The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 16, 2004, at the request of an advocate, acting on behalf of the worker.

Issue

Whether or not the worker's deemed post accident earning capacity should be $346.00 per week as of November 8, 2002.

Decision

That the worker's deemed post accident earning capacity should be $280.00 per week as of November 8, 2002.

Decision: Unanimous

Background

On June 4, 1999, the worker sustained a compensable injury to her right shoulder region during the course of her employment. Since it was later determined that the worker was unable to return to her pre-accident employment because of her compensable injury, the case was forwarded to the vocational rehabilitation branch of the Workers Compensation Board (WCB) to assist the worker with finding suitable employment that respected her physical restrictions. Subsequent file information revealed that the worker had begun to participate in an upgrading program with the occupational goal of becoming an accounting clerk.

On June 11, 2001 the worker's employer terminated the worker's employment.

In July 2001, the worker advised the WCB that she and her husband would be relocating to another province because of personal reasons. In a memo dated July 9, 2001, a vocational rehabilitation consultant (VRC) advised the worker that her wage loss benefits would not be altered by her move and that the WCB would arrange for her to take retraining closer to her new residence.

In late August 2001, the accident employer offered a full time position to the worker which respected her physical restrictions. As the worker no longer lived in Winnipeg she was unable to accept the offer. The WCB ended the worker's benefits effective October 9, 2001.

On October 25, 2002, Review Office determined that the worker was entitled to receive partial wage loss benefits subsequent to October 9, 2001 based on the deemed post accident earning capacity of an accounting clerk and that she was entitled to vocational rehabilitation assistance if she so desired. Review Office stated, in part, that the WCB should have advised the worker that her entitlement to rehabilitation services might be adversely affected by relocating outside of Manitoba. Review Office was concerned, however, that the worker had not mitigated the consequences of her accident as required under section 22 of The Workers Compensation Act (the Act) since it believed she had not made any effort towards returning to the labour force in over a year.

In further correspondence dated November 6, 2002, Review Office clarified its October 25, 2002 decision by stating:

"The June 15, 2001 earning capacity analysis read that you 'would be capable of an Earning Capacity of $280.00 per week ($7.00/hr.). After 8 months of work experience Mrs. [the worker] would be able to command the starting salary of $346.00.' Retroactive wage loss benefits have been paid to you based on a deemed post accident earning capacity of $280.00. Effective November 8, 2002 wage loss benefits will be based on a deemed post accident earning capacity of $346.00."

On January 9, 2003, a worker advisor, acting on the worker's behalf, asked Review Office to reconsider its decision of November 6, 2002. The worker advisor stated:

"Due to circumstances beyond Ms. [the worker's] control she does not yet have an accounting clerk certificate and is unable to obtain one without the financial assistance of the Board. We respectfully submit that she should continue to be deemed capable of earning only $280.00 per week, at best, until such time as she furthers her studies; obtains her certificate and gains some work experience. Until then, we respectfully submit that, it is unreasonable to classify her a (sic) having an earning capacity of $346.00 per week."

In a decision dated April 17, 2003, Review Office confirmed that the worker's weekly deemed post accident earning capacity should be $346.00 as of November 8, 2002. Review Office stated:

"Had the worker been available to participate in a vocational rehabilitation program, her skill set would have been enhanced to the point where her earning capacity would have increased to $346.00. Not increasing the deem would have effectively rewarded the worker's non participation. Review Office considers that doing so would have been inconsistent with s. 22 of The Workers Compensation Act as well as policies 44.10.30.60 Practices Delaying Worker's Recovery and 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity."

Review Office also commented that the worker would be entitled to full wage loss benefits while she was fully involved in a vocational rehabilitation program. In June 2004, the worker's advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The worker sustained a compensable injury during the course of her employment in 1999. She had been employed with the same employer since 1984. However, due to the injuries she sustained in 1999, she was unable to return to her pre-accident employment. Her employer did not find any alternative duties or form of employment which could accommodate her physical restrictions post accident.

Therefore, the Workers Compensation Board ("WCB") after paying benefits to the worker as the result of her compensable injury, recommended in November 2000 that the worker be placed on vocational rehabilitation benefits since she could not return to her pre-accident position of employment and since she had expressed a willingness to participate in vocational rehabilitation activity. To that end the worker was registered for vocational testing and for a Career Planning workshop at the WCB.

After participating in vocational testing and Career Planning workshop, it was determined that the worker would need to transition into sedentary employment. The worker also advised the WCB that she would like to have a meeting facilitated with an HR person from her employer to determine whether or not, if she were re-trained, she would merit consideration for alternate employment with that same employer.

The worker scored extremely high with respect to aptitudes in the area of accounting positions. It was agreed that accounting would be a suitable vocational goal for the worker to pursue. As such, an earning capacity analysis was requested. In a memo to file dated May 25, 2001, the worker's WCB VRC indicated that the rationale for pursuing this as a vocational goal was based on the premise that it would allow the worker to work within her physical restrictions and further would allow her the potential to recoup a significant amount of her pre-accident salary, depending on where re-training was provided for her. The memo further indicated that the VRC had also spoken with a Human Resource person at the worker's employer who advised that, assuming successful completion of an accounting course, the worker would merit consideration for any positions that became available. She registered to take courses to update her computer skills.

On June 11, 2001, however, the worker's employer terminated her employment since she had not been able to return to work after a two year period.

An earning capacity analysis was prepared regarding the worker, on June 15, 2001. It determined that based on current and future labour market conditions there was a demand for Accounting and Related Clerks. It was determined that in the worker's case 6-8 months work experience would be required to allow her to be in a competitive position to obtain employment. In the opinion of the employment specialist, therefore, upon completion of the one year computer accounting technician course at Red River, the worker would be capable of an earning capacity of $280 per week. After eight months of work experience she would be able to earn $346 per week.

Upon receipt of this information, the worker's VRC, in a memo dated July 9, 2001, confirmed that the worker was continuing to participate in an upgrading program with a view to transitioning into the accounting field. He further confirmed that since an earning capacity analysis had indicated there was a labour market for this field, an Individual Written Rehabilitation Report ("IWRP") and Financial Implications Report ("FIR") would be developed on her behalf.

The WCB memo also documented that the worker had advised the VRC that, for personal reasons, she needed to relocate to another province. The memo documented that the worker was advised by the WCB that her wage loss benefits would not be altered and further that arrangements would be made for her to take her re-training as close to her new residence as possible. The worker was also advised that the VRC would delay the IWRP until such time as they were comfortable that an institution that could provide her with re-training was found. In the event that it was not, the VRC indicated that they would still proceed with her vocational goal and look at correspondence courses which would provide her with the accounting skills she required.

Two months after the worker's accident employer had terminated her employment and the worker and her husband had relocated to another province, the accident employer offered to create a position of employment which would accommodate the worker's work restrictions.

As a result of this offer the VRC documented, in a memo dated September 14, 2001, that he had decided to close the worker's file to further vocational rehabilitation services, based on his understanding that the position which the worker's accident employer was now offering, was compatible with her physical restrictions and commensurate with her pre-accident salary. It was also the VRC's understanding that the employer, based on the computer re-training that the worker had already received, would continue to provide additional on-the-job training therefore circumventing any additional re-training on her behalf.

The evidence disclosed that the worker advised the WCB that she was not able to take the position offered by the employer, however, because she was no longer living in Manitoba.

In its decision of October 25, 2002, the Review Office confirmed that the employer's offer of alternate work was made after the worker moved with the WCB's approval and, therefore, should not have been considered in determining the worker's entitlement to vocational rehabilitation assistance. The Review Office found that it was unreasonable to expect the worker to return to Winnipeg, once she had left.

The Review Office felt, however, that the worker had not made any effort towards returning to the labour force and therefore considered that she was entitled to partial wage loss benefits based on the deemed post-accident earning capacity of an accounting clerk. This was in accordance with WCB policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity.

In a further letter dated November 6, 2002 the Review Office clarified its October 25, 2002 decision by stating that in making its decision it was relying on the earning capacity analysis which had been prepared in June of 2001. That analysis indicated that the worker would be capable of an earning capacity of $280 per week and after eight months of work experience able to command a starting salary of $346 per week. Therefore, the Review Office determined that wage loss benefits would be based on a deemed post-accident earning capacity of $280 and after eight months, would be based on a deemed post-accident earning capacity of $346. This is the specific decision the worker appealed and is the issue which this Panel addressed in its review.

We have determined that there is no basis for increasing the deemed amount of the worker's post-accident earning capacity to $346, on the facts of this case.

Board policy 44.80.30.20 deals with deemed earning capacity and rehabilitation. Its purpose is to ensure that wage loss benefits are paid to a worker when a compensable injury results in a loss of earning capacity, in the following manner. Loss of earning capacity is determined to be the difference between the worker's average earnings before the accident and what the worker is determined or deemed to be capable of earning after the accident. The policy specifically addresses when the earnings the worker is deemed to be capable of earning as opposed to actual earnings, will be included in the loss of earning capacity calculation and how the deemed earning capacity will be determined for individual claims. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.

The policy provides that deemed earning capacity will typically be demonstrated in the context of vocational rehabilitation activity. It further provides that the decision to use deemed earning capacity "will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan. Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted."

The onus is on the WCB to demonstrate that the worker is capable of earning more than the amount actually being earned.

In order for the WCB to demonstrate deemed earning capacity it must among other things:

(a) through adequate vocational assessment plan development and documentation demonstrate that the worker is capable of competitively finding, competing for and obtaining employment in the occupation on which the earning capacity is based;

(b) demonstrate that the worker has the physical capacity, education, skills, aptitudes, interest and personal qualities needed to obtain and keep employment in the occupation in the labour market;

(c) demonstrate that the work exists for the occupation on which the earning capacity is to be based.

The policy provides that the WCB will use the IWRP as the basis for collecting and weighing information about the worker's earning capacity and further, that deemed earning capacity will be used in the loss of earning capacity calculation, once the worker has completed the training part of the vocational rehabilitation plan, has been given reasonable job search assistance and the information upon which the plan was based has not substantially changed.

In the specific case of this particular worker, although the WCB determined that the worker would be given vocational rehabilitation assistance, that assistance was never fully provided. The worker relocated outside the province, with the WCB's approval. The WCB agreed to take steps to further the worker's vocational rehabilitation training but discontinued that assistance when the worker's previous employer offered a new position of employment to the worker. The worker submitted that it was impractical at that point for her to accept that employment. The Review Office agreed with that submission. However, it went on to determine that not only should the worker's wage loss benefits be based on a weekly deemed post-accident earning capacity of $280 per week but that as of November 8, 2002 that capacity should be deemed to have increased to $346 per week.

We find that the increase of deemed post-accident earning capacity is not reasonable. The worker does not take issue with the deemed earning capacity of $280 per week and we agree that that amount is reasonable in light of all of the evidence, including the fact that the worker is not totally disabled. We find, however, that to increase her deemed earning capacity would not be reasonable based on the evidence.

The weekly earning capacity amount of $346 was based on the opinion set out in the earning capacity analysis of June 15, 2001. That analysis determined that the worker would be capable of earning $280 per week and after eight months work experience (emphasis added) would be able to command an increased salary of $346 per week. In this case, the worker was never able to obtain work experience and there is, therefore, no basis upon which to increase the deemed earning capacity. We do not find that the worker should bear the onus of the consequences of not having earned that further work experience. Although the WCB undertook to provide the worker with vocational rehabilitation training, that training was not, in fact, fully provided; nor was an IWRP ever created for the worker; nor was job search assistance ever offered upon the completion of training.

It is not reasonable to deem a further increase in the worker's earning capacity when she has received neither the benefit of all of the training the WCB undertook to assist her in obtaining nor the work experience upon which that further deemed amount was based.

Therefore, we find that the worker's deemed post-accident earning capacity should be $280 per week as of November 8, 2002.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of December, 2004