The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 6, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on September 6, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits from January 30, 1988 to May 1991 in relation to his compensable accident of November 27, 1987;

Whether or not the claimant is entitled to wage loss benefits beyond March 11, 1999 in relation to his compensable accidents of October 15, 1998, December 7, 1994, November 27, 1987 and/or October 17, 1986; and

Whether or not the claimant is entitled to preventive vocational rehabilitation benefits and services.

Decision

That the claimant is entitled to wage loss benefits for the period of January 30, 1988 to May 1991 in relation to his compensable accident of November 27, 1987;

That the claimant is not entitled to wage loss benefits beyond March 11, 1999 in relation to his compensable accidents of October 15, 1998, December 7, 1994, November 27, 1987 and/or October 17, 1986; and

That the claimant is not entitled to preventive vocational rehabilitation benefits and services.

Background

On November 6, 1986, the claimant filed an application for compensation benefits in relation to a left-hand infection, which he related to the chemicals he was in contact with during his employment activities as a flesher. File documents revealed that the claimant was diagnosed with contact dermatitis and chronic paronychia of the hands. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid for two periods of time loss. In December 1986 the claimant returned to his pre-accident position as a flesher.

In late 1987 the claimant filed a second claim for "rash on fingers", which he related to working with animal skins while working as a flesher on November 27, 1987. The diagnosis rendered by the attending physician was contact dermatitis. The WCB accepted the claim and 33 days of time loss benefits were paid. The claimant then returned to a different position (i.e. a floor walker) and was paid vocational rehabilitation benefits on a wage loss basis as the floor walker position paid less than the flesher position.

In a letter addressed to the WCB dated July 27, 1989, the employer stated that due to economic conditions the claimant would have been unable to maintain the flesher position and the associated level of earnings regardless of the compensable condition.

The Rehabilitation Committee considered the case on February 23, 1990 with respect to the employer's appeal. It ultimately determined that the claimant was not entitled to wage loss assistance beyond December 10, 1989 and that the employer would be relieved of costs associated with wage loss benefits effective January 30, 1988. It was evident to the Rehabilitation Committee that the claimant would have been unable to continue in his pre-accident position regardless of any effects of the compensable condition. The claimant continued to be exposed to the same irritants in the workplace despite a change in occupation and he continued to receive treatment in relation to the compensable condition. Since early 1988, the claimant continued his employment in such an environment without significant difficulties.

On November 20, 1990, a worker advisor appealed the above decision to Review Office who in turn requested and received additional information from the attending physician dated August 6, 1991, which outlined the dates that the claimant was treated between February 23, 1988 and July 9, 1991. The claimant later withdrew his appeal stating that he had returned to his job as a flesher and did not want to pursue the matter further.

In January 1999, an appeal was received from a union representative who requested that Review Office reconsider the case based on the arguments put forth by the worker advisor in his submission dated November 20, 1990. It was the union representative's position that the claimant's wage loss benefits should be reinstated from January 30, 1988 until his return to the flesher position in May of 1991.

On March 19, 1999, Review Office determined that the claimant was not entitled to wage loss benefits for the period of time he worked as a floor worker, i.e. from January 30, 1988 until sometime in May 1991. In order to grant the claimant's appeal, Review Office indicated that it would have to be of the opinion that the claimant was unable to return to work as a flesher in January 1988 due to a compensable condition. Review Office did not consider that the evidence supported such a position.

On January 20, 1995, the claimant filed a third claim with the WCB for "rash on both hands due to working with chemicals". The claimant was working as a flesher at the time and he stopped work in December 1994. When the claimant returned to work on January 24, 1995 he was sent to work in the beaming section.

A report from a dermatologist dated February 1, 1995, indicated that the claimant had an irritant contact dermatitis secondarily infected with Candida Parapsilopsis, which caused marked inflammation, fissuring and abnormal nails. The claimant was predisposed to this infection because he was unable to wear gloves on the job and his hands were constantly wet while at work. According to the specialist, there was a chance that if the yeast was completely eradicated from his skin, the claimant would have fewer or no recurrences of this problem.

In a follow-up report of April 5, 1995, the dermatologist reported that the claimant's skin was essentially clear. The skin around his nails were no longer inflamed but were normal. The infection and dermatitis seemed to be completely resolved. The specialist believed that the claimant could go back to his original work as a flesher and recommendations were made for him to continue using cream to prevent further infection.

On November 3, 1998, the claimant filed a fourth claim with respect to right arm and elbow pain which he related to extensive pulling and stretching of different types of pelts. The diagnosis rendered by the attending physician was right arm tendonitis. The claim was accepted by the WCB and benefits commenced on October 16, 1998. Subsequent progress reports received from the treating physician and from a physiotherapist showed that the claimant's condition had improved.

In December 1998, the claimant moved to Ontario. In a report dated January 1999, a Toronto physician stated, in part, that the claimant was unable to use his right arm due to persistent right elbow pain and that the claimant had contact dermatitis of both hands together with weeping eczema. The tips of the claimant's fingers were bleeding and cracked.

On March 4, 1999, primary adjudication determined that wage loss benefits would be paid to March 11, 1999 inclusive and final. It was the opinion of primary adjudication that the weight of medical evidence did not support a cause and effect relationship between the claimant's current difficulties and his compensable injury.

In April 1999, a union representative appealed the above decision to Review Office and made reference to a medical report prepared by the attending physician dated March 15, 1999. In a letter dated May 5, 1999, Review Office upheld the decision that the claimant was not entitled to wage loss benefits beyond March 11, 1999. This decision was reached, in part, on the following factors:

• Review Office did not believe that there was information to reasonably establish that the injuries for which the claimant received medical treatment in January 1999 (acute right lateral epicondylitis and severe dermatitis of both hands) were actually the result of any work related accident. These acute/severe injuries apparently developed at a time when the claimant was not actively employed and had not actually worked for a period of almost 3 months.

On July 20, 1999, a union representative submitted additional medical reports dated May 25, June 9 and July 9, 1999 to Review Office, which he felt supported his position that the claimant continued to suffer from the results of his work related activities and that he was unable to return to his pre-accident employment. On August 31, 1999, Review Office determined that no change would be made to its earlier decision.

On February 11, 2000, Review Office considered the case again based on an appeal received from a union representative who appealed the WCB decision of October 29, 1999. The decision stated that the medical evidence did not support the need for preventive restrictions with respect to the claimant's right elbow problems. Review Office ultimately determined that the claimant did not meet the policy criteria/requirements to merit the provision of preventive vocational rehabilitation services/benefits.

On August 21, 2000 a solicitor, acting on behalf of the claimant, appealed the various Review Office decisions to the Appeal Commission and on September 6, 2001, an oral hearing was held.

Reasons

Chairperson MacNeil and Commissioner Finkel:

Approximately six weeks after his 1987 compensable injury, the claimant was able to return to work as a floor worker, but not to his pre-accident job as a flesher. The floor worker job paid significantly less per hour than did the fleshing job. The WCB, however, reimbursed the claimant for the difference in salary between the two jobs. The payment of this partial wage loss continued until approximately December 19^th, 1989. It would appear from the evidence that there was no further active involvement on the part of the WCB from this point onward.

The claimant continued to work as a floor worker for close to one and one-half years, after which he was able to resume his position as a flesher in May of 1991. The evidence confirmed that the claimant continued to be treated for his skin condition during the period of December 1989 to May 1991. The claimant was able to return to work as a flesher in May 1991 and continued, despite intermittent bouts of contact dermatitis, to work at this job until December of 1994.

We find based on the weight of evidence that the claimant is entitled to wage loss benefits for the period of December 1989 to May 1991 in relation to his compensable accident of November 27^th, 1987.

With respect to the second issue under appeal, we find that the claimant is not entitled to wage loss benefits beyond March 11^th, 1999. It should be noted that the claimant abandoned his employer-employee relationship and voluntarily left the WCB’s jurisdiction when he moved to Ontario sometime in January 1999. There was little or no evidence of the claimant’s having attempted to seek suitable alternate employment within his physical capabilities in the Province of Ontario.

WCB policy 43.10.60 deals specifically with the subject of preventive vocational rehabilitation. Generally speaking, preventive rehabilitation will only be afforded to a worker in those situations where he or she “…has sufficiently recovered from the effects of a compensable injury to return to work and no benefits would otherwise be payable, but the WCB considers, after review of all relevant information, that a return to the previous occupation or industrial process poses a significant risk of further compensable disability, recurrence, aggravation, or similar injury.” The obligation on the part of the WCB to provide such rehabilitation assistance is not mandatory, but rather, it is discretionary.

A fairly exhaustive approach is undertaken by the WCB in assessing a worker’s potential eligibility for preventive vocational rehabilitation services prior to his or her recovery from the effects of a compensable injury. The policy identifies certain criteria, which must be satisfied before a worker qualifies for receipt of these particular services or benefits. The criteria are as follows:

• a worker has experienced a compensable injury, and it is the opinion of the WCB, after review of all relevant information, that a return to the previous occupation or industrial process is likely to cause a further, compensable disability recurrence, aggravation, or similar injury. The determination of the likelihood of further physical injury or occupational disease and loss of earning capacity may be due to the worker’s susceptibility or sensitivity associated with the compensable injury or due to a pre-existing condition of the worker which significantly increases risk factors, and,
• there is a reasonable expectation of success in preparing for alternate employment, and,
• savings at least equal to projected costs can be predicted with a cost-benefit analysis, and,
• a comparable service is not available, from some other source, at no cost to the WCB.

The underlying major premise of the WCB’s offering of preventive vocational rehabilitation assistance is to provide an injured worker with the opportunity for reemployment in an occupation or industrial process, which would not likely give rise to a similar compensable injury. Part of the work-up included in the development of a preventive vocational rehabilitation plan involves the calculation of potential future claims costs. According to the administrative guidelines contained in policy 43.10.60, “any preventive vocational rehabilitation intervention must be cost-effective. There must be a demonstrable cost saving to providing preventive vocational rehabilitation services when compared to the projected cost of not intervening.” The generally accepted standard of cost effectiveness employed by the WCB is that the overall cost of a preventive vocational rehabilitation plan should not exceed 50% of potential future claim costs.

We are in agreement with Review Office that the claimant does not meet all of the foregoing criteria and therefore he is not entitled to the provision of preventive vocational rehabilitation services or benefits.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller
R. W. MacNeil,

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

Signed at Winnipeg this 21st day of October, 2001

Commissioner's Dissent

A. Policy

A worker may be provided preventive vocational rehabilitation services or benefits where all the following criteria are met:

• A worker has experienced a compensable injury, and it is the opinion of the WCB, after review of all relevant information, that a return to the previous occupation or industrial process is likely to cause a further, compensable disability recurrence, aggravation, or similar injury. The determination of the likelihood of further physical injury or occupational disease and loss of earning capacity may be due to the worker’s susceptibility or sensitivity associated with the compensable injury or due to a pre-existing condition of the worker which significantly increases risk factors, and,

• There is a reasonable expectation of success in preparing for alternate employment, and

• Savings at least equal to projected costs can be predicted with a cost-benefit analysis, and,

• A comparable service is not available, from some other source, at no cost to the WCB.

For the minority, on a balance of probabilities, I believe that the claimant is entitled to preventive vocational rehabilitation benefits and services. Accordingly, the appeal is allowed on this issue.

B. Leake, Commissioner