Decision #169/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 28, 2005, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 22, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond April 22, 2005.

Decision: Unanimous

Background

In June 1998, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral wrist difficulties that she related to her employment activities as a sewing machine operator. The claim for compensation was accepted by the WCB and benefits and services were paid to the worker which included vocational rehabilitation assistance.

On December 13, 2004, an Individualized Written Rehabilitation Plan (IWRP) was developed for the worker. The occupational goal was "NOC 6651 - Security Guard (Primary) and NOC 6683 - Other Elemental Service Occupations (Secondary). At the completion of the program, the worker would be considered capable of earning a weekly starting salary of $305.00 per week with annual increments. The worker's physical restrictions were outlined as follows: No lifting greater than five pounds and no repetitive or forceful use of the right wrist.

In a December 15, 2004 WCB letter, the worker was provided with details of her job search program which ran between December 13, 2004 and April 22, 2005.

In a memo to file dated April 18, 2005, the worker's vocational rehabilitation consultant (VRC) provided an update of his involvement with the worker and a rationale for implementing a post plan deemed earning capacity. He stated, in part,
"…Ms. [the worker] has been provided with job search assistance in excess of 70 weeks since my involvement with her. Ms. [the worker] has undergone Interview Skills, Job Search and Resume Development. In addition, Ms. [the worker] has also been provided with security training, first aid training, a work experience and training for companion work, along with a number of job leads that are clearly within her skill level. Unfortunately, the job search has not culminated in paid employment. From my perspective, every issue has been addressed and every service that Ms. [the worker] is entitled to has been provided to her by the WCB of Manitoba. From my perspective Ms. [the worker] should have the post planned deemed earning capacity evoked on her behalf and because of the fact that both of these NOC's earning capacities exceed her pre-accident wage, she will not be entitled to any further wage loss. As such, her file will be closed to further vocational rehabilitation services."
On May 19, 2005, a WCB case manager confirmed to the worker that she was not entitled to wage loss benefits beyond April 22, 2005 as her earning capacity exceeded her pre-accident earnings.

On May 13, 2005, the worker outlined her position that she was not suited for a security guard position. The worker noted that becoming a security guard was just going to add another problem to her health conditions and that becoming a security guard made her feel great fear and anxiety.

In a decision dated May 27, 2005, Review Office confirmed that a post-accident deemed earning capacity should have been implemented effective April 25, 2005. Review Office placed weight on the following information when rendering its decision:
  • many of the postings within NOC 6651 were within the worker's physical capabilities and did not require restraint such as monitoring and plant security;

  • the worker was not confined only to NOC 6651 but could consider other possible occupations in NOC 6683.

  • the last Review Office decision clearly stated that the worker was employable and capable of earning at least minimum wage;

  • the worker was a reluctant participant throughout the vocational rehabilitation process…;

  • the worker indicated that the writing aspect of the security positions was not an issue. She was provided with an ergonomic pen to reduce fatigue or discomfort caused by extended writing.
On June 8, 2005, the worker appealed Review Office's decision of May 27, 2005 and an oral hearing was arranged.

Reasons

The Panel was asked to determine whether the worker is entitled to wage loss benefits beyond April 22, 2005. For the appeal to succeed in this case, the Panel must find that the worker has a loss of earning capacity or in other words, is not capable of earning more than her pre-accident earnings. The Panel was not able to make this determination. The Panel found that the worker is capable of earning more than her pre-accident earnings within NOC 6683.

Evidence and Argument at the Hearing

The worker attended the hearing with her husband. She expressed her position in these words "…I just want to prove to you guys that I could never become a security guard, not in this lifetime." The worker explained that she disagreed with the WCB's position that she is qualified to find work as a security officer. She outlined her concerns about security officer work which include concerns about her personal safety and health. She noted that she had a fear of security work which was very stressful.

The worker was asked about jobs in NOC 6683. She acknowledged that she could do jobs in this field.

The worker advised that she has found employment as a companion. When asked whether she could have worked as a companion on April 25, 2005, she replied "Yes, yes I could have." As to her suitability for this type of work she advised that it can involve lots of house work. She stated "I can do a lot of house cleaning and help people prepare meals and stuff like that, so I'm okay with that too."

Analysis

The Panel listened to the worker's concerns and agrees there are elements of security officer work which are outside her physical capabilities and restrictions. For example the Panel agrees that the worker is not capable of restraining or detaining individuals. The Panel finds that this severely limits the number of positions available to the worker making it difficult to find employment in this field.

However, the Panel notes that the WCB developed a vocational rehabilitation plan which included occupations in NOC 6683. The worker indicated that she was capable of performing some jobs in this field. At the hearing the worker was asked if she could work as a parking attendant which is an occupation in NOC 6683, and she replied that she could do this work.

The Panel notes there is no medical evidence to suggest that the worker is not capable of work in this field on a full time basis.

The Panel finds that as occupations within NOC 6683 are within the worker's restrictions and that the labour market information confirms positions are available, the 20 weeks of job search is reasonable and there is no further entitlement to wage loss benefits. The Panel finds that the worker's earning capacity within NOC 6683 exceeds her pre-accident earnings and that accordingly she does not have a loss of earning capacity beyond April 22, 2005.

The appeal is declined.

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 3rd day of November, 2005

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