The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 19, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 19, 2001.

Issue

Whether or not the worker is entitled to further wage loss benefits or vocational rehabilitation services.

Decision

The worker is not entitled to further wage loss benefits or vocational rehabilitation services.

Background

On May 31, 1977 the claimant sustained a compensable left eye injury when a piece of steel flew into his left eye while changing the brake shoes on a trailer. In 1988 his left eye was enucleated and the claimant was later fitted with a prosthesis. The claimant was employed as a logging truck driver at the time of accident and was a seasonal worker. He returned to his pre-accident duties in July 1977.

Due to his left eye injury, the claimant requested vocational rehabilitation services in 1983 as he was concerned about the safety of himself and others that drove the highways. The claimant reported that there was a slump in the forest industry and that the available work in the area had been greatly reduced. The claimant requested assistance in schooling and retraining. The Workers Compensation Board (WCB) granted the request for vocational rehabilitation services and the claimant received upgrading and was later sponsored into a college program with a goal of pursuing a diploma in forestry resource management. In January 1987 the claimant discontinued the college program as he did not obtain the required grade point average. The claimant was then provided with job search assistance.

In July 1997 the claimant started working for a trucking firm at a rate of $15.04 per hour. The claimant advised his vocational rehabilitation counsellor (VRC) that he was concerned over his restricted license as he was only able to haul lumber within a 500 mile radius of the Pas, Manitoba. The claimant felt he would have a better chance of securing other driving jobs if his license was expanded. He also expressed a concern of the possibility of his license being "lifted" due to previous driving convictions.

In a letter dated February 9, 1989 the claimant was advised that further vocational benefits and services were not warranted. The VRC indicated that the claimant had successfully returned to employment within his restrictions and was not incurring any wage loss. As the claimant demonstrated that he was capable of earning a rate of pay that was comparable to his pre-accident rate of pay, he was deemed to be capable of those earnings and would not require or be entitled to further wage loss benefits. It was also noted that as the claimant was subject to lay-offs prior to his injury and had been advised to apply for unemployment insurance benefits during current and future lay-offs, he had attained his pre-accident earning status.

On May 25, 1989 a worker advisor advised the WCB that the claimant attended a hearing with the License Suspension and Appeal Board to have his restriction lifted so that he could operate gravel trucks as well as logging trucks which he was restricted to. The Appeal Board lifted his restriction on gravel trucks which placed the claimant back to his pre-accident employment opportunities before his injury.

In April 1991, the claimant requested assistance from the WCB to return to school for a meat cutting course. The claimant noted the uncertainty of a large forestry company in the area and that he had no training for other work if and when the forestry company decided to close the doors of their operation. The claimant indicated there was a shortage of work with the trucking company he was employed with and was on unemployment benefits.

On May 9, 1991, the claimant was advised that the WCB would not sponsor him in a meat cutting course as he had successfully returned to employment within his restrictions, that he was not incurring any wage loss and that further benefits and services would not be warranted. It was also noted that as the claimant had been subject to lay offs prior to his injury and had been advised to apply for UIC during current and future lay offs, he had attained his pre-accident earning status.

In January 2001, the claimant contacted the WCB and spoke with a WCB VRC. In a memo dated January 10, 2001, the VRC noted that the claimant was requesting further vocational rehabilitation assistance. Due to [company's name] splitting the wood hauling, the claimant said he was laid off from his present truck driving position and was collecting UIC benefits that would be ending on January 13, 2001. The claimant advised that there had been no change in his medical conditions since he was last on benefits. He felt that he should be placed back on benefits due to his driving restrictions. The claimant said he was restricted to a class 1 and 3 license approved and restricted to the hauling of non-hazardous products within a 500 km radius of The Pas, Manitoba. A class 5 license was also approved. The claimant felt he had no job to return to and he was at a disadvantage due to his eye injury.

In a letter dated January 12, 2001, the VRC advised the claimant that his present situation that resulted in his lay-off was due to a change in the way that [company's name] was contracting their wood hauling service. The lay off was due to business circumstances of his employer and not a result of his injury. It was therefore determined that further services and benefits were not warranted.

The VRC also commented that consideration had been given to the claimant's restrictions that he presently had on his driver's license. It was pointed out that the claimant found his previous employment on his own and was able to maintain it within the restrictions to his driver's license. The loss of income that the claimant was experiencing occurred due to his UI benefits expiring and was not a result of his compensable injury.

On May 7, 2001, a worker advisor appealed the above decision to Review Office. The worker advisor stated, in part, "we are requesting that that the Rehabilitation Department assist this claimant by providing him assistance in the form of retraining or other skills that could make him more employable. We believe that the input provided this claimant by the Vocational Rehabilitation Department can be improved upon by extending additional services to this injured worker. This claimant took steps to mitigate his loss of income and insure that he could continue working. However due his limited employability he never regained his competitiveness in the work force since his injury." The worker advisor referred to sections 1(1), 4(1), 4(2), 27(20), 60(1) and 60(4) of the Workers Compensation Act (the Act) in making his submission to Review Office.

Prior to rendering a decision on the issue under appeal, Review Office obtained labour market information from Human Resources Development Canada. Review Office stated that the report documented fluctuations in the Northern Manitoba job market with job losses in some sectors and job gains in others. Forestry and Transportation both reported positive job growth forecasts.

Review Office spoke with a WCB employment specialist who felt that a substantial number of Class I drivers residing in Northern Manitoba would transport non-hazardous goods within 500 km's of The Pas. The employment specialist was not of the view that this type of license restriction would preclude employment as a seasonal short haul driver transporting forest products for logging companies or sand and gravel for road construction contractors.

In addition to the above, Review Office spoke with representatives of two firms involved in the logging business that was centered around The Pas, Manitoba. It was suggested that the vast majority of the trucking in this industry was done within 500 km's. Review Office also indicated that a representative of the provincial department of highways confirmed that sand and gravel hauling was seasonal work that was normally under way when the logging truck drivers were on seasonal lay-off thereby making it possible to do both types of work. It was determined that a substantial portion of sand and gravel hauling in Northern Manitoba was done outside of a 500 km radius of The Pas. It was also determined that this work was often performed by Southern Manitoba firms and their own drivers.

In a decision dated August 24, 2001, Review Office made reference to WCB policy 43.20.20 Modified and Alternate Work with the Accident Employer. Review Office concluded that the claimant was competitively employable in his pre-injury occupation as he had demonstrated for over a decade since the injury. It followed that wage loss benefits related to the compensable injury were not due and vocational rehabilitation services were not warranted.

On September 18, 2001, the worker advisor submitted an Application to Appeal to the Appeal Commission in relation to the Review Office's decision of August 24, 2001. An Appeal Panel hearing was then arranged.

Reasons

This case involves a truck driver who incurred an injury to his left eye in a workplace accident in 1977. The board accepted this as a compensable injury and benefits were paid accordingly. As noted in the Background, benefits included approval of a Vocational Rehabilitation program, which was ultimately unsuccessful.

He continues to receive a monthly payment for his permanent partial disability.

As also noted above, in 1988, it was necessary to remove his left eye. Nonetheless, he was able to find employment in his pre-accident field within the restrictions brought about by the loss of his eye.

In early 2001, subsequent to a downturn in the industry in which he worked, he re-applied for wage loss benefits and vocational rehabilitation services. He argued that his workplace injury, and the attendant restrictions, placed him at a competitive disadvantage when it came to seeking other employment - or similar employment in other locations than where he lived.

The board, at both the adjudicative and Review Office levels, denied this request for benefits. He appealed that decision to this commission.

For this appeal to be successful, the Appeal Panel would have to determine that the reason the claimant is unable to find work is due to his workplace injury and not due to economic conditions affecting the entire industry. We were not able to make that determination.

Prior to coming to our decision, we heard testimony and argument from the claimant and his advocate. The advocate asked that the claimant be "provided further assistance to place him on an equal footing as other workers who have not been injured." The assistance he requested was vocational rehabilitation services to provide the claimant with an alternative employment. This would include wage loss benefits.

The advocate asked that the board complete the rehabilitation scheme that it started with this worker in the mid-80's. At that time, the claimant was unable to meet the academic challenges of the community college course. After leaving the course, he ultimately returned to his home community and to driving a logging truck, his pre-accident employment, albeit with some restrictions.

From that time, 1987, he has worked more-or-less steadily in the same job. It should be noted that the job has always been somewhat seasonal and also affected by cyclical economic changes. In recent years, the amount of work available each year has decreased. At times, he was able to find other truck driving work in the off-season. Throughout that period, if no work was available, he had sufficient employment insurance to carry him through until work resumed.

In recent years, the industry has undergone a shift, with a new mill owner changing the way in which logs are transported from the cutting area to the mill. This has resulted in a significant decrease in the number of trucking jobs available. Add to that the current dispute between Canada and the United States in respect of softwood lumber, which has caused the mill to shut down for an indefinite period.

These are economic trends which have affected all drivers in the industry.

The advocate argued that the claimant carried an additional disadvantage due to his injury. While other drivers are able to relocate in search of work, the claimant is unable to do so, as his driver's licence restricts him to an area within a 500-mile radius of his community and to hauling logs and gravel only.

In his testimony before us, the claimant stated that he expects to have a bit of work this winter, that his regular employer has a small contract to haul logs.

Board Policy No. 43.20.20 addresses situations where injured workers might be put in a disadvantageous position due to their injuries. It reads, in part:

The WCB recognizes that when the work is interrupted due to economic conditions (labour issues or other factors that affect all workers), the initial loss of earning capacity is not due to the injury. If the worker is expected to return to the previous employment in a reasonable time period, the worker is not at a disadvantage compared to other workers at that workplace who are also experiencing a loss of earnings.

If the work interruption becomes prolonged to the point where similarly employed workers are pursuing other employment opportunities, and the injury places the injured worker at a competitive disadvantage in the general labour market, then the WCB will determine whether there is further entitlement to wage loss benefits and/or rehabilitation services.

If the WCB determines that the loss of earnings has occurred for reasons unrelated to the injury, there will be no change in benefits. If, however, there is a loss of earning capacity because the injury has affected the worker's ability to adapt to the changed workplace conditions, the WCB will provide benefits subject to policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity. The worker may also be eligible for other vocational rehabilitation services.

We conclude that the claimant's situation does not fit within the parameters of this policy, at this time. By his own admission, he expects to have some employment this winter, even though it may be of short duration. He also admitted that he hasn't really looked for other types of work.

The claimant has been able to continue in his pre-accident employment, within the restrictions, for over thirteen years. His current loss of income is due to the economic shifts in the industry. It has not yet been determined that his injury will prevent him from finding other employment. His assumptions that other employers will reject him because of his injury are not substantiated.

Accordingly, the appeal is dismissed.

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 13th day of December, 2001