Decision #60/00 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on May 23, 2000, at the request of the claimant.
Issue
Whether or not the claimant is entitled to wage loss benefits for the period September 2, 1997 to May 1, 1998, inclusive.
Decision
The claimant is not entitled to wage loss benefits for the period September 2, 1997 to May 1, 1998.
Background
While performing the duties as a cashier on May 16, 1997, the claimant injured her neck and upper back muscles after lifting a 50 pound sac of potatoes. The diagnosis reported by the attending physician was a soft tissue neck strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on May 19, 1997. On September 11, 1997, the WCB advised the claimant that benefits would end on September 1, 1997, as she had returned to school on a full time basis and thus there was no loss of earning capacity as a result.
In June 1998, the claimant appealed the decision to terminate her benefits. The claimant stated "...when I decided to go to school, it was because I was injured and I wanted to find something I could actually do. I was making adequate money before I got hurt. I would not have gone to school if this hadn't happened. I have one year left of school and I cannot afford to go. I can't get a job because there is no work in what I can do ...".
On July 2, 1998, the claimant provided a sworn statement to a WCB field representative. Briefly, the claimant indicated that she started working with the accident employer in October 1996. By December, the employer indicated there was enough work for as long as she wanted to work.
The claimant said it was hard to say when she applied for a Business Administration course but it was prior to the accident. When she started school in September 1997 her neck and back were not that bad, mostly constant aching. In January 1998, she moved from her aunt's residence to a rented house. The vacuuming, shoveling snow, and carrying laundry up and down stairs were very hard on her back. When school ended in May 1998, the claimant started looking for work but work was hard to find as most jobs required lifting to some extent and she could not do that with her injury.
The claimant advised that it was not her intention to go to college but her mother insisted that she apply as an option. When she started working with the accident employer along with her teacher's aid job she was making enough money that she was not planning on going to school. The claimant indicated that she had originally applied for her course in Brandon, however, after the accident happened, she then transferred to the course in Dauphin. The reason she made the transfer was due to her injury and because she was seeing a doctor in Dauphin and her family was close by if she needed help. The claimant indicated that she would return to school for the second year if money wasn't an issue.
The claimant advised she was requesting that workers compensation help her find a career and that she was claiming for lost wages during the time she was in school. The claimant was of the view that if she had not had the accident, she would still be working with the accident employer and there was a good chance that she would have got back on as a teacher's aide.
The field representative also contacted Brandon Community College and learned that the claimant applied to the college on March 19, 1997. No date was obtained as to when the claimant transferred from Dauphin but it was before the 1997 school year began. The claimant maintained a full course load for both terms.
On July 3, 1998, Review Office confirmed that the claimant's work related accident of May 1997, on a balance of probabilities, did not contribute to a loss of earning capacity from September 2, 1997 to May 1, 1998. It determined that the claimant was not entitled to wage loss benefits for this period, in compliance with section 39 of the Act.
Review Office was satisfied that there was sufficient evidence to show that the claimant had made application to commence full time schooling effective September 2, 1997, and made these intentions known to her employer long before she had suffered the accident at work. Review Office found there was no information to show that the claimant had reasonable expectations of a continued earning capacity during the course of full-time attendance at school. Review Office concluded that the claimant's work related accident of May 1997 did not result in any loss of earning capacity.
Subsequent file documentation revealed that the claimant's benefits were reinstated on May 2, 1998, up to November 11, 1998, when it was determined by the WCB that the claimant was capable of performing her pre-accident duties.
On March 22, 2000, the claimant appealed the Review Office's decision of July 3, 1998, and a non-oral file review was arranged.
Reasons
The evidence confirms that the claimant voluntarily removed herself from the workforce and therefore, did not incur a loss of earning capacity resulting from an accident. Inasmuch as there was no wage loss, we find that the claimant is not entitled to benefits for the period September 2, 1997 to May1, 1998.
We note that the claimant also included with this appeal her right to the continuation of benefits beyond November 12th, 1998. However, this particular issue has not yet been entertained by the WCB and as a consequence, we (the Appeal Commission) can not address it at this time.
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 6th day of June, 2000