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 in National Occupation Classification (NOC) 1215 – Warehouse Supervisor is appropriate; and 

2. It is appropriate to implement a post-accident deemed earning capacity effective October 22, 2022.

A videoconference hearing was held on March 10, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker’s vocational rehabilitation plan in National Occupation Classification (NOC) 1215 – Warehouse Supervisor is appropriate; and 

2. Whether or not it is appropriate to implement a post-accident deemed earning capacity effective October 22, 2022.

Decision

1. The worker’s vocational rehabilitation plan in National Occupation Classification (NOC) 1215 – Warehouse Supervisor is not appropriate; and 

2. It is not appropriate to implement a post-accident deemed earning capacity effective October 22, 2022.

Background

The worker has an accepted WCB claim for a left distal biceps tendon rupture that occurred at work on August 22, 2019, when they reached down to pull a tailgate and felt a pop in their left bicep. On August 30, 2019, the worker underwent surgery for a left distal biceps tendon rupture repair, with a second surgery taking place on December 4, 2019. The worker returned to full time modified duties on January 6, 2020, but was laid off by the employer on March 23, 2020. On July 16, 2020, the worker's file was reviewed by a WCB medical advisor who noted the worker suffered a rare complication of their biceps tendon rupture and was diagnosed with Entrapment of the Lateral Antebrachial Cutaneous Nerve (LABCN), which caused sensory disturbance to the left thumb.

In a conversation with the WCB on August 19, 2020 for a status update, the worker advised they had received a text message from the employer on May 28, 2020 advising they were permanently laid off due to lack of work. On October 13, 2020, the WCB confirmed the lay off with the employer. In November 2020, the WCB reinstated the worker's full wage loss benefits back to May 29, 2020. The worker underwent a left radial tunnel release surgery on May 7, 2021, and a report from the worker's treating surgeon dated October 4, 2021 indicated that the worker had likely plateaued in their recovery and would not improve more. The worker underwent a Functional Capacity Evaluation on November 12, 2021 and the file was reviewed by a WCB orthopedic consultant on November 25, 2021, who recommended permanent restrictions for the worker. As the worker had permanent restrictions and had been permanently laid off from their employment, the WCB referred the worker for vocational rehabilitation services.

On January 21, 2022, a vocational rehabilitation pre-plan agreement was implemented by the WCB for the worker for National Occupation Code (NOC) 1215 Warehouse Supervisor. It was noted that from January 30, 2022 to May 2, 2022, the WCB would support the worker in job search/work experience exploration during that time, after which a formal vocational rehabilitation plan would be developed. On May 5, 2022, a Vocational Rehabilitation Plan under NOC 1215 Warehouse Supervisor was developed for the worker to start on May 23, 2022 and end on October 21, 2022, which included a 22 week job search period. It was noted that it was probable that the worker would be capable of earning the minimum wage under NOC 1215 at the end of the Plan and their benefits would be reduced by that amount.

The worker’s WCB vocational rehabilitation specialist prepared a Vocational Rehabilitation Deem Summary on November 3, 2022, advising of their opinion that the worker was considered fully employable within NOC 1215 and effective October 21, 2022, the worker’s wage loss benefits should be reduced by the starting wage within NOC 1215. The deem recommendation was accepted by the WCB’s Deem Committee on November 8, 2022. On November 14, 2022, the worker was advised by the WCB that, effective October 22, 2022, a post-accident deemed earning capacity was implemented. This meant that it had been determined the worker was capable of earning the minimum wage within NOC 1215 and their wage loss benefits were reduced by that amount.

On November 21, 2022, in a discussion with the WCB, the worker noted they had advised the WCB throughout the duration of the vocational rehabilitation plan that they continued to experience pain and difficulties in their left forearm and hand and also suffered from anxiety regarding returning to work and felt that the WCB had not done enough to help them find employment during the vocational rehabilitation plan timeline. On January 10, 2023, the WCB received a copy of a December 21, 2022 letter from the worker’s treating sport medicine specialist advising that the worker continued to experience nerve pain in their left forearm into their hand, with mild weakness on thumb extension and worsening pain with repetitive use of their left and hand. It was noted different treatments were attempted for the worker’s neuropathic pain with none leading to significant improvement. The treating specialist advised of the worker’s belief they were not employable due to these issues and noted the worker had “…objective functional capacity limitations…” related to their nerve injury. The specialist further advised the worker had left hand weakness that worsens with repeated use of the upper extremity and tolerance issues due to neuropathic pain, both of which limit the worker’s ability to perform job duties involving the use of their left upper extremity “…in more than a sedentary to light duties capacity with infrequent use of the arm.” On January 19, 2023, the WCB advised the worker that the medical information provided had been reviewed but there would be no change to the earlier decision of their deemed earning capacity.

The worker requested reconsideration of the WCB’s decision by the Review Office on February 23, 2023. In their submission, the worker provided that they believed the pain, throbbing and numbness they experience in their left forearm and the medication they are required to take for the pain, impacts their abilities to perform job duties involving physical strength. In addition, the worker noted that they had been actively seeking employment and had not been successful. The worker described that an employer for a recent position they applied for felt they were not confident in the worker’s abilities to perform the physical portion of the duties and noted a gap in the worker’s employment. The Review Office determined on March 14, 2023, that the worker’s wage loss benefits were correctly reduced effective October 22, 2022. The Review Office noted the worker’s complaints of ongoing difficulties but found that the worker’s permanent restrictions had taken into account the worker’s abilities and radial neuropathy which was likely permanent. The Review Office further found the worker’s Vocational Rehabilitation Plan under NOC 1215 was appropriate taking into account the worker’s work history, aptitudes and restrictions and the worker had been provided with the necessary vocational rehabilitation services. As such, the Review Office found it was appropriate for the WCB to implement a post-accident deemed earning capacity effective October 22, 2022.

The worker’s representative filed an appeal with the Appeal Commission on December 5, 2024. It was noted on the appeal form that the worker’s representative believed that since the Review Office had found the worker’s Vocational Rehabilitation Plan under NOC 1215 Warehouse Supervisor to be appropriate that the Appeal Commission had jurisdiction to hear an appeal on that issue as well. 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. The legislative provisions in effect at the time of the accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. Under Section 37 of the Act, compensation is payable where 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.

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 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.

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.

While retraining and re-education is one of the last options it may be provided as part of one of the other options.

Worker’s Position

The worker was present at the hearing, represented by a worker advisor. The worker advisor provided a written submission in advance of the hearing and made oral submissions at the hearing. The worker provided testimony by way of responses to questions posed by their advisor and members of the panel.

The worker’s position is that they were competitively disadvantaged in the NOC code of warehouse supervisor by both their permanent restrictions and a lack of post-secondary education. The worker submits that the VR plan was not appropriate and states that the minimum amount of job search period was insufficient for the worker to find a job in this NOC code.

The evidence that the worker is relying on is the medical opinion of the treating sport medicine physician that provides that the worker has functional capacity limitations, including weakness in the left hand that worsens with repeated use of the upper extremity and tolerance issues related to their neuropathic pain. The sport medicine physician opined that these limitations “would limit [the worker’s] ability to perform jobs that require use of the left upper extremity in more than a sedentary to light duties capacity with infrequent use of the arm."

The worker submits that, while they could work for short periods, they could not work with these permanent restrictions long term due to the nerve damage.

Further, it is the worker's position that many of the work opportunities that were sent to them by the WCB were outside their permanent restrictions or outside their education. The worker provided a list with their submission to the panel of jobs that fell outside their qualifications.

The worker states that they were at a significant competitive disadvantage because of their permanent restrictions.

The worker is seeking compensation for full wage loss benefits beyond October 22, 2022, and states that the NOC code was not appropriate because of the significant competitive disadvantage.

Employer’s Position

The employer did not participate in the hearing.

Analysis

There are two issues before the panel.

The first issue is whether or not the VR plan established within NOC 1215 – Warehouse Supervisor, is appropriate for the worker. The second is whether or not it is appropriate to implement a post-accident deemed earning capacity effective October 22, 2022. In order for the worker’s appeal to succeed, the panel must find, on a balance of probabilities, that the WCB failed to establish that the worker is capable of working within NOC 1215 and further, that even if the VR plan were appropriate, the worker was not capable of earning the post-accident deemed earning capacity as of August 17, 2018. For the reasons that follow, the panel was able to make a finding that the VR plan was not appropriate. As a result of this finding, the panel is of the view that it was inappropriate to implement a post-accident deemed earning capacity.

The panel acknowledges that the evidence shows that the worker had many years of experience working in the industry. The transferable skills analysis shows the worker has experience as a warehouse manager and as a shipper/receiver. The worker also has a secondary school diploma.

The panel notes that the WCB had an obligation to undertake a proper assessment to determine whether the designation of NOC 1215 was suitable or appropriate in the circumstances. The panel is not satisfied that a proper or sufficient assessment was done with respect to the worker's physical abilities. The worker underwent a functional capacity evaluation (FCE) on November 12, 2021. The panel finds that the analysis of the worker’s physical demands and skills lacked detail. Additionally, the evidence is that the worker advised the WCB of their ongoing symptoms in their left arm. By way of example, the worker stated in one email to their case manager “I also want to reiterate that my arm is still in constant pain which I have Made everyone aware of it…”. The worker’s evidence at the hearing was that their ongoing symptoms include neuropathic pain, constant throbbing, feelings of pins and needles and sharp pains. The worker described attempting numerous treatments to alleviate the symptoms, such as physiotherapy, dry needling, massage therapy, acupuncture, medication, among others. The panel’s view is that the worker’s ongoing symptoms were not given adequate consideration by the WCB in their assessment of the worker’s physical abilities.

The worker’s evidence was that there was no follow-up after the FCE see if the worker was sore or having increased symptoms. The worker states that they were sore and that they are not capable of working at the restrictions specified in the FCE for an entire day. This is in keeping with the medical evidence on the file from the worker’s treating sports medicine physician. The opinion of the worker’s treating sport medicine physician is that the worker had the ability to perform the lifting requirements set out in the FCE, however only on a limited basis. The physician indicated that due to the worker’s nerve injuries the limitations of the worker would likely deteriorate during the day and, as a result, the permanent restrictions identified in a FCE testing would probably be too liberal for this particular worker.

The VR consultant stated in a physical demands and skills analysis that "employment within this NOC code is predominantly sedentary. It is VRC's opinion that the physical demands of NOC code 1215, transport warehouse supervisor, are within [the worker’s] physical abilities." The panel does not agree. The evidence of the worker contradicts this. The worker indicated to the panel that a manager would be expected to “get their hands dirty” and fill in as required, due to absenteeism or increased workload. Supervisors would be required to lift or load product, which was outside the worker’s restrictions.

On the face of it, jobs within NOC 1215 – Warehouse Supervisor, seem to be supervisory in nature, however, the panel acknowledges that practically speaking the positions often have a physical element, and it is the physicality of the jobs within this NOC that make the VR Plan within NOC 1215 not appropriate for this worker. The description of NOC 1215 is “supervisors, supply chain, tracking and scheduling co-ordination occupations”. The panel notes however that the description also states that supervisors “may perform the same duties as workers supervised.” A review of the job opportunities compiled by the worker within this NOC demonstrates that the duties of many of the job offerings in NOC 1215 include physical labour, lifting, carrying and moving heavy product.

In addition to the panel’s concerns about the adequacy of the VR plan in relation to the worker’s physical abilities, the panel also has concerns when considering the evidence related to the worker’s mental health. The panel notes several references in the file, and in the worker’s testimony at the hearing, that the worker was suffering from psychological symptoms related to the lack of employment and the ongoing pain in their left arm. The panel notes that the worker’s VR plan included a 22-week job search period from May until October 21, 2022. This was the minimum amount that the WCB could have provided under the VR Policy. The panel is of the view that this was not adequate in light of the worker’s psychological symptoms.

The panel therefore concludes, on the basis of the evidence before us and on the standard of probabilities, that the vocational rehabilitation plan within NOC 1215 is not appropriate. The worker’s appeal is granted on the first issue. Accordingly, the panel finds that since the VR plan is not appropriate it was thus not appropriate to implement a post-accident deemed earning capacity effective October 22, 2022.

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 6th day of May, 2025