Decision #05/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 16, 1999, at the request of the claimant. The Panel discussed this case on several occasions, the last one being January 14, 2000.
Issue
Whether the claimant's benefits should have been reduced to reflect a post accident earning capacity of $37.90 a week; and
Whether the claimant is capable of full-time work.
Decision
That the claimant's benefits should be reduced to reflect a post accident earning capacity of $37.90 a week; and
That the claimant is capable of full time work.
Background
In March 1995 the claimant submitted an application for compensation benefits relative to an asthma condition, which he related to working with roofing tar during the course of his employment. The claim was accepted by the Workers Compensation Board (WCB) and the worker received benefits which included vocational rehabilitation assistance.
Following his attendance at a Career Planning Program the claimant was successful in obtaining a cab driver's license and in January and February, 1998, he worked part time for a taxi company. While driving taxi the claimant attended various doctors and emergency room facilities to support his degree of disability and to show that he could not work full time because of his level of impairment.
On September 22, 1998, a WCB Vocational Rehabilitation Consultant (VRC) wrote to the claimant. The VRC indicated that the claimant commenced employment as a taxi cab driver which was appropriate and in keeping with his physical restrictions. It was also expected that the claimant would be working full time at this employment as he did not have any restrictions supporting part time work. The VRC stated the following to the claimant, "You did not work full time at this employment as you explained that your health problems prohibited you from working full time. A subsequent review of your hours of work and income established a weekly salary rate of $37.90. Your bi-weekly wage replacement benefits would then be reduced by these earnings. Also, because we did not learn about your hours of work until some time after the fact, an overpayment existed on your file and this amount had to be recovered. The overpayment has now been satisfied. Unfortunately, you ceased working completely in February/98 and have not worked since. I regret that we cannot re-instate full benefits as you do not have medical evidence that supports your total disability. Therefore, your benefit rate will continue to be reduced by $37.90.".
On January 15, 1999, Review Office considered the case at the request of the claimant. Review Office indicated that the claimant put forth arguments as to why he was not capable of earning $37.90 a week driving a taxi. At one point he indicated that the exposure to cigarette smoke and the like encountered while driving a taxi aggravated his asthma to the point where he was unable to continue. On August 16, 1998, the claimant indicated that he was no longer driving due to the risk of being assaulted. Review Office placed no weight on these arguments.
Review Office indicated that the claimant admitted to smoking himself, although at one point he indicated that he did not inhale. The claimant also admitted that he attended a casino (which was smoke filled). Review Office recognized there was a degree of risk of being assaulted inherent in driving a taxi. Review Office, however, was of the opinion that the risk was not such that it should prevent the claimant from driving, especially in light of his over twenty years of experience. In conclusion, Review Office felt that the claimant was capable of earning at least $37.90 a week and that his doing so would in no way interfere with his participation in a vocational rehabilitation plan with a goal of returning him to full-time employment.
The claimant contended that his asthma was of such severity that he was forced to seek frequent medical attention and that this rendered him functionally unemployable. Review Office considered this did not establish that there was any reason why the claimant could not work full time. The only possible limitation on the claimant's ability to work was his asthma and the only restriction as a result of his asthma was to avoid exposure to roofing tar.
On June 16, 1999, an Appeal Panel hearing was conducted to determine whether the claimant was capable of full time work and to determine whether the claimant's benefits should have been reduced to reflect a post accident earning capacity of $37.90 per week. Following the hearing and discussion of the case, the Appeal Panel requested a Medical Review Panel (MRP) in accordance with Section 67(3) of the Workers Compensation Act (the Act). A MRP was originally scheduled for October 4, 1999 but did not take place until November 30, 1999. A copy of the MRP's findings and opinion were forwarded to the interested parties for comment. On January 14, 2000, the Panel met to decide the issues under appeal and took into consideration a letter received from the claimant, dated January 3, 2000.
Reasons
With respect to the first issue, we feel that it was appropriate to have the claimant's benefits reduced to reflect a post accident earning capacity of $37.90 a week. The evidence confirms that the claimant has demonstrated the ability to work on an occasional self-limiting basis. In this regard, we note that the claimant is presently driving a taxicab.
As to the second issue, we accept the MRP's finding that the claimant's mild form of asthma can be adequately controlled by the claimant through his use of prescribed medications. "Mr. [the claimant] states that he is now very dependent on his mechanical nebulizer, which he refers to as his 'machine'. The Panelists are of the opinion that, properly used, the above medications are as effective as this 'machine'." The claimant's mild asthmatic condition together with the restrictions outlined by the MRP, would not, in our view, prevent the claimant from working full-time. However, the claimant's allergic reactions, although not causally related to his compensable mild asthmatic condition, may restrict his ability to find full-time employment.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of January, 2000