Decision #139/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 29, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on October 29, 2003.

Issue

Whether or not the claimant's deemed post accident earning capacity should be $297.60 per week as of August 26, 2002.

Decision

That the claimant is entitled to full wage loss benefits to October 26, 2002; and

That the claimant's deemed post accident earning capacity should be minimum wage at $6.50 per hour.

Decision: Unanimous

Background

During the course of his employment as an assistant caretaker on November 6, 1995, the claimant sustained an injury to his lower back. The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits were paid to the claimant which included a 6.25% permanent partial disability award and vocational rehabilitation benefits. The claimant also has permanent restrictions relative to his lower back which include the avoidance of snow shoveling, repetitive bending and twisting and to avoid lifting weights greater than 25 pounds.

On February 21, 2002, the claimant signed an Individual Written Rehabilitation Plan (IWRP) with the occupational goal of Parts Clerk, NOC 1472. The IWRP indicated that the claimant would receive educational upgrading, training in a parts clerk/inventory program, work experience placement as well as 20 weeks of job search assistance. Upon completion of the plan on September 5, 2003, it was anticipated that the claimant would be capable of earning $352.00 per week. In the event that the claimant did not secure employment after the "job search", the claimant's benefits were to be reduced in accordance with WCB policy and Earning Capacity Assessment practices.

In a memo dated April 19, 2002, the VRC documented that the claimant never showed for his Parts and Inventory course since it began on April 8, 2002. When the claimant was contacted on April 19, 2002, the claimant advised that he still had stomach problems and was to see his doctor. The VRC informed the claimant that the WCB was implementing a new IWRP which would provide him with up to 24 weeks of job search assistance with a deemed earning capacity of $6.50 or minimum wage. In a letter dated June 7, 2002, a case manager with Rehabilitation and Compensation Services advised the claimant that upon completion of his new IWRP it was anticipated that he would be capable of earning $260.00 per week.

Subsequent file information revealed that the claimant was interviewed by a potential employer concerning a job as a parking lot cashier. In a memo to file dated August 21, 2001, an Employment Specialist (ES) documented that she had heard from the employer and that the claimant had various excuses as to why he could not go for the interview or work.

On August 26, 2002, the claimant was notified by his case manager that wage loss benefits were being reduced effective August 26, 2002 based on an earning capacity of $7.44 per hour as the claimant failed to mitigate the effects of his injury.

In a memo dated September 23, 2002, the Deem Committee noted that the history of the claim had been discussed and the committee agreed that the claimant's earning capacity should be deemed at $7.44 per hour, based on a 40 hour work week beginning August 26, 2002. On October 15, 2002, the claimant appealed this decision and the case was forwarded to Review Office.

In a decision dated November 1, 2002, Review Office determined that the claimant's deemed post accident earning capacity should be $297.60 per week as of August 26, 2002 and that the claimant was entitled to further vocational rehabilitation assistance.

With respect to the first issue, Review Office found that the decision to implement the deem was in keeping with part 7.a.i of Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity. With respect to the claimant's further entitlement to vocational rehabilitation assistance, Review Office considered that the claimant had "…not yet persisted in failing to mitigate the consequences of his accident to the point where he should not be provided with further vocational rehabilitation assistance. As such, if he so chooses, he should be provided with one more vocational rehabilitation plan." On July 10, 2003, the claimant appealed Review Office's decision with respect to the deeming aspect of his claim and an oral hearing was arranged.

Reasons

This case involves a worker who, while employed as a caretaker suffered a fairly serious injury to his back. His claim for compensation was accepted and benefits were paid accordingly.

After considerable treatment, including surgery, it was accepted that the claimant's back would never recover to the point that he could return to his pre-accident employment. The employer was not able to accommodate him with ongoing alternate duties. The focus then shifted to providing the claimant with the rehabilitative training to pursue other employment.

As noted in the Review Office decision, of November 1, 2002, the claimant was only marginally co-operative in the vocation rehabilitation process. While he accepted, and signed on to, the first Individual Written Rehabilitation Plan (IWRP), due to illness, he never did commence the training course.

After failing to show up for the first two weeks of classes in this first IWRP, the vocational rehabilitation consultant (VRC) advised the claimant that the plan was being changed. The claimant was to be provided with 24 weeks of job search assistance. This was to end on October 26, 2002, after which, if he did not secure employment, he would be deemed to have an earning capacity, by which amount his wage loss benefits would be reduced.

This second plan was presented to the claimant in June 2002. He refused to sign it, as he had had no input into its development. Although he had not shown up for the first course, it was still his preference to go to school to learn a new trade.

In August, he was advised that his claim was to be presented to the deem committee. As of August 26, 2002, his earning capacity was deemed at $297.60 per week. The second IWRP was terminated as of that date.

Upon reconsideration, the decision to deem his earning capacity was upheld by Review Office. It is that decision that he has appealed to the Appeal Commission. For his appeal to be successful, the Appeal Panel would have to determine that he should not have a deemed earning capacity; that it should not be at the amount established; and/or that it should not have commenced on August 26, 2002. We came to different conclusions in respect of each of these, which will be explained below.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant, his legal counsel and a representative of the accident employer.

It was pretty clear to the panel that this file might be described as "less than perfect." For its part, the board had some unrealistic expectations of the claimant. On the other hand, the claimant was far from fully cooperative with the board in their efforts to have him pursue a vocational rehabilitation program.

With regard to the board's expectations being unrealistic, we would point to three particular matters:
  1. In July 2002, a board representative contacted the claimant to help him prepare a resume for use in his job search endeavours. The result of this - even after input from the claimant - was a resume that listed a number of skills/abilities which were clearly beyond the restrictions placed on him as a result of his workplace injury.

  2. Also in July 2002, a board employment specialist contacted the claimant to inform him that the board was sending his resume to an auto parts dealer, which might have employment for him. (It should be noted that the claimant had previously objected to this, apparently because it might interfere with medical treatment he was receiving.) According to the claimant, this business never contacted him, as he had been told they would. There is no other evidence on file which counters his statement.

  3. In August 2002, the employment specialist contacted the claimant about a possible job as a parking lot cashier. According to a memo on the file, the claimant, when contacted by the parking lot manager, had a number of excuses as to why he could not do the job or, even, go in for an interview. According to the claimant, when contacted, he asked if it was necessary to be bondable for the job. When told that it was necessary, he informed the manager that he was not bondable and, thus, ineligible for the job. In an August 2003 letter to the claimant's legal counsel, the parking lot manager confirmed that bonding is a job requirement.
It was his apparent refusal to take the parking lot job that prompted the board to terminate the second IWRP and refer his file to the deem committee. The recommended amount at which to deem his earning capacity was the wage he would have been paid at the parking garage: $7.44 per hour.

There is no indication on the file that the board has attempted to contact him since the Review Office decision, which indicated that he is still eligible to participate in further vocational rehabilitation. Mind you, neither has the claimant made similar efforts.

For his part, the claimant made it extremely difficult for the board to contact him in respect of the many matters dealing with his case. Very often, he was not available at his phone. At other times, when messages were left, he did not return them.

He testified before us that he believed he was able to work and that it was his desire to find work; but, he has been unable to find the right job, one that he is capable of performing. We note that his efforts to find employment have been cursory and not very realistic.

Based on our consideration of the foregoing evidence we have come to the following conclusions, for the reasons given:
  1. The claimant should have had a deemed earning capacity applied to him. He has made little, if any, serious effort to mitigate the effects of his workplace injury. While he will likely never be able to return to his pre-accident duties, he is not totally disabled from any and all employment.

  2. The deemed earning capacity should not have been applied until October 26, 2002. He is entitled to full wage loss benefits up to that date. The board had instituted a second IWRP in June 2002, which was to continue until October 26, 2002. While the claimant had been less than fully cooperative in carrying out this plan, the board was a bit unrealistic in its expectations. While the board may well have acted out of frustration, it is our view that efforts should have continued until the October end date.

  3. His deemed earning capacity should be set at the prevailing provincial minimum wage rate. It is clear to us that, given his physical limitations and his relative lack of education or formal training, the claimant may have difficulty finding employment at more than minimum wage.
We would repeat the conclusion of the Review Office decision, of November 2002, that the claimant should be provided with one more vocational rehabilitation plan. Once the claimant commits to being fully cooperative in the plan and is actively participating in it, he would be eligible for wage loss benefits, for the duration of the plan, as would be determined in the development of the plan.

While we would ask the board to make every reasonable effort to contact the claimant in this regard, the emphasis must be placed on the word "reasonable". There is also a strong onus on the claimant to make contact with the board. Failure to do so could well result in the loss of this last effort at rehabilitation.

The appeal is disposed of, as set out above.

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 2nd day of December, 2003

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