The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 30, 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 a deemed post accident earning capacity of $305.00 per week should have been implemented effective February 7, 2005.

Decision

That a deemed post accident earning capacity of $305.00 per week should not have been implemented effective February 7, 2005 in relation to the NOC 6651 security guard and related occupations position.

Decision: Unanimous

Background

The worker was involved in an accident at work on April 8, 1994 when he fell off a ladder to the ground during the course of his employment as a carpenter/shop foreman. Due to the mechanics of the accident, the worker incurred bilateral Colles fractures and fractures of the left infra-orbital margin and left zygoma complex. The worker has permanent, bilateral, restrictions to avoid tasks requiring sustained grips or repetitive actions and no lifting greater than 10 lbs. He also has permanent restrictions related to his vision, namely to avoid working at heights and to take breaks from prolonged focusing on tasks. In 2000, the WCB determined that the worker was not suited for computer work because of his double vision.

The vocational rehabilitation branch of the Workers Compensation Board (WCB) became involved in the case to assist the worker with finding suitable employment that respected his compensable restrictions. Early file documentation revealed that the worker attempted several work assessments which included a laundry room attendant and video store clerk but was unable to continue as certain job duties with both positions were outside of his physical restrictions.

Following consultation with case management and a WCB occupational therapist, a Vocational Rehabilitation Consultant (VRC) determined that the worker had the education, abilities and physical restrictions to secure employment in the security guard field. An earning capacity assessment (ECA) was then developed specifically to NOC 6651, Security Guards & Related Occupations (memorandum on file dated January 31, 2002).

An Individualized Written Rehabilitation Plan (IWRP) was established for the worker dated February 5, 2002. It stated that the starting wage for security guard positions was $305.00 weekly and that the market demands for these positions were "fair". Under the heading "Physical Capacity", the IWRP stated,

"The normal lifting requirement in the field of security are equivalent to carrying a pen and paper. This may also include a hand held tape recorder or a flash light. Security guards may be stationed at a work site where they are sitting, standing, or doing walk arounds. The majority of jobs require very little lifting or physical demands. The report writing requirement can be accomplished by the use of a tape recorder, if [the worker] experiences hand difficulty while writing a brief report at the end of the day.

Depending on the environment a secirity (sic) guard may have to lift a fire extinguisher weighing up to 20 pounds. The likelihood of this requirement is occasional and is in no way reflective of the normal physical demands of a security guard. … In reviewing the physical demands with his restrictions the majority of security positions are well within [the worker's] restrictions."

The plan further indicated that the worker would receive full wage loss benefits from February 11, 2002 to February 6, 2005 inclusive. In the event that employment was not secured by the worker as of February 6, 2005, the worker's benefits would be reduced in accordance with WCB policy and ECA practices. The worker read the plan on February 11, 2002 but refused to sign the plan.

In January 2005, the worker appealed the WCB's decision to reduce his benefits. The worker outlined his position that his neck and back problems (which he felt were caused by his 1994 fall) and his bilateral wrist and vision problems were preventing him from performing any type of employment.

On February 24, 2005, Review Office confirmed that a deemed post-accident earning capacity of $305.00 per week should have been implemented effective February 7, 2005. Review Office noted that although the worker maintained that his level of pain prevented him from obtaining any employment, there was no medical information to support this opinion. With respect to his neck and back complaints, Review Office did not find that the combination of these and his compensable restrictions would prevent the worker from obtaining employment in NOC 6651. Review Office concluded that the worker was capable of full time employment within NOC 6651 and agreed with the decision to implement a deem of $305 per week effective February 7, 2005. In April 2005, a worker advisor, acting on the worker's behalf, appealed this decision and an oral hearing was scheduled.

Reasons

At the hearing, the worker described certain non-compensable conditions (neck and lower back problems), which in conjunction with his compensable injuries have led him to believe that he is totally disabled.

The worker provided evidence that he has recently attempted to secure employment in the NOC 6651 area and has not had any success. Additionally, he presented documentation from a security training company that indicated he would not be a suitable candidate for this occupation because "he could not complete most of the training required nor perform most of the duties required of a Security Officer."

We note that the worker has not been actively treated for his compensable wrist and sight conditions by his attending physician since August of 2001. In addition, there has been no medically noted change in these conditions.

On December 11, 2001, the treating physician wrote to the WCB and advised as follows:

"I have discussed with Mr. [the worker] that in my estimation he could quite easily continue to work in a sedentary occupation such as his recent employment with a video store. I have recommended to Mr. [the worker] that he is able to work in a sedentary occupation and he should contact his WCB worker to get back into a suitable work force."

After having considered all of the evidence, we find that a deemed post accident earning capacity of $305.00 per week should not have been implemented effective February 7, 2005 in relation to the NOC 6651 Security Guard and related occupations position. However, based on his compensable restrictions and physical condition we find that the worker has not demonstrated a total loss of earning capacity and could likely perform some sedentary work. Accordingly, the worker's appeal is hereby allowed in part.

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 17th day of August, 2005