The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 19, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is capable of working on a full time basis; and

Whether or not the worker is entitled to full benefits between July 29, 2002 and May 20, 2004.

Decision

That the worker is capable of working on a full time basis; and

That the worker is not entitled to full benefits between July 29, 2002 and May 20, 2004.

Decision: Unanimous

Background

In May 1984, the worker incurred an injury to his back region during the course of his employment in a meat packing plant. The Workers Compensation Board (WCB) accepted the claim for compensation and various types of benefits were paid to the worker. In 1990, it was determined by an Appeal Panel that the worker should be provided with vocational rehabilitation benefits. The worker was then retrained as a Class 5 Power Engineer and worked as a maintenance worker/power engineer until August of 1998 when he experienced deterioration in his physical condition.

In December 1998, x-rays of the worker's back revealed degenerative disc disease, particularly at the L5-S1 level along with multiple levels of spurring.

On July 23, 1999, the WCB determined that the worker was fit for some form of work. Permanent compensable restrictions were outlined which included no lifting over 20 pounds, no repetitive bending, lifting or twisting of the spine. The worker was advised that effective June 8, 1999, his WCB benefits would be paid based upon his participation in a return to work plan arranged between himself and his vocational rehabilitation consultant (VRC).

In August 1999, the worker advised his VRC that he was pursuing further disability/injuries related to his employment accident in the early 1980's. File information revealed that the worker has a claim for a respiratory condition with the restriction to avoid exposure to chemicals on a permanent basis. He also has a compensable hearing loss claim with the WCB and a non-acceptable WCB claim for bilateral carpal tunnel syndrome.

The WCB's vocational rehabilitation branch assisted the worker with career planning and vocational testing. In April 2001, arrangements were made for the worker to participate in a work assessment as a security guard, but this did not take place as it became known that the worker had a criminal record and could not be bonded. It was later decided that the worker would be capable of employment related to National Occupational Classification (NOC 6683); Other Elemental Service Occupations (i.e. door attendant, parking lot attendant, etc.).

On February 11, 2002, an Individualized Written Rehabilitation Plan (IWRP) was signed by the worker which included 24 weeks of job search with an external VRC and resume, interview and job search skills to assist him in pursuing employment in NOC 6683. As the worker was unsuccessful in obtaining employment at the end of his IWRP, a deem of $260.00 per week was implemented.

In a report dated August 8, 2002, the external VRC provided the WCB with his final report outlining the assistance that was provided to the worker with respect to job search activities and "barriers" that were encountered.

On February 18, 2003, primary adjudication advised the worker that a report from his orthopaedic surgeon dated December 27, 2002 had been reviewed by WCB healthcare staff. It concluded that the medical report did not identify a change in the worker's function since the permanent restrictions were imposed in 1999. The WCB also stated that the worker was capable of engaging in full time employment within his deemed field.

In a report dated April 24, 2003, the worker's treating orthopaedic specialist stated that the worker reported "continuing backache". The specialist stated, in part, that the worker was "…suitable for some work, but not anything involving heavy lifting, twisting or turning, prolonged walking or prolonged standing."

On December 24, 2003, the worker advised the WCB that he has no income other than his WCB benefits. He stated that he tried working as a courier for three days but could not continue due to his back and lungs.

In an appeal submission to the WCB dated February 18, 2004, the worker outlined his concerns that he was only capable of part time work due to his back and lung limitations. The appeal was then forwarded to Review Office for consideration.

On May 4, 2004, the WCB was advised that the worker had been granted a pardon by the National Parole Board.

In a decision dated May 21, 2004, Review Office stated that it had discussed the worker's back and respiratory claims with a WCB medical consultant and concluded that the worker was capable of performing sedentary work on a full time basis within the permanent restrictions imposed for his back and respiratory conditions. Given this decision and the lack of new medical information to suggest deterioration in the worker's compensable back and lung conditions, Review Office saw no basis to reassess the worker's work capabilities.

Review Office also determined that the worker was not competitively employable within NOC 6683 due to his compensable and non-compensable (i.e. driver's abstract and criminal record) issues and that he was entitled to further vocational rehabilitation assistance. It determined that the worker's vocational rehabilitation benefits would be reinstated on May 24, 2004 if he agreed to participate fully in the vocational rehabilitation process. Review Office also advised the worker that if he disagreed with Review Office's decisions as to whether he was capable of working on a full time basis and his entitlement to benefits between July 29, 2002 and May 20, 2004, he could appeal them to the Appeal Commission.

In February 2005, the worker appealed Review Office's decision of May 21, 2004 and an oral hearing was arranged.

Reasons

Although the worker has been assigned permanent restrictions as a consequence of his compensable condition, there is no medical evidence either on file or presented at the hearing to substantiate the worker's assertion that he is not capable of working on a full time basis at minimum wage employment. The treating orthopaedic surgeon examined the worker on or about April 29, 2003. In his clinical notes, the surgeon recorded the following comments: "Straight leg raising is 90º both sides. Motor power and sensation in his legs appears to be normal. He is therefore suitable for some work, but not anything involving heavy lifting, twisting or turning, prolonged walking or prolonged standing." We find based on the weight of evidence that the worker is on a balance probabilities capable of working on a full time basis, albeit sedentary work duties.

Section 22 of The Workers Compensation Act (the Act) places a positive obligation on the part of an injured worker that he or she should be a full participant in attempting to ensure full and timely mitigation of the consequences of the accident. At the hearing, the worker indicated to the Panel that he has done nothing or very little to secure either part-time or full-time employment. We find that the worker has fallen short in meeting his obligation.

In addition, we note that the WCB provided the worker with substantial assistance in career planning, resume writing, job search assistance as well as a workshop dealing in interview skills. Despite the provision of these services, the worker has shown no initiative to seek part-time and/or full-time employment either during the period from July 2002 to May 2004 or subsequent to May 2004. Therefore, we find that the worker is not entitled to full benefits between July 29, 2002 and May 20, 2004.

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 4th day of July, 2005