a memorandum to file on May 2, 2022, noting the worker was not able to return to their pre-accident duties and indicating the difficulties the worker may experience attempting to find new employment, including the worker’s little to no English-speaking ability and restricted vision. The specialist recommended proceeding with an accommodated position with the employer. On June 14, 2022, the employer advised the WCB upon further review, they were unable to accommodate the worker in an accommodated position. By August 23, 2022, the WCB vocational rehabilitation specialist had arranged for the worker to attend a course of English language skills for six months prior to a vocational rehabilitation plan being developed. On December 15, 2022, the studies were extended for a further six weeks to allow for additional language and basic computer skills training.

The WCB vocational rehabilitation specialist created the worker’s Vocational Rehabilitation Plan on January 25, 2023 for National Occupation Code (NOC) 7612/75119 Mechanics Helper/Other trades helpers and labourers. The plan was set to begin on February 27, 2023 and end on October 6, 2023, with 31 weeks of job search assistance. The Transferable Skills Analysis – Stage 2 indicated the worker had worked in their pre-accident occupation for many years and had significant experience in that occupation. The Analysis noted the worker had the capability of gaining employment within NOC 7612 as they could not return to their pre-accident employment.

On March 9, 2023, the worker and their representative met with the WCB vocational rehabilitation specialist to discuss their concerns with the worker’s claim. The representative advised the worker was having difficulty with sleeping and was experiencing flashbacks of the January 15, 2022 workplace accident and had been diagnosed by their family physician with post-traumatic stress disorder (PTSD). In addition, the representative indicated that the worker did not want to return to their pre-accident occupation due to fear of injuring themselves again. The specialist noted the worker and their representative understood the vocational rehabilitation plan developed for the worker was one the worker was capable of gaining employment in however, they noted the worker’s preference was to work in a service advisor capacity. The specialist advised that the worker’s interest would be taken into account. As well, it was discussed with the worker and the representative at the end of the Plan period, the worker’s wage loss benefits would be reduced based on the worker’s capability to earn wages within NOC 7612. On March 14, 2023, the worker was advised their Vocational Rehabilitation Plan was amended to start on March 27, 2023 but continued to allow for 31 weeks of job search assistance and would end on October 27, 2023.

The worker attended a call-in examination with a WCB medical advisor to determine their eligibility for a permanent partial impairment (PPI) rating and award. Upon examining the worker, the advisor recorded the worker was “…not able to fully close the right eye. There was slight drooping of the right eyelid compared to the left. There is no evidence of scarring. When moving the left eye, the right eye does move, but not to the same extent the left eye. Movement is asymmetrical. There is no evidence of scarring otherwise on the face or over the right eye or the right eyelid.” The WCB medical advisor provided based on the WCB policies, the worker’s total body impairment rating was 18%, with no rateable impairment for scarring. On October 13, 2023, the worker was advised of their PPI rating of 18% and related PPI award.

The worker requested reconsideration of the WCB’s decision to end their entitlement to full wage loss benefits on October 27, 2023 and their PPI rating of 18% to the Review Office on December 6, 2023. In their submission, the worker noted that during the job search period provided by the WCB, they were experiencing mental health issues and did not believe they were able to look for employment or capable of working in any capacity. The worker further noted they continued to seek employment but have not been successful and believed the vocational rehabilitation plan developed for them was not correct. With respect to their permanent partial impairment rating, the worker indicated their belief that their PPI rating should be higher as they lost 50% of their vision due to the compensable workplace accident. The worker noted that the loss of their vision in their right eye had also affected their left eye, greatly affecting their ability to perform daily tasks. As such, the worker believed their PPI rating should be higher.

The Review Office determined on March 20, 2024, the worker’s permanent partial impairment rating was correct and the vocational rehabilitation plan was appropriate. With respect to the worker’s PPI rating, the Review Office considered the evidence on the worker’s file, the PPI examination notes and the worker’s submission on how greatly affected they were from the loss of 50% of their vision, and noted agreement with the WCB medical advisor’s opinion that the whole body PPI rating was 18% as set out in the WCB’s policies. Regarding the vocational rehabilitation plan, the Review Office acknowledged the worker had permanent restrictions involving always wearing protective eye wear when performing activities that could result in injury to their left eye and that they should not operate heavy machinery or perform tasks involving stereoscopic vision or fine depth perception. The Review Office noted the worker’s concerns regarding possibly injuring their left eye however, found this would not preclude the worker from being employable. The Review Office accepted and agreed the physical demands and job duties within NOC 7612 were within the worker’s restrictions. Further, the Review Office found the WCB’s vocational rehabilitation specialist provided several job leads to the worker within NOC 7612, and other leads related to the worker’s preference of jobs as a service advisor, which indicated the WCB provided the worker with job search assistance pursuant to the WCB’s policies. As such, the Review Office found the vocational rehabilitation plan developed for the worker was appropriate.

The worker’s representative filed an appeal with the Appeal Commission on April 17, 2024, and a hearing was arranged. 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 March 12, 2025, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the 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.

Under Section 4(1) of the Act, a worker is entitled to benefits when it is established that a worker has been injured because of an accident at work. Under Section 37 of the Act, a worker is entitled to compensation when the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident. Section 4(9) of the Act provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity. Section 38 of the Act allows the WCB to determine the permanent partial impairment (“PPI”) rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment. Manitoba Regulation 132/2020, Adjustment in Compensation Regulation made pursuant to the provisions of the Act provides in Schedule A to that Regulation that a PPI award made in respect of an injury sustained in 2022 shall be $1560per full percentage point of impairment rating.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.

Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits:

• loss of a part of the body; 

• loss of mobility of a joint(s); 

• loss of function of any organ(s) of the body identified in the Schedule; and 

• cosmetic disfigurement of the body.

Subsection 27(20) of the Act provides that the WCB may provide academic, vocational, or rehabilitative assistance and training to the worker where the worker could, in the opinion of the board, experience long-term loss of earning capacity, require assistance to reduce or remove the effect of a handicap resulting from the injury, or where the worker requires assistance in the activities of daily living.

WCB Policy 43.00, Vocational Rehabilitation, (the “VR Policy”) sets out the goals, terms, and conditions of academic, vocational, and rehabilitative assistance that is available to workers under Subsection 27(1) of the Act. The VR Policy sets out the following goals and objectives 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. 

4. To meet these objectives, the following solutions (hierarchy of objectives) will be considered and pursued in the sequence below:

a. Return to the same work with the same employer. 

b. Return to the same work (modified) with the same employer. 

c. Return to different work with the same employer. 

d. Return to similar work with a different employer. 

e. Return to different work with a different employer. 

f. Retraining and re-education.

Therefore, the goal of vocational rehabilitation is to assist a worker in returning to some form of employment, ideally at the same salary level as the worker was earning prior to the injury or illness. An effort is required to be made to return a worker to the same work with the same employer. Where a return work to the worker’s previous position or with the previous employer is not feasible, alternative options for returning the worker to employment will be considered in the order specified in Section 4 of the Policy as set out above.

Worker’s Position

The worker represented themself in this appeal and their son was present to provide support and assist with providing information to the panel. An interpreter was also present to assist with translation services as English is not the worker’s first language. The worker provided testimony by way of responding to questions posed by the panel.

With respect to the PPI award, the worker’s position is that the PPI rating is too low. The worker states that the WCB should consider that the worker has strain on their left eye as a result of the loss of their right eye. The worker’s position is that the effects on their left eye were not accounted for in the PPI rating and therefore the rating is not correct. The worker also disputes the cosmetic disfigurement rating established by the WCB.

Further, the worker’s position is that the vocational rehabilitation plan was not appropriate. The worker’s position was that they had concerns of reinjury if they returned to work in the same industry as their pre-accident employment. The evidence of the worker is that the worker is aware of the work environment and the duties of a mechanic helper and is concerned they will be difficult with one eye and the restrictions in place.

The worker is seeking that the panel overturn the decisions of the Review Office regarding both issues before the panel.

Employer’s Position

The employer did not participate in the appeal.

Analysis

ISSUE #1:

The first question on appeal relates to the calculation of the worker’s PPI rating by the WCB. The panel must determine whether the worker’s PPI rating has been correctly calculated. For the worker’s appeal to succeed, the panel would have to determine that the WCB did not correctly apply the provisions of the Act, regulations and applicable policy in calculating the worker’s degree of permanent partial impairment. As outlined in the reasons that follow, the panel was able to make such a determination and the worker’s appeal is therefore granted.

With respect to loss of eyesight, Schedule A to the PPI Policy provides that when a worker’s eye is enucleated or removed, the associated PPI rating is 18%.

The evidence before the panel supports the rating of 18% that was established by the WCB medical advisor and their examination of the worker.

The panel acknowledges that the worker has argued that the loss of their right eye has put strain on their left eye, however medical evidence supporting this argument is not before the panel and was not considered by the Review Office in their decision.

The panel also acknowledges that the worker’s evidence that this injury has drastically affected their capabilities and that the worker has suffered because of the changes to their vision. The panel notes, however, that a PPI award is not intended to compensate a worker for pain and suffering resulting from an injury. The impact of the injury on the worker’s lifestyle is not part of an impairment rating.

In addition, the panel has considered the evidence of the worker regarding the loss of tissue and the result of their upper eyelid drooping. The worker indicated that their eyelid doe not close all the way as a result of the removal of their eye and the prosthetic.

The panel notes that Section 9 of Schedule A allows for a cosmetic rating for disfigurement, which is described as an "altered or abnormal appearance." The panel notes that the degree of disfigurement is determined on a case-by-case basis and the WCB medical advisor has a high degree of discretion in this regard. Section 9 also provides that in order to maintain consistency in ratings for disfigurement and to make the ratings as objective as possible, the WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.

The evidence from the call-in examination notes is that there was no evidence of scarring, however, scarring is not the only indicator of cosmetic disfigurement. The panel is of the view that the PPI rating was not calculated properly as it relates to the rating for disfigurement and returns the matter to the WCB for review.

ISSUE #2:

The second question on appeal relates to the worker’s vocational rehabilitation plan (“VR plan”). The panel must determine whether the worker’s VR plan was appropriate.

In considering whether the VR plan was appropriate for the worker, the panel reviewed the applicable provisions of the VR Policy. The VR Policy sets out the goal of the VR plan as providing assistance to an injured worker to achieve a return to sustainable employment. The VR plan is to reasonably take into consideration the worker’s post-injury physical capacity, skills, aptitudes, and interests.

The panel is of the view that the WCB failed in this goal. While the worker had transferable skills due to their experience in the mechanics industry, the panel finds that there was not adequate consideration of the worker’s mental health struggles related to the injury and, specifically, related to the environment in which the injury occurred.

The evidence before the panel is that the worker and a representative met with the VR specialist in March 2023 and advised of the mental health struggles the worker was experiencing and indicated that they did not want to return to their pre-accident occupation and their preference was to work in a service advisor capacity. The panel understands that this was not simply a preference requested without basis, but rather the stress and anxieties the worker was experiencing regarding their return to work were directly tied to the workplace and the environment in which the accident occurred.

The panel considered the VR plan in the context of the worker’s restrictions and the worker’s mental health concerns. The VR Policy refers to the worker’s post-injury physical capacity, and the panel’s view is that this reasonably includes the worker’s mental health. The medical evidence before the panel, as set out in the chart notes from the treating family physician, is that the worker expressed feelings of depression, anxiety, stress, racing thoughts and insomnia to their family physician. These symptoms and mental health concerns were raised in March 2022 and at several subsequent appointments with the family physician.

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 panel finds that greater focus on maximum psychological recovery was required in this instance.

The panel also considered that the VR Progress Report of April 28, 2022 wherein the VR Consultant expressed concerns about the worker’s ability to find employment with limited stereoscopic vision.

Furthermore, the panel notes that the physician from the call-in examination of June 7, 2023, suggested that the WCB solicit an opinion from the general medical advisor, but this did not occur. The file indicates that a Health Care Service Request was completed in 2021, but there was no further opinion provided by the medical advisor following the call-in examination.

In addition, the evidence from the worker is that they had co-workers that spoke the same language at their pre-accident employment and relied on this. The worker expressed concerns regarding their lack of ability to communicate in English with their co-workers. Although, the worker was provided with language skills training, the worker’s English language skills remained rudimentary. The panel finds that the worker’s basic English language skills ought to have been given greater consideration by the VR consultant in the context of the VR plan.

Based on the above, the panel concludes, on a balance of probabilities, that the vocational rehabilitation plan was not appropriate. The worker’s appeal on this issue is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of April, 2025