Decision #120/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 16, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on September 16, 2003.

Issue

Whether or not responsibility be accepted for the reduction in work hours.

Decision

That responsibility should not be accepted for the reduction in work hours.

Decision: Unanimous

Background

During the course of his employment as a self-employed painter on March 6, 1991, the claimant was reaching inside his van when he accidentally pushed the gear shift into reverse. The claimant fell to the ground and the left front wheel of the van came to rest on his left leg. As a result of the accident, the claimant sustained a compound fracture of his left tibia/fibula.

The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits were paid to the claimant. This included a permanent partial impairment award for his left foot and ankle.

On February 2, 1998, an Appeal Panel hearing was held following receipt of an appeal by the claimant's solicitor. The solicitor disagreed with Review Office's decision of December 19, 1997, which determined that the claimant's back problems were not related to the March 6, 1991 compensable accident and that no responsibility could be accepted for the reduction in work hours. For a complete background of the case leading up to this hearing, please refer to Appeal Panel Decision No. 58/98 for information.

Ultimately, the Appeal Panel determined that the pain emanating from the claimant's back, sacroiliac joint, left hip and/or buttock pain was not as a result of the March 6, 1991 accident. The Appeal Panel also concluded that there was insufficient evidence to conclude that the compensable left leg injury was the cause of any reduction in work hours and that the reduction in work hours was more attributable to the claimant's complaints of pain in his low back, hip or buttock area.

On June 4, 2003, the claimant's solicitor requested reconsideration of the second issue addressed by the Appeal Panel's 1998 decision, namely that responsibility should not be accepted for the claimant's reduction in work hours. The request for reconsideration was granted by the Chief Appeal Commissioner on June 25, 2003 and an oral hearing was arranged.

Reasons

In order for the claimant’s appeal to be successful, it will be incumbent upon the Panel to find that the reduction in work hours experienced by the claimant was as a consequence of his compensable left ankle difficulties. It was the claimant’s and his solicitor’s submission “that he has a permanent impairment which severely affects his income earning ability and this should be compensated and accepted by the WCB”. We were not able to make this determination.

In arriving at our decision with respect to the issue under appeal, we took into consideration all of the evidence on file including the previous Appeal Panel decision, the conclusions reached by the MRP, the recent medical opinion submitted by the treating orthopaedic surgeon, the arguments advanced by the claimant’s solicitor as well as the claimant’s oral evidence.

A previous Appeal Panel determined on April 17th, 1998 that responsibility should not be accepted for the reduction in the claimant’s work hours. The claimant had based his appeal on back difficulties that he was experiencing since the time of his compensable injury. The Panel concluded that the worker’s back problems were not related to the compensable accident of March 6th, 1991. In addition, there was insufficient evidence to conclude that the worker’s left leg injury was the cause of any reduction in work hours. We concur with these findings of the previous Appeal Panel.

A Medical Review Panel (MRP) was conducted on November 24th, 2000, at which time, the Panel unanimously determined that the claimant’s back difficulties were not causally related to his compensable injury. However, the MRP did acknowledge that the claimant continued to demonstrate residual and permanent changes involving decreased range of movement of his left ankle. With regard to this determination, we note that the claimant did receive a permanent partial disability award for his ankle and that at his request this award was paid out to him in a lump sum.

The claimant testified at our hearing that since his 1998 appeal he has worked steadily for approximately 20-25 hours per week and that he has consciously chosen only to work this number of hours per week. A review of the claimant’s income tax records since 1998 to 2002, with the exception of the 2000 tax year; certainly demonstrates that he has maintained a consistent earning capacity in excess of his maximum insurable coverage with the WCB.

It was the claimant’s further evidence that he preferred to work independently as this allowed him to work at his own pace. He was not prepared to bid on jobs that could in all likelihood guarantee full time work as he had concerns about the lack of quality of workmanship of hired employees. His evidence clearly confirms that he is capable of securing full time painting contracts, but as this would necessitate his having to hire additional trades people, this was something he was not prepared to do.

At the hearing, the claimant testified:

Q. You have indicated that there is lots of work out there. It’s just that you can’t physically do it yourself. I know from reading the file that you have been self-employed for many years.

A. H’mn, h’mn.

Q. What is to prevent you from bringing in the work and retaining the services full-time of one or two painters and you can - -

A. Quality of work.

Q. Well, you’re the boss. You control the quality yourself working alongside, from time to time, with these people on various contracts that are ongoing at one time. What’s to prevent you from doing that?

A. My 47 years experience in tradesman prevents me from hiring a lot of time a painter because for the little work that I do have, where do I find a painter that’s good, that wants to work just a little bit?


Q. You have indicated to me that there’s lots of work out there that you could get, but you can’t physically do it yourself?

A. And I absolutely, being a tradesman, I refuse to hire anybody but a painter, full-fledged painter. If I can’t have that, I don’t have anyone. And I don’t believe in just hiring somebody to do some of my dirty work and I watch the rest or I do some of it myself. And what you’re trying to say that you can hire somebody and then - - or you just get the job and you hire it out to somebody else - -

Q. No, no. You are running a business is what I’m saying.

A. Yes.

Q. You’re self employed. You’re a business; you have been all your life, just with one employee, yourself. So I’m saying to you, why can’t you run the business and you hire somebody full-time?

A. I have been through that stage as well.

Q. I see.

A. I’ve had, years ago I’ve had up to six employees - -

Q. Yes.

A. - - and they drove up a tree. It was a matter of hustling and hustling jobs, getting these people there. There’s trouble to get the job done. There’s trouble to collect. There’s trouble to get the next job and your name goes down the drain. And at one stage I just decided that’s it enough is enough.

Based on this testimony, we conclude that the claimant chose to work only 20-25 hours a week for reasons of his own, not because his ankle injury precluded him from working more. After having considered all of the evidence presented to date, we find that the claimant’s ankle difficulties have not, on a balance of probabilities, led to his working a lesser number of hours than the 20-25 hours he has previously been working. We further find that there are factors (non-compensable) other than his left ankle injury, which have resulted in a reduction in work hours. We finally find based on the weight of evidence that no responsibility be accepted for the reduction in work hours. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of October, 2003

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