The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. They are not entitled to additional vocational rehabilitation benefits including all education related expenses; and 

2. Their permanent partial impairment rating and monetary award have been correctly calculated.

A hearing was held on April 15, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to additional vocational rehabilitation benefits including all education related expenses; and 

2. Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Decision

1. The worker is entitled to additional vocational rehabilitation benefits as specified in the reasons; and 

2. The worker's permanent partial impairment rating and monetary award have been correctly calculated.

Background

The worker has an accepted WCB claim for an injury to their right hand and wrist that occurred at work on August 29, 2014, when a piece of tempered glass they were installing shattered, lacerating their right wrist. The worker was transported to a local hospital where surgery took place to close the lacerations. The worker was placed off work and returned to modified duties on September 10, 2014.

The worker attended physiotherapy and other medical treatment. They contacted the WCB on February 25, 2016 to advise of ongoing symptoms in their hand. The worker reported continued numbness to their hand. The worker noted they had returned to work on light duties but was later laid off by the employer. They advised the WCB they were currently working in an office job and were no longer doing any heavy lifting. The worker advised they had attended for further medical treatment on February 24, 2016 and they were referred to a hand specialist.

On November 30, 2016, a WCB physiotherapy consultant reviewed the worker's file and determined the worker was at maximum medical improvement and did not have a major pre-existing condition. It was recommended that the worker attend for a permanent partial impairment examination. The worker attended at the WCB on December 29, 2016 to be evaluated for a permanent partial impairment (“PPI”) rating. Due to the worker's reporting of difficulties with prolonged repetitive motions and residual numbness to the dorsum of their right hand, sensation testing was conducted. The WCB medical advisor conducting the testing found that the dorsum of the right hand and the forearm was normal and determined there was no ratable impairment rating for sensation. With respect to scarring, digital photographs of the worker's scarring were taken and compared to folio images on file at the WCB. The advisor opined the worker's cosmetic impairment related to the compensable injury was 1%. The total recommended PPI rating for the worker was 1%, which the WCB advised the worker of on January 4, 2017. The WCB discussed the results of the examination with the worker on January 11, 2017. The worker noted disagreement with the results and on May 4, 2017, provided the WCB with a copy of a March 21, 2017 report from their treating neurologist. The neurologist opined the worker had paresthesia and neuropathic discomfort in their right radial sensory nerve and found the worker's symptoms to be consistent with a right radial sensory nerve injury. The new medical information was reviewed by a WCB physiotherapy consultant on May 5, 2017, who provided that monofilament testing at the time of PPI examination did not indicate a deficit of sensation and as such, the new information did not support a change to the rating. On the same date, the WCB advised the worker that there would be no change to their PPI rating and related monetary award.

The worker requested reconsideration of the WCB's decision on their PPI rating and monetary award to the Review Office on July 19, 2017. The worker noted their belief the workplace injury had developed into chronic pain and stated that the long term effects would inhibit/prevent their earning potential and as such, believed their rating was incorrect. On August 17, 2017, the Review Office determined the worker's PPI rating was calculated correctly. The Review Office accepted and agreed with the calculations provided by the WCB medical advisor after the call-in examination on December 29, 2016 and also with the further review on May 5, 2017, of new medical information submitted by the worker and found the worker did not have a ratable loss of sensation in their right dorsal wrist area.

In a discussion with the WCB on April 28, 2022, the worker advised that after they had returned to work on light duties, they were laid off by the employer in December 2014. The worker further advised they moved to a larger urban centre in 2016 to finish schooling and asked the WCB to consider wage loss benefits and the costs for their schooling. The worker followed up the discussion with a detailed email on April 29, 2022, advising the WCB that they continued to experience difficulties in their right wrist and hand. In addition, the worker noted that they couldn't lift heavy objects due to the pain and limitations of their hand and wrist and decided to return to school full time, from which they graduated in June 2016. The worker requested consideration for wage loss benefits for their potential earnings as a journeyman in their pre-accident employment, their education costs including tuition, books, rent, living expenses and moving costs and for their PPI award to be reconsidered as they were not able to use their right hand now as they could before the August 29, 2014 workplace accident. On May 12, 2022, the WCB advised the worker that they were not entitled to wage loss benefits as their treating physician provided a report on September 8, 2014 indicating the worker had no workplace restrictions and they returned to work on regular duties on September 10, 2014.

On May 12, 2022, the worker requested reconsideration of the WCB's decisions on their PPI award, wage loss benefits and education costs to the Review Office. On May 16, 2022, the Review Office returned the worker's file to the WCB's Compensation Services for further investigation. The WCB requested and received further information from the worker, the employer and the worker's treating healthcare providers and on December 19, 2022, the WCB advised the worker they were not entitled to wage loss or further medical aid benefits after September 9, 2014.

The worker again requested reconsideration of various WCB decisions to the Review Office on February 2, 2023 after submitting a January 20, 2023 medical report from their new treating physician. On February 6, 2023, the Review Office again returned the worker's file to the WCB's Compensation Services for further investigation. After gathering further information from the worker regarding their claim for education expenses and further medical information, the WCB advised the worker on July 13, 2023, the previous decisions that they were not entitled to wage loss benefits or medical aid benefits remained unchanged.

On July 31, 2023, the worker again requested reconsideration of the WCB's decision to the Review Office. The worker provided a copy of the January 20, 2023 medical report from their treating physician, a copy of the March 21, 2017 report from their treating neurologist, a copy of the diploma they received in June 2016, information regarding their entitlement to a disability tax credit and copies of photographs taken after the August 29, 2014 workplace accident. The Review Office requested a review of the worker's file by a WCB medical advisor. The WCB plastic surgery consultant requested the worker attend for a call-in examination, which took place on September 26, 2023. The consultant noted the worker's accepted compensable diagnosis was a right wrist laceration and a partial radial sensory nerve injury and the worker's reporting that they experienced ongoing sensitivity and pain in the superficial radial nerve region since the injury, associated with repetitive hand use such as lifting. After examining the worker, the WCB plastic surgery consultant found the worker had a positive Tinel's sign at the area of the injury and reported right wrist/hand symptoms associated with activities involving repetitive lifting. As such, the consultant opined it was "…medically reasonable that the reported symptoms in relation to the superficial radial nerve injury could lead to difficulties with repeated/sustained use of the right hand in a physically demanding job, such as lifting/maneuvering moderate/heavy weighted items. As such, restrictions to avoid/limit this type of activity would be reasonable." On November 14, 2023, the Review Office determined the worker was entitled to further wage loss and medical aid benefits and returned the worker's file to the WCB's Compensation Services for further adjudication.

The WCB requested and received from the worker information on the education expenses they incurred to obtain their diploma in June 2016. The WCB also obtained job search and salary information regarding the worker's pre-accident employment along with information from the worker on their income in 2015 and 2016. On February 16, 2024, the worker's file was reviewed for a further permanent partial impairment rating at the request of the worker's representative. A WCB physiotherapy advisor reviewed the worker's file and advised there was no change to the PPI rating for a cosmetic impairment which would stay at 1%. It was noted that the file was also to be reviewed by the WCB's Chief Medical Officer with respect to a potential unscheduled rating for sensation. That review took place on the same date, with the WCB's Chief Medical Officer recommending a maximum scheduled PPI rating of 5% for the worker's reported impairment of right-hand function.

A further decision letter was sent to the worker on February 21, 2024, providing decisions on several issues including their request for reimbursement of vocational rehabilitation (“VR”) and educational expenses. The WCB advised the worker that they would be reimbursed for the tuition costs of two courses they took after they reached maximum medical improvement for their injury. It was noted the worker had requested reimbursement for the costs of textbooks for those courses but had not provided receipts and as such, the WCB was unable to provide reimbursement. With respect to relocation costs, the WCB noted that the worker chose to move to a larger urban centre to complete their schooling and as such, relocation and associated costs would not be reimbursed based on their program preference. On May 21, 2024, the WCB provided the worker with a further decision clarifying that they were not entitled to reimbursement for VR expenses. The WCB noted that while the worker was laid off by the employer in December 2014 due to shortage of work, that was a normal business activity in the employer’s industry and had the layoff been prolonged or the worker hadn’t chosen to return to school, the WCB may have considered return to work and accommodation options with the employer. The WCB further noted that the worker had demonstrated the ability to earn more than their pre-accident earnings and as such, a VR plan would not have been developed.

The worker’s representative requested reconsideration of the WCB’s decision on the worker’s entitlement to reimbursement for education and associated expenses to the Review Office on August 1, 2024. The representative presented the argument the worker’s decision to return to school and complete their post-secondary education allowed them to not have a loss of earning capacity and helped to reduce the effects of their compensable wrist injury and as such, the worker should be reimbursed for their costs to complete their education. On August 29, 2024, the Review Office determined the worker was entitled to reimbursement for some limited education related expenses including mileage expenses. The Review Office found the worker could not be reimbursed for the costs of books for the courses they had taken as they had not provided receipts for same.

The worker’s representative filed an appeal with the Appeal Commission on October 23, 2024 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 (“Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect on the date of the compensable accident are applicable to the worker’s appeal.

Under the Act, a worker is entitled to compensation when they have suffered personal injury by accident arising out of and in the course of employment (Section 4(1)).

In addition, 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 37).

Section 27(20) of the Act states that the WCB may make such expenditures as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines.

WCB 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. 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.

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.

The Act sets out that the WCB shall determine the permanent partial impairment rating as a percentage of total body impairment and make an award based upon each full percentage of whole-body impairment (Section 38(1) and 38(2)).

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the “PPI Policy”) provides a method for determining the entitlement rating arising out of an injury or disfigurement. The degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI 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 PPI Policy. Section 20 of Schedule A of the PPI Policy sets out a step-by-step analysis.

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.

For cosmetic disfigurement, Schedule A provides that when a worker is permanently disfigured due to an injury, the WCB may determine the disfigurement is a permanent impairment for which the worker is entitled to an impairment benefit. The rating calculation for disfigurement is done by a WCB Healthcare Advisor and determined based on their judgment. The maximum rating for disfigurement is 25% in extreme cases, but typical ratings are between 1 - 5%. For consistency in disfigurement ratings and to make the ratings as objective as possible, the WCB's Healthcare Advisor is required to reference a folio of disfigurement ratings established in previous cases in determining a rating.

The Act provides at Section 38(6) that a worker who has an impairment and who suffers a significant deterioration of their medical condition, may apply to the board to reconsider the worker's degree of impairment and, where the reconsideration results in a change in the percentage of the impairment, the board shall treat the reconsideration as though it were an initial determination under this section.

A worker may apply for reconsideration of their degree of impairment 24 months after a decision by the WCB or the Appeal Commission.

Worker’s Position

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

With respect to the appeal of the decision regarding additional VR benefits, the worker’s position is that they are entitled to additional VR benefits, including all education related expenses.

The worker states that their decision to relocate was logical and reasonable in the circumstances given their past education history.

The worker had been laid off and had continuing difficulties with their right hand. The worker had had no communication from the WCB regarding their options if they had continued symptoms. The worker had to make a decision about their future and chose to relocate to another city to complete a post-secondary program they had begun prior to their accident and which only required two remaining courses to complete.

The worker was reimbursed for their tuition costs for the two courses and provided transportation reimbursement for the months they attended the program.

The worker’s position is that they are entitled to additional expenses and states that they incurred moving costs, monthly rent, expenses for travel from their home city to the city where they attended the program and costs for course materials.

The worker is seeking compensation for the course materials they incurred to complete their two remaining courses. The worker’s evidence is that they incurred these expenses at the time but no longer have proof of these expenses. Their position is that proof of an incurred expense is not always required and notes, by way of example, that they were provided transportation reimbursement based on estimated fares.

The worker asks the panel to approve their appeal for additional VR benefits and submits that it would be fair and just to do so given the circumstances.

With respect to the worker’s PPI rating and associated monetary award, the worker’s position is that they experienced ongoing pain and reduced strength and range of motion, as well as visible and lasting disfigurement. The worker’s position is that the injury affects them on a daily basis.

The worker states that the PPI rating does not fully reflect the severity of the long term effects of the injury. The worker is seeking a finding that the PPI rating and associated monetary award is not accurate.

Employer’s Position

The employer did not participate in the hearing.

Analysis

There are two issues before the appeal panel.

Issue #1:

The first issue for the panel to determine is whether or not the worker is entitled to additional VR benefits including all education related expenses. For the worker’s appeal to succeed, the panel would have to determine that the worker required additional VR benefits to help achieve maximum physical, psychological, economic and social recovery from the effects of their work-related injury. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted in respect to this issue.

An Earning Capacity Assessment completed in December 2023 and set out in a memorandum on the file notes that relocation costs would not be considered based on program preference, however this fails to take into account the existing credits the worker had in another locale. The panel accepts the worker’s evidence during the hearing that they attempted to transfer their existing credits toward the post-secondary program to the college in their city but was unable to do so and therefore made the decision to relocate to complete the program.

The panel has taken into account that the WCB covered the worker for their tuition costs for the remaining courses needed to complete the education program. The panel finds in the circumstances that it is reasonable for the WCB to also cover the costs of the materials related to those courses. The provisions of the Act and VR Policy are consistent with this finding. The panel is satisfied that the course materials are expenditures necessary to provide academic training for the worker.

The panel is not satisfied however that the costs of personal transportation or any other expenses associated with the worker’s relocation to complete the courses are compensable expenses under the provisions of the Act. We cannot know what VR plan would have been developed for the worker and will not speculate as to whether relocation would have been approved by the WCB.

The panel finds that the worker is entitled to additional VR expenses, specifically the expenses for course materials to complete their post-secondary program. Given the passage of time, should no receipts be available for these expenses, the panel is of the view that reimbursement could be based on a reasonable or average cost of materials and books for similar courses.

The worker’s appeal is granted, specifically as it relates to course materials and books.

Issue #2:

The second issue before the panel is whether or not the worker’s PPI rating and associated monetary award have 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 PPI and associated monetary award. As outlined in the reasons that follow, the panel was not able to make such a determination and the worker’s appeal is therefore denied in respect to this issue.

The worker has an accepted WCB claim for an injury to their right hand and wrist. The PPI Policy provides that with an injury to an upper extremity, including hand and fingers, the loss of mobility of a joint or joints is to be evaluated. This loss of mobility is to be determined by a clinical examination or the medical information on file. The worker was examined by the WCB.

The panel has reviewed the notes of the WCB medical advisor who performed the PPI assessment. It is noted that the PPI rating was also reviewed by the WCB’s Chief Medical Officer. The PPI examination notes confirm that the medical advisor examined the worker and made appropriate measurements and applied the criteria set out in the PPI Policy. The panel has also reviewed the notes of the WCB Physiotherapy Advisor who provided an opinion on the cosmetic impairment rating. The panel accepts the opinion of the WCB medical advisors respecting the rating of 1% for cosmetic impairment.

The worker has not raised concerns with the testing completed by the WCB, rather the worker is of the opinion that they should be entitled to a greater PPI rating due to the severity of the injury and the impact on their ability to work and their wellbeing.

The panel is sympathetic to the worker and accepts the evidence that they have experienced life altering effects as a result of the workplace injury. The impact of the injury on a worker does not, however, play a part in the impairment rating process. A PPI award is not intended to compensate a worker for pain and suffering resulting from an injury.

Therefore, based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker’s PPI rating and monetary award were correctly calculated. The worker’s appeal on this issue is denied.

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 June, 2025