Page 1  
Decision No.: 2022-0246  
Appeals Commission for Alberta WorkersCompensation  
Docket No.: AC0420-17-69  
Decision No.: 2022-0246  
Overview  
[1]  
The issues before us in this worker appeal are as follows:  
[1.1]  
Issue 1: Does the WorkersCompensation Board have additional  
responsibility for right elbow ulnar neuropathy or an aggravation of a  
pre-existing tri-compartmental degenerative joint disease in the  
workers right elbow as a result of the workers compensable  
accident?  
[1.2]  
[1.3]  
Issue 2: Was the workers economic loss payment appropriately  
calculated based on the estimated post-accident earnings capacity  
of a car dealership receptionist?  
Issue 3: Is the worker entitled to additional vocational services or  
benefits?  
[2]  
[3]  
The Workers’ Compensation Board (WCB) case manager denied the workers  
claim for additional entitlement on Issue 1 on October 1, 2019.  
On October 27, 2020, the case manager determined that the position of a car  
dealership receptionist was an appropriate position on which to base the workers  
economic loss payment (ELP). The case manager noted that a job lead was  
provided on September 30, 2020, and that therefore the workers re-employment  
benefits would end October 14, 2020. On October 15, 2020, the worker would  
begin receiving an ELP based on the estimated salary of a car dealership  
receptionist.  
[4]  
[5]  
[6]  
On October 29, 2020, the case manager confirmed the decision that the worker  
was no longer entitled to vocational benefits in the form of supported job search  
(SJS) benefits.  
In a December 12, 2019 decision, the Dispute Resolution and Decision Review  
Body (DRDRB) upheld the WCBs decision on Issue 1. In a January 20, 2021  
decision, the DRDRB upheld the WCBs decisions on Issues 2 and 3.  
The workers Notices of Appeal were filed within the legislated time limit. While  
notified, neither the WCB nor the employer participated in the appeal. The  
worker and his representative, as well as an interpreter, participated in the  
teleconference hearing.  
Classification: Protected A  
Page 2  
Decision No.: 2022-0246  
[7]  
Based on the evidence before us and for the reasons that follow, we made the  
following decisions:  
[7.1]  
Issue 1: The Workers’ Compensation Board does not have additional  
responsibility for right elbow ulnar neuropathy or an aggravation of a  
pre-existing tri-compartmental degenerative joint disease as a result of the  
workers compensable accident.  
[7.2]  
[7.3]  
The workers appeal on this issue is denied. The December 12, 2019  
Dispute Resolution and Decision Review Body decision is confirmed.  
Issue 2: The workers economic loss payment was appropriately  
calculated based on estimated post-accident earnings capacity of a car  
dealership receptionist.  
[7.4]  
[7.5]  
The workers appeal on this issue is denied. The January 20, 2021  
Dispute Resolution and Decision Review Body decision is confirmed.  
Issue 3: The worker is not entitled to additional vocational services or  
benefits.  
The workers appeal on this issue is denied. The January 20, 2021  
Dispute Resolution and Decision Review Body decision is confirmed.  
Preliminary Matters  
[8]  
At the representatives request, the Appeals Commission provided the services  
of an interpreter for the worker at the hearing. At the start of the hearing, the  
panel confirmed the following with the representative, worker and the interpreter:  
The level of interpretation the worker required was word-for-word and  
the teleconference hearing proceeded on that basis.  
The interpreter translated the representatives written submission to  
the worker prior to the start of the teleconference hearing.  
The worker indicated he understood and agreed with the  
representatives written submission.  
The interpreter translated the Appeals Commissions Standard  
Opening Remarks to the worker and the worker confirmed that he  
understood its content.  
The interpreter read the Directions to the Interpreter and agreed to  
follow the directions outlined in the document.  
Classification: Protected A  
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Decision No.: 2022-0246  
[9]  
The worker agreed to immediately inform the panel if, at any point during the  
teleconference hearing, he:  
did not understand what was being discussed or said;  
did not understand what was going on in terms of the hearing process  
itself; or  
required additional translation from the interpreter  
[10]  
Near the conclusion of the hearing, the panel asked the worker whether he  
understood the proceedings and had sufficient opportunity to present his case.  
He noted that he had some problems with the interpretation. Accordingly, the  
panel took a break over the lunch hour and resumed in the afternoon to allow the  
worker to identify any concerns, clarify any information he felt necessary, and  
supplement his prior comments with any other information.  
After the additional clarification and information was received from the worker, he  
confirmed that he had sufficient opportunity to present his case and did not feel  
the need to make any further submissions or clarifications, or to ask any  
additional questions.  
Issue 1: Does the Workers’ Compensation Board have additional  
responsibility for right elbow ulnar neuropathy or an aggravation of a pre-  
existing tri-compartmental degenerative joint disease as a result of the  
workers compensable accident?  
Legislation and Policy  
[11]  
[12]  
The Appeals Commission must follow and apply the provisions of the Workers  
Compensation Act, RSA 2000, c W-15 (WCA) and WCB policies relevant to an  
appeal (WCA, section 13.2(6)).  
In considering Issue 1, we applied the legislation in effect at the time of the  
hearing. In addition, we applied the policies in effect at the time of the case  
managers October 1, 2019 decision.  
[13]  
[14]  
[15]  
The relevant sections of the WCA and WCB policies are summarized below, and  
attached as appendices.  
Workers are entitled to compensation if they suffer personal injury due to an  
accident (WCA, sections 1(1)(a), and 24(1)(a)).  
When determining its responsibility, the WCB evaluates the relationship between  
the injury and the compensable accident. When the relationship is not obvious,  
there is a need for additional information, especially medical information, to  
establish the relationship between the injury and the compensable accident  
Classification: Protected A  
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Decision No.: 2022-0246  
(Policy 03-01, Part I, issued September 5, 2018 and Policy 03-01, Part II,  
Application 1, issued July 4, 2018).  
[16]  
If a compensable accident causes a pre-existing condition to deteriorate or  
become symptomatic to the point where a worker is no longer able to perform all  
aspects of the job, entitlement will be allowed based on an aggravation factor. A  
pre-existing condition is any pathological condition which, based on a confirmed  
diagnosis or medical judgment, pre-dated a work-related injury (Policy 03-02,  
Part I, issued September 5, 2018).  
[17]  
There must be a confirmed presence, through clear documentation, of a  
pre-existing condition. In addition, it must be apparent from the objective medical  
information available that the compensable accident caused some worsening of  
this condition, at least on a temporary basis. The fact that a worker has a  
pre-existing condition does not necessarily mean it was aggravated by the  
compensable injury. The relationship between the pre-existing condition and the  
accident, including the mechanism of injury (MOI) (for example, twisting, lifting  
heavy objects), the extent or severity of the underlying condition, and the degree  
to which the injury may have affected the condition, will all be considered (Policy  
03-02, Part II, Application 1, issued April 3, 2018).  
[18]  
A standard of causation is the legal test applied to determine whether the injury is  
caused by work. With some exceptions, the standard of causation used is the  
“but for” test – that is, if not for the work exposures, the injury would not have  
happened. The “but for” test is a finding of fact – the work exposures were  
necessary for the accident and injury to occur. The finding of fact is based on the  
evidence and accepted medical knowledge, not on a speculative connection.  
[19]  
The standard of proof is the balance of probabilities. The WCB weighs all the  
evidence and determines if it is more likely than not that, but for the workers  
employment, the injury would not have occurred (Policy 02-01, Part II,  
Application 7, issued April 3, 2018).  
Evidence and Findings  
[20]  
There is no dispute in the evidence that the worker was injured at work when he  
was coming down from a ladder on July 27, 2014, and that a compensable  
accident occurred. The workers claim for a left ankle sprain and fracture were  
accepted by the WCB.  
Classification: Protected A  
Page 5  
Decision No.: 2022-0246  
[21]  
There is also no dispute that the worker has been diagnosed with right elbow  
neuropathy and pre-existing tri-compartmental degenerative joint disease (TJD)  
in his right elbow. These diagnoses were identified in 2016, through testing and  
consultation with a physiatrist.  
[22]  
[23]  
The key issue to be determined is whether the workers accident caused the  
elbow neuropathy or aggravated the TJD.  
The worker and his representative argue that the MOI on the date of accident  
involved a fall onto the workers back, which injured his elbow as well as his left  
ankle. However, due to the severity of the ankle injury, the focus was on that  
injury, and so the medical reporting does not reference the elbow injury. The  
representative submitted that the workers difficulties with English as a second  
language and confusion regarding WCB processes may have contributed to the  
lack of reporting of the fall onto his back and the elbow injury.  
[24]  
They also argued that, although it was not until 2016 that the elbow neuropathy  
and TJD were diagnosed, the worker was experiencing numbness in his finger  
not long after the accident. He received acupuncture and massage treatment for  
this symptom beginning in September 2014. The worker and his representative  
argued that this finger numbness was a symptom of the right elbow conditions  
and resulted from the fall onto the workers back on the day of accident.  
[25]  
Accordingly, to decide the first issue in this appeal, the panel considered the  
following questions flowing from legislation and policy.  
[25.1]  
Does the weight of medical and other evidence support that the  
compensable accident involved a fall onto the workers elbow?  
[25.2]  
If so, does the weight of medical and other evidence support that:  
the workers right elbow ulnar neuropathy was caused by the  
compensable accident?  
the compensable accident caused some worsening of the workers  
TJD to the point that the worker was no longer able to perform all  
aspects of his job?  
Mechanism of Injury  
[26]  
[27]  
The panel is not persuaded that the weight of evidence supports that a fall onto  
the workers right elbow occurred on the date of accident. We came to this  
conclusion based on the following evidence and reasons.  
There are multiple medical records around the time of the accident, none of  
which indicate that the worker fell off the ladder onto his back injuring his elbow.  
Notably:  
Classification: Protected A  
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Decision No.: 2022-0246  
[27.1]  
[27.2]  
The doctor in the first Physician Report of Injury on July 27, 2014 noted  
the MOI as the worker twisting his left ankle as he climbed down from a  
ladder at work. There is no indication of a fall or any injury to the workers  
right elbow.  
On the workers own Report of Injury on August 6, 2014, he indicated that  
he “Was coming down from a ladder and left foot twisted and had pain  
when touched ground.” Only the left ankle is circled on the body chart.  
There is no mention of a fall or injury to the workers elbow.  
[27.3]  
[27.4]  
The Employer’s Report of Injury dated August 11, 2014 also noted that the  
workers felt discomfort in his left ankle when dismounting a ladder. There  
was no indication of a fall or any injury to the right elbow.  
A September 2, 2014 Return-to-Work Services (RTWS) report does say  
that when the worker was coming down from a ladder, he twisted his left  
ankle and fell to the ground. However, it does not indicate that the worker  
fell onto his back and injured his elbow.  
[27.5]  
A later RTWS planning meeting report dated October 28, 2014 indicates  
that the worker was . . . stepping off a ladder at work, slipped and  
sustained a left ankle fracture.Again, there is no mention of a fall onto  
the back or an injury to the right elbow. A translator was present for this  
meeting.  
[27.6]  
In the chart notes of the workers first family doctor following the accident,  
there is no mention of an issue with the workers elbow (or finger  
numbness on his right hand) from August 2014 to March 2015. When the  
accident is referenced, it is only with respect to the left ankle. We  
understand this doctor spoke mandarin, the same language as the  
workers first language.  
[27.7]  
[27.8]  
The November 14, 2014, January 5, 2015, March 24, 2015 Physician  
Reports do not indicate a fall onto the back or an injury to the elbow.  
A March 30, 2015 independent medical examination (IME) by an  
orthopedic specialist (the first orthopedic specialist) does not contain any  
mention of a fall onto the workers back or an injury to the elbow. We note  
that the worker had an interpreter at this IME.  
[28]  
Given the multiple opportunities to communicate the MOI, including opportunities  
to communicate using his own language or through an interpreter or translator,  
we find it significant that there is an absence of any indication of a fall onto the  
workers back and an injury to his elbow.  
Classification: Protected A  
Page 7  
Decision No.: 2022-0246  
[29]  
In light of the workers claim that he fell onto his back and injured his elbow on  
the date of accident, the WCB conducted an investigation into the accident and  
what had occurred, speaking to people who had been at the workplace on the  
date of accident. This investigation does not support that a fall onto his back  
occurred or that the worker had an injury to his elbow at the time.  
[29.1]  
In the July 11, 2019 WCB Investigation Report into the workplace  
accident, the investigator indicated that she talked to the safety lead from  
the employer, to whom the worker reported the accident. He recalled the  
accident but denied any knowledge or report of any other injuries other  
than the ankle fracture.  
[29.2]  
The safety lead stated that the medical centre staff were very through and  
any additional information would be documented in their reporting. The  
investigator reviewed the reporting, and noted that it said the MOI was the  
worker coming down a ladder and twisting his left foot and having pain  
when he touched the ground. There was no mention of a fall backwards,  
landing on the ground nor an elbow injury.  
[29.3]  
The lead from the date of accident employer also did not recall anything  
about an elbow injury. The worker reported at that time that he was  
coming down a ladder and he missed the last rung. When he landed, he  
rolled or twisted his ankle. The incident occurred essentially at ground  
level, which was levelled gravel. There was no mention of a fall or any  
injury to an upper limb.  
[29.4]  
The occupational health and safety reports also did not indicate the worker  
experienced a fall or any other injuries other than a left ankle fracture as a  
result of twisting it when he stepped onto the ground.  
[30]  
[31]  
While the workers representative argued in her oral submissions that the  
investigator should have spoken to witnesses, on questioning, the worker  
confirmed there were no witnesses to the accident.  
The representative also suggested the investigator should have spoken to the  
worker about the incident. The panel notes that the worker has provided several  
accounts about what happened, both early on in the file, and later as he was  
being examined in IMEs and by various doctors. Given this, the panel is of the  
view that it was not necessary for the investigator to speak to the worker about  
the incident. We do not believe the investigation into the MOI was inadequate  
because the investigator did not speak directly to the worker.  
[32]  
We are therefore satisfied that there has been sufficient investigation into the  
MOI.  
Classification: Protected A  
Page 8  
Decision No.: 2022-0246  
[33]  
At the hearing, the representative and the worker argued that the following  
documents refer to symptoms arising from an injury to the workers elbow,  
therefore supporting the workers claim that he fell onto his back and injured his  
elbow at the time of the accident:  
[33.1]  
On a September 12, 2014 Health Information Form completed for  
acupuncture treatment, in response to a general question about any  
accidents, the worker noted that he “Fell down from ladder on July 27/14.”  
However, we note that the worker did not indicate he was having problems  
with his elbow in this form. In addition, this comment does not say that he  
fell onto his back on the ground, or that he hit his elbow at the time. While  
the form indicated that he was seeking treatment for numbness in his fifth  
finger, there is no indication that there is any connection between the  
numb finger and the compensable accident. As a result, we do not  
attribute significant weight to the information in this form.  
[33.2]  
The acupuncture doctors handwritten notes from that date indicate that  
the worker said he had right hand fifth finger numbness one and a half  
months (six weeks) after the date of accident. There is no indication in  
these notes that the worker told the practitioner that he fell onto his elbow  
at the time of the compensable accident. There is also no opinion in these  
notes that the worker hurt his elbow or his finger issue was caused by the  
compensable accident.  
[33.3]  
At massage appointments starting in January 2015, it is noted that the  
workers finger on his right hand was numb and his elbow joint was not  
comfortable. Again, there is no indication in this document that the worker  
fell onto his elbow, or that the workers elbow discomfort or his finger  
numbness related to a fall in July 2014, six months prior to this  
appointment.  
[33.4]  
As neither the acupuncture notes nor the massage notes refer to a fall  
onto the workers back or an impact to the workers elbow, we give them  
little weight in determining whether a fall onto his back and impact to the  
elbow occurred.  
[34]  
[35]  
It was not until February 2016 that the worker first mentioned a fall and an impact  
to his right elbow.  
A February 17, 2016 letter from a physiatrist set out results from an  
electromyogram (EMG). On this date, the worker reported numbness in his hand  
and a finger for the last year, some pain in his elbow and an inability to straighten  
his elbow. The worker reported to the physiatrist that he fell at work and landed  
heavily on both elbows and fractured his left ankle. The worker also stated the  
elbow symptoms were noticeable approximately six months after the injury. The  
results of the EMG confirmed the presence of a right ulnar neuropathy.  
Classification: Protected A  
Page 9  
Decision No.: 2022-0246  
[35.1]  
We are unable to attribute significant weight to this letter because it only  
reports what the worker told the doctor about the accident. In addition, the  
physiatrist does not himself opine that a fall caused the right ulnar  
neuropathy.  
[36]  
An April 15, 2016 Physician Progress Report from the workers second family  
doctor indicated a right elbow sprain/strain/tear. The second family doctor  
recorded that the worker also hurt his right elbow in the fall. The doctor reported  
that the workers elbow was tender and there was a limited range of motion. The  
X-ray showed TJD, and right ulnar neuropathy was shown on the EMG.  
[36.1]  
We attribute little weight to this progress report when considering whether  
a fall onto the workers back and an injury to his elbow occurred. This is  
because the doctor advised in a May 16, 2016 Physician Report that the  
first time he saw the worker was on April 1, 2016 and that the worker  
mentioned the elbow as being part of the WCB injury. The second family  
doctor was not treating the worker at the time of the accident and is reliant  
on the workers reporting of the MOI.  
[37]  
Given our assessment of the evidence before us, we are not persuaded that the  
weight of evidence supports that the worker fell onto his back and injured his  
elbow on the date of the accident. Instead, we find that it is more likely than not  
that the worker slipped down a rung or two as he was climbing down a ladder,  
twisting his left ankle in the process.  
Relationship to the compensable accident  
[38]  
The workers representative argued at the hearing that we would have to find that  
a fall occurred to find a relationship between the accident and the right elbow  
neuropathy and TJD. Accordingly, as we have found that the weight of evidence  
does not support that a fall occurred, it therefore follows that the workers elbow  
conditions were not caused or aggravated by the compensable accident.  
[39]  
[40]  
Although it is not necessary for us to delve in detail into the evidence related to  
this question, we would note that the weight of medical opinion before us also do  
not support that the workers right elbow neuropathy or his TJD are related to the  
compensable accident.  
In particular:  
[41]  
A WCB medical consultant reviewed the file on May 18, 2016. The  
consultant noted that the worker had tricompartmental osteoarthritis in the  
right elbow and ulnar neuropathy at the elbow. However, he indicated that  
it was not reasonable to relate these diagnoses to the compensable  
accident MOI, as there was no prior mention of an elbow injury at any time  
Classification: Protected A  
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Decision No.: 2022-0246  
around the accident. He also noted that there is no reference to a MOI  
compatible with an elbow injury. His view was that the elbow and ulnar  
issues appeared to be of recent onset. He noted that the worker had pre-  
existing osteoarthritis of his elbow.  
[42]  
In a letter written to the workers first family doctor on May 18, 2016, the  
medical consultant indicated his conclusion after reviewing the claim and  
the reporting. In his opinion, the workers TJD would explain the workers  
pain and limited range of motion, and well as the ulnar nerve symptoms.  
While it appears that the medical consultant should have been writing to  
the workers second family doctor rather than the first family doctor (who  
has the same last name), this does not detract from his conclusion based  
on review of the medical records and claim file.  
[43]  
The worker saw a second orthopedic specialist on December 14, 2016.  
The worker reported to the orthopedic specialist that he fell on his right  
elbow on the date of accident. The second orthopedic specialists  
impression was right elbow tricompartmental arthritis with evidence of  
ulnar compression neuropathy. This orthopedic specialist did not  
comment on relationship to the compensable accident, and so this report  
does not provide support for a relationship. In addition, this report relies  
on the workers reporting of the incident, which we have found is not  
supported by the evidence before us.  
[44]  
[45]  
[46]  
At an IME on December 21, 2016, a third orthopedic specialist noted that  
the worker had a loss of extension and ulnar nerve entrapment in his right  
elbow. The orthopedic specialist did not comment on causation other than  
to note that there had been no mention of an elbow injury in the files until  
February 17, 2016.  
Another IME was conducted by a fourth orthopedic specialist on July 3,  
2018 for the purpose of assisting with determining whether the workers  
right ulnar neuropathy and TJD were causally related to the compensable  
accident on a direct or aggravational basis. The worker was examined  
with the assistance of an interpreter.  
The fourth orthopedic specialist confirmed the osteoarthritis in the right  
elbow and the ulnar neuropathy. However, he noted that the worker told  
him the pain in the elbow and loss of motion began in 2015. He noted that  
there was no evidence at the time of the accident of up until 2016 of the  
elbow issue. In addition, he opined that the TJD was a pre-existing  
condition that only started to give the worker pain and probably caused the  
ulnar nerve compression sometime in 2015. In his view, he did not  
believe the compensable accident caused the TJD to worsen as there was  
no evidence that there was any injury to the right elbow.  
Classification: Protected A  
Page 11  
Decision No.: 2022-0246  
[47]  
He concluded:  
In conclusion, I do not believe that the work injury damaged his  
elbow or caused the ulnar nerve paralysis. I also do not believe  
that the OA [osteoarthritis] of his elbow was aggravated by the  
injury of this claim. Any injury not severe enough to make him  
complain about it would surely not be severe enough to cause  
osteoarthritis or aggravate a previously existing osteoarthritis. He  
never reported any injury or complained about his right elbow until  
many months after the ankle injury in this claim.”  
[48]  
After a review of the notes from the acupuncture clinic and the massage  
therapy notes, on August 16, 2018, the fourth orthopedic specialist  
advised that there was no reason to change his prior conclusion. He  
stated that there was no mention of an injury to the right elbow in the  
acupuncture notes and the massage notes only started to mention the  
elbow in January 2015.  
[49]  
The physiatrist saw the worker again on January 24, 2019. The worker  
reported that he was coming off a ladder and fell backwards, landing  
heavily on his back and elbows as well as fracturing his left ankle. The  
physiatrist reconfirmed the presence of the right ulnar neuropathy and  
noted that it had further progressed. The physiatrist did not comment on  
any relationship of the right elbow conditions to the compensable injury.  
Given that this report does not comment on causation, it does not assist in  
determining a relationship. Further, it relies on the workers report of the  
MOI, which we have found is not supported by the evidence.  
[49.1]  
At the hearing, the worker stated that the physiatrist told him the right  
elbow neuropathy could be caused by an injury or pressure on the  
problematic area. While this information is not in the file material,  
we note that this information, if the worker correctly recalled the  
conversation, suggests that there may be another cause for the right  
elbow neuropathy that is, pressure on the problematic area.  
Accordingly, we did not attribute significant weight to this recollected  
conversation as it relates to the issue of causation.  
[49.2]  
Another IME was conducted on September 24, 2019 by a fifth orthopedic  
specialist. The fifth orthopedic specialist physically examined the worker,  
in the presence of an interpreter. He found the worker to have  
osteoarthritis in his right elbow with right ulnar nerve compression. In his  
opinion, the accident did not cause the right ulnar neuropathy. The TJD  
was pre-existing but the accident did not cause the TJD to worsen.  
Classification: Protected A  
Page 12  
Decision No.: 2022-0246  
[49.3]  
[49.4]  
The representative argued that this IME report does not include the  
September 2014 symptoms of finger numbness or the acupuncture  
reporting. She submitted that the fifth orthopedic specialist reached this  
conclusion without considering this information.  
However, we note that the July 31, 2019 consultation request setting out  
the questions for fifth orthopedic surgeon to answer specifically mentions  
the acupuncture reports and the September 2014 finger numbness. It  
also refers to the special investigation report. At the beginning of the  
request, it indicates:  
This document provides a relevant history of medical and claim  
information. This report is not an all-inclusive index or summary of the  
entire file. Please refer to the actual documents for further details.”  
[49.5]  
We are therefore satisfied that the fifth orthopedic specialist was aware of  
this information and had access to the actual documents for the purpose  
of his IME and in reaching his conclusions, despite not explicitly  
referencing it in his own report.  
[50]  
[51]  
The only medical opinion before us that explicitly supports a causal connection  
between the workers elbow condition and the compensable accident is from the  
workers second family doctor.  
In the second family doctors letter dated March 11, 2019, he notes that medical  
records show no right elbow issues prior to his accident and that the finger  
numbness started to appear after the accident. The doctor says there was no  
medical history or evidence that the right elbow condition pre-existed the  
accident.  
[52]  
[53]  
In his view, medically the right ulnar neuropathy and TJD was caused by the  
elbow injury. His opinion was that they are connected to the accident.  
We give this opinion little weight for the following reasons:  
[53.1]  
[54]  
This family doctor only started treating the worker in April 2016, well after  
the date of accident.  
He relies on the workers recounting of the accident, which we have found  
is not supported by the evidence.  
[55]  
We are of the view that the fact that the workers elbow became  
symptomatic only after the date of accident is insufficient, on its own, to  
establish that the accident caused or aggravated these elbow conditions.  
Classification: Protected A  
Page 13  
Decision No.: 2022-0246  
[56]  
The weight of medical opinion from several orthopedic specialists is that  
the workers TJD was pre-existing, contrary to the family doctors opinion  
that it was caused by the accident.  
[57]  
Overall, we prefer the medical evidence of fourth and fifth orthopedic specialists  
conducting the IMEs over the second family doctor. This is because:  
they have greater expertise in looking at these types of injuries and  
their medical causes,  
their reviews included the appropriate information, including the  
information regarding the September 2014 acupuncture treatments,  
and  
they understood the MOI.  
[58]  
Policy states that determining whether the causation test is met is a finding of  
fact. It must be based on the evidence and accepted medical knowledge, not on  
a speculative connection. While we acknowledge the workers strong belief that  
the accident caused his elbow conditions because he did not have elbow issues  
prior to the accident, based on the weight of medical evidence before us, this  
connection not supported.  
[59]  
[60]  
The representative suggested that the fifth orthopedic specialist should have  
been asked to opine on whether the workers elbow conditions could have been  
caused or aggravated if a fall had occurred as the worker reported. In our view,  
this would be a speculative exercise.  
We found there was sufficient investigation into the MOI to allow us to determine  
what most likely happened on the day of the accident. As noted above, the  
weight of evidence does not support an MOI that includes a fall onto the workers  
back and an impact or injury to his right elbow. It is therefore unnecessary to  
direct a medical opinion related to an unsupported MOI.  
Conclusion Issue 1  
[61]  
[62]  
Given our finding that the weight of evidence does not support that the worker fell  
onto his back and injured his elbow on the date of accident, we find that there is  
no relationship between the workers elbow conditions and the compensable  
accident.  
We also note that the weight of medical opinion does not support a causal  
connection, either on a direct causation basis or on an aggravational basis.  
Classification: Protected A  
Page 14  
Decision No.: 2022-0246  
Decision Issue 1  
[63]  
The Workers’ Compensation Board does not have additional responsibility  
for right elbow ulnar neuropathy or an aggravation of a pre-existing  
tri-compartmental degenerative joint disease as a result of the workers  
compensable accident.  
[64]  
[65]  
The workers appeal on this issue is denied.  
The December 12, 2019 Dispute Resolution and Decision Review Body decision  
is confirmed.  
Issue 2: Was the workers economic loss payment appropriately calculated  
based on estimated post-accident earnings capacity of a car dealership  
receptionist?  
Legislation and Policy  
[66]  
In considering Issue 2, we generally applied the legislation in effect at the time of  
the hearing. However, as the workers date of accident was July 2014, we  
referred to section 56 of the version of the WCA in effect from June 1, 2018 to  
August 31, 2018 (prior WCA). This is because later versions of the WCA restrict  
the application of section 56 to accidents occurring after September 1, 2018.  
[67]  
[68]  
[69]  
In addition, we applied the policies in effect at the time of the case managers  
October 27, 2019 decision.  
The relevant sections of the WCA, and WCB policies are summarized below, and  
contained in the appendices.  
Section 56 of the prior WCA states a worker is entitled to periodic payment of  
compensation in the case of permanent disability. In determining the degree of  
impairment of earning capacity, the WCB may consider as a factor the nature of  
the injury and the workers physical and mental fitness to adapt himself to some  
other suitable employment (WCA, section 63).  
[70]  
An ELP is a type of compensation available if the injury results in an impairment  
to a workers earnings capacity. The WCB determines an impairment of earning  
capacity by assessing the impact permanent compensable work restrictions will  
have on the workers ability to earn in any suitable employment (Policy 04-04,  
Part I, issued September 5, 2018).  
Classification: Protected A  
Page 15  
Decision No.: 2022-0246  
[71]  
[72]  
[73]  
In some situations, the workers post-accident earnings may be estimated based  
on a deemed “suitable” position. This occurs when the WCB has made every  
reasonable effort to support the worker in searching for suitable employment, and  
despite ability, a worker does not engage in employment, or a worker is unable to  
secure suitable employment, or a worker engages in employment which fails to  
maximize earning capacity.  
For the purposes of estimating earning capacity, “suitable” means employment  
which is consistent with the workers ability and which is within the workers  
locale or may be obtainable where relocation is reasonable. The WCBs  
assessment of ability will be based on physical, vocational, social, and  
psychological circumstances and such other factors as WCB may consider  
relevant (Policy 04-04, Part II, Application 1, issued September 5, 2018).  
In light of the legislation and policy set out above, to decide Issue 2 in this  
appeal, the panel considered the following questions:  
[73.1]  
[73.2]  
Does the weight of evidence establish that the position of car dealership  
receptionist is consistent with the workers physical, vocational, social, and  
psychological circumstances?  
Does the weight of evidence establish that the position of car dealership  
receptionist is reasonably available in the workers locale?  
Evidence and Findings  
[74]  
[75]  
The worker and his representative submit that the worker does not have the  
vocational skills necessary for the dealership receptionist job. In particular, they  
submit that his English is not sufficient for this customer service position. The  
receptionist position requires an intermediate level of verbal and reading and  
fluent writing skills.  
The representative noted that the workers March 8, 2019 Academic Assessment  
indicated the following results:  
Word Reading 2nd percentile; Grade 4.1 level  
Sentence Comprehension - 0.1 percentile; Grade K-8 level  
Spelling 0.5 percentile; Grade 2.3 Level  
Math Computation: 34th percentile; Grade 7.3  
Reading Composite 0.5 percentile.  
[76]  
The Assessment noted that the worker has the capacity to learn however his  
ability to do so in the English language and to communicate his knowledge on  
tests was compromised by his English as a Second Language (ESL) status. In  
addition, cultural factors were likely also playing a role.  
Classification: Protected A  
Page 16  
Decision No.: 2022-0246  
[77]  
[78]  
The representative noted that a receptionist position requires a high level of  
communication skills in English, which the worker does not have.  
The representative acknowledged the vocational reporting indicated that English  
language testing supported an intermediate level for verbal, reading and writing  
English. However, the worker disagreed that he is at an intermediate level. He  
submitted that he has great difficulty reading, writing and speaking English.  
During the hearing, he also noted his view that the accent reduction course that  
he took was inadequate.  
[79]  
[80]  
The representative also argued that the worker lacks experience. She noted that  
it was clear from his work experience that the workers lifelong career had very  
little involvement with customer service and clerical work.  
The focus of the worker and representatives arguments were on the vocational  
and social unsuitability of the position. There was no argument presented that  
the position was not available or unsuitable due to the workers physical or  
psychological circumstances. In addition, based on our review of the evidence,  
we are satisfied that the evidence supports that the position was available, and  
was consistent with the workers physical and psychological circumstances.  
Therefore, our assessment focusses on only the vocational and social aspects of  
the position.  
[81]  
[82]  
We are satisfied that the car dealership receptionist is a suitable position for the  
worker vocationally and socially. We found the following evidence significant in  
coming to this conclusion.  
Position Description and Requirements  
The WCB Vehicle Dealership Receptionist profile describes the position as  
follows:  
“Work at a dealership, greet people or direct them to contacts/service  
areas/page appropriate staff member, answer and/or forward telephone  
calls to the appropriate department and perform general clerical duties.  
Responsibilities may require data entry.”  
[83]  
[84]  
An intermediate level of English is needed for verbal and reading skills, and  
writing skills are required to be at a fluent level. The majority of employers do not  
require experience. This profile is based on interviews with seven employers and  
was revalidated in August 2018.  
The specific Dealership Receptionist postings provided by the WCB to the worker  
do not specify a language level. While one posting notes that experience is  
preferred, experience is not a requirement for any of the positions. The  
responsibilities include, among other things, greeting and assisting customers,  
Classification: Protected A  
Page 17  
Decision No.: 2022-0246  
answering calls, ensuring calls are dispatched or messages are taken and  
distributed in a timely manner, notifying staff about customers arrival, providing  
basic information, and acting courteously and professionally.  
English and Communication Skills  
[85]  
We are satisfied the worker has the requisite English skills for the position, based  
on the following evidence.  
[85.1]  
A March 14, 2019 Vocational Rehabilitation Services (VRS) Career  
Planning Memo notes that for a dealership receptionist position, the  
vocational counsellor would recommend accent reduction course,  
computer training and customer service course. It also notes that the  
worker did not express any concerns with the dealership receptionist  
option.  
[85.2]  
[85.3]  
An April 1, 2019 VRS Planning Phase Report noted that the worker  
thought the receptionist vehicle dealership was more suitable for him than  
a data entry clerk. The position was therefore selected as a target option.  
The April 2019 report notes that the worker interacts well with a wide  
variety of people. It states that that the worker demonstrated fluent to  
intermediate English skills and completed most of the paperwork on his  
own:  
[The worker] completed the following duties (work, volunteer and/or  
education) that demonstrate his English language skills:  
Fluent to Intermediate Reading: emails, manuals, letters, medical  
paperwork; [The worker] completed all of his additional training, once  
in Canada, in English - this would include highly technical information  
Fluent Written: emails, letters, memos, filling out paperwork; [the  
worker] completed all of his additional training, once in Canada, in  
English this would include highly technical information  
Fluent to Intermediate Verbal: [the worker] has completed all of his  
additional training, once in Canada, in English this would include  
highly technical information; he has reported on the form he filled out  
that it is not good enough to communicate with supervisor, co-worker  
by phone’  
[The worker] attended an ESL benchmark assessment at Equilibrium on  
February 11, 2019 and the final scores provided are as follows:  
Listening: 7-  
Speaking: 6+  
Reading: 6-  
Classification: Protected A  
Page 18  
Decision No.: 2022-0246  
Writing: 6+  
The report specifies that:  
Clients verbal skills are at the high intermediate level  
Clients reading skills are at the high intermediate level  
Clients writing skills are at the fluent level  
Although [the worker] meets the English proficiency, he has a strong  
accent and therefore, an accent reduction course is being proposed.  
[The worker] believes that this course will increase his comfort levels with  
verbal communication. The course has been outlined in detail under  
Training Plan.”  
[85.4]  
The worker confirmed at the hearing that he had completed the accent  
reduction course provided by the WCB, although he felt it was not  
adequate. He also confirmed that he had competed a customer service  
course. From our review of the information before us, we see that the  
worker has also been provided basic and intermediate computer training  
in spring 2019.  
[86]  
[87]  
We find that the most recent result of ESL testing confirms that the worker has  
the required level of English verbal, reading and writing skills for the position.  
As noted above, the representative argued that the workers academic  
assessment results do not support that he has the required English skills.  
However, we put less weight on these results in the academic assessment than  
the vocational assessments and language testing for the following reasons:  
[87.1]  
The academic assessment was conducted for a different purpose. It was  
. . . to assess the feasibility of [the worker] attending academic retraining  
programs, given his aptitudes, interests, and physical limitations.” The  
report notes that the worker would like to complete a diploma in either  
Mechanical Engineering Technology or the Technician program. In our  
view, assessing the worker for this purpose is much different than a  
assessing his skills for the purpose of determining whether he meets the  
job requirements for a car dealership receptionist position.  
[87.2]  
[87.3]  
In addition, the specific portion of the academic assessment relied upon  
by the representative relates to the workers current level of educational  
achievement, not vocational interests.  
We find that the level of verbal, reading and writing skills required to  
attend academic retraining programs, such as Mechanical Engineering  
Technology or a technician program is likely to be significantly different  
than that required to be a dealership receptionist. As reflected in the  
Classification: Protected A  
Page 19  
Decision No.: 2022-0246  
receptionist postings above, the receptionist position would not involve  
studying, understanding or communicating in-depth or technical  
knowledge, instead it would involve providing basic information.  
[87.4]  
The vocational assessments identified a specific position and assessed  
the workers skills against the requirements of that position. The  
assessment was done by vocational and employment specialists, whose  
job it is to assess workers against specific position requirements. We  
therefore place more weight on the vocational assessments, and in  
particular the April 2019 assessment.  
[88]  
From the material before us and the workers testimony at the hearing, it appears  
that the worker lacks confidence in his communication skills, in part due to his  
ESL status. It is clear that he perceives that his skills are not sufficient.  
However, this does not mean that he does not have the required skills for the  
position.  
[88.1]  
As can be seen from the workers employment history in the September 2,  
2014 RTWS Skills Profile, the worker was employed as a journeyman  
electrician with different companies. In our view, as an electrician, the  
worker would have had to be able to effectively communicate with his  
employers and co-workers on the job site in order to perform his job in a  
safe manner.  
[88.2]  
This report also notes that, among other things, the worker has customer  
service experience, is able to communicate effectively with others, is able  
to work in a team environment, and is able to handle stress and work in a  
highly pressured work environment. The worker is also noted as being  
proficient in communication skills, for example, talking to strangers in  
ordinary settings.  
[88.3]  
[88.4]  
In a September 30, 2014 VRS Planning Phase Report, the worker  
reported that he was able to function verbally and able to read and write  
English on a technical level and has been doing this since working as a  
journeyman electrician in Canada.  
A September 1, 2015 email from the ESL training school indicates the  
following:  
. . . [The worker] understands conversations about everyday situations  
as well as moderately complex formal and informal communication  
including some abstract concepts and ideas related to general  
knowledge. He can communicate with some confidence in routine social  
situations and present concrete information is [sic] some detail about  
familiar topics.”  
Classification: Protected A  
Page 20  
Decision No.: 2022-0246  
[88.5]  
[88.6]  
In a May 2, 2016 RTWS Skills Profile Report, it was noted that while an  
interpreter was present, the worker was able to communicate effectively  
without the use of the translator. He did use the translator to ensure he  
understood more complex English.  
The record before us also demonstrates that the worker has challenged  
exams for power engineering and journeyman electrician with red seal in  
English. He also has several construction tickets or certificates, which we  
understand would have been completed in English. In our view, the  
workers ability to challenge exams and obtain his tickets and construction  
certificates support his ability to communicate effectively in English.  
[89]  
Therefore, although the worker may lack confidence in his abilities, we are  
satisfied that the weight of evidence supports that the worker has sufficient  
English language and communication skills required for a positon as a car  
dealership receptionist.  
Social Circumstances  
[90]  
We are also satisfied that the position is not inconsistent with the workers social  
circumstances, based on the following evidence.  
[90.1]  
As noted above, the September 2, 2014 RTWS Skills Profile indicates that  
the worker is able to work in a team environment and is able to handle  
stress and work in a highly pressured work environment. The worker is  
also noted as being proficient in interpersonal skills.  
[90.2]  
The April 2019 VRS Planning Phase Report indicates that the worker  
interacts well with a wide variety of people, building relationships of trust  
and understanding. It notes that he is able to handle stress and work in a  
highly pressurized environment. In addition, he is able to perform general  
clerical duties including answering phones and relaying/exchanging  
information. He is noted to have strong organizational skills with the ability  
to prioritize, and pays a high level of attention to detail.  
[90.3]  
The March 8, 2019 Academic Assessment, under the section measuring  
vocational interests, the report concludes that the workers specific  
vocational interest profile type suggests that he prefers jobs working with  
people, where he has clear and organized rules to guide his job  
performance and where he can make decisions based on logic.  
[91]  
The representative argued that the workers career had little involvement with  
customer service and clerical work. In addition, the worker testified that no  
employers replied to his applications over the course of his seeking a job and  
applying for receptionist positions. He said that this shows that employers want  
workers with experience.  
Classification: Protected A  
Page 21  
Decision No.: 2022-0246  
[91.1]  
However, we note that experience is not a requirement for the receptionist  
position, under the position profile or in the specific job postings. Further,  
as the WCB is responsible for assisting the worker in achieving  
employability, not employment (as further discussed under Issue 3), we  
are unable to attribute any weight onto the fact that the worker has not  
been hired as a car dealership receptionist.  
[92]  
We also note that at the hearing, the worker advised that he is currently working  
as a front desk receptionist for a company that deals with restaurant and food  
equipment. The representative advised that the worker mainly communicated  
with customers in Mandarin, as the customers operate Chinese restaurants.  
While he may primarily work in Mandarin, we find it significant that he is currently  
working in a similar customer service role.  
[93]  
[94]  
In addition, the evidence demonstrates that the worker completed a two-day  
customer service training course in April 2019.  
Therefore, in light of the workers transferable skills noted in the RTWS Skills  
Profile, the additional customer service training, and the workers demonstrated  
ability to work in a similar role, we find that the position is not inconsistent with  
the workers social circumstances.  
Conclusion Issue 2  
[95]  
[96]  
[97]  
We find that the weight of evidence supports that the position of car dealership  
receptionist is a suitable position for the worker.  
There is no dispute before us or on the evidence that the position is available,  
and is consistent with the workers physical and psychological circumstances.  
In addition, we find that the weight of evidence demonstrates that it is consistent  
with his English verbal, reading and writing skills, his communications skills and  
his social circumstances.  
[98]  
[99]  
Accordingly, we are satisfied that the workers ELP was appropriately calculated  
based on the estimated earnings of this deemed positon.  
Decision Issue 2  
The workers economic loss payment was appropriately calculated based on  
estimated post-accident earnings capacity of a car dealership receptionist.  
[100]  
[101]  
The workers appeal on this issue is denied.  
The January 20, 2021 Dispute Resolution and Decision Review Body decision on  
this issue is confirmed.  
Classification: Protected A  
Page 22  
Decision No.: 2022-0246  
Issue 3: Is the worker entitled to additional vocational services or  
benefits?  
Legislation and Policy  
[102]  
In considering Issue 3, we generally applied the legislation in effect at the time of  
the hearing. However, with respect to section 56, we referred to section 56 of the  
prior WCA, for the same reasons as we did in Issue 2.  
[103]  
[104]  
[105]  
In addition, we applied the policies in effect at the time of the case managers  
October 29, 2019 decision.  
The relevant sections of the WCA, and WCB policies are summarized below, and  
are available publicly through the WCBs website.  
Section 56 of the prior WCA states a worker is entitled to periodic payment of  
compensation in the case of permanent disability. The WCA also authorizes the  
WCB to offer vocational and rehabilitation services to assist an injured worker to  
return to work (section 89).  
[106]  
When a work-related injury results in compensable work restrictions that impair a  
workers employability at pre-accident insurable earning levels, a plan will be  
developed for appropriate, cost-effective return-to-work services to help the  
worker return to his date-of-accident employer or, if that is not possible, to  
employability. Return-to-work services may include job search assistance. To  
be eligible for return-to-work services, a worker must be entitled to benefits under  
section 56 of the WCA.  
[107]  
The WCB has no control over several factors that affect a workers return to  
employment. These factors include:  
economic conditions,  
the availability of employment opportunities,  
the workers effort and commitment to find employment, and  
an employers decision about whom to hire.  
[108]  
Because these factors are beyond WCB control, the WCB is responsible for  
helping the worker achieve employability, not employment. The WCB will help  
the worker identify and develop the skills and capabilities to competitively pursue  
Classification: Protected A  
Page 23  
Decision No.: 2022-0246  
employment. The WCB considers a worker employable when suitable work has  
been identified which the worker is capable of performing (Policy 04-05, Part I,  
issued September 5, 2018).  
[109]  
In light of the legislation and policy set out above, to decide Issue 3 in this  
appeal, the panel considered the following questions:  
[109.1] Was the worker entitled to or receiving section 56 benefits beyond  
October 14, 2020 (for example, an ELP)?  
[109.2] If so, are further return-to-work services beyond October 14, 2020  
reasonably necessary to return the worker to employability?  
Evidence and Findings  
[110]  
There is no dispute that the worker was entitled to an ELP beyond October 14,  
2020. He has permanent compensable work restrictions impacting his ability to  
return to his date of accident job and his earnings capacity. The estimated salary  
of a car dealership receptionist is not equivalent to his date-of-accident salary as  
a journeyman electrician. Accordingly, the WCB found that the worker was  
entitled to an ELP beyond October 14, 2020.  
[111]  
[112]  
Therefore, in order to determine whether the worker is entitled to additional  
vocational services or benefits beyond October 14, 2020, we must consider  
whether the further services or benefits are reasonably necessary to return the  
worker to employability.  
The representative argued that the worker was entitled to an additional ten  
weeks of SJS benefits, taking him to December 24, 2020, because:  
The target job identified was not suitable,  
The worker did not find a job and remained unemployed until  
January 14, 2022,  
Calgary unemployment rates were at 14.9%,  
The COVID pandemic negatively affected the job market,  
The worker actively participated in SJS, but was not successful, and  
On August 12, 2020, the WCB indicated to the worker that he would be  
entitled to SJS until December 24, 2020.  
[113]  
We find that further services or benefits were not reasonably necessary to return  
the worker to employability based on the following evidence and for the following  
reasons.  
Classification: Protected A  
Page 24  
Decision No.: 2022-0246  
[114]  
[115]  
[116]  
First and foremost, we have found under Issue 2 that the position of a car  
dealership receptionist is a suitable position for the worker. There were positions  
available and accessible to the worker, as demonstrated by the current job leads  
provided, and the worker had the required skills for the job. The position was not  
inconsistent with his vocational, social, physical or psychological circumstances.  
Accordingly, we are satisfied that the WCB satisfied its responsibility under the  
policy to the return the worker to employability.  
Second, while the worker was not able to obtain a position as a car dealership  
receptionist by the time the SJS benefits were stopped, Policy explicitly indicates  
that the WCB is not responsible for returning the worker to employment, as the  
WCB has no control over factors such as economic conditions or an employers  
decision about whom to hire. It is unfortunate that the worker was not able to  
obtain employment, but this, in and of itself, is insufficient to support continued  
SJS benefits.  
Third, we do not accept the workers argument that the WCB told him that he  
would receive SJS benefits until December 24, 2020. We have reviewed the  
August 12, 2020 letter. In it, the WCB case manager indicated that due to the  
high unemployment rate and because the worker worked for his employer for  
less than a month, he would be entitled to an extension of “up to 18 weeks.” This  
would take the benefits up to December 24, 2020. However, it is explicitly noted  
that the benefits would end sooner if:  
The worker found a job.  
The re-employment team gave the worker a current job lead. In this  
case, the workers benefits would stop one week after he was given  
the job lead. If he was pursuing work from the job lead, benefits would  
continue until the re-employment team has provided all available  
assistance to help the worker get the job.  
The worker was not actively participating in a job search and/or  
not meeting the expectations for the job search that the worker, his  
re-employment specialist and the case worker agreed upon.  
[117]  
[118]  
Accordingly, we do not view the letter as a commitment by the WCB to extend  
the benefits until December 24, 2020. Instead, it is clear that the SJS benefits  
could end sooner if certain conditions arose.  
The evidence shows that the worker was provided a current job lead for car  
dealership receptionist. Therefore, in accordance with the August letter, the SJS  
benefits ended sooner than December 24, 2020. Rather than ending the benefits  
one week later as the August letter indicated, the WCB actually continued the  
SJS benefits for another two weeks, until October 14, 2020.  
Classification: Protected A  
Page 25  
Decision No.: 2022-0246  
[119]  
[120]  
We also note that the high unemployment rate where the worker lived was taken  
into account when the WCB extended the workers SJS benefits in August 2020.  
In our view, a further extension due to this same factor was not warranted.  
Finally, we note that the worker had been provided with several WCB-sponsored  
vocational training opportunities and courses since 2014, as well as other forms  
of return to work assistance, including:  
Career counselling,  
Resume preparation,  
Return to work skills profiles,  
Several vocational assessments to identify vocational interests and  
possible target jobs,  
24 weeks of SJS assistance,  
ESL courses and testing in 2015, 2016 and 2019  
Intermediate Computer training in 2017, and Level 1, 2, and 3  
Computer training in 2019,  
Project management certificate in 2018,  
Accent reduction course in 2019, and  
Fundamentals of customer service course in 2020.  
[121]  
Given the amount of assistance provided to the worker since his accident, we are  
not persuaded that further return-to-work services, such as another ten weeks of  
SJS, were reasonably necessary.  
Conclusion Issue 3  
[122]  
[123]  
[124]  
[125]  
[126]  
It is undisputed that the worker was entitled to section 56 benefits at the time of  
the case managers decision. As such, he was eligible for return-to-work  
services, such as SJS benefits.  
However, we find that further SJS benefits beyond October 14, 2020 were not  
reasonably necessary because the WCB had returned the worker to  
employability by this date and a suitable position had been found.  
The workers continued unemployment does not, in and of itself support an  
extension of the SJS benefits, as policy indicates that the WCB is not responsible  
for returning the worker to employment.  
We also do not accept that the WCB committed to providing SJS benefits until  
December 24, 2020. It is clear from its letter that the benefits could end sooner  
in certain circumstances, which we have found occurred.  
In addition, given the training and support the worker has received to date, we  
are not persuaded that a ten-week extension is reasonably necessary.  
Classification: Protected A  
Page 26  
Decision No.: 2022-0246  
[127]  
Therefore we conclude that the worker is not entitled to additional vocational  
services or benefits, including ten additional weeks of SJS.  
Decision Issue 3  
[128]  
[129]  
[130]  
The worker is not entitled to additional vocational services or benefits.  
The workers appeal on this issue is denied.  
The January 20, 2021 Dispute Resolution and Decision Review Body decision on  
this issue is confirmed.  
This decision is made with the full agreement of the hearing panel.  
Decision signed in Edmonton, Alberta on June 8, 2022.  
J. Saunders  
Hearing Chair  
(on behalf of the panel)  
Hearing Panel:  
J. Saunders  
D. Boissonneault  
E. Dumont  
Hearing Chair  
Commissioner  
Commissioner  
Typed by: imc/pt  
E_DEC08D (20210701)  
Classification: Protected A  
Page 27  
Decision No.: 2022-0246  
Appendix A  
Legislation WorkersCompensation Act, RSA 2000, c W-15 (WCA)  
[A1]  
Section 1(1)(a):  
Interpretation  
1(1) In this Act,  
(a) accidentmeans an accident that arises out of and occurs in the  
course of employment in an industry to which this Act applies and  
includes  
(i) a wilful and intentional act, not being the act of the worker  
who suffers the accident,  
(ii) a chance event occasioned by a physical or natural cause,  
(iii) disablement, and  
(iv) a disabling or potentially disabling condition caused by an  
occupational disease;”  
[A2]  
Section 13.2(6):  
Appeals  
13.2(1) . . .  
(6) In the hearing of an appeal under this section, the Appeals  
Commission  
(a) shall give all persons with a direct interest in the matter under  
appeal an opportunity to be heard and to present any new or  
additional evidence,  
(b) is bound by the board of directorspolicy relating to the matter  
under appeal,  
(c) shall, subject to subsection (6.1), permit the Board to make  
representations, in the form and manner that the Appeals  
Commission directs, as to the proper application of policy  
determined by the board of directors or of the provisions of this  
Act or the regulations that are applicable to the matter under  
appeal,  
(d) may confirm, reverse or vary the decision or determination  
appealed,  
(e) may direct that its decision be implemented within a specified  
time period, and  
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(f) may refer any matter back to the review body or the Board, as  
the case may be, for further action or decision, with or without  
directions.”  
[A3]  
Section 24(1):  
Eligibility for compensation  
24(1) Subject to this Act, compensation under this Act is payable  
(a) to a worker who suffers personal injury by an accident, unless the  
injury is attributable primarily to the serious and wilful misconduct  
of the worker, . . .”  
[A4]  
Section 56 of the version of the WCA in effect from June 1, 2018 to  
August 31, 2018:  
Compensation for disability  
56(1) The Board shall pay periodic compensation  
(a) on a monthly basis in the case of permanent disability,  
(b) on a biweekly basis in the case of temporary disability, or  
(c) on a basis other than under clause (a) or (b), if the Board  
considers it appropriate to do so.  
(2) If an accident causes injury to a worker and results in disablement,  
the Board shall pay periodic compensation to the worker based on the  
workers net earnings, and for that purpose the Board shall calculate the  
workers net earnings in accordance with the regulations and based on  
a period or periods of time prior to the accident that, in the Boards  
opinion, fairly and justly represent the workers net earnings at the time  
of the accident.  
(2.1) If the period or periods of time prior to the accident referred to in  
subsection (2) are, in the Boards opinion, insufficient to allow the Board  
to calculate the workers net earnings, the Board may pay periodic  
compensation based on another amount as determined by the Board,  
subject to the maximum payable under subsection (4).  
(3) In making a calculation under subsection (2), the Board shall  
consider separately each source of employment the worker had at the  
time of the accident from which the worker no longer has the ability to  
earn wages or in which the workers ability to earn wages is impaired,  
due to the accident, regardless of whether the source of employment is  
in an industry to which this Act applies.  
(4) In computing net earnings for the purposes of this Act, no regard  
may be taken of the aggregate gross annual earnings of the worker in  
excess of an amount prescribed by order of the Board.  
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(5) An order referred to in subsection (4) applies only in respect of an  
accident that occurs on or after the day specified in the order.  
(6) The amount of the periodic payment of compensation is  
(a) in the case of permanent total disability and temporary total  
disability, 90% of the workers net earnings, and  
(b) in the case of permanent partial disability and temporary partial  
disability, a proportionate part of 90% of the workers net  
earnings based on the Boards estimate of the impairment of  
earning capacity from the nature and degree of disability.  
(7) Compensation for permanent total disability and permanent partial  
disability is payable to the worker during the workers lifetime and shall  
not be less than  
(a) in the case of permanent total disability, $900 per month, and  
(b) in the case of permanent partial disability, a proportionate part of  
$900 per month based on the Boards estimate of the impairment  
of earning capacity from the nature and degree of disability.  
(8) Compensation for temporary total disability and temporary partial  
disability is payable to the worker only as long as the disability lasts,  
and compensation for temporary total disability shall be  
(a) where the workers biweekly net earnings are greater than the  
sum referred to in subsection (7)(a), the greater of  
(i) the sum referred to in subsection (7)(a), and  
(ii) the biweekly equivalent of the amount that the worker would  
have received under subsection (6) had the worker been  
permanently totally disabled,  
and  
(b) where the workers biweekly net earnings are equal to or less  
than the sum referred to in subsection (7)(a), 100% of those  
biweekly net earnings.  
(9) Where work is made available to a worker who is temporarily  
partially disabled and the Board is satisfied that the worker is medically  
and physically capable of doing the work and that, considering all the  
circumstances, it is fair and just to expect the worker to accept the work,  
the following applies, notwithstanding subsection (8):  
(a) if the worker accepts the work, the Board shall pay periodic  
compensation to the worker if, in doing the work, the worker  
suffers an earnings loss that is caused by the residual disability,  
and in that case the compensation shall be in an amount that is a  
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proportionate part of 90% of the workers earnings loss, based on  
the Boards estimate of the degree to which the earnings loss is  
caused by the residual disability;  
(b) if the worker refuses the work, the Board shall continue to pay  
periodic compensation to the worker in accordance with clause  
(a) as if the worker had accepted the work.  
(10) Subsection (9) applies regardless of whether the work is in an  
industry to which this Act applies.”  
[A5]  
Section 63:  
Determining impairment of earning capacity  
63 In determining the degree of impairment of earning capacity, the  
Board may consider as a factor the nature of the injury and the physical  
and mental fitness of the worker to continue in the employment in which  
the worker was injured or to adapt himself or herself to some other  
suitable employment.”  
[A6]  
Section 89:  
Board to provide vocational and rehabilitation services  
89(1) The Board shall take whatever measures it considers necessary  
to assist a worker injured in an accident and entitled to compensation to  
return to work and to lessen or eliminate any handicap resulting from  
that injury and, without limiting the generality of the foregoing, may offer  
to do any or all of the following:  
(a) provide physical, social and psychological services;  
(b) relocate a worker who suffers from an occupational disease and  
the workers dependants if, in the opinion of the Board, a change  
of industry or occupation is advisable;  
(c) provide vocational or other rehabilitation services;  
(d) reimburse a worker engaged in a vocational or rehabilitation  
program the workers actual and reasonable expenses, including  
the cost of relocation, if applicable.  
(2) If a worker dies as a result of an accident, the workers dependent  
spouse or dependent adult interdependent partner is entitled to receive  
the same benefits and services as would have been available to the  
worker under subsection (1) had the worker lived.  
(3) The Board may, if it is of the opinion that such action will assist in  
the rehabilitation of a dependent spouse or dependent adult  
interdependent partner receiving benefits under section 70, provide that  
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dependent spouse or dependent adult interdependent partner with a  
pension advance but the total of the term pension payments received and  
the pension advance shall not exceed the total amount payable under  
section 70.”  
Classification: Protected A  
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Appendix B  
WorkersCompensation Board Policy  
[B1]  
Policy 03-01, Part I, issued September 5, 2018:  
POLICY:  
WCB will determine whether an injury has occurred as the result of a  
compensable accident, and will adjudicate appropriate compensation and  
services from the date of accident. WCB may also consider a second  
injury compensable if it is the direct result of the original compensable  
injury.  
When determining its responsibility, WCB will evaluate the relationship  
between the injury and the compensable accident. In second injury  
cases, WCB will evaluate the relationship between the original  
compensable injury and the second injury.  
This policy is effective February 1, 2012, except when noted otherwise in  
a specific policy section(s).“  
[B2]  
Policy 03-01, Part II, Application 1, issued July 4, 2018:  
1.  
Why is the relationship of injury to compensable accident  
important?  
To be compensable, an injury must be the result of an accident as  
defined under Policy 02-01, Arises Out of and Occurs in the Course of  
Employment. Therefore, when adjudicating the eligibility of a claim, WCB  
looks at the nature of the injury and its relationship to the compensable  
accident.  
Often there is an obvious relationship between the nature of the injury  
and the compensable accident (e.g., a firefighter is burned when fighting  
a fire). However, the relationship is not always obvious. In these cases,  
there is a need for additional information, especially medical information,  
to establish the relationship to the compensable accident. For example,  
many occupational diseases have a long latency period. WCBs inquiries  
must establish whether the work-related exposure was sufficient to cause  
the condition (see Application 3, Occupational Disease).  
[B3]  
Policy 03-02, Part I, issued September 5, 2018:  
POLICY:  
When an accident causes a pre-existing condition or disease to  
deteriorate or become symptomatic to the point where a worker is no  
longer able to perform all aspects of the job, WCB shall allow entitlement  
on the basis of an aggravation factor.  
. . .  
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INTERPRETATION  
1.0  
Pre-existing Condition  
A pre-existing condition is any pathological condition which, based on a  
confirmed diagnosis or medical judgment, pre-dated a work-related injury.  
2.0 Aggravation  
An aggravation is the clinical effect of a compensable accident on a  
pre-existing condition, resulting in temporary or permanent clinical  
impairment and/or loss of earning capacity.”  
[B4]  
Policy 03-02, Part II, Application 1, issued April 3, 2018:  
1. When are claims adjudicated under this policy?  
For a claim to be considered under this policy there must be the  
confirmed presence of a pre-existing condition and evidence it was  
aggravated by a compensable accident.  
The fact that a worker has a pre-existing condition does not necessarily  
mean it was aggravated by the compensable injury. If the clinical  
diagnosis of a pre-existing condition is incidental to the nature of the  
disability, the claim is not subject to this policy.  
WCB does not extend coverage under this policy or under Policy 02-01  
(Arises Out of and Occurs in the Course of Employment) if the need  
for treatment or lay-off from work is due solely to a pre-existing,  
non-compensable condition.  
2.  
How does WCB determine if a pre-existing condition has  
been aggravated?  
There must be clear documentation of a pre-existing condition and it must  
be apparent from the objective medical information available that the  
compensable accident caused some worsening of this condition, at least  
on a temporary basis.  
WCB will consider the relationship between the pre-existing condition and  
the accident, including the mechanism of injury (for example, twisting,  
lifting heavy objects), the extent or severity of the underlying condition,  
and the degree to which the injury may have affected the condition.”  
[B5]  
Policy 02-01, Part II, Application 7, issued April 3, 2018:  
3.  
What is a standard of causation?  
A standard of causation is the legal standard or legal test that is applied  
to determine whether the injury or disease is caused by work (that is, to  
have arisen out of and occurred in the course of employment).  
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4.  
What standard of causation does WCB apply?  
The standard of causation used by WCB is the but fortest, except when  
specifically stated otherwise.  
5.  
What is the but fortest?  
The but fortest is a finding of fact the work exposures were necessary  
for the accident and injury to occur. In other words, if not for the work  
exposures, the injury or disease would not have happened.  
In some cases there may be several causes that meet the but fortest  
that work in combination to cause an injury. Work does not have to be  
the only factor, or even the primary one, for the injury to be compensable.  
It must, however, be a necessary factor; if the injury or disability would  
have happened anyway, regardless of the work factor, it is not  
compensable.  
The finding of fact is based on the evidence and accepted medical  
knowledge, not on a speculative connection.  
6.  
How does the balance of probabilities apply when  
determining causation?  
The balance of probabilities is the standard of proof used by WCB-  
Alberta.  
For example, when adjudicating a claim where the standard of causation  
is the but fortest, WCB weighs all the evidence and determines if it is  
more likely than not that, but for the workers employment, the injury  
would not have occurred (see also Policy 01-03, Benefit of Doubt).”  
[B6]  
Policy 04-04, Part I, issued September 5, 2018:  
POLICY:  
When a compensable accident results in permanent disability, WCB  
provides permanent disability benefits to the worker for any measurable  
permanent clinical impairment and for any impairment of earning capacity  
attributable to the compensable injury.  
. . .  
INTERPRETATION  
1.0  
Permanent Disability  
A worker is considered to have a permanent disability when a work injury  
results in:  
a permanent measurable clinical impairment, or  
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an impairment of earning capacity due to permanent compensable  
work restrictions, or  
both.  
. . .  
3.0  
Impairment of Earning Capacity  
WCB determines an impairment (loss) of earning capacity by assessing  
the impact permanent compensable work restrictions will have on the  
workers ability to earn in any suitable employment (see Application 1,  
Question 3).  
4.0  
Permanent Disability Benefits  
The method of calculating permanent disability benefits was revised  
effective January 1, 1995, and depends on whether the date of accident  
was before January 1, 1995, or on or after January 1, 1995.  
Injuries Occurring on or after January 1, 1995  
When an accident occurs on or after January 1, 1995, WCB provides the  
following permanent disability benefits:  
a Non-Economic Loss Payment (NELP), which is a lump sum  
payment based on the measurable clinical impairment  
an economic loss payment, which is a periodic payment based on the  
loss of earning capacity caused by the disability. The economic loss  
payment is subject to reconsideration under [section] 17 of the WCA.  
WCB exercises its discretion to reconsider economic loss payment  
decisions by scheduled and ad hoc reviews of the workers  
impairment of earning capacity. Economic loss payments will be  
adjusted to reflect changes to impairment of earning capacity and will  
end if the impairment of earning capacity ends.  
See Application 3 for accidents occurring on or after January 1, 2018.  
See Application 4 for accidents from January 1, 1995, to December 31,  
2017, inclusive.”  
[B7]  
Policy 04-04, Part II, Application 1, Issued September 5, 2018:  
3.  
How does WCB determine whether there is a compensable  
impairment of earning capacity?  
Once the worker has reached medical and vocational plateaus, WCB  
compares the workers annual net earnings at the time of the accident  
(calculated in accordance with the WCA and the WC Regulation), with the  
workers actual or estimated post-accident net earnings. WCB then  
evaluates whether any reduction in earnings is attributable to the  
permanent disability.  
Classification: Protected A  
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4.  
When does WCB estimate earning capacity instead of using  
actual post-accident earnings?  
WCB estimates the workers earning capacity in suitable employment  
only when it has made every reasonable effort to support the worker in  
searching for suitable employment, and  
a) despite ability, a worker does not engage in employment, or  
b) a worker is unable to secure suitable employment, or  
c) a worker engages in employment which fails to maximize earning  
capacity.  
5.  
What is meant by every reasonable effort to support the  
worker in searching for suitable employment?  
WCB has made every reasonable effort to support the workers search for  
suitable employment when:  
a) vocational services have been offered and completed, and  
b) a vocational plan has been developed with the worker, and  
c) a job search has been completed, or  
d) the worker declines to participate in any aspect of the vocational  
planning and/or job search.  
6.  
What is suitable employment?  
For the purposes of estimating earning capacity, suitable means  
employment which is consistent with the workers ability and which is  
within the workers locale or may be obtainable where relocation is  
reasonable. WCBs assessment of ability will be based on physical,  
vocational, social, and psychological circumstances and such other  
factors as WCB may consider relevant.  
7.  
What is the estimate of earning capacity based on?  
The estimate of earning capacity is usually based on information  
related to the vocational plan. The plan identifies suitable employment  
and the workers earning capacity in that employment. If the worker is  
self-employed, the estimate will normally be based on the approved  
business case.  
WCB may base the estimate on other information under some  
circumstances (for example, if the worker unexpectedly increases earning  
capacity with other employment, the workers compensable work  
restrictions change, etc.). Each case will be judged on its own merits.  
See Policy 04-05 for details on return-to-work services and the  
return-to-work plan.”  
Classification: Protected A  
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[B8]  
Policy 04-05, Part I, issued September 5, 2018:  
3.0 Eligible Workers  
To be eligible for return-to-work services, the worker must be entitled to  
benefits under [section] 56 of the WCA. As return-to-work is a  
cooperative effort, services are also dependent on the commitment and  
determination of workers to return to the workplace. If a worker chooses  
not to cooperate, WCB may suspend or terminate services.  
4.0  
Return-to-work plan  
The plan includes details and costs of the services to be used in helping  
the worker return to employment with the accident employer or to  
employability. The plan also includes an estimate of the workers earning  
capacity on completion of the plan. The plan will form the basis of any  
estimation of the workers earning capacity for calculating earnings loss.  
5.0  
Appropriate and Cost-Effective  
WCB will consult with the worker and, where possible, the employer to  
jointly develop an appropriate and cost-effective return-to-work plan that  
is consistent with the workers abilities, skills, and potential. The  
return-to-work plan is considered appropriate if the worker has a  
reasonable probability of successfully achieving the vocational goal.  
In most cases, WCB determines cost-effectiveness by comparing:  
a) the total estimated costs of required vocational services,  
b) the remaining compensation benefits that the worker is entitled to,  
c) the estimated cost of alternative return-to-work plans, and  
d) the estimated benefit costs if no return-to-work services are provided.  
For workers with severe disabilities, other rehabilitation factors may be  
more important than vocational cost-effectiveness. Refer to Policy 04-07,  
Services for Workers with Severe Injuries.  
Non-Compensable Rehabilitation Barriers  
When a combination of compensable and non-compensable factors  
delays or prevents a workers return to employability, WCB may provide  
assistance to address the combined problems. WCB will not provide  
assistance when the sole obstacle is non-compensable.  
6.0  
Services  
Services include any reasonable activity or expense required to restore  
the workers employability. The services may include, but are not limited  
to:  
counselling services  
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job clubs  
job search assistance  
relocation assistance  
re-employment assistance  
temporary modified work programs  
training  
vocational assessments  
workplace modifications  
7.0  
Employability  
WCB has no control over several factors that affect a workers return to  
employment. These factors include:  
economic conditions,  
the availability of employment opportunities,  
the workers effort and commitment to find employment,  
an employers decision about whom to hire.  
Because these factors are beyond WCB control, WCB is responsible for  
helping the worker achieve employability, not employment. WCB will help  
the worker identify and develop the skills and capabilities to competitively  
pursue employment.  
WCB considers a worker employable when suitable work has been  
identified which the worker is capable of performing. To be suitable, work  
must meet the following conditions:  
a) the work can be performed without endangering the workers recovery  
or safety and the safety of others,  
b) the worker has the skills the work requires, and  
c) the work is reasonably available in a location to which the worker may  
reasonably commute or relocate.”  
Classification: Protected A  



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