The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on March 12, 2001, at the request of the claimant.

Issue

Whether or not the claimant's deemed post accident earning capacity has been calculated correctly.

Decision

That the claimant's deemed post accident earning capacity will continue at the retail salesperson level to December 31, 2001; and

That the deemed earning capacity then increase to a retail trades manager level effective January 1, 2002.

Background

In late December 1991, the claimant developed left shoulder pain during the course of his employment as a meat cutter. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced shortly thereafter.

In September 1995, the claimant signed a vocational rehabilitation plan with the view to re-education and training. In June 1998, the claimant graduated from a business administration program and started seeking employment in the hospitality industry and retail sales.

On September 21, 1998, a WCB employment specialist indicated that the claimant would be starting a work experience program as a retail trade manager trainee position at a men's clothing store. The work experience was established between October 5, 1998 to December 31, 1998. Training would include sales, customer service/relations, stock control, merchandising and alterations. On November 2, 1998, the claimant left the work experience program due to a number of events that occurred on October 30, 1998, which caused him stress.

On November 18, 1998, the employment specialist stated in a memo that the claimant would begin his job search beginning November 2, 1998, for 17 weeks concluding on February 28, 1999.

On November 25, 1998, the claimant began a part time sales position at another men's clothing store. On November 30, 1998, the claimant signed a revised vocational rehabilitation plan which indicated that effective March 1, 1999, his wage loss benefits would be based on his earnings or earning capacity, which ever was higher.

File documentation contains an earning capacity analysis for the claimant in the industry group of 0621, retail trade manager. It was the opinion of Employment Services that the claimant was capable of earning $355.87 per week, the starting wage loss for the NOC 0621, retail trade managers position.

On January 7, 1999, the claimant wrote to the Review Office indicating that as of February 28, 1999 he was deemed for a 40 hour work week while he was now working only 16 hours per week. As of February 28, 1999, he was deemed at the rate of $8.89 per hour for a management position, while he was working as a sales representative. The claimant indicated to Review Office that these decisions caused financial hardship for his family and himself.

In a telephone conversation with a WCB Review Officer on January 20, 1999, the claimant indicated that he was currently working only 12 hours a week due to business being slow and he expected this to be the case for a total of 6 weeks. The claimant indicated that he was working as a sales representative, not a management trainee. He did not understand why his deem was based on the salary of a retail trades manager. The claimant requested a 3 month extension of full wage loss benefits, less earnings. The claimant was currently looking for alternate full time work.

In a January 15, 1999 decision, Review Office determined that the claimant's deemed post accident earning capacity should be that of a retail salesperson ($310.82 per week) effective March 1, 1999 and that the claimant's deemed post accident earning capacity should be increased to the starting salary of a retail trade manager effective March 1, 2001.

Review Office considered that while it was reasonably expected that the claimant would be working in a management position in time, he could not be expected to re-enter the labour market at that level. Review Office considered it appropriate to base the claimant's deem on the starting salary of a retail salesperson (NOC code 6421) which was $310.82 a week (subject to the usual indexing) for a 2 year period. Effective March 1, 2001, the claimant's deem should be based on the starting salary of a retail trade manager (NOC code 0621) at that point. The claimant by then would have enough trade specific experience to quality to work in management.

Review Office noted that the claimant argued that his deem was inappropriate in that it was based on a 40 hour work week. Review Office's opinion in this matter was that file documentation established that there was full-time employment opportunities in the retail sector. It was not considered that the claimant's inability to secure full time work was due to a lack of opportunity or qualifications. The deem should be based on a 40 hour work week.

On December 16, 2000, the claimant stated in a letter that over 2 years, 300 resumes and 50 interviews later he is still trying to gain employment in the business administration field. The claimant believed that he was unsuccessful in finding employment due to several reasons, i.e. no previous experience, his age at 48 years old, his disability, and that he used the employment services at WCB to no avail. He stated that he was currently employed as a delivery driver at $7.00 per hour. The claimant said he had to find work to try and maintain his standard of living. His WCB benefits were being reduced and his wages were not keeping up to the amount of reduction.

On January 3, 2001, Review Office determined there was no basis for changing its January 15, 1999 decision. On January 10, 2001, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

This is the case of a worker who suffered an injury to his left shoulder in December 1991, which ultimately left him permanently disabled from returning to his pre-accident employment; but not disabled from doing other types of work.

The claimant was the beneficiary of a WCB-supported vocational rehabilitation program which, over three years, retrained him with a college diploma in business administration.

As his anticipated post-retraining earnings would be considerably less than his pre-accident earnings, he is entitled to ongoing wage loss benefits to "top-up" his income to the pre-accident level.

In determining the amount of this "top-up", the Board deemed that, after the retraining, he would be able to earn the equivalent of the starting salary of a retail trade manager, as set out in NOC code 0621. The claimant sought reconsideration of this decision. Review Office agreed with him and determined that his deemed earning capacity should be that of a retail salesperson (NOC code 6421), for a two-year period, at the end of which time he should be able to advance to a managerial position.

The claimant is now appealing what he describes as the reduction of his wage loss benefits.

Three factors have affected the amount of his benefits: the original deemed amount; annual increments in the salaries set out in the National Occupational Code; and - as of March 1, 2001 - the end of the two-year period prescribed by the Review Office, at which time his deemed earning capability is to increase.

In respect of the first factor, we are of the view that the original deemed amount was reasonable. We note that, prior to entering the business administration program, the claimant signed a Vocational Rehabilitation Plan, in which it was stated that the post-training deemed earnings would be $360.00, which, in fact, is somewhat higher than what was implemented upon completion of the program ($310.82). Furthermore, we feel that this amount is not an unreasonable expectation, given the extensive training the claimant received.

In respect of the second factor, we are bound to follow WCB Policy 44.80.80.20, which calls for an annual review of deemed earning capacity. For workers injured prior to January 1, 1992, deemed earning capacity will be increased by an amount equivalent to the annual change in the Consumer Price Index.

In considering the third factor, we reviewed the claimant's post-retraining work history as reported in the file. We noted that early reports from some of his employers noted that the claimant was having more than usual difficulty in adapting to retail sales and that his transition to management would be delayed, as a result. We also note that the claimant has not been able to find ongoing employment in any field related to his retraining. Thus, while we are in general agreement with the decision of the Review Office, we are prepared to extend the time period during which the deemed earnings will be those of a retail salesperson (NOC 6421) to December 31, 2001. On January 1, 2002, the deemed earning capacity will increase to that of a retail trades manager (NOC 0621).

The panel would like to add some comments as to the Vocational Rehabilitation Plan set up for the claimant. We are not prepared to criticize this plan. The plan was quite appropriate, given the claimant's capabilities and his stated career ambitions. The plan provided him with good skills and excellent training to pursue his career goals. Although we note his difficulties in achieving these goals, we would encourage him to take advantage of community-based services available to assist people with their job searches.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of March, 2001