Decision #94/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on July 22, 2003, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claimant should have a deemed post-accident earning capacity of minimum wage for a 40 hour week effective July 1, 2001; and

Whether or not the claimant is entitled to wage loss benefits beyond June 20, 2001.

Decision

That the claimant should have a deemed post-accident earning capacity of minimum wage for a 40 hour week effective July 1, 2001; and

That the claimant is not entitled to wage loss benefits beyond June 20, 2001.

Decision: Unanimous

Background

In 1995, the claimant was thrown from a sleigh that was being pulled by a skidoo during the course of his employment as a commercial fisherman. The claimant fractured his right femur as a result of the accident. The Workers Compensation Board (WCB) accepted the claim for compensation and various types of benefits were paid to the claimant which included vocational rehabilitation benefits. The claimant was also awarded a permanent partial impairment rating for his right hip and leg and as well he has permanent restrictions which prevent him from returning to his pre-accident employment.

In 1997, a registered psychologist and consultant assessed the claimant to determine the claimant's vocational interests, learning ability and academic potential. A report concerning this assessment is located on file dated June 25, 1997. Following a review of the consultant's report, a VRC noted in a memo dated July 25, 1997, that the claimant would be suitable for light assembly and entry level service positions and that a meeting with an Employment Specialist (ES) would be arranged.

In a March 25, 1998 memo to file, an ES outlined an earning capacity analysis for the claimant under NOC Code 6683, Other Elemental Service Occupations (i.e. customer service related occupations). The ES noted that the claimant resided in rural Manitoba, and that there was very little hiring activity in this area. If the claimant pursued employment in the scope of NOC 6683, he would have to relocate to Winnipeg. The ES stated that the claimant had the necessary skills and abilities to achieve an earning capacity of $6.16 per hour within NOC 6683.

On June 26, 1998, a VRC recorded the claimant's extensive experience in carpentry and commercial fishing and that he had expressed a desire to remain living in his own community. In accordance with WCB Relocation Policy 43.20.40, the VRC thought that it would be reasonable to provide the claimant with full benefits for the next three years inasmuch as the claimant repeatedly indicated that he had no interest in relocating to a larger labour market in order to secure employment. The VRC noted that the relocation policy had previously been explained to the claimant (as per memo dated February 9, 1998) and that the claimant agreed with the payment of benefits for the next three years.

An Individualized Written Rehabilitation Plan (IWRP) was developed for the claimant in which it was noted that the claimant would receive full wage loss benefits between July 1, 1999 to June 30, 2001 inclusive. Commencing July 1, 2001, wage loss benefits would be discontinued. In a letter dated May 17, 2001, the claimant was advised by the WCB's vocational rehabilitation branch that his vocational rehabilitation plan would conclude on June 30, 2001 and that an earning capacity evaluation would be implemented. The claimant's earning capacity evaluation turned out to be higher than his pre-accident earnings, therefore he would no longer be eligible for wage loss benefits.

In a submission dated March 25, 2003, a worker advisor acting on behalf of the claimant provided the Review Office with rationale to support the position that the claimant was entitled to benefits beyond June 30, 2001. A report from an orthopaedic specialist dated February 20, 2003 was enclosed with the submission for consideration.

On May 16, 2003, Review Office determined that the claimant's deemed post-accident earning capacity should be minimum wage for a 40 hour week effective July 1, 2001 and that the claimant was not entitled to wage loss benefits beyond June 30, 2001. Review Office summarized that the claimant was considered capable of full time work earning at least minimum wage in Winnipeg. Given this and because the provisions of the relocation policy had been met, the claimant was no longer entitled to wage loss benefits beyond June 30, 2001. On June 13, 2003, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

On or about June 26th, 1998, the claimant entered into an individualized written rehabilitation plan with the WCB. The plan outlined and confirmed the following terms:
  • That the claimant declined financial assistance to relocate to secure suitable employment;
  • That wage loss benefits will continue to be provided over the next three years to June 30th, 2001;
  • That effective July 1, 2001 the claimant's benefits will be reduced based on his ability to work;
  • That the reduction in benefits will be equivalent to or in excess of the claimant's accident wage and thereby negating any further wage loss benefits.
It should be noted that the WCB has in force a specific policy (43.20.40), which deals with relocation. The policy provides in part:

"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; and
  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.
  3. Implementing a deemed earning capacity is subject to Policy 44.80.30.20."
The WCB received a report dated June 26th, 2001 from the claimant's treating orthopaedic specialist, in which he opined that the claimant "could try to resume some light work." Following the claimant's last examination on June 11th, 2002, the orthopaedic specialist reached several conclusions, those being in part:
  • "I do not consider Mr. [the claimant] totally unemployable from work as a result of his injury."
  • "When suitable work is found for Mr. [the claimant], I feel that he could try a reasonable number of hours of work per day. This may be between six to eight hours as usual."
  • "As mentioned previously, I do not consider him completely unemployable as a result of his injury. Mr. [the claimant] could resume suitable work whenever such a job is available to him."
We find based on the weight of evidence that the claimant was employable and fit for work within his physical restrictions after June 30th, 2001. We note that in accordance with WCB policy 43.20.40 and the rehabilitation plan, the claimant was provided with full wage loss benefits for 3 years (July 1, 1999 to June 30, 2001), following which a deemed earning capacity of Provincial minimum wage for a 40 hour work week was implemented. The evidence further confirms that the claimant had as at June 30th, 2001 the necessary skills and aptitudes to be competitively employable on a full time basis in a larger community than where he currently resides. However, the claimant reasonably declined to relocate.

Section 60.8(6) of the Workers Compensation Act provides that the Appeal Commission is bound by the policies of the Board of Directors. WCB policies 43.20.40 and 44.80.30.20, to which we are legislatively obliged to administer, have been correctly applied in our view. We find therefore, that the claimant should have a deemed post-accident earning capacity of minimum wage for a 40 hour week effective July 1, 2001 and that the claimant is not entitled to wage loss benefits beyond June 30, 2001.

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 26th day of August, 2003

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