The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 19, 2003, at the request of the claimant. The Panel discussed this appeal on June 19, 2003.

Issue

Whether or not the claimant is entitled to full wage loss benefits.

Decision

That the claimant is not entitled to full wage loss benefits.

Decision: Unanimous

Background

In February 1996, the claimant injured his left arm while moving a water heater during the course of his employment as a gas fitter. The claimant was diagnosed with a soft tissue injury of his left elbow and forearm. The claim for compensation was accepted by the Workers Compensation Board (WCB) and various benefits were paid to the worker which included a 19% permanent partial impairment award. The claimant was also provided with vocational rehabilitation benefits and assistance in locating suitable alternate employment.

On September 6, 2002, Review Office considered the case following receipt of an appeal by the claimant who disagreed with the WCB's decision to implement a deemed earning capacity of $352.00 per week. The Review Office ultimately determined that the claimant's deemed post-accident earning capacity would be reduced to minimum wage as of January 28, 2002. Review Office directed that the claimant should be paid at this amount until he met with a Vocational Rehabilitation Consultant (VRC) and an agreement was reached with respect to the direction of his vocational rehabilitation and if he fully agreed to co-operate in the process.

Between September and November 2002, a VRC documented various discussions that took place with the claimant exploring various employment opportunities which included a Parts Clerk, Trucker-Class 1, Pharmacy Technician and Security Guard. In a memo to file dated December 5, 2002, the VRC stated, in part, "A number of VR plans and initiatives have been considered on Mr. (the claimant's) behalf in an effort to increase his level of employability. Given the various factors that may contribute to the overall costs of the plans and the history of failed VR efforts to date, it appears that the predictable and most cost effective process is to continue with Review office decision of September 6/02."

On December 12, 2002, a WCB case manager confirmed to the claimant that since an appropriate vocational rehabilitation plan had not been established, there would not be any further initiatives to alter the Review Office's decision with respect to his minimum wage earning capacity. On December 26, 2002, the claimant appealed this decision to Review Office.

On March 14, 2003, Review Office determined that the claimant was not entitled to full wage loss benefits while he sought employment. Review Office referred to its previous decision whereby it was determined that the claimant's deemed post accident earning capacity be at minimum wage, up until such time as an agreement was reached as to the direction of further vocational rehabilitation and the claimant fully agreed to cooperate in the process. Review Office felt that this had not occurred and that it followed that there was no basis for reinstatement of full wage loss benefits. On March 25, 2003, the claimant disagreed with Review Office's decision and an oral hearing was convened.

Reasons

From the evidence, it would appear that at the present time the claimant is not experiencing or subject to a wage loss situation. He has managed to find employment earning $8.00 per hour which is above the deemed earning capacity of minimum wage established by the WCB as of January 2002. There is also no medical evidence to suggest that the claimant is totally disabled or that his deemed earning capacity is inappropriate at this point in time. He is, as well, receiving funds from the WCB for the difference in salary that he was earning at the time of his compensable injury.

It became readily apparent at the hearing that the claimant's outstanding criminal record is a significant non-compensable barrier to his seeking better/higher paying employment opportunities. We take the view that it is extremely important and incumbent upon the claimant himself to take the necessary steps to have his criminal record sealed, which according to his evidence could take up to 8-10 months. However, having said this we find that the claimant has made numerous attempts to seek employment and as such has endeavored to mitigate his loss of earning capacity.

In the tenor of the Review Office's decision, we recommend that the claimant and the WCB attempt to reach a mutually agreed upon vocational rehabilitation plan, which would be contingent, of course, on the claimant's full participation and cooperation together with and subsequent to his sealing his criminal record. We further recommend that once the claimant has taken the necessary steps to conclude his outstanding criminal record that the WCB and the claimant once again explore the pharmacy technician job opportunity.

For the foregoing reasons, we would at this time concur with and as well endorse Review Office's September 6, 2002 and March 14, 2003 decisions and not award full wage loss benefits until the criminal record and vocational rehabilitation issues have been resolved. Needless to say, the payment of full wage loss benefits at that time would of course be in accordance with the mutually agreed upon vocational rehabilitation plan.

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 29th day of July, 2003