The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 26, 2002, at the claimant's request.

Issue

Whether or not the worker is entitled to benefits beyond November 27, 2000.

Decision

That the worker is entitled to benefits beyond November 27, 2000.

Decision: Unanimous

Background

On April 1, 1997, the claimant incurred a back injury when he slipped off a roof during the course of his employment as a TV and antenna installer. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on April 2, 1997.

On May 21, 1999, Rehabilitation and Compensation Services advised the claimant that he was considered fit for some form of work. Restrictions were outlined for the claimant to avoid lifting greater than 20 pounds, carrying greater than 10 pounds, prolonged walking/standing/sitting and to avoid pushing/pulling. Effective May 17, 1999, the claimant's WCB benefits would be paid based upon his participation in a return to work plan arranged between him and his vocational rehabilitation consultant (VRC).

In April 2000, the claimant signed an Individualized Written Rehabilitation Plan with the occupational goal being Computer Operator (NOC 1421). To assist in attaining his vocational goal, the plan called for the claimant to participate and attend the Network Support Technician Program from January 24, 2000 to August 4, 2000. He would then begin a further six month work experience beginning August 5, 2000 completed by January 5, 2001. The claimant would also be provided with 12 weeks of job search assistance. Upon completion of the vocational plan, it was anticipated that the claimant would be capable of earning $396.16 weekly.

In a memo to file dated August 31, 2000, a VRC noted that the claimant experienced difficulties with respect to his upgrading program and was unable to complete his studies in the Information and Systems Technology course by August 4, 2000. After further discussion, it was determined that the claimant would re-sit the course in its entirety. The claimant's vocational rehabilitation plan was amended as follows:

• September 5, 2000 to March 23, 2001 - Studies at Midwestern School of Business and Technology
• March 25, 2001 to August 31, 2001 - Work experience
• September 3, 2001 to November 23, 2001 - Job Search

In a memo to file dated October 5, 2000, a WCB case manager noted that he spoke with the claimant. The claimant was informed that his case had been reviewed by the WCB's medical department. It was the opinion of Rehabilitation and Compensation Services that the claimant was not going to require restrictions on a long term basis. The case manager determined that the claimant would be capable of attempting a return to work following a reconditioning program. The claimant was advised to attend the work hardening program in the morning which would allow him to attend school in the afternoons. As the schooling had already been paid for, the case manager encouraged the claimant to finish up the program. The claimant was advised that his progress in the reconditioning program would be reviewed and if he continued to have ongoing difficulties and it was determined to be related to the work place injury, a review of the return to work plan would be undertaken.

Subsequent file correspondence showed that the claimant did not attend the reconditioning program but instead found new employment.

In a memo to file dated October 25, 2000, a case manager noted that a meeting had been held with the claimant. The claimant was advised of the WCB's position that he had recovered from the effects of his work place injury and of the opinion that after a 6 week reconditioning program he would have been able to return to work to his full duties. As the claimant was presently working, the WCB would use his current work activities as the equivalent of a reconditioning program. As the reconditioning program would have started October 16, 2000, the claimant would receive 6 weeks of partial wage loss benefits up to the completion of the reconditioning program which would be November 27, 2000. This decision was confirmed to the claimant in a letter dated October 26, 2000.

On March 9, 2001, a worker advisor appealed the above decision to Review Office and submitted additional medical information for consideration. The worker advisor contended that the claimant had ongoing restrictions that were related to the compensable injury and should be entitled to wage loss replacement. The claimant was seeking the difference between his actual earnings and the pre-accident earnings, for the period beyond November 27, 2000 to the present. In the alternative, the worker advisor requested that a Medical Review Panel (MRP) be held pursuant to section 67(4) of the Workers Compensation Act (the Act).

As the worker advisor submitted additional medical information and requested a MRP, Review Office referred the case back to primary adjudication for further consideration. On May 11, 2001, the worker advisor was informed that no change would be made to primary adjudication's earlier decision to end the claimant's benefits as of November 27, 2000 and that the request for a MRP was denied.

On December 14, 2001, Review Office considered an appeal by the worker advisor concerning benefits to the claimant after November 27, 2000 and with respect to the convening of a MRP. With respect to the issue of benefits, Review Office determined that the claimant was not entitled to benefits after November 27, 2000.

As to the claimant's physical status as it related to the compensable injury when adjudication ended responsibility on November 27, 2000, Review Office made reference to various diagnostic tests and various opinions expressed by specialists who were involved in the claimant's treatment. Review Office stated, in part, "Essentially there are few findings in the examinations and on the diagnostic tests to explain the claimant's low back pain, and numbness/paraesthesia involving the left leg as it relates to the 1997 compensable event. The claimant's expressed difficulties with his bowel function in our view do not prevent the claimant from performing work activities or sustaining a loss of earning capacity."

Review Office stated that Section 39(2) of the Act gave the board authority to determine the duration of wage loss benefits. It believed that the claimant was not entitled to payment of full or partial wage loss benefits beyond November 27, 2000. It believed that the claimant no longer had a loss of earning capacity related to the compensable injury after November 27, 2000 nor that the claimant should receive an extension of wage loss benefits under WCB policy 44.30.60 Notice of Change in Benefits or Services, for the following reasons :

• The WCB did not commit to a plan of vocational rehabilitation that was cost effective and expedient to continue.
  
  
• To have provided the claimant with an extension of 12 additional weeks wage loss benefits would not have assisted the claimant as the claimant needed a certificate to graduate and 12 weeks would not have provided him with this at the end of the period. Thus, the claimant would not have graduated from the program in 12 weeks. It did not make sense to continue the vocational plan.
  
  
• The claimant entered into a computer program in September 2000 that was paid for by the WCB. The claimant made the choice not to continue with his program after his claim ended in November 2000, despite the adjudicator's assertion to continue. This would have provided the claimant with computer skills increasing his level of employability, however, would not have brought the claimant's to his pre-injury earning capacity level.
  
  
• The claimant had an alternative source of assistance, employment he secured in November 2000, albeit at a lower wage.

On January 25, 2002, the claimant appealed Review Office's decision of January 10, 2002 with respect to his entitlement to benefits beyond November 27, 2000. On March 26, 2002, an oral hearing was held.

Reasons

From our reading of the file and from the claimant’s testimony, we note that a good part of this difficulty was due to family illness problems.

In September 2000, a WCB medical advisor, upon reviewing the file, indicated that, in March 1999, a year and a half earlier, another board doctor had stated that the claimant was fit for modified duties for a period of twelve weeks, following which he could return to regular duties. It was based on this medical review that the claimant’s benefits were terminated.

We note, in particular, that this occurred five and a half months after the board first signed a vocational rehabilitation plan with the claimant and a few weeks after the board agreed to an amendment of the plan.

By this time, the claimant had been receiving benefits for a period of almost three and a half years. And, the benefits he received, while attending school were his only income. It was only after he was notified of the termination that he found alternative employment. On this basis alone, he would qualify for the extended period of notice allowed by the first bullet noted above.

We find that he would also qualify under the second bullet, as he was actively engaged in a vocational rehabilitation program. Before entering into the plan the board would have determined it to be “expedient and cost-effective.” To find it not to be so, after the fact, may well be legitimate grounds for its termination. But to use that as grounds for not granting the claimant the extended period of notice is unfair, in our view.

Therefore, we conclude that the claimant is entitled to twelve weeks of notice, rather than the six weeks he was given. To that extent, the appeal is allowed.

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 18th day of April, 2002