The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 30, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on January 30, 2001.

Issue

Whether or not a deemed earning capacity of minimum wage for a 40 hour week should be implemented effective March 4, 2000; and

Whether or not the claimant is entitled to an attendant's allowance beyond September 23, 2000.

Decision

That a deemed earning capacity of minimum wage for a 20 hour week should be implemented March 4, 2000; and

That the claimant is not entitled to an attendant's allowance beyond September 23, 2000.

Background

During the course of his employment as a logger on October 6, 1993, the claimant sustained a fracture of his cervical spine at the C4-5 level and a dislocation of his left forefinger when he was struck by a falling tree. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced shortly after the accident.

In December 1996 the claimant signed a three year vocational rehabilitation plan with a view to his returning to work with a different employer. Under Section D (Plan Rationale) of the plan, it was noted that the claimant and his family decided to maintain their residence in Moose Lake. The claimant was advised of the WCB's relocation policy. He was also made aware that he was eligible for a maximum of three years at full wage benefits while job searching in Moose Lake. If he did not secure suitable employment within the three year period, then his benefits would be reduced in accordance with his earning capacity (minimum wage at 20 hours per week).

On December 23, 1999, a Vocational Rehabilitation Consultant wrote to the claimant and advised that in accordance with his vocational rehabilitation plan, his benefits would be reduced from $484.02/week to $391.96 per week effective March 4, 2000. On January 10, 2000, a worker advisor appealed the decision and the case was forwarded to Review Office.

The Review Office subsequently arranged for the claimant to be examined by a WCB medical advisor on May 31, 2000. Following this examination and after review of nerve conduction studies, the medical advisor commented that the claimant was capable of full time duties at medium level work and that he was to limit over headwork.

In decision dated September 15, 2000, Review Office determined that the claimant's deemed earning capacity should be at minimum wage for a 40 hour week effective March 4, 2000 and that he was not entitled to an attendant's allowance effective September 23, 2000. Review Office referred to the contents of WCB policy 43.20.40 Relocation and decided that there was no basis for not implementing a deemed earning capacity. The claimant declined to relocate and the WCB had fully met the requirements of the Relocation policy.

Review Office determined that the claimant was capable of full time work within limited restrictions. Although the claimant had significant non-compensable barriers that reduced his employability, the claimant would be capable of earning at least minimum wage if he resided in an area with reasonable employment opportunities. Given this rationale, Review Office considered the claimant's deemed earning capacity should be at minimum wage for a 40 hour week effective March 4, 2000.

Review Office further noted that the claimant was in receipt of a group 1 attendants allowance under the provisions of WCB policy 44.120.30, Attendants Allowance. In order to qualify for a group 1 allowance a claimant must meet one of the criteria. Review Office determined that the claimant did not meet the criteria outlined in the policy and therefore his attendants allowance was discontinued effective September 23, 2000. In September 2000, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate, the claimant suffered multiple injuries as a result of his being struck by a falling tree while working as a logger in October 1993. He received wage loss benefits until March 3, 2000, at which time, in accordance with WCB policy, a deemed earning capacity of 20 hours per week at minimum hourly wage was implemented. Review Office increased the claimant's deemed earning capacity to 40 hours per week at minimum hourly wage, because it felt that the claimant was capable of full-time work within limited restrictions.

After thoroughly reviewing the evidence, we find that a 20-hour workweek at minimum wage is more appropriate. In this regard, we attached considerable weight to the medical assessment of the claimant done by one of the WCB's medical consultants on May 31st, 2000. In his examination notes, he recorded the following clinical observations:

"This claimant has a previously well documented fusion at C4, 5 & 6 with a residual left brachial plexus injury. It would appear the claimant is in fact in an impaired pain behaviour status based on his responses to examination. However, it is well documented and confirmed the claimant does have restricted range of movement in his neck as outlined and also some degree of reduced power on the left side of his left arm as indicated. The claimant does have but not clearly defined, some degree of dermatomal altered sensation on the left arm. However, the findings of the left arm are felt to be muscular and not neurological.

The physical barriers and psychosocial barriers play a big part in preventing this claimant (sic) returning to any activity."

Coupled with the foregoing examination notes, we also considered the medical advisor's memorandum of August 3rd, 2000, which outlined restrictions on the claimant to work at a medium level.

"Based on call-in exam and NCS (nerve conduction study) this C (claimant) is capable of F/T (full time) duties at medium level of Canadian Standards i.e., frequent lifts and carrying objects up to 20 lbs. and occasional lifts up to 50 lbs. Limit overhead work to occasional basis because of neck restricted movements."

In accordance with the weight of evidence, we find that a deemed earning capacity of minimum wage for a 40 hour week should not be implemented effective March 4, 2000. As previously mentioned, we feel a 20 hour workweek at minimum wage would be more appropriate.

With respect to the second issue, WCB policy 44.120.30 outlines "the WCB's approach to supporting injured workers' participation in daily workplace and personal activities. The purpose is to assist, and to allow, workers to be as independent as possible. This policy recognizes that severely injured workers can experience additional costs to obtain assistance in performing the day to day tasks of living. Injured workers may also require additional devices or products." There is a significant distinction between the definition of an 'injured worker' and the definition of a 'severely injured worker'. We do not find that the claimant falls within the definition of a 'severely injured worker'.

The policy goes on to say that the WCB may provide financial support for personal care attendant services in those situations where a serious compensable injury or disability creates such a need. The WCB will exercise its discretion to pay for personal care "when a severely injured worker needs assistance to live at home" and the necessary level of care will be determined on a case by case basis. According to the policy, a personal care attendant provides services, which assist injured workers in dealing with the following tasks: "hygiene, safety and security, grooming, attendant/proctor care, feeding, food preparation, transfer assistance, toilet, medical treatments, provision of medical and non-medical equipment and professional care (e.g., nursing and healthcare aid services)."

We find, based on the current medical evidence that the claimant does not, in keeping with WCB policy 44.120.30, qualify for an attendant's allowance. Therefore, there is no further entitlement to it beyond September 23rd, 2000.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of March, 2001