The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 17, 2002, at the request of the claimant. The Panel discussed this appeal on December 17, 2002.

Issue

Whether or not the worker should have a deemed post-accident earning capacity of minimum wage effective March 9, 2002.

Decision

That the worker should have a deemed post-accident earning capacity of minimum wage effective March 9, 2002.

Decision: Unanimous

Background

On August 11, 1997, the claimant was removing wheels off of a truck when he injured his left shoulder. A claim for compensation was submitted to the Workers Compensation Board (WCB) and was accepted. The claimant currently has permanent restrictions of no lifting greater than 25 pounds, no working above shoulder height and no frequent repetitive use of his shoulder.

In 1999, the case was referred to a Vocational Rehabilitation Consultant (VRC) as it was determined that the claimant was unable to return to his pre-accident employment as a mechanic. The claimant underwent interest and aptitude testing and was referred to the Academy of Learning for basic computer skills and keyboarding.

In June 2000, the claimant signed a written rehabilitation plan with the occupational goal of becoming an Electronic Service Technician (Noc 2242). The plan was later amended as the claimant was unable to pass the math test required for entry into the electronics course. Arrangements were made for the claimant to obtain math upgrading at the Brandon Learning Centre.

In a memo dated August 9, 2001, the VRC noted that the Electronic Service Technician course had been cancelled for the fall term. The claimant advised the VRC that there were no other courses that he was interested in at this time. The claimant had had a heart attack on June 11 and had been admitted to hospital for one week. The claimant now carried Nitro tablets and was very discouraged with his entire situation. The VRC spoke with a WCB case manager concerning what direction the claimant might take given his age, restrictions and recent non-compensable heart condition. It was decided that a WCB employment specialist would look into the pre-requisites for a parts person and the availability of this type of work in the Brandon area.

In a letter dated August 30, 2001, the claimant was asked by his VRC as to whether or not he was interested in either Service/Parts/Inventory or the Purchasing/Inventory Clerk courses that were being offered through Patal Vocational School in Winnipeg. In a September 18, 2001 telephone conversation with his WCB case manager, the claimant indicated that he did not want to come to Winnipeg and become a 'parts boy' and that he wanted to move back to Brampton, Ontario where he could be closer to his family.

On September 20, 2001, another VRC spoke with the claimant. The claimant advised that he was originally from Ontario and had always planned to return there. Since his compensable injury, he felt that the WCB had been very slow in assisting his returning to the workforce and that the WCB was putting more pressure on him towards training that he did not want. Throughout the conversation, the claimant expressed his desire to relocate to Ontario.

On October 16, 2001, the claimant met with his WCB case manager and VRC regarding his request to relocate to Southern Ontario. The claimant was informed that a VR plan would have to be put in place prior to his leaving the province. This was necessary as an external consultant in Ontario would have to be retained in order to monitor and implement the plan. The claimant wanted a lump sum buy out of his permanent partial impairment award for the duration of his plan and specified that he would not have anything further to do with the WCB. The claimant also explained that he couldn't afford to move to Ontario as he had no money. The claimant was ultimately advised that the WCB could not, based on the legislation and WCB policy, pay for his relocation to Ontario.

In a December 10, 2001 communication to the WCB, the claimant's solicitor contended that sufficient weight had not been given to the claimant's continuing his rehabilitation and educational requirements in Ontario. The solicitor felt that the WCB's demand for the claimant to remain in Manitoba was affecting his mental and physical health and therefore the efficacy of the overall rehabilitation process.

On January 10, 2002, a WCB case manager wrote to the solicitor, indicating that the claimant was free to continue his vocational rehabilitation in Ontario, but if he chose to relocate it would be at his own expense. In addition, before such a move would be supported, a vocational rehabilitation plan would have to be put in place. An external consultant in Ontario would then monitor the plan. It was imperative that the claimant identify a viable occupational goal and to date, an agreement had not been reached.

In a memo dated January 10, 2002, a WCB case manager noted that the claimant was capable of engaging in employment in the Brandon labour market and that he was not considered to be unemployable according to a WCB employment specialist.

On January 24, 2002, an Earning Capacity Analysis on NOC 1472 - Storekeeper/Parts Clerks was prepared by the WCB's employment specialist. Based on the labour market survey, the employment specialist determined that the claimant would be capable of earning wages of $264.00 per week.

In a memo dated February 4, 2002, the VRC recorded that the claimant had written to Toronto to find out if there was an electronics technician course available. The claimant expected that he would have this information by February 14, 2002. The VRC advised the claimant that should the electronic technician course not be available in Toronto that she would move forward with the inventory/purchasing control clerk plan.

On February 18, 2002, the claimant was provided with a vocational plan having the occupational goal of a storekeeper/parts clerk, with the effective date being March 5, 2002. In a subsequent telephone conversation with his WCB case manager, the claimant expressed his concern that he was not interested in becoming a storekeeper/parts clerk.

On March 1, 2002, a WCB case manager wrote to the claimant after meeting with the claimant's solicitor. The claimant was advised that his vocational rehabilitation plan would commence on March 10, 2002. If the claimant was not willing to participate in the plan, then he would be deemed at $246.00 per week effective March 9, 2002. This decision was appealed to Review Office by the claimant's lawyer on March 26, 2002.

In a decision dated July 12, 2002, Review Office determined that the vocational rehabilitation plan the claimant had been offered was unrealistic and that the deemed post-injury earning capacity should be minimum wage effective March 9, 2002. Review Office further determined that the possibility of providing the claimant with vocational rehabilitation services in Ontario should be explored further and that the claimant's potential further wage loss benefits should not be paid as a lump sum.

With respect to the decision regarding the deemed post-injury earning capacity, Review Office found that the requirements found under WCB policy section 44.80.30.20 Post Accident Earnings - Deemed Earning Capacity had not been met due to the following factors:

• the 'medium' physical demands associated with the storekeeper/parts clerk position were not consistent with the claimant's permanent physical restrictions which included no lifting over 25 lbs. and
  
  
• that the claimant's likely presentation in a retail parts clerk setting (teeth, hair, clothing) had not been addressed in support of the earning capacity.

Review Office noted that the claimant had not done anything towards returning to work since the deemed post accident capacity had been implemented. This was a failure on the claimant's part to mitigate the consequences of his accident as was required under section 22 of The Workers Compensation Act (the Act). The claimant was capable of earning at least the provincial statutory minimum wage in the province in which he resided. Review Office noted that while the claimant may be entitled to additional rehabilitation benefits and services, that his full participation and co-operation was required for any services to be reasonably effective. The claimant subsequently appealed this decision and an oral hearing was held on December 17, 2002.

Reasons

After thoroughly reviewing all of the evidence on file as well as considering the claimant's oral evidence, we are in complete agreement with Review Office that the claimant is capable of earning at least the provincial statutory minimum wage in either Manitoba or Ontario. The evidence further confirms that the claimant has done nothing towards returning to work since the WCB instituted his deemed post accident earning capacity. We find based on the weight of evidence that the worker should have a deemed post-accident earning capacity of minimum wage effective March 9^th, 2002. Accordingly, the claimant's appeal is hereby dismissed.

We note, however, that the claimant may possibly be entitled to the reinstatement of additional vocational rehabilitation benefits and services. This would depend of course upon the full participation and cooperation of the claimant as well as a vocational rehabilitation program being put in place in either Manitoba or Ontario, which has been mutually agreed to by both the claimant and the WCB.

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 24th day of January, 2003