The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 22, 2002, at the request of the claimant. The Panel discussed this appeal on May 22, 2002.

Issue

Whether or not the claimant's wage loss benefits should be reduced by an earning capacity of $250.00 per week.

Decision

That the claimant's wage loss benefits should be reduced by an earning capacity of $250.00 per week.

Decision: Unanimous

Background

In late January 1995, the claimant injured her right wrist during the course of her employment as a nurse's aid. The claim was accepted by the Workers Compensation Board (WCB) and the claimant has received a variety of benefits from the WCB, some of which included vocational rehabilitation benefits and a pension award.

With regard to the issue under appeal, a WCB case manager wrote to the claimant on May 23, 2001. The following is a brief excerpt from that correspondence:

As per your Individualized Written Rehabilitation Plan (IWRP) enclosed, the conclusion date of your plan was April 30, 2001. Your former Vocational Rehabilitation Consultant provided you with a copy of this plan, which outlines the manner in which your benefits were to be adjusted, given your decision not to relocate to Winnipeg for employment. Vocational Rehabilitation determined that were you to relocate to the Winnipeg labour market, you would be capable of earning $250.00 per week, as per current industry wage rates.

Vocational Rehabilitation policy indicates that when an injured worker chooses not to relocate, they are entitled to receive full wage loss benefits for a three year period, following which benefits are reduced based on the amount they would be capable of earning had they relocated to Winnipeg. Therefore, as of April 30, 2001, your benefits were reduced by $250.00 per week. You will continue to receive partial wage loss benefits to the age of 65, based on this earning capacity. Your file will be reviewed on an annual basis and adjusted to reflect market changes.

In July 2001, the claimant appealed the decision to reduce her benefits. Reference was made to WCB policy 43.20.40 Relocation. The claimant said she was 58 years old and married and was not leaving her husband to move to Winnipeg to get a job. The claimant advised that she did not understand that her benefits would be cut as much as they were and if she knew, she would have asked the WCB to retrain her for something that didn't require lifting.

On October 12, 2001, Review Office decided that the claimant's earning capacity should be re-assessed consistent with the provisions of WCB Policy and Administrative Practice. In this regard, Review Office referred to the WCB's relocation policy which stated, in part, that where it was reasonable for the worker to decline relocation, this would not affect wage loss benefits for three years. It also stated, however, that where it was reasonable for the worker to decline relocation that after the three year period, the level of benefits may be established on the basis of the worker's deemed earning capacity in other communities.

Review office noted that the VRC assigned to the claim thought it was reasonable for the claimant to decline relocation. The claimant was informed by the VRC that her benefits would be reduced following the three year period outlined in the relocation policy based on her assessed earning capacity in the Winnipeg Labour Market.

Review Office also made reference to WCB policy 44.80.30.20 Post Accident Earnings-Deemed Earning Capacity and Rehabilitation and Compensation Services Operational Guidelines. Review Office stated there was no evidence on file that any efforts were made to confirm the claimant's earning capacity as required by WCB policy and administrative practice. It was noted that the claimant's benefits were reduced without giving her suitable notice of their pending reduction.

On November 2, 2001, Vocational Rehabilitation Services advised the claimant that "In keeping with the Post Accident Earning-Deemed Earning Capacity [44.80.30.20], we have confirmed that the Earning Capacity Analysis for NOC 6683, Other Elemental Service Occupations, is at $250 per week and the labour market exists." On December 4, 2001, the claimant appealed the decision to Review Office.

In a February 8, 2002 decision, Review Office confirmed that the claimant's wage loss benefits should be reduced by an earning capacity of $250.00 per week. Review Office noted that documentation on the file supported all of the requirements noted in the post accident earnings policy relative to establishing the worker's employability in the larger Winnipeg labour market. On March 10, 2002, the claimant appealed the decision and an oral hearing was arranged.

Reasons

This claim involves a worker who injured her wrist in a workplace accident in January 1995. As a result of this injury, she has some permanent restrictions, which limit her ability to work. Her claim for compensation was accepted and benefits paid accordingly.

In April 2001, she was notified that her benefits were to be reduced by the sum of $250.00 per week, as it was deemed that she should be capable of finding employment at the provincial minimum wage.

An initial appeal to the Review Office found that a proper assessment of her earning capacity had not been done and that proper notice had not been provided. The assessment of earning capacity confirmed the earlier decision, which was subsequently upheld by Review Office in a second reconsideration. It is that decision that she appeals to this Commission.

The issue to be determined by the Panel was whether or not the decision to reduce her benefits by the deemed earning amount of $250.00 per week was correct. We have determined that it was correct.

We must note that the Panel is restricted by The Workers Compensation Act (the Act) to make our decision in accordance with the statute and board policy. In respect of the issue before us, there are a number of sections of the Act and of board policies which apply.

Subsection 39(2) of the Act provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the board.

Subsection 27(20) gives the board the discretion to provide benefits for vocational rehabilitation.

The following clauses in Board Policy 43.20.40, Relocation, are relevant to our consideration:

Clause A. 1., entitled, Factors to be Considered in Approving Relocation reads, in part:

6. The WCB will consider it is reasonable for the worker to decline relocation as part of a plan where the WCB determines that:
   
   
   3. The worker has a significant attachment to his/her community.
   
   Where it is reasonable for the worker to decline relocation, this will not affect wage loss benefits for 3 years. (Highlight in original.)

Clause A. 3., entitled, Relocation and Eligibility for Benefits, reads, in part:

5. Where the worker's decision to decline relocation as part of a plan is reasonable, the following will apply:
   
   
   1. Benefits will be provided on the basis of the worker's earning capacity in the original community and may be continued in this manner for 3 years;
      
      
   2. After the 3 years, the level of benefits may be established on the basis of the worker's deemed earning capacity in other communities; and,
      
      
   3. Implementing a deemed earning capacity is subject to Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity.

The following sections of Board Policy 44.80.30.20 are relevant to this case:

3. Requirements for WCB to Demonstrate Deemed Earning Capacity:
   
   
   1. The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.
      
      
   2. The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.
      
      
   3. The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based.

It was acknowledged at the hearing that these requirements were met by the board in establishing the worker's employability in the Winnipeg labour market. We note, from the claim file, that an Individualized Written Rehabilitation Plan was completed in July 1998. That plan specified that the claimant's benefits were to be reduced as of May 1, 2001.

The claimant is of the view that the board was unreasonable in its request that she re-locate to Winnipeg, given her long-time attachment to her community and given that her husband, family and friends all live in that area. We agree that such a requirement would be unreasonable. However, our interpretation of the policy is that relocation is not a requirement. From our review of the file, we do not find that the board asked - or required - that she move to Winnipeg. Rather, the policy establishes a reference point to help determine whether or not other employment would be available, if she were to re-locate.

While the claimant felt that the board policy was unreasonably unfair to persons who live in rural Manitoba, we are of the view that, in fact, the policy tends to act in favour of rural residents, allowing an extra three years of full benefits compared to a worker in a large urban centre. This recognizes the fact that, in small communities, there are far fewer jobs available for persons with the claimant's restrictions.

Based on the foregoing, we find that board policy is very clear on how cases such as that of the claimant are to be handled. Where an injured worker is capable of performing a specified type of employment, even if such employment is not available in her community, a deemed earning capacity must be applied.

We find that the board properly complied with policy in this case.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of June, 2002