The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 24, 2002, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not the worker's self-employment proposal should be supported; and

Whether or not a deemed post-accident earning capacity should have been implemented.

Decision

That the worker's self-employment proposal should not have been supported; and

That a deemed post-accident earning capacity should have been implemented.

Decision: Unanimous

Background

In August 1993, the claimant suffered numerous injuries when he fell approximately 16 feet to the ground off a ladder while getting onto a roof, during the course of his employment as a carpenter. The Workers Compensation Board (WCB) accepted the claim for compensation and the claimant was provided with a variety of benefits which included a permanent partial impairment award and vocational rehabilitation assistance.

With respect to the issues under appeal, file records showed that the claimant proposed a self-employment venture in which he requested that the WCB forward him $150,000 to help finance his Bison operation that he wanted to develop. In a letter dated February 6, 2001, a vocational rehabilitation consultant (VRC) advised the claimant of the following:

"the WCB will in principal only, support your request for financing to assist you with your self-employment venture. Before the WCB will consider any further support, we must receive written confirmation from both lending institutions, which you have indicated are willing to both loan you $150,000 each. Once the WCB receives this written confirmation from both institutions, further assessment of your entrepreneurial suitability to effectively manage all facets of the Bison business will be conducted to ensure that you have all the abilities required to successfully run this business for the long term.

The WCB will grant you a sixty day period to have the written confirmation from both lending institutions forwarded to my attention. The sixty day period starts on January 31, 2001 and expires on March 31, 2001 (this deadline date was later amended to April 12, 2001). Should the sixty days expire and the WCB has not received any written confirmation from either lending institution, the WCB will then proceed with offering you a further six months of full benefits and an offer of job search assistance to help you in securing employment within your physical restrictions. At the end of that further six months, your benefits will then be reduced based on an earning capacity which reflects what you are capable of earning in the labour market. You will then be eligible to receive partial wage loss every two weeks past that point."

In a subsequent letter dated May 18, 2001, primary adjudication advised the claimant that as the WCB did not receive written commitments of financing, it would proceed with offering the claimant a further six months of full benefits and an offer of job search assistance. At the end of the six months, the claimant's benefits would be reduced based on an earning capacity representing what he was capable of earning in the labour market.

On November 20, 2001, the claimant was advised that it had been determined that he was capable of earning a weekly amount of $294.00. Effective December 1, 2001, his benefits would be reduced by this amount. This resulted in a bi-weekly wage loss benefit in the amount of $712.02.

On March 8, 2002, the case was considered by Review Office based on appeal submissions from the claimant's solicitor dated September 19, 2001 and November 26, 2001. Review Office ultimately determined that the claimant's self-employment proposal should not be supported as it did not meet the requirements for approval set out in Board Policy 44.101 Financial Assistance for Self-Employment .

With respect to the issue of whether or not a deemed post accident earning capacity should have been implemented, Review Office noted that the claimant was not at all interested in any vocational rehabilitation option other than self-employment, even after he was advised that his proposal would not be supported. Review Office was of the opinion that given this and what had transpired on the claim, the decision to implement was appropriate. Review Office felt that the claimant was capable of working the occupational classification on which the deem was based and as such, the amount of the deem was appropriate. On May 9, 2002, the claimant appealed the decision made by Review Office and a non-oral file review was convened.

Reasons

This case involves a carpenter who sustained injuries in a workplace accident in August 1993. As a result of these injuries he was not able to return to his former employment. As he was not totally disabled from work, the board provided him with vocational rehabilitation services, so that he might work in another, less-strenuous occupation.

He chose to pursue the option of self-employment. In particular, he expressed a desire to establish and operate a bison ranch. The board willingly worked with him for a few years in pursuit of this goal.

The claimant requested that the board make a one-time contribution of $150,000 towards the establishment of the bison operation. In addition, he requested that the board pay him wage loss benefits in the amount of $24,000 for the first three years of his operation.

After almost five years of pursuing this proposal, in order to put some finality to the process, the board set a deadline of March 31, 2001 (later extended to April 12, 2001) for the claimant to secure the necessary bank financing. He was not able to achieve this.

In a February 2001 letter, the board informed the claimant that, if he were unable to secure the financing, the board would no longer pursue the self-employment option. Rather, he would be provided a further 6 months of full wage loss benefits, as well as job search assistance. Following that, benefits would be reduced based on a deemed earning capacity.

An appeal to Review Office upheld the decisions on these two matters. His counsel, then, appealed to this Commission.

Issue #1 - Should the self-employment proposal be supported?

For the appeal to succeed on this issue, the Panel would have to determine that the proposal complies with board policy.

We would note that pursuant to subsection 60.8(6) of The Workers Compensation Act (the Act), "the appeal commission is bound by the policies of the Board of Directors."

Board Policy 44.101, Financial Assistance for Self-Employment, provides that:

The Board may provide financial assistance for self-employment or business opportunities where an injured worker cannot take advantage of other conventional vocational rehabilitation programs, or where self-employment is a preferred cost-effective measure to allow the injured worker to reach maximum earnings.

Clause 6 of the Procedural Guidelines to this Policy states that the Board's contribution shall not exceed the lesser of:

1. the Training-On-The-Job or rehabilitation training expenditures which would otherwise be made on behalf to this claimant,
   
   
2. 90% of the actual investment required for the business, and
   
   
3. $25,000.

We would note that , while Procedural Guidelines are not binding, they are, nonetheless, highly indicative of Board intent as to implementation of the policy.

Counsel for the claimant provided us with authority, from the Supreme Court of Canada, which states that benefits-conferring legislation should be given a broad interpretation and that any doubt as to the meaning of the language in the act should be resolved in favour of the claimant. We are of the view that there can be no doubt as to the intent of the board policy.

Counsel also provided us with a decision of this commission, Appeal Commission Decision No. 102/1999, as authority for the position that, in certain cases, it is in the best interests of the claimant to return to self-employment. The worker in that decision had been self-employed prior to his workplace accident, as was the claimant in this case.

We are in agreement with that premise. Board Policy 44.101 allows for the board to support a return to self-employment. However, what is at issue here is whether or not the board should support this specific self-employment proposal, one that calls for a board contribution considerably in excess of what is suggested in the policy.

Alternatively, counsel for the claimant made a request, in his written submission to the appeal panel, for a "buyout package". Specifically, he requested that the board give his client a one-time lump sum payment equivalent to the amount requested above - $150,000 plus three years of wage loss benefits. Presumably, this would be in lieu of any future benefits. This, too, does not come anywhere near to complying with board policy.

The amount requested by the claimant - under either alternative - is $222,000, considerably in excess of the $25,000 limit recommended in the policy.

In coming to our decision, we were highly persuaded by the Procedural Guidelines to the Policy. Given that neither alternative comes anywhere near to the policy recommendation, we have concluded that the decision of the Review Office should be upheld. Thus, we are unable to find in the claimant's favour on this issue.

Issue #2 - Should a deemed post-accident earning capacity be implemented?

For this appeal to succeed, the panel must determine that the board did not comply with its own policies when it implemented a deemed earning capacity.

Counsel for the claimant argued that board policy is specific in stating that "deemed earning capacity should only be used when the worker voluntarily leaves the workforce by expressing that he/she is not interested in looking for any work or where the worker refuses to co-operate in or complete a program of vocational rehabilitation at all or to an adequate degree." (Board Policy No. 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity.)

We would point out that the same policy also states:

"The decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan. Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted."

From our review of the file, it is quite obvious that the board expended considerable time and effort in pursuit of various vocational rehabilitation goals. A number of different potential careers were considered, but, ultimately, not pursued.

Considerable time and expense was given to the claimant's self-employment proposal. When it finally became clear that the proposal - at least, as far as board participation - was not going to be feasible, the board offered the claimant other services to find alternate employment. The claimant, however, was not interested in pursuing options other than the bison ranch proposal.

We are of the view that it was not unreasonable for the board to conclude that the claimant was no longer willing to co-operate in the rehabilitation process. It was then open to the board to implement the deemed earning capacity as a "last resort after all reasonable . options have been exhausted."

As a result, we find that it was appropriate for the board to implement a deemed earning capacity.

However, we do note that the Review Office decision does leave it open to the claimant to resume vocational rehabilitation, should he so choose.

Conclusion

The appeal is dismissed on both issues.

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 25th day of July, 2002