Decision No.: 2021-0334  
Page 1  
Appeals Commission for Alberta Workers’ Compensation  
Docket No.: AC0189-20-24  
Decision No.: 2021-0334  
Introduction  
[1]  
[2]  
This appeal is about whether the worker’s earnings loss supplement (ELS) was  
appropriately estimated on the basis of a minimum wage position at full-time  
hours, effective July 24, 1994.  
In particular, the worker appeals the following two decisions of the Dispute  
Resolution and Decision Review Body (DRDRB) of the Workers’ Compensation  
Board (WCB) to the Appeals Commission.  
December 1, 2020 DRDRB Decision  
[3]  
On December 1, 2020, the DRDRB wrote that it had made a “reconsideration  
decision”. For ease of reference we will hereafter refer to this decision as the  
December 1, 2020 DRDRB decision. In this decision, the DRDRB resolution  
specialist noted:  
“Based on the Appeals Commission decision, the Dispute Resolution and  
Decision Review Body re-examined the decision of November 24, 1997 of  
the (CSRC) Claims Services Review Committee. Enclosed is a copy of  
the Reconsideration, which outlines the additional review and final  
decision. The result of the review has been relayed to the Customer  
Service Department.”  
[4]  
[5]  
The issue was stated as follows:  
“As the February 5, 2020 CFCE, March 27, 2020 Medical Consultant  
memo and May 14, 2020 TSA are new evidence, is a change in the  
November 24, 1997 CSRC decision supported?”  
The DRDRB resolution specialist explained she proceeded with the  
reconsideration “in relation to the November 24, 1997 CSRC decision” given the  
above new evidence. Applying WCB Policies 01-08 and 04-04, the resolution  
specialist concluded:  
“Based on my review of the new evidence submitted, I concluded the  
CSRC decision of November 24, 1997 remains unchanged as I find  
the new evidence does not provide substantial information to  
dispute the medical evidence or opinions on file, or the analysis of  
that evidence for which the CSRC based its’ decision on. Given this,  
I am unable to reconsider the decision of November 24, 1997. The  
decision of the CSRC remains unchanged.”  
Classification: Protected A  
Decision No.: 2021-0334  
Page 2  
March 25, 2021 DRDRB Decision  
On March 25, 2021, the DRDRB noted, in part:  
“On March 9, 2020, [the worker’s representative] requested an extension  
[6]  
to the one-year time limitation to review the February 2, 1998 case  
manager’s decision. On April 1, 2020, the Chair’s Delegate wrote to [the  
worker’s representative] explaining the decision that this request was not  
supported.  
Subsequently, [the worker’s representative] submitted several documents  
she believed was new evidence allowing for a reconsideration of the  
November 24, 1997 decision. On May 28, 2020, a resolution specialist  
concluded the documents were not new evidence and a reconsideration  
was not supported.  
. . .  
[The worker’s representative] pursued a request with the Appeals  
Commission that these same documents should be considered as new  
evidence for the February 2, 1998 case manager’s decision. On  
January 12, 2021, the Appeals Commission explained the February 2,  
1998 letters provided a decision about the earnings loss supplement to  
[the worker]. The Appeals commission concluded this letter was part of  
the chain of decision making about the entitlement that flowed directly  
from the November 24, 1997 [CSRC] decision. Accordingly, the three (3)  
documents determined to be new evidence (in the prior October 20, 2020  
Appeals Commission decision), would still be considered new evidence  
for the February 2, 1998 case manager’s decision.  
On February 16, 2021, the case manager . . . considered the three (3)  
documents and concluded it did not alter the decision to base wage loss  
supplement on full time employment at minimum wage for the period after  
November 24, 1994.”  
[7]  
[8]  
The issue was stated as:  
“Does the new evidence change the case manager’s February 2, 1998  
decision that determined the earnings loss supplement was appropriately  
calculated using minimum wage on a full-time basis?”  
Applying WCB Policy 04-04, the resolution specialist “agreed with the Appeals  
Commission” that the three documents were new evidence. However, she found  
they did not change the February 2, 1998 case manager’s decision that the ELS  
was appropriately calculated using minimum wage earnings on a full-time basis.  
She wrote:  
“Based on my review of [the worker’s] claim and WCB Policy 04-04 it  
is my decision the new evidence does not change the case  
manager's February 2, 1998 decision that determined the earnings  
loss supplement was appropriately calculated using minimum wage  
on a full-time basis. As a result, I am unable to support [the worker  
Classification: Protected A  
Decision No.: 2021-0334  
Page 3  
representative’s] request. I find the decision made by the case  
manager was reasonable and remains unchanged.”  
[9]  
The worker’s representative filed the worker’s appeal of the above DRDRB  
decisions within the appropriate time limits.  
[10]  
A WCB legal representative also participated in the appeal. While notified, the  
employer did not participate in the appeal.  
Background  
[11]  
The worker sustained extensive bilateral upper limb and facial injuries on July 8,  
1985, when an explosion occurred while she was working as a welder in a  
sulphur tank. WCB accepted responsibility for the following injuries:  
fractured left radius and ulna;  
inarticular smith fracture distal right radius;  
boxers fracture right fifth metacarpal;  
fractured left zygoma (cheek bone);  
fractured nasal bones;  
blow out fracture of the left inferior medial orbital floor;  
mild diplopia (double vision);  
major depression;  
osteoarthritis;  
left shoulder rotator cuff tendonitis;  
chronic pain; and  
surgeries.  
[12]  
[13]  
The WCB provided the worker with Temporary Total Disability (TTD) benefits  
until August 1, 1986, at which time the worker relocated overseas. During her  
time overseas, the worker tried to return to welding but could not do so. She also  
attempted modified secretarial work, but was again unsuccessful.  
TTD benefits were reinstated after the worker returned to Canada, from July 23,  
1990 to July 8, 1994. TTD benefits ended July 8, 1994 when the WCB  
concluded the available medical evidence indicated the worker was fit to perform  
suitable work. The WCB provided job search benefits from July 9, 1994 to  
July 23, 1994.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 4  
[14]  
The worker requested a review of the decision to end her TTD benefits. She  
believed she was not yet able to return to work. In a WCB review body decision  
(then called the Claims Service Review Committee or CSRC) of April 13, 1995,  
the CSRC confirmed it was reasonable to terminate the worker’s TTD benefits on  
the basis that she was fit to return to suitable work.  
[15]  
Since the worker had not returned to work, the WCB estimated her ELS, effective  
July 7, 1995, on the position of welding inspector. The WCB considered the  
stated job demands of welding inspector consistent with the worker’s job  
restrictions, limiting her to the lightest of sedentary work. Since the salary of a  
welding inspector was greater than her pre-accident salary, the worker’s ELS  
was terminated.  
[16]  
On August 29, 1995, the CSRC determined the position of welding inspector was  
not suitable. It reinstated the worker’s ELS, retroactive to July 24, 1994, and  
directed the WCB to find a suitable position upon which the worker’s ELS could  
be estimated.  
[17]  
[18]  
The WCB then determined that secretarial work fell within the worker’s work  
restrictions, given a recent medical opinion that the worker might be able to do  
secretarial work.  
On November 24, 1997, the CSRC determined secretarial work was not  
consistent with the worker’s work restrictions (hereafter referred to as the 1997  
CSRC decision). The CSRC directed the WCB to find a suitable position  
consistent with the worker’s abilities. In the interim, it directed that the worker’s  
ELS should be based on full-time employment at minimum wage.  
[19]  
Two months later, on February 2, 1998, a WCB case manager decided the  
worker’s ELS would be based on full-time employment at minimum wage until the  
worker could provide the WCB a suitable alternate position upon which to base  
her ELS (hereafter referred to as the 1998 Case Manager decision). The  
reasons for the 1998 Case Manager decision were explained in the case  
manager’s January 28, 1998 letter to his supervisor.  
[20]  
In 2020, the worker’s current representative contacted the WCB, requesting a  
reconsideration and review of the 1997 CSRC decision, as well as the 1998  
Case Manager decision. These requests were denied as being time barred.  
Ultimately, the worker’s representative requested that the 1997 CSRC and 1998  
Case Manager decisions be reconsidered/reviewed on the basis of new evidence  
obtained in 2020.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 5  
[21]  
The WCB’s review body, now the DRDRB, issued several decisions related to  
the worker representative’s requests for reconsideration/review on the basis of  
new evidence. These are summarized as follows:  
[21.1]  
The first DRDRB decision of May 28, 2020 decided the issue of whether  
the worker had submitted new evidence in relation to the 1997 CSRC  
decision, which would thereby support reconsideration of the 1997 CSRC  
decision. The DRDRB decided the evidence was not new. In its decision,  
the DRDRB acknowledged the 1997 CSRC’s decision as follows:  
“On November 24, 1997 the Claims Services Review Committee (CSRC)  
stated the following:  
‘The Claims Services Review Committee reverses Claimant  
Services' decision to base [the worker’s] deemed Earnings  
Loss Supplement on secretarial/receptionist positions. Work  
in that field would not be consistent with her physical  
abilities, qualifications or opportunities.  
Claimant Services must identify a position within her physical  
capabilities and qualifications. Until that is done, [the worker’s]  
deemed Earnings Loss Supplement should be based on full-time  
employment at minimum wage. If medical information is receive  
which indicates [the worker] is not capable of full-time  
employment, Claimant Services would need to review the hours  
on which the supplement is based.  
Claimant Services may wish to consider offering vocational  
assistance to [the worker] as she has been out of the workforce  
for some time and may have difficulty locating employment.’ ”  
[21.2]  
As noted above, the May 28, 2020 DRDRB resolution specialist noted a  
WCB Chair’s delegate reviewed the 1998 Case Manager decision letter.  
The WCB Chair’s delegate concluded the letter amounted to a decision  
that the worker’s entitlement to an ELS should be based on “minimum  
wage of $5.00 per hour working 40 hours per week.”  
[21.3]  
[21.4]  
The worker’s representative disagreed that the three pieces of evidence  
were not new evidence under WCB Policy 01-08 and appealed the  
May 28, 2020 DRDRB decision to the Appeals Commission.  
On October 15, 2020, the Appeals Commission (Appeals Commission  
Decision No. 2020-0453 [hereafter 2020 Appeals Commission decision])  
heard the worker’s appeal and found, in relation to the November 24, 1997  
CSRC decision, that the following documents amounted to new evidence  
under WCB Policy 01-08:  
Classification: Protected A  
Decision No.: 2021-0334  
Page 6  
A February 5, 2020 comprehensive functional capacity evaluation  
(FCE);  
A March 27, 2020 medical consultant memo; and  
A May 14, 2020 transferable-skills-analysis (TSA) report.  
[21.5]  
[21.6]  
The 2020 Appeals Commission panel directed the DRDRB to reconsider  
the November 24, 1997 CSRC decision, taking into consideration this new  
evidence.  
On December 1, 2020, the DRDRB reconsidered the three pieces of new  
evidence in relation to the 1997 CSRC decision. The DRDRB stated the  
issue as follows:  
“As the February 5, 2020 CFCE, March 27, 2020 Medical Consultant  
memo and May 14, 2020 TSA are new evidence, is a change in the  
November 24, 1997 CSRC decision supported?”  
[21.7]  
Citing WCB Policies 01-08 and 04-04, the December 1, 2020 DRDRB  
decision found that “the above documents did not alter the analysis or  
outcome of the CSRC in its decision of November 24, 1997”.  
[22]  
Over the same time period, the WCB was separately considering the issue of  
whether the above new evidence would impact the 1998 Case Manager decision.  
This process is summarized below:  
[22.1]  
On August 6, 2020, the DRDRB determined the same three pieces of new  
evidence (described above) would not have impacted the 1998 Case  
Manager decision. The DRDRB therefore found the related case manager  
decisions of April 20, 2020, June 18, 2020, and June 23, 2020 were  
reasonable.  
[22.2]  
[22.3]  
The worker’s representative appealed the August 6, 2020 DRDRB  
decision that the three pieces of evidence were not new evidence under  
WCB Policy 01-08 in relation to the 1998 Case Manager decision.  
On January 12, 2021, an Appeals Commission panel (Appeals  
Commission Decision No. 2021-0011 (hereafter 2021 Appeals  
Commission decision)) found it did not have jurisdiction to hear the worker  
representative’s appeal of the August 6, 2020 DRDRB decision relating to  
the 1998 Case Manager decision. It held the 2020 Appeals Commission  
decision had already found the three documents were new evidence and  
Classification: Protected A  
Decision No.: 2021-0334  
Page 7  
the 1998 Case Manager decision was part of the chain of decision making  
from the 1997 CSRC decision. The new evidence issue relating to the  
1998 Case Manager decision had thus already been decided.  
[22.4]  
On February 16, 2021, the case manager found the new evidence would  
not have changed the 1998 Case Manager decision. Since this decision  
referenced new evidence with respect to the 1998 Case Manager  
decision, we understand the case manager, on February 16, 2021, was  
rendering a follow-up decision regarding the January 12, 2021 Appeals  
Commission Decision.  
[22.5]  
[22.6]  
The worker’s representative requested a review of the February 16, 2021  
Case Manager decision, stating that this Case Manager decision denied  
the issue of “entitlement to zero-based Economic Loss Supplement (ELS)  
from [July 24, 1994 to December 31, 2020].”  
On February 18, 2021 the resolution specialist cited the issue as follows:  
“Earnings loss supplement calculation – The February 16, 2021 case  
manager’s decision that concluded the new evidence did not alter the  
decision support this wage loss supplement being calculated using  
minimum wage for the period starting July 24, 1994 to December 31,  
2020.”  
[22.7]  
However, on March 25, 2021, the DRDRB resolution specialist noted that  
the reconsideration of the issue on new evidence regarding the 1997  
CSRC was decided and the decision remained unchanged. She further  
stated:  
“I acknowledge [the worker representative’s] request specified the issue  
was entitlement to zero-based economic loss supplement (ELS) from  
July 24, 1994 to December 31, 2020.  
My review of the background on this matter supports my review is limited  
to the February 2, 1998 Case Manager's decision. As pointed out by the  
Appeals Commission on January 12, 2021, the Appeals Commission  
explained the February 2, 1998 letter provided a decision about the  
earnings loss supplement to [the worker].  
The Appeals Commission concluded this letter was a part of the chain of  
decision making about the entitlement that flowed directly form the  
November 24, 1997 Claims Services Review Committee decision.  
Accordingly, the three (3) documents determined to be new evidence (in  
the October 20, 2020 Appeals Commission decision), would be  
considered new evidence regarding the February 2, 1998 Case  
Manager's decision.  
This means, the issue is for the calculation of the wage loss supplement  
for the February 2, 1998 case manger's decision that was reconsidered  
by a case manager on February 16, 2021.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 8  
For this reason, I worded the issue as ‘Does the new evidence change  
the case manager's February 2, 1998 decision that determined the  
earnings loss supplement was appropriately calculated using minimum  
wage on a full-time basis?’ ”  
Prior Preliminary Matters Decision Hearing  
[23]  
In preparing for the worker’s initially scheduled August 24, 2021 hearing, we  
noted that the issues of appeal had been relayed to the parties as those stated in  
the December 1, 2020 and March 25, 2021 DRDRB decisions. These issues  
respectively read as follows:  
“Issue 1: New Evidence  
As the February 5, 2020 CFCE, March 27, 2020 Medical Consultant  
memo and May 14, 2020 TSA are new evidence, is a change in the  
November 24, 1997 CSRC decision supported?  
Issue 2: New Evidence  
Does the new evidence change the case manager's February 2, 1998  
decision that determined the earnings loss supplement was appropriately  
calculated using minimum wage on a full-time basis?”  
[24]  
Given our initial review of the DRDRB and Appeals Commission decisions on the  
record, we decided a preliminary matters hearing was necessary to determine  
whether the above issues were properly before us and whether we had  
jurisdiction to change them. Our decision for the preliminary matters hearing is  
cited as Appeals Commission Decision No. 2021-0430 (hereafter referenced as  
Preliminary Matters Decision).  
[25]  
On November 18, 2021, we heard submissions at the preliminary matters  
hearing relating to the following issues (cited in paragraphs 15 to 17 of our  
Preliminary Matters Decision):  
“[15] Does the panel have jurisdiction to amend the original DRDRB  
issues to one issue as follows: ‘Should the worker’s Earnings Loss  
Supplement be estimated on the basis of a minimum wage  
position at full-time hours, effective July 24, 1994? (when the  
worker’s Earnings Loss Supplement was first implemented)?’  
[16]  
[17]  
If so, is there any evidence that needs to be added to the original  
Appeal Documents Package (ADP) that speaks to the worker’s  
physical, vocational, psychological and any other issues that  
would impact calculating the worker’s Earnings Loss Supplement,  
effective July 24, 1994?  
Does a Workers’ Compensation Board legal representative have  
jurisdiction to may make submissions on the merits?”  
Classification: Protected A  
Decision No.: 2021-0334  
Page 9  
[26]  
At paragraphs 42 and 43 of our Preliminary Matters Decision, we held, in part:  
“[42] It is within the panel’s authority to amend the original Dispute  
Resolution and Decision Review Body issue as proposed. A  
teleconference hearing date will be scheduled once it is  
determined all parties are ready to proceed. The amended issue  
will focus on whether the worker’s earnings loss supplement  
should have been estimated on the basis of a minimum wage  
position at full-time hours, effective July 24, 1994 (when the  
worker’s earnings loss supplement was first implemented). The  
panel remains seized with this appeal.  
[43]  
The amended issue of the appeal of both decisions is:  
‘Should the worker’s Earnings Loss Supplement be estimated  
on the basis of a minimum wage position at full-time hours,  
effective July 24, 1994 (when the worker’s Earnings Loss  
Supplement was first implemented).’ ”  
[26.1]  
At paragraph 35.8 of our Preliminary Matters Decision, we concluded that  
the WCB was bound to follow the 2020 and 2021 Appeals Commission  
decisions to reconsider the 1997 CSRC decision on the basis of new  
evidence. We further stated, in part:  
“[35.8] . . .  
We understand this to mean that there should have been a fulsome  
review of the original 1997 CSRC issue and whether the decision ought to  
be changed. Once the DRDRB has reviewed the new evidence, the  
original issue of ELS flows to us on appeal from review body’s new  
decision under WCB Policy 01-08. This provides our jurisdiction to hear a  
de novo appeal on the merits of the ELS issue that was before the 1997  
CSRC decision.”  
[26.2]  
At paragraph 11 of our Preliminary Matters Decision, we noted our  
understanding of the 2021 Appeals Commission panel decision was that  
the February 2, 1998 Case Manager decision was merely part of the chain  
of decision making flowing from the November 24, 1997 CSRC decision.  
As such, we understood that the 2020 Appeals Commission findings also  
applied to decisions regarding the 1998 Case Manager decision.  
[26.3]  
We ultimately concluded we had jurisdiction to amend the two issues by  
considering, on a de novo basis, one essential issue of whether the  
worker’s ELS was appropriately estimated on full time earnings at a  
minimum wage. We also concluded that while the WCB legal  
representative was entitled to make submissions at the hearing, the  
representative was limited to providing submissions on interpretation of  
legislation and policy relating to the issue before us.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 10  
Hearing on the Merits Request to Withdraw the Worker’s Appeal of the  
December 1, 2020 DRDRB Decision Denied  
[27]  
[28]  
At the beginning of the June 9, 2022 hearing on the merits, the worker’s  
representative requested to withdraw the worker’s appeal of the December 1,  
2020 DRDRB Decision, which considered the November 24, 1997 CSRC  
decision. The worker’s representative advised she wished to proceed only with  
submissions regarding the March 25, 2021 DRDRB’s decision.  
We decided to deny this request given the adjudicative history of this matter and  
the close link between the two decisions. Specifically, we noted that the  
January 12, 2021 Appeals Commission panel had found the February 2, 1998  
Case Manager’s decision part of the chain of decision making that flowed from  
the November 24, 1997 CSRC decision, which appeared to link the February 2,  
1998 decision to the November 24, 1997 decision. As such, we were not  
satisfied that we would have sufficient jurisdiction to hear the issue of appeal  
should the appeal of the 1997 CRSC decision be withdrawn.  
[29]  
[30]  
In any event, we concluded there would be no harm in pursuing both appeals  
since the result of our decision would be the same.  
Legislation and Policy Applicable to the Appeal  
In this decision, we have relied on the following general provisions of the  
Workers’ Compensation Act, RSA 2000, c W-15 (WCA):  
[30.1]  
Section 13.1(1) of the WCA provides the Appeals Commission with  
exclusive jurisdiction to examine, inquire into, hear and determine all  
matters and questions arising under the WCA from certain review body  
and WCB decisions; and  
[30.2]  
Section 13.2(6)(b) states that the Appeals Commission is bound by the  
provisions of the WCA, the related regulations and the policies established  
by the Board of Directors of the WCB.  
[30.3]  
[30.4]  
Section 56 ( version 23) of the WCA speaks to the provision of  
compensation for worker’s with temporary and/or permanent injuries.  
Section 63 states when determining the degree of impairment of earning  
capacity, the Board may consider the nature of the injury and the worker’s  
physical and mental fitness to continue employment similar to his  
pre-accident employment or to adapt to some other suitable employment.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 11  
[30.5]  
[30.6]  
We have also considered WCB Policy 01-08 and WCB Policy 04-04 in  
relation to the Case Manager decisions made in 2020 and March 2021  
and which is consistent with the worker’s 1985 date of accident.  
Excerpts or summaries of the legislation and WCB policies referenced in  
this decision are found in Appendices A and B.  
[31]  
We acknowledge section 10 of the Interpretation Act, RSA 2000, c I-8, which  
states that an enactment (such as the WCA) “shall be construed as being  
remedial, and shall be given the fair, large and liberal construction and  
interpretation that best ensures the attainment of its objects.” We consider the  
Interpretation Act also applies to WCB Policy in relation to the WCA and the  
issue before us.  
[32]  
Prior to the hearing, the following materials were added to the record and shared  
with the parties:  
[32.1]  
May 19, 2022 emails from the WCB legal representative providing notice  
of his intent to participate according to section 13.2(6)(c) of the WCA and  
requesting that four summer students observe the hearing;  
[32.2]  
[32.3]  
June 2, 2022 email from WCB’s legal representative with attached  
submissions; and  
June 6, 2022 email from worker’s representative with submissions  
attached.  
[33]  
The hearing took place by telephone teleconference. At the outset of the  
hearing, we confirmed that all participants had provided signed privacy  
agreements undertaking not to record the hearing. We acknowledged two WCB  
summer students, who were attending the hearing as observers, had also signed  
privacy agreements.  
Issues  
[34]  
As noted above, our Preliminary Matters Decision determined that the issue of  
appeal is the same in relation to both of the DRDRB decisions appealed, as  
follows:  
Issues 1 and 2:  
[34.1]  
Was the worker’s earnings loss supplement appropriately estimated  
on the basis of a minimum wage position at full-time hours, effective  
July 24, 1994 (when the worker’s earnings loss supplement was first  
implemented)?  
[35]  
As we have found the issue for both DRDRB appeals is identical, we will  
consider them together.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 12  
Analysis – Issues 1 and 2  
Questions to Answer  
[36]  
[37]  
WCB Policy 04-04, Part I, states that when a worker has compensable work  
restrictions preventing her from returning to pre-accident work, the WCB will  
develop a plan together with the worker to assist the worker to return to  
employability in work that is suitable.  
WCB Policy 04-04, Part II, Application 1 defines suitable work as work that is  
consistent with the worker’s physical, vocational, social and psychological  
abilities and is reasonably available within the worker’s locale or obtainable  
where relocation is reasonable.  
[38]  
[39]  
We have determined in the worker’s case, that the DRDRB found the worker was  
capable of working full-time hours of 8 hours per day, 40 hours per week, in a  
minimum wage position, effective July 24, 1994.  
At the hearing, the worker’s representative did not dispute that the worker had  
the vocational skills to work in a suitable minimum wage position. She submitted  
that the worker was not physically capable of working full time hours on July 24,  
1994, because the worker was restricted to working on a “rare basis”. The  
representative submitted that “rare basis” was defined as working up to 6% of the  
work day, that is, 24 minutes per day. The representative also submitted that  
there were no positions available within the worker’s locale on July 24, 1994, that  
could accommodate the worker’s physical restrictions.  
[40]  
Given the above policy, we must answer the following questions:  
[40.1]  
Does the weight of medical and other evidence support that a full-time  
position was consistent with the worker’s physical circumstances? That is,  
were the worker’s work restrictions consistent with working 8 hours per  
day, 40 hours per week, effective July 24, 1994?  
[40.2]  
Does the weight of evidence support that a minimum wage position  
existed in the worker’s locale that could accommodate the number of  
hours the worker was capable of working per day and per week, effective  
July 24, 1994?  
Key Submissions  
[41]  
The worker representative’s key submissions are summarized as follows:  
[41.1]  
The February 5, 2020 CFCE, arranged by customer service, indicated the  
worker should receive full wage replacement benefits retroactive to at  
least August 2018. The CFCE report supported the worker was unfit to  
work in any type of modified or alternate work.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 13  
[41.2]  
The medical consultant’s memo of March 27, 2020 noted the worker’s  
“restrictions in the current functional evaluations completed in both 1994  
and 2020 were very similar.” The WCB Medical Consultant had access to  
the complete facts and medical history of the file. His opinion was that  
there was no change in the worker’s functional restrictions between 1994  
and 2020. Since the information in 2020 supported the worker was unable  
to do any form of work duties, the information obtained in 2020 supports  
the worker was entitled to a zero-based ELS retroactive to 1994.  
[41.3]  
The WCB would not direct a documentary TSA, despite the worker  
representative’s request to do so. The worker’s representative and worker  
were forced to obtain the TSA report independently. It was only after this  
was done that the WCB then obtained their own TSA report to counter or  
confirm the results of the worker’s independent TSA. Both the  
independent and WCB-obtained TSA reports came to the same  
conclusion that there was no suitable minimum wage position the worker  
could do retroactive to 1994.  
[41.4]  
[41.5]  
[41.6]  
Even if there is a concern regarding the question of whether the Appeals  
Commission should address the DRDRB’s reconsideration of new  
evidence on a de novo basis, the March 25, 2021 DRDRB decision  
considered the actual issue afresh as a full, new, and independent  
decision that can be appealed to the Appeals Commission on a de novo  
basis. The March 25, 2021 DRDRB decision applied Policy 04-04 to  
determine worker was not entitled to a zero-based ELS since 1994.  
The 1997 CSRC decision stated that claimant services “must identify a  
position within her physical capabilities and qualifications.” The 1997  
CSRC decision further stated that until this was done the worker’s ELS  
should be based on full time employment at minimum wage. However, if  
“medical information is received which indicates [the worker] is not  
capable of full-time employment, Claimant Services would need to review  
the hours on which the supplement is based.”  
The 1998 Case Manager did not conduct a vocational review or identify a  
position within the worker’s physical capabilities and qualifications,  
according to the 1997 CSRC’s directive. Rather he advised the worker  
that despite the “extensive Vocational Rehabilitation Services” she  
remained entitled to, nothing would be done until the worker identified “a  
realistic re-employment option that you would like to pursue.” Over the  
years, as minimum wage has increased, the worker’s monthly ELS has  
been steadily decreased accordingly. This has resulted in a decrease of  
her ELS benefit from $1,179.36 per month in 1998 to only $335.72 per  
month at the end of 2020 when the worker turned 65.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 14  
[41.7]  
The three pieces of new evidence reflect not only the current assessment  
of the worker, but they also apply to the worker’s condition since 1994.  
This is supported by the conclusions in the August 6, 2020 DRDRB  
decision, which states that the worker’s restrictions and limitations outlined  
in the 2020 CFCE were the same as they were at the time of the original  
1997 decision. In the absence of conflicting objective evidence, the  
DRDRB significantly misinterpreted much of the information and did not  
carefully consider the written submissions.  
[41.8]  
The case manager’s January 28, 1998 memo, written to his supervisor  
proposing that the worker’s ELS should be based on full-time minimum  
work at minimum wage, provides little rationale to justify the decision. The  
facts at the time, in conjunction with the evidence currently available,  
support that the worker was incapable of working full time retroactive to  
1994.  
[41.9]  
Full responsibility for the worker’s compensable injuries had yet to be  
accepted at the time of the 1998 Case Manager’s decision. This included  
responsibility for the worker’s major depression, osteoarthritis, and chronic  
pain (for which the worker was also prescribed opioids). Despite the fact  
that WCB had not yet accepted responsibility for these compensable  
injuries, the reporting at the time existed to show the worker was not  
capable of returning to employment in 1994.  
[41.10] The September 6, 1995 psychiatric IME provided a diagnosis of major  
depression related to financial stress and chronic pain. The psychiatrist  
opined the worker’s lack of full recovery precipitated the worker’s major  
depression and “removed her perceived capacity to be personally and  
financially independent as well as the satisfaction she obtained from the  
work itself.” The psychiatrist concluded the depressive symptoms would  
abate upon the worker regaining the satisfaction of working. However, the  
psychiatrist also noted that since this was “not immediately available as an  
option, it is unlikely that her level of disability will change in the near  
future.” The psychiatric IME, which was never addressed until the March  
6, 2020 case manager’s letter, is evidence of the worker not being able to  
return to work in 1995.  
[41.11] The worker’s osteoarthritis was referenced as early as a September 18,  
1989 medical report yet not accepted as compensable until the case  
manager’s March 6, 2020 letter.  
[41.12] Major depression, osteoarthritis, and chronic pain were confirmed to be  
barriers to employment as early as 1989 and 1995 and continued to exist  
as of February 2, 1998. Each of these conditions restricted the worker’s  
employability and ability to work at all, let alone full time.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 15  
[41.13] The only functional assessment that existed in 1994 was the February 9,  
1994 Functional Capacity Evaluation (FCE) outlining the worker’s physical  
restrictions; however, it is significant to note the report made no comment  
as to the frequency of the tasks she could perform. The 1994 FCE  
indicated the worker had the following restrictions:  
reduced grip strength bilaterally, worse on the right;  
sedentary level of power lifting and carrying with the left hand;  
all other strength activities were listed at below sedentary strength  
level;  
unable to complete any pulling activities;  
no gripping, pinching or reaching with the right arm/hand;  
no manual dexterity activities involving the right upper extremity;  
limit sustained squatting while unsupported;  
limit repetitive reaching with the left arm;  
limit manual dexterity activities involving the left hand; and  
limit extended periods of walking.  
[41.14] It is important to know the frequency with which the worker can perform  
each of the above tasks to determine whether she was capable of working  
on a full time basis.  
[41.15] The February 5, 2020 CFCE states the worker can perform  
limited/sedentary duties on a rare basis. According to the frequency key  
in the Addendum of the report (Pg #192), this means a capacity to work at  
a sedentary level 1-5% of the workday. A rare basis means working  
between 1-24 minutes per day. This frequency measurement, which was  
not available in 1994, shows the worker was not capable of working  
full-time duties in a sedentary position. Moreover, she is not capable of  
working part-time duties in a sedentary position when no reasonable  
employment opportunity has been identified as available and limited to  
1-24 minutes per day.  
[41.16] The March 27, 2020 Medical Consultant memo accepted that the worker’s  
current functional abilities were reasonably related to the compensable  
injury (Pg #239). In addition, the Medical Consultant said her “functional  
level is quite similar to that of the FCE done in 1994.” This should be  
interpreted to mean there was little to no change in the worker’s functional  
abilities between the 1994 and the 2020 functional assessments.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 16  
[41.17] This interpretation was also applied by the Customer Service Department  
in the April 20, 2020 letter, which states: “Based on the above, the medical  
reporting does not support a change in function therefore [the worker’s]  
ongoing entitlement to wage loss remains the same.” This supports that  
as early as the 1994 FCE the worker was only able to work at a sedentary  
level on a rare basis (i.e. 1-24 minutes per day) rather than on a full-time  
basis (i.e. 8 hours per day).  
[41.18] Section 11(1) of the Employment Standards Regulation Act of Alberta  
indicates: “Subject to subsection (3), if an employee is employed for less  
than 3 consecutive hours of work, the employer must pay the employee  
for 3 hours of work at not less than the minimum wage to which the  
employee is entitled. It is unreasonable to expect an employer to hire the  
worker, knowing she can only work 1-24 minutes per day but must be paid  
for a full three (3) hours of work.”  
[41.19] The 1997 CSRC decision acknowledges there was no medical reporting  
on file to confirm the worker was incapable of full time employment if  
appropriate employment was considered. As a result, the CSRC directed  
that the hours would need to be reconsidered if medical information was  
received to show the worker was not capable of full-time employment. If it  
had been known the worker could only work at a sedentary level on a rare  
basis (1-24 minutes per day), the 1997 decision would have determined  
the worker should have received a zero-based ELS benefit to her  
retroactive to July 24, 1997. This decision would have remained in force  
because the current medical evidence indicates there was no change right  
through to 2020.  
[42]  
The evidence also supports that there was no availability of suitable positions as  
follows:  
[42.1]  
While the 1997 CSRC decision directed that a position be identified, this  
was never done. No vocational assessment was performed to identify a  
particular position the worker could perform, despite the specific direction  
from the 1997 CSRC Member. [emphasis added by the worker’s  
representative]  
[42.2]  
A December 12, 1997 letter confirms a prior case manager intended to  
conduct an Independent Medical Assessment to assess the worker’s  
physical capabilities, as well as have a Vocational Assessment “determine  
your vocational direction and interest in the workforce as well as a  
Functional Capacity Evaluation. These requests were in keeping with the  
[1997 CSRC] decision.” However, subsequent to this letter, the worker’s  
file was transferred to a different case manager and none of the intended  
directed assessments were completed.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 17  
[42.3]  
The 1998 Case Manager decision acknowledged no vocational services  
had been previously completed. The case manager stated, in part:  
“Unfortunately there is no proper worker profile on file due to the fact that  
when the claim was initially referred to the Vocational Rehabilitation  
Department back in the late 1980’s, the worker was residing in England  
and it was determined at that time that Vocational Services out of the  
country would be in appropriate . . .  
I have carefully reviewed this claim for compensation and given much  
thought to this worker’s entitlement to an Earnings Loss Supplement.  
Presently it is my recommendation that Claimant Services maintain this  
worker’s Earnings Loss Supplement based no $5.00 per hour/40 hours  
per week as being her maximum earnings capacity.”  
[42.4]  
The case manager considered it unreasonable to pursue vocational  
services. Instead, he self-admittedly chose an arbitrary unspecified  
minimum wage position on a full-time basis. This was done in the  
absence of any professional opinion from an Occupational Therapist or an  
Employment Specialist who would have reviewed the worker’s physical  
and vocational restrictions and compared them against available positions  
in the 1998 job market in the worker’s then locale.  
[42.5]  
Although the 1998 Case Manager states he “carefully reviewed the file”  
and had “given much thought to this worker’s entitlement to an [ELS]”, he  
provides no supporting evidence that any particular minimum wage  
position(s) exist which would be physically and vocationally suitable. He  
provides no evidence that such a position exists and does not provide any  
information regarding the details of what was considered in his review.  
This was an inappropriate investigation as it was contrary to the directive  
of the CSRC that Claimant Services “must identify a position within her  
physical capabilities and qualifications”. The word “must” does not allow  
for a judgement by the case manager to disregard the CSRC direction as  
a suggestion.  
[42.6]  
The May 14, 2020 TSA was completed by a WCB-approved rehabilitation  
centre and transferable skills assessor. This centre is often used by the  
WCB in performing vocational services. As such, the TSA report is a  
credible report from a reputable service provider. The report was  
conducted by a Vocational Rehabilitation Consultant. The TSA findings  
are relevant for the retroactive period because they support that the  
worker’s functional limitations in 2020 are the same as they were in 1994.  
The findings also indicate that no suitable positions existed retroactively  
for the following reasons:  
Classification: Protected A  
Decision No.: 2021-0334  
Page 18  
[42.7]  
Despite the fact that the worker’s ELS had previously been estimated on  
two unsuitable positions prior to the 1997 CSRC decision (i.e. Welding  
Inspector and Secretary/Receptionist), the Claimant Services Department  
had never conducted formal vocational services to identify suitable  
alternate positions. As such, the May 14, 2020 TSA is the first official  
vocational report on the worker’s file. Therefore, this report does not  
refute nor contradict any previous reports.  
[42.8]  
The TSA Vocational Rehabilitation Consultant had access to all of the  
relevant claim file information. This included (but was not limited to) a  
1994 report from an Occupational Rehabilitation Centre, as well as the  
recent CFCE completed on February 5, 2020 at another WCB approved  
rehabilitation centre. In addition, the Vocational Rehabilitation Consultant  
completed a formal interview with the worker and reviewed current and  
past job opportunities in the labour market of the worker’s date of accident  
locale.  
[42.9]  
The Vocational Rehabilitation Consultant researched past and current job  
market information using a variety of reputable sources as outlined on the  
third page of his report. His research focused on specific positions that are  
known for being typical minimum wage positions between 1985 and 2020.  
These included: Retail Salesperson; Receptionist; Call Centre Agent;  
Labourers in Food, Beverage, and Associated Products Processing; Food  
and Beverage Server; Security Guard; Light Duty Cleaner; and Harvesting  
Labourer.  
[42.10] The Vocational Rehabilitation Consultant also considered the potential for  
retraining, including computer training. This represents a thorough and  
exhaustive review of the claim using past and present labour market  
information. The Vocational Rehabilitation Consultant concluded, “In  
reviewing Minimum Wage Level occupations in and around the Salary  
region from 1985 to present, it has been determined by the author that no  
suitable work opportunities exist, or did exist, [for the worker] in her current  
functional state.”  
[42.11] On January 20, 2021, a WCB approved re-employment specialist  
reviewed the worker’s claim to prepare a Job Planning Report with the  
purpose of identifying any suitable, accessible, and available job options in  
the worker’s locale. The re-employment specialist researched 47  
employment positions that have historically been considered minimum  
wage options. None of the 47 possible options were physically suitable for  
the worker. The WCB-approved employment specialist came to the  
identical conclusion there were no suitable positions to employ the worker.  
Given this, it is reasonable to conclude the unavailability of suitable  
positions applies retroactive to July 24, 1994.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 19  
[42.12] Since no suitable position was identified in 1997 and since job searches of  
past and present jobs indicated no suitable work, had this information  
been known in 1997, it’s likely her ELS would have been based on her  
actual income (i.e. zero earnings). Similarly, if this information had been  
known at the time of the 1998 Case Manager decision, by performing due  
diligence and conducting formal vocational services directed by the  
CSRC, the worker would have most likely received a zero-based ELS  
retroactive to July 24, 1994. Since a thorough investigation was never  
conducted, the panel must rely on current reporting which shows there  
were no suitable minimum wage positions available to the worker on a  
retroactive basis.  
[42.13] When the TSA and Job Planning Report are considered in conjunction  
with the other available objective information on file, the evidence  
overwhelmingly supports there were no suitable minimum wage jobs that  
existed for the worker on a full-time (or part-time) basis from July 24, 1994  
to present.  
[42.14] The worker also objected to comments made by the Resolution Specialist  
in her March 25, 2021decision that the worker’s ability to remain at home  
amounted to independent evidence that the worker was able to perform  
full time minimum wage duties. The worker submitted this conclusion was  
based on incorrect and arbitrary assumptions. In her letter of May 7,  
2021, the worker provided signed letters from five extended family  
members, all of whom indicated they provided significant assistance to the  
worker since her compensable accident in order to be able to maintain her  
lifestyle and independence at her acreage home where she had large  
animals. This evidence refutes the DRDRB’s conclusion.  
[42.15] The worker has also been in receipt of Canada Pension Plan - Disability  
benefits, granted on July 16, 1996 and made retroactive to September  
1993. These benefits remained in effect until the worker reached age 65  
in December 2020. While different criteria were used to assess these  
benefits, this pension plan was nonetheless granted on the basis that the  
worker had severe and prolonged disablement retroactive to 1993. This  
pension plan’s website states that an applicant must have a mental or  
physical disability that regularly stops them from doing any type of  
substantially gainful work. In addition, the individual must have a disability  
that is long-term and of indefinite duration. When considered in  
conjunction with all of the available evidence, it is reasonable to conclude  
that the worker was incapable of obtaining and maintaining full time  
employment at a minimum wage level from July 1994 onwards.  
(https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-  
disability-benefit/eligibility.html).  
Classification: Protected A  
Decision No.: 2021-0334  
Page 20  
[42.16] In keeping with Policy 04-04, Part II, Application 1 and Application 6, it has  
been confirmed there are no suitable minimum wage positions that exist  
within her compensable restrictions on a retroactive basis. As such, the  
worker’s ELS entitlement should be based on her actual earnings (i.e.  
zero earnings) to age 65.  
[42.17] WCB has not provided any objective medical or vocational reporting  
otherwise. In the absence of any objective information to the contrary, the  
worker’s ELS entitlement should be calculated as a zero-based wage loss  
supplement from July 24, 1994 to December 31, 2020.  
[43]  
The worker confirmed that she agreed with her representative’s submissions.  
She provided the following information in response to our questions:  
[43.1]  
The WCB manager advised her in 1998 that she would receive an ELS  
based on minimum wage on full-time hours and that her file would be  
closed. She understood that she had no further remedy available to  
pursue. It was not until recently after speaking with her current worker’s  
representative that she realized she could have appealed her decision on  
the basis that she could not work full-time hours, and that in any event,  
there were no positions that could accommodate the worker in her  
date-of-accident locale.  
[43.2]  
[43.3]  
While she did some secretarial work overseas, it was modified secretarial  
work where she was able to work less hours because her boss, who was  
her husband, realized she couldn’t work full-time hours due to her  
compensable injuries and her chronic pain.  
In 1998, her representative at the time advised her to accept the WCB’s  
offer with respect to the ELS at minimum wage as “that would be as good  
as she could get”. On the basis of that advice, she did not pursue  
anything further at that point. If her options were explained to her, she  
would have been interested in vocational assistance.  
WBC Legal Representative’s Key Submissions  
[44]  
The WBC legal representative’s key submissions are summarized as follows:  
[44.1]  
He reiterated his arguments submitted in relation our December 22, 2021  
Preliminary Matters Decision (Appeals Commission Decision No.  
2021-0430), that changing the issue as proposed would allow for a broad  
re-opening of the 1997 CSRC decision on the merits. This would  
incorrectly and unreasonably permit applicants to challenge DRDRB  
decisions years, or even decades, after the one-year appeal period  
deadline had elapsed. An appeal of a DRDRB reconsideration denial only  
renders appealable the decision to not set aside the previous decision.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 21  
[44.2]  
The WCB legal representative provided additional submissions, which we  
summarize as follows:  
The Appeals Commission consistently applies a de novo standard of  
review for appeals of DRDRB Reconsideration Denial Decisions. It  
should actually show deference to the DRDRB’s “reconsidering” of its  
own earlier decision, especially if that earlier decision was never  
appealed to the Appeals Commission, at all or in time.  
A “reconsideration” is a revisiting or giving “second thought” to a  
decision that that decision-maker already made, which means that the  
Appeals Commission can by definition never reconsider a decision that  
the Appeals Commission itself never rendered; i.e., that it never  
“considered” in the first instance. That is how this differs from a  
conventional appeal of a DRDRB decision on its merits. The most the  
Appeals Commission can do by way of remedy is to find that the  
DRDRB failed to apply the WCA or policy properly, or was  
unreasonable in its application of the evidence on the claim to WCA or  
policy, and direct it to re-conduct its reconsideration analysis.  
The practical effect of this legal reality is that the standard of review of  
an appeal to the Appeals Commission of a DRDRB reconsideration is  
“reasonableness” and not “correctness”.  
The Appeals Commission is not the body reconsidering its own  
decision, and has no legal authority to direct the DRDRB how to give  
second thought to a decision that was never appealed to the Appeals  
Commission. It cannot grasp jurisdiction to address the merits in these  
circumstances, nor can an applicant simply reopen a limitation-expired  
decision by simply asking the DRDRB to reconsider that decision, and  
then challenge the DRDRB’s choice to not overturn that earlier  
decision.  
The Alberta Court of Appeal has recognized that in some cases an  
appeals tribunal should conduct a reasonableness review and in doing  
so, owes deference to decisions of a lower decision-making body. In  
Yee v Chartered Professional Accountants of Alberta (2020 ABCA 98)  
(Yee), the court found deference was owed to the decision of the  
original discipline tribunal. The court held that to find otherwise would  
undermine the integrity of the first level of the disciplinary structure,  
and make the proceedings before the discipline tribunal an ineffectual  
waystation along the path to a final decision (para 33). The court also  
held that different standards of review could apply on an appeal of a  
lower administrative body’s decisions, depending on the nature of the  
issue.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 22  
Administrative appeal bodies routinely apply this principle in their  
decisions, eschewing a rigid “one size fits all” standard across all  
appeals. See, for example Law Society of Alberta v Sharma (2021  
ABLS 2) and BB v Edmonton (Police Service) (2021 ABLERB 11).  
Alberta courts have never weighed in on whether the Appeals  
Commission owes deference to the DRDRB on appeals of  
reconsideration denials, which are entirely distinct from adjudicative  
decisions. The criteria set out by the Court of Appeal in the Yee  
decision thus applies, resulting in the Appeals Commission affording  
deference to the DRDRB’s decision not to reverse its own decision that  
had never been appealed to the Appeals Commission.  
The Appeals Commission’s October 20, 2020 decision only legally  
obligated the DRDRB to conduct a new analysis, which the DRDRB  
did. The most the Appeals Commission’s decision could have found  
was that the three pieces of “new evidence” were possibly capable of  
altering the balance of evidence that was before the CSRC in favour of  
finding that the Appellant was not capable of performing any work that  
would pay at minimum wage.  
Whether the totality of the evidence including the “new evidence” met  
this evidentiary threshold was never the Appeals Commission’s issue  
to decide. In cases where the Appeals Commission characterizes  
something as “new evidence”, its function is performed, and the  
original level of decision-maker has exclusive authority to determine  
whether the ‘new evidence’ supports overturning its decision.  
Policy 01-08 provides that the WCB will change a previous decision if it  
is apparent that the original decision is not consistent with legislation,  
approved policy or the facts of the case, or new evidence changes the  
balance of probabilities. Individual circumstances of each case must  
be taken into consideration, and there may be several possible  
courses of action. The previous decision will not be changed if  
reasoned judgment was used; and the adjudicative decision is  
consistent with the available evidence and a reasonable interpretation  
of legislation and policy; and it gives the benefit of the doubt to the  
worker when the balance of probabilities is equal.  
To set aside a previous decision the new evidence would need to have  
the effect of changing the balance of probabilities in favour of a  
different outcome.  
In its October 20, 2020 decision, the Appeals Commission held there  
was new evidence under Policy 01-08 and therefore set aside the  
DRDRB’s May 28, 2020 reconsideration denial decision. The DRDRB  
was required to conduct a new reconsideration decision. The question  
Classification: Protected A  
Decision No.: 2021-0334  
Page 23  
that was returned to the DRDRB was whether the “new evidence”  
changed the balance of probabilities such that the totality of the  
evidence now required it to overturn the CSRC decision. The  
evidentiary threshold for supporting the overturning of the CSRC and  
Case Manager’s decisions, given the requirement of deference, would  
be whether the new evidence is incapable of changing the balance of  
probabilities as they existed in 1997 and 1998.  
[44.3]  
The WCB legal representative also provided written and oral submissions.  
During deliberation, we concluded certain submissions were inadmissible  
because they waded into arguments on the merits of the decision. As  
such, these submissions have been excluded, as further discussed in  
paragraph 52.  
Evidentiary Findings  
[45]  
For the reasons that follow we find:  
[45.1]  
The worker’s physical restrictions, effective, July 24, 1994, restricted the  
worker from using her hands to a rare basis, meaning up to and no more  
than 24 minutes per day. As such, the worker’s restrictions were not  
reasonably consistent with working 8 hours per day 40 hours per week,  
effective July 24, 1994; and  
[45.2]  
A minimum wage position did not exist in the worker’s locale that could  
accommodate the worker’s work restrictions, effective July 24, 1994.  
Key Medical Evidence through to 1994  
[46]  
It is not disputed that prior to July 8, 1994 the WCB provided TTD benefits to the  
worker on the basis that she was medically unfit to return to work. While the  
worker was deemed fit to return to suitable work on July 9, 1994, we find the  
totality of evidence supports that the worker was not fit to return to full time work.  
[46.1]  
Prior to the worker’s return to Canada, an examination physician wrote on  
September 18, 1989 that while the worker had tried to return to work her  
arm injuries remained symptomatic. He noted that radiographs of the right  
wrist showed “mal-union with volar displacement of the distal radius  
producing a radio ulnar subluxation. There is spiking of the radial styloid  
of the proximal carpus bones suggestive of early arthritic changes. She  
also has a non-union of the ulnar styloid which reflects the violent nature  
of the injuries she [initially] sustained.”  
[46.2]  
The physician opined the worker would continue to have problems with  
both forearms, most marked on the right, and that she should be  
encouraged to retrain in a lighter capacity.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 24  
[46.3]  
In his report of February 12, 1991, a specialist in anesthesia and pain  
relief noted he had previously examined the worker and the worker  
complained of chronic pain then. While the worker’s fractures had healed  
the worker continued to have severe pain (burning pain with sharp,  
shooting, lancinating pain pain) that was worse on the right side. The  
physician noted wasting of muscles, hypersensitivity to light touch with the  
skin showing signs of allodynia and hyperesthesia. He diagnosed reflex  
sympathetic dystrophy secondary to multiple trauma of both forearms. He  
opined, “there is no doubt that she is in no condition to continue to work in  
any capacity whether it be full-time or event part-time.” He also noted that  
the worker found it impossible to perform domestic chores for more than 1  
to 2 hours after which she needed to rest. He further opined that since  
any kind of work would entail the use of both hands, he did “not envisage  
her being able to take on any active employment whether modified or not,  
at present.” This report was sent to the WCB on February 13, 1991.  
[46.4]  
On May 29, 1991, an orthopedic surgeon’s consultation report noted  
“demonstrable weakness of all of the functions in the [right] forearm and  
wrist”. The physician concluded the worker’s “main problem” appeared to  
be pain that was aggravated through usage. However, because there was  
a lack of temperature change and skin change, he did not think the  
worker’s symptoms represented true reflex sympathetic dystrophy. He  
stated, “nevertheless, there is obviously pain persisting here, whatever the  
cause, and this seems to be the factor limiting her ability to work.” He also  
noted the worker’s pain seemed to be “out of all proportion to what one  
would expect from this type of injury particularly with a delayed onset.”  
The physician concluded that the worker’s pain was “causing her total  
impairment” and it may be classified as a form of Somatic Pain Disorder  
that would “hopefully . . . improve.” He considered the worker unfit for  
work not because of her restriction in power and mobility but rather  
because of her “chronic pain disorder.”  
[46.5]  
[46.6]  
On April 8, 1992, the worker’s treating physician opined it was “very  
unlikely” that the worker would be able to resume any kind of work. She  
was receiving no active therapy and required constant pain relief.  
On July 8, 1992, the worker’s consulting orthopedic surgeon relayed that  
the worker “resorts to analgesia when she finds the pain intolerable.” The  
orthopedic surgeon wrote, “I am not inclined to alter my opinion that this  
patient will not be able to return to any form of productive work as a result  
of the injury she sustained.”  
[46.7]  
On February 22, 1993, the worker was examined by a plastic surgeon who  
had previously examined the worker at the time of injury. Of her right wrist  
injury, he wrote that the worker’s “right hand has regressed further from  
when last seen in 1986.” He noted she had persistent pain with atrophy of  
the tissues and pain on movement with instability to move the digits  
Classification: Protected A  
Decision No.: 2021-0334  
Page 25  
rapidly and even passive movement produced significant pain. While her  
left arm felt tired, the worker stated she could use it reasonably well for  
light work. He opined there would be no benefit from further operation and  
concluded “her only solution is the possibility of retraining or some type of  
work requiring minimal hand activity.” He also opined the worker had “a  
major permanent disability.”  
[46.8]  
An Independent Medical Examination by an orthopedic specialist in the  
worker’s date of accident locale reported on May 27, 1993 that the worker  
complained of an extremely painful right elbow, forearm and particularly  
right wrist. Clinically, the IME specialist concluded the worker “had  
considerable physical impairment, with the right upper extremity being  
“rather grossly incapacitated.” He agreed that rather than an RSD  
syndrome the worker had developed a chronic pain syndrome and disuse  
syndrome. He opined the worker was not employable in “her present  
condition as she certainly had a rather marked post-traumatic reaction to  
her injuries.” He considered it doubtful that the worker was fit to return to  
any type of work “unless her condition changes in the future.” He also  
opined that the worker required “psychological assessment and work  
testing in the future to “establish any capabilities for rehabilitation.”  
[46.9]  
On August 18, 1993, a WCB medical advisor noted some degree of mal-  
union of the worker’s right wrist with “radial deviation and palmar  
displacement”. He questioned a lack of updated radiological reporting on  
the wrist as well as investigation regarding the restricted motion in the  
worker’s right elbow.  
[46.10] On February 9, 1994, the worker participated in a functional capacity  
assessment to determine the worker’s functional abilities, limitations and  
restrictions. At the time of the assessment the worker’s symptoms in her  
right wrist included the following: constant pain in the centre of the right  
wrist, constant pain on the inside the right elbow, constant pain on the  
medical aspect of the right forearm, constant pain in the right biceps from  
the elbow to mid shoulder. The worker also had intermittent pain and  
aching in the left upper extremity from the shoulder to just above the wrist.  
[46.11] The assessor noted the worker attempted to complete all strength  
activities using her left upper extremity exclusively and avoided use of her  
right upper extremity. Of the worker’s right hand she wrote, in part:  
“[The worker] rated well below average for all right hand grip and pinch  
strength parameters when compared to a normal population of women  
her age. She reported significant right wrist pain with right handed  
activities. She was barely able to hold the pinch strength dynamometer in  
her right hand while attempting pinching. She found it necessary to rest  
the dynamometer on her leg. [The worker] rated at two standard  
Classification: Protected A  
Decision No.: 2021-0334  
Page 26  
deviations below average for left hand grip strength and average to  
slightly below average for all left hand pinch strength parameters when  
compared to a normal population of women her age. This lady was right  
hand dominant.”  
[46.12] Regarding sustained activities, the assessor noted the worker was able to  
sit for the 45 minutes it took to answer the questionnaire portion of the  
basement with “little apparent difficulty.” The worker “was able to stand for  
10 minutes while attempting manual dexterity tests before being limited by  
left upper extremity pain and fatigue”. Manual dexterity for the left hand  
was low, and the worker had to take a break due to fatigue. The assessor  
noted it was apparent following several minutes that the worker was  
unable to complete repetitive wrist movement due to pain. Further, at the  
end of the assessment, “fatigue was evident through pallor and slowing of  
movements.” It was concluded the worker had a very low tolerance to  
gripping pinching activities with the right hand and demonstrated a low  
tolerance of 10 minutes to repetitive reaching and gross motor movements  
with her left upper extremity or bilateral upper extremity activities. She  
could walk for 12 minutes before being limited by general fatigue. The  
assessor recommended the worker seek employment with minimal  
strength requirements, with sedentary strength level for carrying with the  
left hand and should avoid any occupations requiring gripping or pinching  
with the left hand, reaching with the right arm or manual dexterity activities  
involving the right upper extremity. Similarly, the worker should be  
restricted from repetitive reaching with the left arm and manual dexterity  
activities involving the left hand, and extended periods of walking.  
[46.13] A March 16, 1994 Pain Management Assessment Report indicated the  
worker was assessed on February 24, 1994. The worker explained to the  
assessor that “on ‘bad days’, her ability to perform functional activities can  
be significantly impaired due to pain”. She estimated she would be able to  
work “only an hour or two daily (i.e. 15 hours per week) and “rated herself  
as severely disabled and having a poor chance of getting and holding a  
job at this time.” The assessor noted the worker completed the  
psychometric battery over a 2-week period in order to accommodate her  
right arm restrictions. The assessor concluded the worker reported a  
“limited repertoire of techniques to cope actively with her pain” and  
“indicated a severe degree of perceived disability, particularly in regard to  
her employability.” She recommended pain management counselling. As  
a result WCB authorized 10 sessions of pain management counselling.  
[46.14] On April 14, 1994 the worker was examined by an orthopedic surgeon  
who discussed symptoms of reflex sympathetic dystrophy with the worker.  
He recommended the worker “immerse her hand and wrist in warm water,  
exercising it frequently as opposed to resting the wrist, to obtain  
Classification: Protected A  
Decision No.: 2021-0334  
Page 27  
discomfort or overusing the splint.” He also recommended the worker  
swim to increase activity in her right arm. He had no other  
recommendations for the worker, given his understanding of the worker’s  
lack of progress over the past 9 years.  
[46.15] On July 28, 1994, a physician opined that the worker was unable to  
function at any job because of chronic arm pain. He noted she required  
high dose of analgesics and night-time sedation, which would affect her  
work performance.  
[46.16] On August 18, 1994, a neurologist examined the worker and opined that  
the worker looked and sounded “rather depressed” and that “her affect  
was very flat.” He found no evidence for “underlying neurologic  
abnormality” but concluded she “does appear to have persistent pain due  
to the syndrome of sympathetic dystrophy.” He considered this along with  
what appeared to be significant depression was responsible for the  
worker’s reporting of memory problems.  
[46.17] On August 23, 1994, the orthopedic surgeon who had examined the  
worker on March 14, 1994, re-examined the worker. He provided the  
following opinion, in part:  
“She seems to have a reflex sympathetic dystrophy of the right hand.  
There does not seem to be any improvement taking place and this really  
makes her right upper extremity almost useless for work. She  
experiences discomfort in her left upper extremity on a chronic basis and  
this combination really makes her fit at best only for a very specialized  
sedentary job that essentially does not involve the right upper extremity  
and is easy on the left.  
I do not have anything in particular in mind and unless such job exists,  
consider this woman to be totally disabled.” [Emphasis added]  
[46.18] Two months later, on November 9, 1994, a WCB medical consultant  
interpreted the above medical reporting to mean that the worker was  
“found to be physically fit for work with restrictions”. The WCB medical  
consultant further stated, in part:  
“I can find no objective evidence on the file that would indicate that the  
claimant is completely disabled from all forms of employment. However, I  
suspect that she will be difficult to employ successfully until her  
depression is dealt with to some degree.”  
[46.19] While we agree with the WCB medical consultant’s interpretation that the  
above evidence indicates the worker should be able to perform some kind  
of suitable work, we consider that such work would need to accommodate  
for the worker’s severe pain and fatigue. We interpret the WCB medical  
Classification: Protected A  
Decision No.: 2021-0334  
Page 28  
consultant’s opinion to have glossed over the evidence of the specialists  
that it would take “a very specialized” type of job to help the worker return  
to employment. Further, given the worker’s major depression at the time,  
the medical consultant clearly questioned that the worker could return to  
suitable work at that time.  
[46.20] We find the 1994 functional capacity assessment indicated the worker  
needed to take breaks due to pain and fatigue. The worker took 2 weeks  
to complete the assessment to accommodate her inability to use her  
hands as well as her general fatigue. This tells us, in general, that it is  
more likely than not that the worker’s ability to work a 40-hour work week  
at 8 hours per day was unrealistic and contraindicated. We find the weight  
of evidence through to November 1994 consistently indicates the worker’s  
right arm condition and chronic pain will not allow her be gainfully  
employed, let alone to be gainfully employed for 8 hours a day, 40 hours a  
week.  
[46.21] We therefore place less weight on the medical consultant’s general  
opinion that the worker was “fit for work with restrictions” as we find this  
comment was overly vague in the context of the medical opinions,  
particularly from specialists, before it.  
Key Medical Evidence from 1995 to 1998  
[47]  
We find the weight of medical evidence from 1995 to 1998 supports that the  
worker could not perform full-time work for the following reasons:  
[47.1]  
[47.2]  
On February 2, 1995, an examining physician noted the worker continued  
to have “poor and painful movement in her right hand” and that she  
continued to struggle with a sleep disorder.  
On July 21, 1995, the worker underwent an independent medical  
examination with an orthopedic surgeon regarding the “constant pain in  
her right wrist which radiates into the forearm”. After clinical evaluation,  
the orthopedic surgeon concluded the worker was left with “a permanent  
clinical impairment based on the decreased range of motion effecting her  
upper limbs as described in the examination part of this evaluation.” The  
orthopedic specialist opined that “the worker would be unable to use her  
right arm for anything apart from the lightest of tasks i.e. holding a  
cigarette or brushing her teeth” (emphasis added). He also noted the  
worker had decreased power in her left arm. Nonetheless, he opined the  
worker could try to use it for light activities such as clerical work,  
answering the phone, and functioning as a receptionist. However, as  
noted below, despite this specialist’s recommendation, it was later  
determined that the worker was unable to perform secretarial work.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 29  
[47.3]  
On September 6, 1995, the worker underwent an Independent Medical  
Examination with a specialist in psychiatry. After clinical evaluation the  
specialist provided the following opinion, in part:  
“Since there is no past history of psychiatric problems and the onset of  
depressive symptoms occurred about five years after her injury when she  
began losing hope about regaining her former occupation, it is my opinion  
that the injury and lack of full recovery from the physical impairment was  
the precipitant for her major depression. The injury removed her  
perceived capacity to be personally and financially independent as well as  
the satisfaction she obtained from the work itself. Therefore, it stands to  
reason that depressive symptoms would abate upon regaining the  
perception of job satisfaction and self-reliance. Since this is not  
immediately available as an option, it is unlikely that her level of disability  
will change in the near future.” [Emphasis added]  
[47.4]  
We understand the above reporting to indicate that the worker was not  
capable of performing any work due to her ongoing symptoms. She had  
major depression due to her inability to work and her inability to work was  
because she had chronic pain in both arms in addition to her other  
ailments. Further, the worker continued to take medication and on any  
given day may not be able to work at all. As she used only her left arm all  
of the time, she was also developing overuse problems with the left arm  
and hand. Opening cans, peeling potatoes, and even brushing her teeth,  
made her hand hurt more. She was unsure that she would be able to  
work a full day or every day in the week. She also noted she may not be  
able to drive in the city now that she lived in a rural area. She also  
continued to struggle with her depression.  
[47.5]  
[47.6]  
We interpret the medical evidence above to indicate it was likely the  
worker would not have been able to work full time if at all due to her  
various restrictions.  
We place considerable weight on the independent orthopedic surgeon’s  
follow-up opinion (which was rendered after re-examined the worker on  
August 23, 1994) because he had the opportunity to examine the worker  
over a period of months and concluded that not only was there no  
improvement but that in his opinion the combination of the worker’s  
ailments and her lack of improvement rendered her fit for “at best” a very  
specialized sedentary job. He further concluded that unless such a job  
existed his opinion was that the worker was totally disabled. We consider  
this would necessarily have to consider the frequency or hours worked.  
However, as the CRSC stated, this was not addressed.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 30  
[47.7]  
We also note that in 1998, when considering investigating a suitable  
position for the worker, the 1998 case manager responded that essentially  
the worker would have to let the case manager know if the worker was  
able to find anything. We are satisfied that the case manager’s response  
supports that he likely found it extremely challenging to find a position that  
would accommodate the worker’s restrictions, particularly given her major  
depression, chronic pain and medication use for her chronic pain, bilateral  
hand/arm impediments, and fatigue and sleep disorder issues.  
[47.8]  
[47.9]  
Given that the evidence supports that the worker required a very  
specialized job, we find the evidence at that time does not support that  
such a job existed, in the form of a minimum wage position, let alone in  
the worker’s locale.  
Further to this, we note that on January 28, 1998, the worker’s new case  
manager, who was to find a suitable position to calculate earnings  
capacity, stated that since there was no worker’s profile on file, the  
worker’s past experience was in physical labour, and the worker had a  
“fear of driving,” it would be “pointless to authorize further monies to  
pursue employment options which would not likely materialize.”  
[47.10] We agree that it was unlikely, in particular regarding full-time employment,  
that reasonable options would materialize based on the medical evidence  
above. We note the worker had a fear of driving, particularly given her  
bilateral arm injuries, her chronic pain and medication use, and her sleep  
disorders. The extent to which the worker would have been able to drive  
to work with bilateral hand problems, or to have been able to brush snow  
off her car in the cold of winter, even with her left arm, was never  
assessed. We consider this and other important aspects of the worker’s  
restrictions were overlooked in determining whether the worker could  
perform full-time work.  
Current medical evidence  
[48]  
We find the relatively current medical evidence on file supports that the worker  
was not able to work full-time hours for the following reasons:  
[48.1]  
On August 20 and September 2, 2018, the worker’s treating physician  
opined that the worker had chronic wrist pain, and was incapable of any  
work. He considered the worker’s restrictions were related to her 1985  
accident. The worker’s treating physician has consistently opined the  
worker is unable to use her right wrist.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 31  
[48.2]  
A September 25, 2018 income questionnaire indicated that from January  
2016 to January, 2017 the worker was involved in house sitting and  
renting pasture for horses. Her gross earnings were $4800 per year but  
there was no taxable income. We draw an inference that such a low  
taxable income would not have reflected full-time employment.  
[48.3]  
[48.4]  
On March 21, 2019, the worker’s chiropractor noted post-injury bilateral  
osteoarthritic changes in both wrists, which he attributed to the worker’s  
compensable accident. On July 12, 2019, the chiropractor treatment  
extension request states the worker is not fit for any type of modified work.  
On February 5, 2020, the worker underwent a Return-to-Work Services  
CFCE through a WCB-sponsored service provider. She was considered  
to have reached a medical plateau and was considered permanently fit for  
modified duties at a limited level on a rare basis. Her restrictions included:  
“Unable to lift floor to waist or overhead; Unable to front and/or right hand  
carry, unable to demonstrate push or pull with both arms safely, left side  
carrying is limited to a medium level (25) lbs) on a rare basis; overhead  
work limited to an occasional level for the left hand only; unable to grip  
with the right hand, left hand gripping limited to a rare level, and right  
hand and left hand use limits to a rare level.”  
[48.5]  
We understand from the CFCE Addendum that a rare basis means the  
worker is restricted to performing certain tasks for only up to 5% of the  
workday, that is, only up to 24 minutes of an 8-hour work day. In the  
worker’s case, the CFCE states the worker is restricted to using her hands  
on a rare basis. While the worker may have been capable of performing  
other tasks throughout the day, such as sitting or observing, while not  
using her hands, we consider it unreasonable to expect a restriction to use  
hands for only up to 24 minutes of the day would have allowed the worker  
to be competitively employable in full-time hours. We conclude that a  
restriction to limit use of hands for no more than 5% of an 8-hour day is  
tantamount to not being able to work a full 8-hour day.  
[48.6]  
The CFCE report also stated, “there is some evidence to suggest that [the  
worker] would have difficulty working her pre-accident hours per week due  
to her long history of unemployment and current level of fitness and  
function.” Return-to-work barriers included reduced cervical range of  
motion, reduced bilateral shoulder range of motion and strength, reduced  
right elbow range of motion and strength, reduce bilateral wrist range of  
motion and strength. Functional manual handling tolerances were limited  
to a limited level on a rare basis with decreased tolerances for bilateral  
grip and hand use, overhead work and right hand use and grip. That the  
Classification: Protected A  
Decision No.: 2021-0334  
Page 32  
worker was not job attached and had not had meaningful work for a  
significant amount of time was also considered a barrier in returning to  
work. Findings included that the worker demonstrated significant  
limitations in the use of her right hand and wrist with below average  
bilateral grip strength for her age and gender.  
[48.7]  
[48.8]  
On January 30, 2020, the worker’s treating chiropractor opined that the  
worker’s neck and upper back pain may be due to compensating for her  
shoulder and wrist injuries.  
On March 27, 2020, a WCB medical consultant reviewed the worker’s file  
to determine whether the worker’s current restrictions were related to her  
date-of-accident mechanism of injury. The medical consultant relayed an  
understanding of the mechanism of the various injuries and resulting  
surgeries. He cited medical reporting from 1989 into the 1990’s indicating  
both arms were symptomatic, with most marked problems in the right wrist  
and progressive osteoarthritic changes and restricted range of motion of  
the right wrist. He noted an orthopedic surgeon in 1989 concluded the  
prognosis for the right hand was poor. He also noted another orthopedic  
surgeon in 1993 indicated the worker was “grossly incapacitated”  
regarding her right upper extremity due to chronic pain and disuse  
syndrome (which did not represent “true RSD”).  
[48.9]  
The WCB medical consultant’s report conveyed an understanding of past  
medical reporting as follows:  
Work restrictions in the February 1994 FCE indicated the worker  
should seek sedentary employment requiring minimal strength and no  
gripping activity with the right arm.  
While the worker could return to work as a secretary, she continued to  
suffer with persistent sleep problems.  
The orthopedic surgeon, in August 23, 1994, diagnosed reflex  
sympathetic dystrophy of the right hand with no improvement. The  
worker was “only fit for sedentary work that did not involve the right  
upper extremity and was easy on the left.”  
The November 7, 1994 medical report indicated that while the worker  
was not completely disabled, it would be difficult to employ the worker  
until her depression was dealt with to some degree.  
The orthopedic IME of July 21, 1995 indicated the worker was unable  
to use her right arm for anything apart from the lightest tasks, but could  
use her left arm for lighter activities such as clerical work.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 33  
The psychiatric IME of September 6, 1995 provided a diagnosis of  
major depression, with a pain disorder difficult to diagnose since  
appropriate treatment for depression “may be all that was required.”  
There was a gap in medical reporting until 2018; however, the worker’s  
treating physician and other recent reports noted the worker  
complained of chronic right wrist pain with minimal range of motion.  
The worker had adapted to using her left arm for everything instead of  
her right arm or both arms.  
[48.10] In response to questions from WCB, the medical consultant opined that  
restrictions put in place with respect to the worker’s right upper extremity  
were reasonably related to the date-of-accident injury, and that they were  
“quite similar to the restrictions in 1994.” He further stated:  
Restrictions put in place with respect to the right upper extremity, in my  
opinion, are reasonably related to the [date-of-accident] injury. It has  
been well documented that she has limited function related to her wrist  
fracture. With respect to the left upper extremity, gripping and lifting had  
been recommended on a sedentary basis in 1994 and she did sustain a  
significant injury to her left forearm. Any restrictions or modifications put  
in place related to the accepted left upper extremity injury could  
reasonably be related to the [date-of-accident] injury.  
In my opinion, there in insufficient medical reporting on file to establish  
that any recommendations on recent CFCE that were to specifically  
accommodate for the left shoulder would relate to the [date-of-accident]  
injury, for reasons noted above. In saying that, generally it appears  
modifications and functional ability are similar to 1994 so it would be  
reasonable that current work restrictions overall do reasonably relate to  
the [date-of-accident] injury.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 34  
[49]  
In comparing the worker’s work restrictions between 1994 and 2020, the Medical  
Consultant noted that modifications and functional ability are similar to 1994:  
Restrictions as of 1994:  
Restrictions as of 2020:  
Reduced grip strength bilaterally,  
worse on the right  
Unable to grip with the right hand  
Left hand gripping on a rare basis  
only  
No gripping, pinching or reaching  
with the right hand/arm  
Unable to lift floor to waist,  
overhead lift, front carry, right hand  
carry, or push/pull with both arms  
safely  
Limit repetitive reaching with the  
left arm  
Sedentary level for power lifting  
and carrying in the left hand  
Left side carry was limited to 25  
pounds on a rare basis  
No manual dexterity activities  
involving the right upper extremity  
Overhead work was limited to an  
occasional level with the left hand  
only  
Unable to complete any pulling  
activities  
Bilateral hand use was limited to a  
rare level  
All other strength activities were  
listed at below sedentary strength  
level  
Limit sustained squatting while  
unsupported  
Limit manual dexterity activities  
involving the left hand  
Limit extended periods of walking  
[49.1]  
We interpret the medical consultant’s March 27, 2020 opinion to be that  
the worker’s work restrictions in 1994 were similar to her current work  
restrictions, and that her work restrictions are attributable to the  
compensable accident. As such, we find the medical consultant’s opinion  
supports that the worker’s current compensable restrictions existed in  
1994 and have essentially not changed since 1994.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 35  
[49.2]  
In this we accept the worker’s explanation that the gap in medical  
reporting had to do with the fact that while the worker continued to see  
physicians for other various reasons, she had accepted that her symptoms  
simply did not allow her to work and that there was nothing that WCB  
would do about it, because the case manager advised her in 1998 that her  
file would be closed on this matter. She also trusted her then  
representative (in 1998), who essentially advised her that the deal with the  
WCB case manager was about as good as it was going to get.  
[49.3]  
[49.4]  
While we agree that the worker was not an unsophisticated worker without  
benefit of representation, we give her the benefit of the doubt that she  
concluded she would not be able to receive, or ask to receive, any more  
benefits regarding her ELS benefits.  
We acknowledge the major distinction between 1994 and current work  
restrictions, restricting the worker to using her hands-on a rare basis is  
that in 1994 it does not appear there was a “frequency” category that  
could be addressed. While the 1994 work restrictions did not specifically  
refer to the amount of hours or minutes the worker might be able to use  
her hands for example, we nonetheless take note of the fact that medical  
reporting in the mid 1990s referenced the worker’s inability to maintain her  
ability to focus or stay on task for more than a few hours at most. The  
1994 reports cited pain and fatigue as the reason the worker could not  
complete tasks. The worker advised that she thought she might be able to  
work for an hour or two. The worker’s family members have stated that  
they had to provide significant help for the worker to be able to stay in her  
acreage home indicating the worker could not perform daily activities at  
home on her own. We find on the whole, that the evidence has not  
substantially changed over the years, aside from a definitive restriction  
limiting the frequency of hand use. Even without adding in a frequency  
category, we consider the weight of evidence supports that the worker  
was not able to perform full-time work, and would not have been  
competitive in securing full-time work. Her challenges in using her hands  
have not abated, and it would be unreasonable to expect the worker to be  
competitively employable on a full-time basis, particularly now that a  
frequency category is in place that considers the worker should use her  
hands only rarely during an 8-hour day or for less than 24 minutes.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 36  
Evidence does not support suitable positions were available in worker’s locale  
effective July 24, 1994  
[50]  
For the reasons that follow, we find the weight of evidence on file does not  
support that suitable positions were available in the worker’s locale effective  
July 24, 1994:  
[50.1]  
We place significant weight on a May 14, 2020 transferable-skills-analysis  
(TSA) report, which was completed by an accredited and reputable  
vocational rehabilitation consultant. We accept that the author of this  
report, as a vocational rehabilitation consultant, had the skills and  
expertise to not only determine the worker’s current medical restrictions  
and transferable skills in 2020, but also those she had in 1994.  
[50.2]  
The vocational rehabilitation consultant’s report relayed that the consultant  
was aware of the worker’s date of accident injuries, the worker’s past and  
current work restrictions (which we found above to be very similar), and  
possible job options available in the worker’s locale at the time of her  
injury. The vocational specialist was also able to review the above WCB  
medical consultant’s March 27, 2020 report as well as current medical  
reports regarding the worker’s current return to work status. The  
vocational rehabilitation consultant opined, in part:  
“Taking the vocational rehabilitation hierarchy into consideration, there  
are few occupations that [the worker] could consider for employment.  
Research was conducted to locate options that meet [the worker’s]  
abilities and limitations, was related to her transferable skills and  
education level, and meet the targeted wage rate of $15.00 (current  
Alberta minimum wage).  
Research included review of the National Occupational Classification  
(NOC), Service Canada, ALIS - Alberta Career, Education and Learning  
information, Alberta.ca Wage and Salary Information, Alberta  
Government Labour Market Notes, various employment related websites,  
previous research with employers, and introductory labour market  
research.”  
[50.3]  
The vocational rehabilitation consultant stated that he investigated  
minimum wage jobs in the worker’s locale between 1985 and the present  
(2020), and that this research uncovered a variety of jobs. The vocational  
rehabilitation consultant cited the most prominent jobs available as well as  
the particular challenges the worker would face in obtaining full-time  
employment within each position as follows:  
Manipulating cash registers, multi-tasking required of a receptionist,  
knowledge of computer software, challenges with dexterity, writing and  
keyboarding make reception work too difficult to perform.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 37  
Regarding call centre work wearing a telephone headset and computer  
console, the worker would be challenged to sit for long periods and  
would need to know knowledge of computer software, which she does  
not have, along with challenges of writing and keyboarding dexterity  
challenges, food processing or serving were outside of her restrictions  
given her dexterity problems.  
Working as a security guard – it was highly unlikely she would be  
considered suitable given her physical challenges. She would not be  
able to write reports in a timely manner and would be challenged to  
write and keyboard.  
Light duty cleaning was beyond her functional abilities, as was being a  
harvesting labourer.  
College level training was not a viable option to move out of the labour  
intensive jobs but if so, a vocational assessment would need to be  
done.  
The vocational consultant noted the worker may benefit from learning  
how to use computer software such as Dragon Naturally Speaking as  
this would make her more competitive. However, there was no  
comment as to whether the worker was able to learn the software.  
[50.4]  
The vocational rehabilitation consultant ultimately concluded:  
“The worker has had serious functional limitations since July 8, 1985 and  
has not engaged in employment of any sort since 1993. In reviewing  
Minimum Wage level occupations in and around the [region of the  
worker’s locale] from 1985 to present, it has been determined by the  
author that no suitable, work opportunities exist, or did exist, for [the  
worker] in her current functional state.”  
[50.5]  
The vocational rehabilitation consultant also provide an appendix of  
reviewed documents indicating he had read the February 9, 1994 FCE,  
the case manager’s January 28, 1998 reasons for the ELS Proposal from  
the WCB case manager, the February 5, 2020 CFCE completed at the  
WCB sponsored rehabilitation centre, the March 6, 2020 case manager  
letter indicating injuries accepted on the file, his own interview of the  
worker’s current and past status, and employment history. He also cited  
resource definitions such as the National Occupational Classicization  
(NOC) system, Service Canada, ALIS – Alberta (career planning) and  
Alberta Government Online Resources including labour market notes and  
wage a salary information.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 38  
[50.6]  
The worker’s representative submitted that generally when TSA reports  
are submitted to WCB, given the expertise of the reporting consultants,  
their reports are considered sufficient for the WCB to accept their  
conclusions regarding the consistency between the job demands and the  
worker’s work restrictions as well as whether the worker is available in the  
worker’s locale.  
[50.7]  
We find the TSA reports represents a valid reflection of the types of  
minimum wage jobs available in 1994. We place significant weight on the  
vocational rehabilitation consultant’s opinion given his level of expertise in  
preparing such reports for the WCB and in reviewing medical restrictions  
in the context of transferable skills and the various jobs he knows to look  
for. He found that of the jobs he researched retroactive to 1994, there  
were none, and none in the worker’s locale, that would have been able to  
accommodate the worker’s work restrictions.  
[50.8]  
As noted above, we placed considerable weight on the independent  
orthopedic surgeon’s follow-up opinion of August 23, 1994 that the  
combination of the worker’s ailments and her lack of improvement  
rendered her fit for “at best” a very specialized sedentary job. He further  
concluded that unless such a job existed his opinion was that the worker  
was totally disabled. This comment begged the question of whether a  
suitable job could be obtained for the worker in 1994.  
[50.9]  
We also noted above that the1998 case manager concluded the worker  
would have to let him know if the worker was able to find anything and the  
worker’s new case manager stated on January 28, 1998 that without a  
profile, and the fact that the worker could no longer perform physical  
labour and had a fear of driving, it would be “pointless to authorize further  
monies to pursue employment options which would not likely materialize.”  
[50.10] Alternatively, the May 14, 2020 transferable-skills-analysis (TSA) report  
relayed a knowledge of the worker’s skills profile at the time as well as the  
results of research on the various types of jobs that would be available to  
the worker in 1994 and an understanding of the worker’s medical  
restrictions. This report indicated a suitable position did not likely exist in  
the worker’s locale on July 24, 1994.  
Response to the WCB’s Submissions  
[51]  
[52]  
In making our determination, we acknowledge the WCB legal representative’s  
submissions made in this appeal.  
In paragraphs 46-53 of our Preliminary Matters Decision, we explained our  
decision to limit submissions from the WCB legal representative to those that  
were consistent with section 13.2(6) of the WCA regarding the application of  
WCB Policy, the WCA and its regulations relating to the issue before us. We  
Classification: Protected A  
Decision No.: 2021-0334  
Page 39  
have concluded that some of the WCB legal representative’s submissions at the  
hearing went beyond what is permitted according to section 13.2(6) in that they  
spoke to the merits. As such, these submissions have not been addressed.  
[53]  
We consider the balance of the WCB legal representative’s submissions  
essentially reiterated the same arguments and submissions noted in the  
preliminary matters hearing of November 18, 2021. Since we have already made  
our decision regarding our jurisdiction to amend the issues, as set out in our  
Preliminary Matters Decision, we will not revisit them in this decision on the  
merits.  
Conclusion  
[54]  
Given our analysis of the evidence over the years in conjunction with the  
comparisons between the worker’s restrictions in 1994 onward, we find the  
weight of evidence does not support that the worker was capable of working  
full-time hours effective July 24, 1994. Further, the weight of evidence supports  
that a suitable position was not available in the worker’s locale effective July  
24,1994.  
[55]  
We therefore find the worker’s ELS was not appropriately estimated on the salary  
of a minimum wage position at full-time hours effective July 24, 1994.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 40  
Decision – Issues 1 and 2  
[56]  
[57]  
[58]  
Was the worker’s earnings loss supplement appropriately estimated on the  
basis of a minimum wage position at full-time hours, effective July 24, 1994  
(when the worker’s earnings loss supplement was first implemented)?  
The worker’s earnings loss supplement was not appropriately estimated on the  
basis of a minimum wage position at full-time hours, effective July 24, 1994  
(when the worker’s earnings loss supplement was first implemented).  
The worker’s appeal is granted. The December 1, 2020 and March 25, 2021  
decisions of the Dispute Resolution and Decision Review Body are reversed.  
This decision is made with the full agreement of the hearing panel.  
Decision signed in Edmonton, Alberta on July 14, 2022.  
C. Ryan  
Hearing Chair  
(on behalf of the panel)  
Hearing Panel:  
C. Ryan  
P. Paquette  
C. Read  
– Hearing Chair  
– Commissioner  
– Commissioner  
Typed by: jag  
E_DEC08D (20210701)  
Classification: Protected A  
Decision No.: 2021-0334  
Page 41  
Appendix A  
Legislation – Workers’ Compensation Act, RSA 2000, c W-15 (WCA)  
Section 13.1(1):  
“Subject to sections 13.2(11) and 13.4, the Appeals Commission has  
exclusive jurisdiction to examine, inquire into, hear and determine all  
matters and questions arising under this Act and the regulations in  
respect of  
(a) appeals from decisions of a review body under section 9.4,  
(b) appeals from decisions under section 120 made by a review body  
appointed under section 119,  
(c) appeals from determinations of the Board under section 21(3),  
and  
(d) any other matters assigned to it under this or any other Act or the  
regulations under this or any other Act,  
and the decision of the Appeals Commission on the appeal or other  
matter is final and conclusive and is not open to question or review in any  
court.  
. . .  
(3) The Appeals Commission may make rules governing the practice and  
procedure applicable to proceedings before it.  
. . .  
(10) If the evidence in support of the opposite sides of an issue related to  
a claim for compensation is approximately equal, the issue shall be  
resolved in favour of the worker.”  
Section 13.2(6) of the WCA states:  
“(6) In the hearing of an appeal under this section, the Appeals  
Commission  
. . .  
(b) is bound by the board of directors’ policy relating to the matter  
under appeal,  
. . .  
(d) may confirm, reverse or vary the decision or determination  
appealed,  
. . .  
(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.”  
Classification: Protected A  
Decision No.: 2021-0334  
Page 42  
Section 53 of the WCA states:  
“Compensation to dependants residing outside Canada  
53 The Board may, in its discretion, pay compensation to a dependant  
who resides outside Alberta but no such dependant is entitled to receive  
greater compensation than the dependant would receive if the dependant  
were resident in Alberta.”  
Section 52 of the WCA states:  
“Worker leaving Alberta  
52 If a worker who is entitled to compensation under this Act leaves  
Alberta and takes up residence in another jurisdiction, the Board may  
cease paying compensation under this Act to that worker unless  
(a) the worker provides medical evidence in a manner satisfactory to the  
Board confirming the continuation of the disablement and the Board is  
satisfied that the period of disablement is not prolonged by the worker  
leaving Alberta, or  
(b) the worker has been granted an award for permanent disability arising  
out of the accident.  
. . .”  
Section 56 of the WCA states:  
“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 bi-weekly 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  
worker’s net earnings, and for that purpose the Board shall calculate the  
worker’s net earnings in accordance with the regulations and based on a  
period or periods of time prior to the accident that, in the Board’s opinion,  
fairly and justly represent the worker’s 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 Board’s opinion, insufficient to allow the Board  
to calculate the worker’s 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).  
Classification: Protected A  
Decision No.: 2021-0334  
Page 43  
(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 worker’s 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.  
(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 worker’s net earnings, and  
(b) in the case of permanent partial disability and temporary partial  
disability, a proportionate part of 90% of the worker’s net earnings  
based on the Board’s 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 worker’s 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 Board’s 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 worker’s bi-weekly 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 bi-weekly equivalent of the amount that the worker would have  
received under subsection (6) had the worker been permanently  
totally disabled,  
and  
(b) where the worker’s bi-weekly net earnings are equal to or less than  
the sum referred to in subsection (7)(a), 100% of those bi-weekly net  
earnings.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 44  
(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 proportionate part of  
90% of the worker’s earnings loss, based on the Board’s 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.  
. . .”  
Section 63 of the WCA states:  
“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.”  
Classification: Protected A  
Decision No.: 2021-0334  
Page 45  
Appendix B  
Workers’ Compensation Board Policies and Information Manual  
WCB Policy 04-04 (September 5, 2018 version)  
Policy 04-04, Part I, Permanent Disability  
“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  
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  
worker’s 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 Before January 1, 1995  
When an accident occurred before January 1, 1995, the WCB provides  
the following permanent disability benefits:  
1) when there is a permanent clinical impairment,  
a permanent disability award in the form of a pension, to  
compensate the worker for the permanent clinical impairment and  
assumed loss of earnings, and  
Classification: Protected A  
Decision No.: 2021-0334  
Page 46  
consideration of an earnings loss supplement if the actual loss of  
earning capacity due to compensable permanent work restrictions  
exceeds the value of the permanent disability award.  
2) when there are compensable permanent work restrictions with no  
measurable permanent clinical impairment,  
consideration of an earnings loss supplement if the compensable  
permanent work restrictions impair the worker’s earning capacity.”  
Policy 04-04, Part II, Application 1, Determining Permanent Impairment of Earning Capacity  
“1.  
Why does WCB need to determine the permanent impairment  
of earning capacity resulting from the injury?  
WCB’s estimate of the permanent impairment of earning capacity  
resulting from the injury is used to determine the benefits for which the  
worker is eligible. The Economic Loss Payment (for injuries on or after  
January 1, 1995) and Earnings Loss Supplements (for injuries before  
January 1, 1995) are both based on impairment of earning capacity.  
2.  
When does the WCB determine permanent impairment of  
earning capacity?  
WCB determines permanent impairment of earning capacity when the  
worker has reached both a medical and a vocational plateau. The WCB  
will periodically review the extent of the impairment.  
. . .  
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 worker’s annual net earnings at the time of the accident  
(calculated in accordance with the WCA and WC Regulation), with the  
worker’s actual or estimated post-accident net earnings. The WCB then  
evaluates whether any reduction in earnings is attributable to the  
permanent disability.  
4.  
When does WCB estimate earning capacity instead of using  
actual post-accident earnings?  
WCB estimates the worker’s 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.  
. . .  
Classification: Protected A  
Decision No.: 2021-0334  
Page 47  
6.  
What is suitable employment?  
For the purposes of estimating earning capacity, suitable means  
employment which is consistent with the worker’s ability and which is  
within the worker’s locale or may be obtainable where relocation is  
reasonable. The WCB’s assessment of ability will be based on physical,  
vocational, social, and psychological circumstances and such other  
factors as the 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  
worker’s earning capacity in that employment.  
WCB may base the estimate on other information under some  
circumstances (for example, if the worker unexpectedly increases earning  
capacity with other employment, the worker’s 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.” [Underline emphasis added]  
Policy 04-04, Part II, Application 6, Earnings Loss Supplements (Issue Date: April 3, 2018)  
“1. What are Earnings Loss Supplements?  
Earnings Loss Supplements (ELS) are discretionary compensation  
payments made when a permanent disability award (pension) does not  
fully compensate the worker for the loss of earning capacity caused by  
the compensable injury.  
2.  
Who is eligible for an Earnings Loss Supplement?  
To be eligible for an ELS, the worker must meet the following conditions:  
1) the worker has compensable permanent work restrictions which  
cause a loss in earning capacity*, and  
2) the loss in earning capacity caused by the compensable permanent  
work restrictions is greater than any pension the worker is receiving  
for the same injury.  
* See Application 1, Determining Impairment of Earning Capacity.  
The worker may or may not be receiving a pension, depending on  
whether the permanent disability includes a measurable clinical  
impairment.  
An ELS is applicable only if the accident occurred on or before  
December 31, 1994. Claims occurring on or after January 1, 1995 are  
considered under the provisions of Economic Loss Payments  
Classification: Protected A  
Decision No.: 2021-0334  
Page 48  
(see Application 3 for dates of accident on or after January 1, 2018, and  
Application 4 for dates of accident from January 1, 1995, to December 31,  
2017, inclusive).  
3.  
How does WCB determine the supplement amount?  
WCB determines loss of earning capacity by comparing the worker’s  
post-accident earning capacity with earning capacity at the time of  
accident, as follows:  
a) the worker’s pre-accident net earnings*, calculated in accordance with  
the WCA and the WC Regulation,  
LESS  
b) any periodic compensation the worker is receiving for the same  
accident  
and  
the greater of the worker’s post-accident actual net earnings or  
estimated post-accident net earning capacity, calculated in  
accordance with the WCA and the WC Regulation.  
* pre-accident net earnings may be either the earnings from date of  
accident or a rate adjusted under [section] 61 of the WCA (see  
Policy 04-03)  
WCB then calculates an amount up to 90% of the earnings loss,  
according to the percentage of the earnings loss which, in WCB’s opinion,  
is caused by the compensable disability. . .  
. . .  
WCB reviews ELS periodically to confirm the amount and the worker’s  
continuing eligibility  
. . .  
4.  
How long do Earnings Loss Supplements continue?  
If granted, an ELS will continue until the earnings loss ends or the worker  
reaches retirement age, whichever is first.  
. . .  
6.  
What happens if a worker with an ELS becomes unemployed?  
The action taken will depend on the reason the worker became  
unemployed.  
If termination was in some way due to the compensable disability, WCB  
will review the worker’s medical condition and vocational profile, and  
readjust the ELS if appropriate.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 49  
If termination was for reasons unrelated to the disability, WCB will usually  
continue to estimate the worker’s earning capacity as though employment  
continued (see Application 1, Question 4). WCB may adjust the ELS,  
however, if the termination was not the fault of the worker (for example, a  
plant closure), and there are unusual circumstances which prevent the  
worker from obtaining similar employment elsewhere. For example, if it is  
not reasonable to expect the worker to relocate; the job had been  
modified extensively to accommodate compensable work restrictions so it  
is unlikely the worker would be able to obtain similar employment with  
another employer; or the termination occurs soon after completion of the  
approved vocational plan, and the plan had identified the employment as  
being suitable and accessible. Each situation will be judged on its own  
merits.”  
Policy 04-05 Return to Work Services Issue April 3, 2018  
“POLICY:  
When a work-related injury results in compensable work restrictions that  
impair a worker’s employability at pre-accident insurable earning levels,  
WCB will, together with the eligible worker, develop a plan for  
appropriate, cost-effective return-to-work services to help the worker  
return to employability.  
There is no requirement under the Workers’ Compensation Act (WCA) for  
employers to rehire injured workers. However, under human rights  
legislation, employers have a duty to accommodate workers with  
disabilities. Human rights legislation applies to workers’ compensation  
situations in the same way as other disabilities.  
When a worker dies as a result of a compensable accident, the  
dependent spouse or, as of June 1, 2003, the dependent adult  
interdependent partner, is eligible for the same vocational services the  
worker would have been entitled to, had the worker lived.  
This policy is effective September 1, 2001, except when noted otherwise  
in a specific policy section(s).  
INTERPRETATION  
1.0  
Compensable Work Restrictions  
Compensable work restrictions are based on an assessment of the  
medical conditions (physical and/or psychological) which resulted from  
the work-related injury. Work restrictions impair a worker’s ability to  
perform pre-accident work duties or to adapt to some other employment.  
For example, the worker’s compensable condition prevents return to  
pre-accident or comparable employment, or the worker suffers from a  
disabling or potentially disabling occupational disease and continued  
exposure would be harmful. WCB identifies work restrictions based on  
medical and vocational information about the worker. The restrictions  
may be temporary or permanent.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 50  
2.0  
Employability  
WCB has no control over several factors that affect a worker’s return to  
employment. These factors include:  
economic conditions,  
the availability of employment opportunities,  
the worker’s effort and commitment to find employment,  
an employer’s 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 worker’s 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.  
3.0  
Eligible Workers  
To be eligible for return-to-work services, the worker must be entitled to  
benefits under s.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 employability. The plan also includes an estimate of  
the worker’s earning capacity on completion of the plan. The plan will  
form the basis of any estimation of the worker’s earning capacity for  
calculating earnings loss.  
5.0  
Appropriate and Cost-Effective  
WCB will consult with the worker to jointly develop an appropriate and  
cost-effective return-to-work plan that is consistent with the worker’s  
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.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 51  
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 noncompensable factors  
delays or prevents a worker’s 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 worker’s employability. The services may include, but are not limited  
to:  
counselling services  
job clubs  
job search assistance  
relocation assistance  
re-employment assistance  
temporary modified work programs  
training  
vocational assessments  
workplace modifications  
7.0  
Duty to Accommodate  
In accordance with s.7 of the Alberta Human Rights Act, it is the  
employer’s and, where applicable, the union’s duty to accommodate a  
worker’s physical or mental disability unless accommodation imposes  
undue hardship.  
This duty imposes specific obligations on employers, unions and workers:  
the employer must take reasonable steps to accommodate an  
employee’s individual needs  
Classification: Protected A  
Decision No.: 2021-0334  
Page 52  
the union cannot prohibit an accommodation that is considered  
reasonable, even if that accommodation contravenes a collective  
bargaining agreement  
the worker must consider an accommodation that is deemed  
reasonable WCB works with the employer, worker, physician, and  
union (where applicable) to facilitate return to work that makes  
reasonable accommodation for a worker’s work restrictions.  
The question for WCB is whether the work is suitable. WCB does not  
adjudicate disagreements or complaints about failure to comply with  
human rights legislation. Concerns about discrimination or undue  
hardship must be filed with the Alberta Human Rights Commission.”  
WCB 04-05 Part II, Application 1 General  
“1. What is WCB’s role in return-to-work services?  
WCB is responsible for helping a worker return to employability, and may  
use a variety of tools to do so, as part of a return-to-work plan. The word  
‘helping’ is important, as the worker shares responsibility for overcoming  
the effects of an injury. WCB works with the worker, the employer, and  
when appropriate, health care providers to develop the return-to-work  
plan. Other parties are consulted as needed.  
WCB is also required to manage the Accident Fund effectively by  
ensuring that the services provided are appropriate and cost-effective.  
2.  
How does WCB determine the worker’s eligibility for return-  
to-work services?  
Workers are only eligible for return-to-work services while they have a  
compensable disability. Once the worker’s disability and entitlement  
under s.56 of the WCA have ended, then the worker’s eligibility for  
return-to-work services also ends. Therefore, the nature of the injury and  
the extent of any residual disability determine which return-to-work  
services are appropriate.  
The following questions are a guide for determining whether a worker is  
eligible for return-to-work services:  
Does the worker have any compensable work restrictions?  
There are two parts to this question:  
are there work restrictions, and  
are they compensable?  
The worker is only entitled to return-to-work services if there are  
compensable work restrictions, see Part I, 1.0.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 53  
Are the identified compensable work restrictions temporary or  
permanent?  
Part of the case management process is determining the anticipated  
outcome of an injury. The key question is whether the worker is expected  
to recover with or without permanent compensable work restrictions.  
Work restrictions are normally considered temporary during medical  
(clinical) convalescence. The work restrictions may change as the  
worker’s recovery progresses. When the worker’s condition has reached  
a medical plateau (see Glossary) and no significant change is anticipated,  
any remaining work restrictions would be considered permanent, unless  
there is evidence to the contrary.  
If temporary, do the work restrictions result in total or partial disability?  
Work restrictions are considered total when the worker is not medically fit  
to return to employment. They are partial when a fitness-to-work  
examination indicates that the worker is able to return to some type of  
modified work.  
Do the work restrictions affect the worker’s earning capacity?  
The effect of compensable work restrictions on the worker’s earning  
capacity must be taken into consideration when determining entitlement  
for either temporary or permanent earnings replacement benefits and  
return-to-work services.  
At the conclusion of the return-to-work process, any remaining  
impairment of earning capacity resulting from the injury will be considered  
when determining permanent disability compensation benefits.  
3.  
How are return-to-work goals determined?  
The ideal outcome is to help the worker return to the same job with the  
accident employer, with no loss of earnings. However, this is not always  
possible when the worker has permanent compensable work restrictions.  
WCB will then work with the worker to identify other options. In all cases,  
priority will be given to using the skills and knowledge the worker already  
has.  
If it appears that the worker must change occupations, WCB will help the  
worker identify transferable skills and may arrange a vocational  
assessment, including a career assessment inventory, and tests to  
determine aptitude, interests, IQ, manual dexterity, etc.  
4.  
Will WCB retrain a worker?  
WCB may sponsor retraining. See Applications 4 and 5 for details.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 54  
5.  
Will WCB help modify the workplace to accommodate work  
restrictions?  
WCB may help modify an employer’s premises to enable a worker with  
permanent work restrictions to gain access to the workplace and perform  
the required job duties. Portable aids may be given directly to the worker,  
so that they can be transferred to another workplace if necessary.  
Limited modifications, such as an ergonomic chair or vehicle hand  
controls may be made to accommodate temporary work restrictions.  
6.  
What about tools and equipment needed for a new job?  
WCB may lend tools and equipment or give the worker financial  
assistance to buy tools and equipment for assessment, retraining, or  
employment. The worker is responsible for maintenance, repair, and  
replacement of the tools and equipment.  
7.  
What counselling services does WCB provide?  
WCB may provide counselling services to lessen the financial, social,  
vocational, or psychological effects of the compensable injury.  
In addition to return-to-work counselling, WCB may also provide the  
following counselling services:  
early interventional counselling to help the worker adjust to the  
compensable disability  
assessment of the financial implications of the resulting employment  
disruption  
assistance with personal and family problems which are delaying  
rehabilitation  
counselling for any other concerns delaying the worker’s  
rehabilitation, such as pain management, substance abuse, etc.  
WCB may provide the counselling directly, or refer the worker to other  
agencies.  
8.  
What if there are no suitable employment opportunities within  
commuting distance?  
If a worker needs to change jobs because of permanent compensable  
work restrictions, and there are no suitable jobs available in the worker’s  
area, WCB may recommend that the worker relocate to an area with  
appropriate employment opportunities. See Application 6, Relocation, for  
further details.  
Classification: Protected A  
Decision No.: 2021-0334  
Page 55  
9.  
What services are available for a worker who is expected to  
recover with no permanent work restrictions?  
Workers who are expected to recover with no permanent compensable  
work restrictions may be eligible for limited services such as a temporary  
modified work program or limited job search assistance while still  
convalescing. They are not eligible for services such as retraining, which  
are intended to help workers who have to change occupations.  
If the worker is assessed as fit to return to modified work, WCB will try to  
arrange a temporary modified work program. See Application 2,  
Temporary Modified Work Programs, for further details.  
If the worker does not have a job to return to with the accident employer,  
WCB may provide limited job search assistance, such as help with  
resume writing, job leads, etc., while the worker is still disabled (see  
Application 3, Job Search). This assistance will end when the worker has  
recovered with no remaining compensable work restrictions.  
10.  
Under what circumstances will WCB consider ending return-  
to-work services?  
WCB may end return-to-work services for any of the following reasons:  
the worker voluntarily ends employment or is terminated for reasons  
unrelated to the compensable injury  
the worker refuses to accept suitable employment  
the worker does not co-operate in the rehabilitative process  
the worker moves from Alberta to a place where employment  
opportunities are limited or return-to-work services are not readily  
available  
any other circumstances which, according to WCB policy, are  
considered harmful to the worker’s vocational rehabilitation  
11.  
When is this policy application effective?  
This policy application (Application 1 – General) is effective September 1,  
2001, except when noted otherwise in a specific policy section(s).”  
Classification: Protected A  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission