The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 8, 2004, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not wage loss benefits paid between November 1, 2003 and May 6, 2004 should be reduced based on a deemed post accident earning capacity of minimum wage.

Decision

That wage loss benefits paid between November 1, 2003 and May 6, 2004 should not be reduced based on a deemed post accident earning capacity of minimum wage.

Decision: Unanimous

Background

In September 1981, the worker was climbing a pile of lumber when his right foot slipped and he struck it against a piece of wood that was on the ground. The diagnosis rendered was a fracture dislocation of the right ankle. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker up until his return to work in June of 1982.

On June 6, 2002, the worker contacted the WCB to report that his right ankle had always been sore since his injury and that his orthopaedic surgeon related it to the 1981 accident. The WCB requested and obtained up-dated medical information that was reviewed by the WCB's healthcare branch. On August 13, 2002, the WCB made the determination that the worker's condition was related to his September 1981 compensable injury and his compensation benefits were reinstated retroactively to May 29, 2002 as a recurrence. File information also noted that the worker was in receipt of Canada pension disability benefits for non-compensable reasons.

In October of 2002, the worker underwent a left ankle arthrodesis which was accepted as a WCB responsibility. Permanent left ankle restrictions were implemented and the case was forwarded to the WCB's vocational rehabilitation branch to determine if the worker was eligible for rehabilitation benefits and assistance.

On October 15, 2003, a WCB case manager advised the worker by letter that the WCB considered he was not totally disabled with respect to his 1981 ankle claim and that benefits would be ending on November 1, 2003. The WCB also concluded that the claimant's multiple health issues created the most significant barriers to employment and that the WCB could not apply benefits and services in removing these non compensable 'handicaps'. Vocational rehabilitation services and benefits were therefore not warranted.

In a submission to Review Office dated January 22, 2004, a worker advisor provided argument that the October 15, 2003 decision was not in compliance with The Workers Compensation Act (the Act) and WCB policies. Sections 40(1), 40(2), 44(1) and 27(15) of the Act were referenced by the worker advisor.

On May 7, 2004, Review Office confirmed that the worker was entitled to vocational rehabilitation benefits. Review Office stated that the claimant should have been provided with full rehabilitation assistance when it was determined that he was unable to return to his pre-accident work by reason of his compensation restrictions. It did not mean that the WCB had to accept responsibility for his non-compensable medical problems. If, however, at some point the non-compensable medical issues became an overwhelming impediment to vocational rehabilitation, it was incumbent on the WCB to determine what the worker's loss related to the compensable injury was and compensate for that alone.

Review Office also contacted the worker on May 4, 2004. The worker advised Review Office that he had been 'doing nothing' since his benefits ended in November 2003. As the worker did not mitigate the consequences of his accidents as was required in Section 22 of the Act, Review Office felt that the worker's wage loss benefits between November 1, 2003 and May 6, 2004 should be reduced based on a deemed post accident earning capacity of minimum wage. "The claimant's full wage loss benefits should be restored as of May 7, 2004 and be continued conditional on his full and active participation in the vocational rehabilitation process…".

In May 2004, the worker advisor disagreed with the decision rendered by Review Office and a non-oral file review was arranged.

In a memo to the Appeal Commission dated June 8, 2004, Review Office noted that its reference to section 22 of the Act in its decision of May 7, 2004 was incorrect. Given the date of injury was pre 1992, Review Office stated that Section 27(20) of the Act should have been referenced.

Reasons

The issue before us was whether wage loss benefits paid between November 1, 2003 and May 6, 2004 should be reduced based on a deemed post accident earning capacity of minimum wage. In other words is this an appropriate case to reduce the worker's wage loss benefits.

For the worker's appeal to be successful, we must be satisfied that the worker is entitled to receive full wage loss benefits for this period. After considering all of the evidence, we have determined that the worker is entitled to full wage loss and that his benefits should not have been reduced.

We considered the position advanced by the worker advisor on behalf of the worker, the May 7, 2004 Review Office decision and the June 8, 2004 clarification.

The accident in this case occurred in 1981 and vocational rehabilitation benefits are paid and calculated in accordance with the legislation in place at the time of the accident. We agree with Review Office that Section 27(20) of The Workers Compensation Act (the "Act") as it existed in 1981 is applicable to this case. This Section provided:

Measures for rehabilitation

27(20) To aid in getting injured workers back to work and to assist in reducing or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures from the accident fund as it deems necessary or expedient.

Under this Section payment of rehabilitation benefits is discretionary. In cases where this section applies, it is available to consider whether the worker mitigated the consequence of the accident in exercising the discretion to pay benefits. This is what occurred in this case. We also agree that the mitigation provision of the current Section 22 of the Act is not applicable.

In this case, Review Office determined that the worker was entitled to vocational rehabilitation assistance as of the day of its decision when it was determined that he was unable to return to his pre-accident work by reason of his compensable restriction. However Review Office determined that the worker did not mitigate the consequences of the accident and retroactively deemed the worker capable of earning minimum wage from the date his WCB benefits had been terminated, resulting in a reduction in the worker's wage loss benefits during the specified period.

We disagree with Review Office's decision to deem this worker at minimum wage. We note from the file that the WCB contacted the worker to ascertain what the worker had done since his benefits were terminated in November 2003. A note to file indicates that the worker had "done nothing" and therefore Review Office decision ordered the reduction in benefits.

We view the facts of this case somewhat differently. We find that the worker had actively demonstrated a willingness to participate in vocational rehabilitation in the period preceding the termination of his benefits but that the WCB determined him to be ineligible for such benefits because non-compensable conditions rendered him unemployable. We find that when his benefits were terminated the worker maintained his willingness to participate in vocational rehabilitation and made a significant effort to be reinstated. This effort involved promptly filing an appeal of the decision and obtaining medical evidence from a variety of specialists to establish that he was employable. All these activities were initiated by the worker in spite of the fact that he had been considered eligible for CPP disability benefits. We find that the worker demonstrated good faith and a desire to participate in spite of significant barriers to re-employment. We do not consider this an appropriate case to reduce the wage loss benefits and determine that the worker should be paid full rehabilitation wage loss benefits for the period November 1, 2003 to May 6, 2004.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of September, 2004