Public Decisions | The Appeal Commission

Decision #132/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 17, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 17, 2001.

Issue

Whether or not the claimant's deemed post earning capacity should be minimum wage as of July 31, 2000.

Decision

That the claimant's deemed post earning capacity should be minimum wage as of July 31, 2000.

Background

The claimant sustained a compensable laceration injury to her left thumb on February 7, 1968 when her knife slipped while cutting poultry. As a result of the accident the claimant underwent three operations, the last of which was an extensor tendon lengthening of four fingers of the left hand on January 24, 1997. In March 2000, the claimant was assessed by a Workers Compensation Board (WCB) medical advisor and was awarded a 32% permanent partial impairment award.

In December 1999 an Individualized Written Rehabilitation Plan (IWRP) was established for the claimant. The plan was to begin on December 6, 1999 with the completion date being July 30, 2000. The occupational goal was a Home Support Worker (NOC-6471). The claimant was to complete a first aid and CPR courses along with work experience after which she was then considered capable of earning an entrance level salary of $291.00 per week.

With regard to physical capacity, the IWRP noted that Home Support Worker was classified as light work (ie. 20 pounds maximum lifting) and that the claimant's permanent left hand restriction was to avoid repetitive gripping. It was further noted that the claimant was right hand dominant and with this fact coupled with the duties required of a visiting homemaker she would be physically capable of employment in this capacity.

In a memo to file dated March 8, 2000, a WCB employment specialist summarized the claimant's employment activities as follows:

"Employment Services had been working with [the claimant] for approximately nine months. At first, it seemed like [the claimant] really wanted to get back to work. Now, it appears she is content with receiving WCB benefits and staying at home with her husband who is still recuperating from knee surgery. She has been informed that the Voc Rehab Plan will continue until July 30, 2000, and at that time her benefits will be reduced according to the earning capacity analysis on file. Although she does not agree with the Voc Rehab policy, she knows that a benefit reduction will take place at that time whether she is working or not."

In a follow-up memo dated June 21, 2000, a WCB employment specialist noted several discussions that he had with the claimant between March 28th and May 29, 2000 with regard to job search assistance. The employment specialist had arranged a couple of interviews for the claimant along with work experience, but at this point none of these opportunities had resulted in a paid employment position. He recommended that effective July 31, 2000, the claimant's wage loss benefits should be reduced to partial wage loss benefits based on the deemed earning capacity of $291.00 per week as indicated in the vocational rehabilitation plan. The claimant was notified of this decision in a letter dated June 22, 2000.

On August 16, 2000, a worker advisor advanced the argument that the December 1999 vocational rehabilitation plan was inappropriate for the claimant and that full wage loss benefits should be reinstated. The worker advisor felt that it was fitting for the claimant to receive Special Additional Compensation (SAC) benefits.

In a letter dated October 20, 2000, a Service and Trade Sectors case manager wrote to the worker advisor indicating that he was unable to reinstate wage loss benefits and that he concurred with the decision rendered by the employment specialist on June 22, 2000. The case was then referred to Review Office for consideration.

In a decision dated January 19, 2001, Review Office determined that the claimant's deemed post accident earning capacity should be minimum wage as of July 31, 2000. Review Office made to reference to WCB policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity and WCB policy 44.10.30.60, Practices Delaying Worker's Recovery in its decision.

Review Office indicated that the claimant's deemed post accident earning capacity was based on National Occupation Classification Code 6471, but that it had not been established that the claimant was competitively employable in most of the occupations within this code. There were limited opportunities for anything approaching full time work in the companion and similar occupational fields. The extent of the claimant's injury precluded her from considering a number of those positions. Review Office was of the view, however, that the claimant could work at jobs such as housekeeping in a motel.

In a telephone conversation with the claimant on January 17, 2001, Review Office noted that the claimant was not seeking work and that her hand pain was such that she could not work. The weight of evidence did not support this conclusion in the opinion of Review Office. Review Office indicated that although the claimant was not interested in commuting to Winnipeg from her residence in Steinbach for work purposes, it was reasonable to expect her to do so, given the short distance and the myriad of employment opportunities that would open up to her. The claimant was considered to be capable of full time work, however, her skill set was such that more likely than not she would be limited to minimum wage. Review Office was therefore of the view that the claimant's deemed earning capacity should be minimum wage as of July 31, 2000. Review Office specified that should the claimant decide to look for work and was prepared to do so outside of her community, she should be provided with services by the WCB's Employment Services Branch. On May 8, 2001, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was requested.

On May 28, 2001 the worker advisor submitted a February 12, 2001, report prepared by the claimant's treating physician for the Panel's consideration. On September 7, 2001 the worker advisor submitted literature for the Panel's consideration. On September 17, 2001, an oral hearing was held.

Reasons

As a consequence of her compensable injury, permanent restrictions to avoid repetitive gripping with her left hand were imposed. Despite this fact, we nevertheless find that the claimant is not totally disabled within the stated restrictions and that she is, on a balance of probabilities, capable of full time employment at minimum wage.

We accept and adopt the Review Office decision of January 19th, 2001. In particular, we would like to direct the claimant to the following comments:

Should the claimant decided to resume looking for work and be prepared to do so outside of her community, she should be provided with services by the Employment Services Branch if she requests same." (Emphasis ours)

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 19th day of October, 2001

Back