Decision #05/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 23, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on October 23, 2002.

Issue

Whether or not the vocational rehabilitation plan was appropriate;

Whether or not the claimant has been overpaid; and

Whether or not the overpayment should be recovered.

Decision

That the vocational rehabilitation plan was appropriate;

That the claimant was overpaid benefits during the periods December 13 and 21, 2000 and February 1 and 15, 2001; and

That recovery of the overpayments should not be pursued.

Decision: Unanimous

Background

The claimant lost the sight in his left eye in February 1998 when he was hit in the face with a stick on his way to work in a swamp buggy on a bush trail. The claimant was employed as a diamond driller at the time of the accident. The Workers Compensation Board (WCB) accepted the claim for compensation and various benefits commenced.

In August 1998, the case was referred to a WCB Vocational Rehabilitation Consultant (VRC) on an early intervention basis. The VRC noted that the employer was unable to accommodate the claimant with alternate work, unless he was able to return to his regular duties in the bush. The claimant advised the VRC that he was not willing to relocate out of The Pas, Manitoba and was interested in becoming retrained as a heavy equipment operator. The VRC arranged for the claimant to undergo vocational testing to determine what the best course of action would be considering his disability, interests and aptitudes.

In a memo dated October 27, 1998, the VRC recorded that the claimant was considering going back to his regular work duties if that was feasible. The VRC noted that after reviewing the testing results, retraining was going to be somewhat difficult for the claimant considering his limited educational background and interests. It was noted that the employment possibilities in The Pas were somewhat limited in any vocation and if the claimant did not return to his pre-accident employment, re-employment in another area would probably take a lengthy period of time.

In November 1998, permanent restrictions were outlined for the claimant which were to avoid any activity which would affect his monocular vision.

In March 1999, the claimant met with his VRC to discuss the results of the Career Planning Session that he had attended. At this meeting, the claimant advised the VRC that he was contacted by the accident employer and was offered his regular job back. The VRC stated that before recommending that the claimant return to his pre-accident employment, a WCB assessment should be done along with a risk analysis by the WCB's occupational therapist. A report from the WCB's occupational therapist concerning this assessment is on file dated June 25, 1999.

Arrangements were made for the claimant to commence a work assessment between September 8, 1999 and September 15, 1999. In a memo dated October 15, 1999, the VRC noted that the work assessment on the drill site went well according to the employer. The employer indicated that they were able to accommodate the claimant with work as a driller and that they would give him day shifts only which would minimize any visual problems he may have.

In July 2000 the claimant returned to work with the accident employer and was laid off in August 2000. In a memo to file dated September 8, 2000, the VRC noted that this was a slow period in the industry and that there was no work available for the claimant. The claimant's name was on a call back list when work did become available. The VRC also advised the claimant that that he was on the call back list for both the helper and driller positions and that he must accept either position if one was offered to him.

On January 4, 2001, the claimant advised his WCB adjudicator that he had been back to work as a driller's helper between November 27 and December 10, 2000. He found the position to be very dangerous because of flying debris hitting his face, safety glasses and his good eye. The claimant indicated he was afraid of losing the other eye. The adjudicator advised the claimant that if his employer called him back as a driller's helper and he refused the position, the WCB would not be able to pay his wage loss benefits.

In a letter dated January 24, 2001, a worker advisor presented an appeal to Review Office regarding the WCB's decision to return the claimant back to a position working in the bush. He noted that the claimant was not offered modified employment by moving him from a driller position or to a driller's helper within his restrictions. The worker advisor noted that the work was dangerous due to flying rock and debris from the drills. He also believed that the claimant was in fact working in the dark even if he was on the day shift, i.e. daylight hours were limited in the winter months.

On February 6, 2001, a WCB adjudicator obtained information from the employer that the claimant was called back to work on November 28, 2000 as a driller's helper and that this particular position ran to December 12, 2000 inclusive. The claimant could have switched to another helper position effective December 13, 2000, however, he had informed the employer that he had a fire in his chimney and would have to do repairs and was therefore unavailable for work. The employer indicated that if the claimant had taken this position, he would have worked to December 21, 2000 inclusive.

The adjudicator further indicated that she asked the employer whether there would have been work available for the claimant since December 21, 2000. The employer advised that there may have been work for the claimant in another helper's position, however, he had not been in touch with the employer. The employer indicated that when employees are out of work, they usually phone in every day to see if anything was available. Had the claimant called on a regular basis, they may have been able to place him by now.

On February 15, 2001, primary adjudication confirmed to the claimant that he was in an overpayment situation as the WCB was unaware that he had been offered work within his restrictions and that he had turned the work down due to non-compensable reasons. The total amount of the overpayment was $2501.54 and the claimant was responsible to repay the full amount of the overpayment.

On February 23, 2001, the worker advisor submitted another appeal to Review Office with regard to the above decision. The worker advisor stated that the claimant was not offered any employment by the employer until February 13, 2001 and that it was unreasonable to expect that this claimant would have to check in each and every day to see if and when work would be available. The worker advisor was of the position that the claimant had not established a real and substantial attachment to the labour force since his injury as indicated by all the medical support on file which confirmed ongoing medical restrictions. The worker advisor felt that the claimant was at a competitive disadvantage in the general labour market and will remain so until he was retrained by the WCB.

Prior to considering the appeals put forth by the worker advisor, the Review Office obtained additional information from the employer and also spoke with the claimant about who he spoke to and what he told them regarding returning to work during the period January 2, 2001 and February 7, 2001. Details of these conversations are contained in a memo dated April 23, 2001.

In a decision dated April 27, 2001, Review Office determined the following:
  • That the vocational rehabilitation plan was appropriate.
    Review Office found that the evidence substantiated that the claimant was capable of working as a driller or a driller's helper. It was understandable that the claimant could be 'fearful' of doing so. If the claimant asked, the WCB could provide him with supportive counseling. Review Office stated that every effort must be made to assist the claimant in successfully returning him to work with the employer. The claimant was a high wage earner and the prospects of a vocational rehabilitation program that recouped that level of earning capacity was minimal at best. Review Office felt that it was in the claimant's best interest to maintain his employment with his employer.
  • That the claimant was not entitled to wage loss benefits from December 13, 2000 to December 21, 2000 and from January 2, 2001 to February 15, 2001.
    Review Office stated that the claimant was not entitled to benefits between December 13th and 21, 2000 as he refused work due to personal business.

    With respect to time loss from work between January 2, 2001 to February 15, 2001, Review Office felt that the claimant did not mitigate the consequences of his accident during this time. Review Office noted that making one telephone call to his employer an hour before regular business and leaving a message with the stock person was not appropriate on the claimant's behalf. It followed that any wage loss benefits for this period of time between January 2, 2001 and February 14, 2001 should be considered an overpayment.
  • That any overpayment should be recovered.
    Review Office noted that the circumstances of the case did not meet any of the criteria outlined under Board Policy 35.40.50, Overpayments of Benefits. It was therefore determined that the overpayment must be repaid.
The worker advisor submitted an Application to Appeal dated June 19, 2001 appealing the April 27, 2001 Review Office decision. A hearing was then arranged for October 17, 2001, but it was cancelled at the claimant's request due to personal reasons.

In August 6, 2002, the worker advisor again appealed the Review Office's April 27, 2001 decision and an oral hearing was arranged for October 23, 2002.

Reasons

This case involves a worker, employed as a diamond driller, who lost one eye due to a workplace injury in 1998. His claim for compensation was accepted and benefits were paid accordingly.

Eventually, he returned to work as a driller's helper.

During certain periods of lay-off, he was paid wage loss benefits, as it was determined that his injury - and the resulting restrictions - placed him at a competitive disadvantage for finding other employment, which was within his restrictions.

In February 2001, his wage loss benefits were terminated as it was felt he had refused work which was within his restrictions and had failed to mitigate the effects of his injury, by not actively pursuing a return to work with his employer. Review Office upheld that decision, which he then appealed to the Commission.

He appealed two separate issues, which are noted above. For his appeal to be successful in respect of the appropriateness of his vocational rehabilitation plan, the Panel would have to determine that he was incapable of achieving the plan's goals or that those goals were not realistic, given his restrictions. We were not able to make that determination. For the second appeal to be successful, we would have to determine that the reasons he was unable to return to work during the periods in question were due to his compensable injury. We did come to that determination, in part.

In coming to our decision, we conducted a full review of the claim file, as well as holding an oral hearing at which the claimant, his worker advisor and the employer gave testimony.

In respect of the first issue - the appropriateness of his vocational rehabilitation plan - we note the following:
  • Initially, the claimant indicated a wish to be retrained as a heavy equipment operator. For a number of reasons, this proved to be impractical.

  • It was the claimant who indicated a desire to return to his previous employment - in diamond drilling.

  • The employer was willing to accommodate his restrictions by giving him dayshifts only, so that he would work in daylight as much as possible.

  • The employer has other persons, with only one eye employed as drillers or helpers.

  • The diamond drilling industry has seen a significant slump in business in recent years. As a result, many drillers have been forced to work as helpers, and foremen as drillers.
When asked, at the hearing, what he wanted to achieve from the vocational rehabilitation plan, the claimant answered that he wished to return to his old job as a driller. He argued that it was safer, thus posing less risk to his remaining eye.

However, we have concluded that the job of helper is within his restrictions. Further, we find that the reason he has not returned to drilling is due to economic reasons, not as a result of his injury.

We also note that the claimant was a high wage earner and that the possibility of retraining him into a position of similar income is very remote.

Thus, we conclude that the vocational rehabilitation plan is appropriate.

In respect of the issue as to whether or not the claimant was overpaid, there are two periods in question: December 13, 2000 to December 21, 2000 and January 2, 2001 to February 15, 2001.

With regard to the first period, we note the following:
  • The claimant was offered employment by the company for this period. The job was as a driller's helper, within his work restrictions.

  • He declined the offer as he had to deal with matters related to a fire at his house.

  • He was paid wage loss benefits for this period.
The reason that he suffered a wage loss in this period was for personal reasons, not because of a loss of earning capacity owing to his workplace injury. As he was not entitled to benefits, there was an overpayment for the period December 13 to 21, 2000.

With regard to the second period, we note the following:
  • In a normal year, the company would resume work on January 2nd.

  • The claimant was available for work as of January 2nd.

  • That year, due to mild weather, they did not start until late January. The employer could not recall the exact date, but thought it was about the 20th or 25th.

  • The claimant was not at the top of the recall list, so would not have been called for a few days after start-up.

  • The claimant did not keep the employer informed as to his availability for work. He did call once to a person in the stock room, who, he assumed, would pass the message on to the appropriate person.

  • He did not call again until after February 7, when he was urged to do so by his case manager.

  • He was offered a job to commence within days.
We conclude that there was no work available for the claimant until at least a few days after January 25th. We also find that the claimant did fail to mitigate his wage loss, by not being more vigilant in letting the employer know of his availability. Had he done so, he would, almost certainly, had employment as of February 1, 2001.

Based on this, we conclude that there was an overpayment for the period February 1, 2001 to February 15, 2001.

With respect to the collection of the overpayment, we differ with the decision of the Review Office. We note from the file and from the claimant's testimony that, due to economic conditions, he has not had anything near full-time employment for a number of years. As a result, he is not in good financial shape. Any attempt at recovery would likely prove futile.

We refer to Board Policy 35.40.50, Overpayments of Benefits, which states, in subsection 3(v):
All overpayments receivable will be pursued for recovery, unless:
  1. recovery of the overpayment, in whole or in part, would create financial hardship for the worker and/or the worker's dependants;
We believe that recovery of the overpayment, in this case, would create such financial hardship. Accordingly, it should not be pursued.

The claimant should be aware that, under subsection 5(i.) of the same policy, the overpayment may be recovered during the next six years, should the claimant return to full-time employment to the extent that the economic hardship no longer exists.

The relevant part of the policy reads:
Overpayments not pursued for recovery, as described in Part 3, will remain overpayments receivable for up to six years …. During that time, recovery action may be initiated if the circumstances contributing to non-recovery change, for example:
  1. if the conditions creating financial hardship no longer exist ….
In summary, we have come to the following conclusions:
  1. The vocational rehabilitation plan is appropriate;

  2. The claimant was overpaid for the periods: December 13 to 21, 2000 and February 1 to 15, 2001;

  3. Recovery of the overpayments should not be pursued.

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 22nd day of January, 2003

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