Decision #39/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 4, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not a deemed post accident earning capacity of $628.22 per week should have been implemented effective February 1, 2003.

Decision

That a deemed post accident earning capacity of $628.22 per week should have been implemented effective February 1, 2003.

Decision: Unanimous

Background

During the course of her employment as a teacher on February 4, 1994, the claimant sustained a compensable injury to her right shoulder when she fell on ice covered steps.

On May 16, 1997, a Medical Review Panel (MRP) was convened and the following is a brief summary of its findings:
  • that the claimant suffered a contusion in the right shoulder area and a strain of the right acromioclavicular joint, type 1 as a result of the February 4, 1994 fall.

  • that the claimant still suffered from the effects of her injuries in the form of continued acromioclavicular joint pain.

  • that there was evidence of a pre-existing degenerative joint changes of the right acromioclavicular joint;

  • the only restriction to the claimant returning to work at her pre-accident employment would be any requirement for prolonged work with the arm at the shoulder level or above.

  • there was limitation with regard to prolonged working with the right arm raised to the shoulder level or above but that these movements should be encouraged.
Subsequent file records showed that a Vocational Rehabilitation Consultant (VRC) was assigned to the case to assess the claimant's eligibility for vocational rehabilitation benefits and services. A general summary of the claimant's involvement with the vocational rehabilitation branch can be found in a Quality Assurance Report dated March 31, 2003 and will not be repeated at this time.

Briefly, the WCB paid the wages of a teacher's aide to assist the claimant with the specific demands that were placed upon her while she taught school on a native reserve. As the claimant's job duties could not be modified and she experienced a loss of earning capacity, a 3 year individual written rehabilitation plan (IWRP) was developed under the WCB's relocation policy. At the end of the 3 year period of the plan, it was determined that the claimant's benefits would be reduced based on the established earning capacity of $628.22 per week. As the claimant disagreed with this decision, the case was forwarded to Review Office for consideration.

On July 25, 2003, Review Office confirmed that the claimant's deemed post-accident earning capacity of $628.22 per week should have been implemented effective February 1, 2003.

In reaching its decision, Review Office referred to portions of the MRP's report of May 16, 1997. Review Office also commented that pursuant to section 39(2) of the Act, the claimant was entitled to wage loss benefits until "the loss of earning capacity ends, as determined by the board" or she "attains the age of 65 years." Loss of earning capacity and the degree of same were determined based on an employability model and not an employment one. It was the WCB's role to assist the claimant in securing employment, not to provide her with it.

Review Office felt that the claimant was capable of working as a teacher in most settings. It was recognized that she may have trouble with some tasks but that these could be accommodated by work site and task modifications.

Review Office also stated there was a viable and steadily improving employment market for teachers. Review Office was of the further view that the claimant had been provided with her full entitlement under the provisions of the relocation policy. The claimant's entitlement after three years of payment under that policy was based on her deemed post accident earning capacity as a teacher in the wide labour market and based on labour market information. Her deemed post accident earning capacity was considered to be $628.22 per week. On November 10, 2003, the claimant disagreed with Review Office's findings and an oral hearing was convened.

Reasons

The claimant was examined by a medical review panel (MRP) on May 16th, 1997. Following its examination, the MRP commented on the claimant's current work capability and considered "that the only restriction to Ms. [the claimant's] returning to work at her pre-accident employment would be any requirement for prolonged work with the arm at the shoulder level or above but these should be encouraged." (Emphasis ours)

On or about September 11th, 2000, a Vocational Rehabilitation Consultant developed an individualized written rehabilitation plan (IWRP) for the claimant. Correspondence on file confirms that the claimant was informed on various occasions with respect to the extent of benefits and services that would be offered to her by the WCB during the course of her vocational plan and about her entitlement to benefits upon the completion of the plan.

The IWRP summarized the claimant's confirmation that she would like to continue teaching and relocate away from her present environment and location. In accordance with WCB relocation policy 43.20.40, the claimant qualified to maintain her employment and residence for the next three year period. As outlined in the IWRP, the claimant was offered wage loss benefits, job search assistance and financial assistance for relocation. At the end of the three year plan, it was anticipated that the claimant would be capable of earning $628.00 weekly given her qualifications, skills and abilities as well as the Manitoba labour market information. However, the IWRP further outlined that if employment was not secured after the detailed job search period ended, then the claimant's benefits would be reduced in accordance with WCB policy and earning assessment practices. It was anticipated that "this would result in bi-weekly wage loss benefits to her in the amount of approximately $139.76".

Despite the claimant's confirming that she wished to continue teaching and that she was prepared to relocate anywhere within Manitoba to secure suitable employment, the claimant for whatever reason did not sign the IWRP. The claimant testified at the hearing that that she never received the individual written rehabilitation plan and that she was never provided with the WCB's relocation policy. We find it very difficult to accept these comments by the claimant given the significant number of copies of correspondence on file, which clearly suggest otherwise. The claimant was under the misapprehension that her wage loss benefits would continue to be paid until she reached her retirement age of 65 as she perceived herself to be totally disabled. According to a vocational rehabilitation consultant's memorandum to file dated March 14th, 2003: "Ms. [the claimant] continues to be under the [mistaken] impression that unless we find her an appropriate teaching position and help relocate her that we must continue to pay full benefits."

The file materials indicate that the claimant received full wage loss benefits for the entire three year period from January 1, 2000 to January 3, 2003 in accordance with the relocation policy and the IWRP. At the end of this period the claimant's benefits were reduced to $148.00 bi-weekly. Vocational rehabilitation services incorporate the concept of employability into its programs and as such the claimant was viewed as having the necessary skills and abilities to work as a teacher.

After having thoroughly reviewed the IWRP, the WCB's relocation policy, the findings of the MRP, the medical evidence on file and the evidence as a whole, we find that a deemed post-accident earning capacity of $682.22 per week should have been implemented effective February 1, 2003. Accordingly, the claimant's appeal is hereby dismissed.

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 19th day of March, 2004

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