The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 29, 2002, at the request of the claimant. The Panel discussed this appeal on January 29, 2002.

Issue

Whether or not the worker should have a deemed earning capacity of minimum wage for the period September 22, 2001 to November 15, 2001; and

Whether or not the worker should have a deemed earning capacity of $314.00 per week, effective November 16, 2001.

Decision

That the claimant should have a deemed earning capacity of minimum wage for the period September 22, 2001 to November 15, 2001; and

That the worker should have a deemed earning capacity of minimum wage and not $314.00 per week effective November 16, 2001.

Decision: Unanimous

Background

While employed as a labourer with a sewer and water construction firm, the claimant suffered a myocardial infarction on February 26, 1997. The claim for compensation was accepted by the Workers Compensation Board (WCB) and the claimant underwent a coronary artery bypass graft in June of 1997. In December 1998, a WCB internal medicine consultant outlined permanent restrictions for the claimant to "avoid lifting 100 lbs. or more or carry 50 lbs. of weight."

In a memo to file dated August 6, 1999, a Vocational Rehabilitation Consultant (VRC) made the following comments:

"...To date, Vocational Rehabilitation (VR) has focused on a return to work with the accident employer. This return to work was attempted and, due to issues already presented on file (lower than expected wages, too physically demanding work), was unsuccessful."

"A decision has now been made to focus on looking at vocational alternatives to construction/labour."

The claimant underwent academic re-testing and was assessed by a clinical psychologist. In his report of December 27, 1999, the clinical psychologist felt that the claimant's academic skills were adequate for continuing with a tentative Power Engineering plan and that the claimant's greatest barriers to vocational re-entry were likely not cognitive in nature but were related to his multiple "life stressors".

In February 2000, an individual written rehabilitation plan (IWRP) was developed for the claimant with the vocational focus on Power Engineering. The IWRP outlined a number of services that would be provided to the claimant which included resume updates, job search assistance, math upgrading, a six month work experience, etc. The plan was scheduled to start on March 6, 2000 and was to be completed by September 21, 2001. The IWRP also outlined "Plan Components". This entailed math and physics upgrading, support in completing a 4th class power engineering certificate, 12 weeks of job search assistance, etc. At the completion of the vocational plan, it was anticipated that the claimant would be capable of earning $459.60/week as a fourth class power engineer or $600/week as a third class power engineer.

In a memo to file dated February 28, 2000, the VRC indicated that she met with the claimant to go over the IWRP and that he was in agreement with the plan. The memo also stated that arrangements were made for the claimant to commence a work experience program on February 28, 2000 which entailed all the duties of a class 4 power engineer. On May 9, 2000, the work experience program was discontinued because of family/personal issues as well as the claimant's concerns over his work placement position.

On June 14, 2000, file documentation showed that the claimant was moving to Calgary, Alberta for a chance to start afresh. The claimant felt that power engineering was a good vocational goal as there was work in that field and plenty of jobs in Calgary. The claimant was provided with a letter written by a vocational rehabilitation supervisor dated June 12, 2000, which indicated that the IWRP was still in effect with a change to the effective dates.

In July, 2000 the claimant contacted the WCB indicating that he was back in Manitoba because of an illness in the family and that he had decided to remain in Manitoba to complete his vocational rehabilitation plan. In a letter dated July 17, 2000, the claimant was advised to submit his application form to Red River Community College for the Power Engineering Class IV program which was to start on August 28, 2000. The claimant was advised that continuation of wage loss benefits were contingent upon his full participation in his written vocational rehabilitation plan. In further correspondence dated August 25, 2000, it was noted that the claimant was unable to access the power engineering class IV program and that arrangements were being made for the claimant to take this program by correspondence through the Southern Alberta Institute of Technology.

On September 18, 2000 the case was referred to WCB's employment services to arrange for a work experience placement for the claimant to complete the required number of hours he needed in order to attain his Class IV power engineering certificate. In the interim, the claimant was attending tutoring sessions. Periodic updates as to his progress in the program were documented on file.

A VRC noted in a March 28, 2001 memo, that individuals in the power engineering field were usually asked to undergo a criminal record search as many of these jobs were in hospitals, schools, etc. Concern was expressed regarding the claimant's employability in the power engineering field given his previous criminal record.

In July 2001, the claimant advised the WCB that he was moving back to Alberta with his family. He had been looking for work in Winnipeg but could not find work that paid more than $7.00 per hour. In a letter dated July 19, 2001, the claimant was advised that his vocational rehabilitation plan was in effect until September 21, 2001 at which time his wage loss benefits would be reduced. The claimant was instructed to contact the WCB when he found work so that he would not be in an overpayment situation.

On August 20, 2001 the claimant called the WCB indicating that he moved to Kamloops and that he found work as a loader operator commencing on August 25, 2001. The claimant stated that he would be earning $15.00 per hour plus a northern living allowance. In September 2001, the claimant contacted the WCB to advise he was returning to Manitoba as the job in Kamloops turned out to be a labour position, which did not meet his restrictions/expectations.

On September 24, 2001, the claimant was advised that the WCB considered him capable of earning a weekly amount of $549.60 and that effective September 22, 2001 his benefits would be reduced by this amount, entitling him to a weekly benefit rate of $68.83. On October 3, 2001 the claimant appealed the decision and the case was referred to Review Office.

On November 2, 2001, Review Office determined that the claimant's benefits should be reduced to reflect his ability to earn the equivalent of the provincial statutory minimum wage and that his case be referred back to WCB's employment services to assess whether his earning capacity should be increased beyond the minimum wage level.

Based on file evidence, Review Office concluded that the claimant's vocational rehabilitation plan was not appropriate and as a result, his earning capacity could not be assessed according to the employment goal associated with this plan. Review Office believed that the claimant was capable of competing for employment within a broader labour market at the minimum wage loss level. Thus, effective September 22, 2001, his wage loss entitlement should be based on his assessed earning capacity. Review Office also referred the case back to Employment Services to further consider the claimant's earning capacity based on his existing skills and abilities. If Employment Services established that the claimant had an assessed earning capacity in excess of the minimum wage, then his wage loss benefits should be reduced further to reflect this assessed earning capacity.

In November 2001, an employment specialist (ES) assessed the claimant's earning capacity. AVRC noted in a November 15, 2001 memo, that based on the claimant's skills and abilities, the occupational area of assembly, NOC 9492, would be an appropriate occupation. The physical demands were well within the claimant's restrictions and there was a good labour market for this particular industry code. Weekly wages for this occupational area started at $414.00 per week with an annual increment rate of 3%. The VRC decided to provide retroactive benefits to the claimant based on $250.00 per week from September 22, 2001 to November 15, 2001 and based on an earning capacity of $314.00 per week from November 16, 2001 onwards.

Review Office considered the case again on December 28, 2001 and confirmed that the claimant's deemed earning capacity should be $314.00 per week effective November 16, 2001. Review Office based its decision on the claimant's failure to effectively involve himself in a plan of vocational rehabilitation together with the earning capacity information documented by the employment specialist. The claimant subsequently appealed Review Office's decisions and an oral hearing was held on January 29, 2002.

Reasons

We are in total agreement with the determination by Review Office that the claimant's vocational rehabilitation plan was not suitable. "[T]here is sufficient information on the claim file to suggest that the worker's vocational rehabilitation plan was not appropriate. Consequently, the worker's earning capacity cannot be assessed based on the employment goal associated with that plan."

The evidence is clear from a medical standpoint that the claimant is not totally disabled. According to a treating cardiologist's November 12th, 1998 report, the claimant was physically fit to return to work. However, we note that the claimant does have certain established restrictions. In this regard, we refer to a WCB medical advisor's memorandum on file, which states, in part, as follows: "I therefore feel Mr. [the claimant] will be able to carry out most of the activities, but as a prevention, he should avoid lifting 100 lbs. or more or carry 50 lbs. of weight. These restrictions are to prevent further problems."

A thorough review of the evidence strongly suggests that the claimant is capable of at least competing for full-time employment at a minimum wage level. Accordingly, we find that the worker should have a deemed earning capacity of minimum wage for the period September 22, 2001 to November 15, 2001.

As to the second issue, the evidence does not substantiate that the claimant should have been assessed with an earning capacity at a rate higher than minimum wage. Therefore, we find that the worker should not have a deemed earning capacity of $314.00 per week effective November 16, 2001. Inasmuch as the vocational rehabilitation plan was inappropriate, we are of the view and recommend that aggressive job search assistance be provided to the claimant. The ultimate goal of this assistance would be to find suitable employment at the minimum wage level and which as well would respect his compensable restrictions. We note that the claimant has presented with a number of self-limiting barriers, which should be addressed through the job search process. This recommendation is, of course, predicated on the claimant's participating fully in the job search assistance program.

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 22nd day of February, 2002