Decision #61/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held by teleconference on March 14, 2005, at the worker's request. The Panel discussed this appeal on the same day.Issue
Whether or not the worker is entitled to further Special Additional Compensation benefits or other WCB benefits and services.Decision
That the worker is not entitled to further Special Additional Compensation benefits or other WCB benefits and services.Decision: Unanimous
Background
On March 29, 1982, the worker sustained a compensable injury to his lower back region as a result of his employment activities as a welder/mechanic. Due to the compensable accident, the worker was awarded a permanent partial disability award and received vocational rehabilitation benefits.In a decision dated September 19, 2003, the Workers Compensation Board's (WCB) Review Office made the determination that the worker was not entitled to Special Additional Compensation (SAC) beyond December 31, 2000. Review Office stated, in part, "As his actual post accident earnings were higher than his indexed pre-accident average earnings, he had no entitlement to SAC. …".
On March 31, 2004, the worker advised the WCB that he lost his job and he needed to reopen his claim until he found another job. In a subsequent letter dated May 6, 2004, the worker indicated that he had not worked since March 19, 2004.
In a decision to the worker dated June 14, 2004, a Rehabilitation & Compensation Services case manager stated that he was unable to accept responsibility for payment of SAC benefits as he could not establish a loss of earning capacity for the worker. The case manager noted that the worker would still have been gainfully employed if he had not been laid off by his employer as a result of economic factors.
On July 14, 2004, the worker advised the WCB that he did not say he was not working due to economic factors. The worker stated that he was not working due to excessive pain and was taking Tylenol 3's to make it through the day. He stated that his pain was all due to his March 1982 work accident.
In a letter dated July 25, 2004, the worker stated that he was appealing the WCB's decision of June 14, 2004. He commented that his papers from unemployment insurance clearly stated that he was terminated. There were absolutely no economic factors involved rather than his back was still bothering him.
Prior to considering the worker's appeal, Review Office returned the case back to primary adjudication to carry out a further investigation into the WCB's decision not to provide the worker with SAC benefits. A memo pertaining to this investigation is on file dated October 20, 2004 which outlined discussions that took place between the WCB and the worker with regard to his medical and work status along with a follow-up conversation with the worker's recent employer.
On October 28, 2004, a Rehabilitation & Compensation Services manager wrote to the worker to confirm that he was not eligible to receive additional WCB services or benefits at this time based on the following factors:
- the worker had demonstrated the ability to recover his pre-accident earning level based on a lengthy employment history; the worker's actual earnings surpassed the pre-accident level; and, the reason for his alternate employment ending was not related to his compensable condition; and
- recent medical information suggested that the worker's ongoing medical complaints were related to a pre-existing medical condition and was not from the effects of the March 1982 compensable workplace incident.
In a decision dated December 10, 2004, Review Office confirmed that the worker was not entitled to further SAC benefits or to other WCB benefits or services. Review Office noted that it was confirmed by the worker's employer that the reason for the worker leaving their employ was not medically or economically based. A review of medical information revealed that the worker suffered from Grade I spondylolisthesis and severe disc narrowing and that lumbar spine x-rays taken in March 2004 showed no change compared to an x-ray taken in October 2002. A bone scan also revealed no focal bony pathology identified in the lumbosacral spine. Review Office concluded that the worker was not entitled to SAC or other benefits as his loss of employment was not related to the compensable injury and as the current medical symptoms were not related to his compensable injury. On January 30, 2005, the worker appealed Review Office's decision and a teleconference hearing took place on March 15, 2005.
Reasons
The issue before us was whether the worker is entitled to further SAC benefits or other WCB benefits and services. The worker participated in the hearing by conference call.In addition to the above issue, the worker expressed disagreement with how the WCB calculated his wage loss. In his opinion the WCB calculation was wrong because it did not include income he was earning from concurrent employment. We advised the worker that calculation of his wage loss was not an issue before the panel and that the panel would not address the issue.
In a written submission dated November 14, 2004 the worker stated that his compensable condition brought on his termination from his most recent employer. He noted that his medical condition had worsened and that he was seeking reinstatement to full monthly benefits.
At the hearing the worker reiterated that he lost his employment due to his worsening medical condition and the use of a prescription painkiller at work. He advised that the pain level was getting higher and to be able to keep up with the employer's requirements, he had to use painkillers at work.
The worker advised that he is going back to school now and will be in school for the next 10 months. This is being covered by Employment Insurance. The worker also advised that he is applying for work and believes he has the skills for the positions he has applied for which positions pay higher wages than his recent employment.
Regarding his termination, the worker acknowledged that he entered a mutual agreement of termination with the employer. He was not able to provide a copy of the agreement. He advised that under the agreement he was paid holiday pay and a training allowance. He advised that he had many grievances outstanding and that the agreement provided that the grievances be dispensed with and that he receive a clear record.
With respect to whether the grievances were related to his back condition, at one point during the hearing the worker advised that he did receive some suspensions for using painkillers at work. Later in the hearing when asked about suspensions for using painkillers, the worker advised "I only got one suspension on it, but I got numerous warnings on it and then the final one was -- actually instead of taking the suspension, we just ended on an agreement to be terminated."
When asked whether the suspension that led to the termination was related to the use of the painkillers he advised that it was written up by the manager as being related to the use of painkillers but that it was changed to data entry errors. The worker acknowledged there were many issues between him and the employer that "…they been trying to get rid of me for the last five, six years…"
With respect to his medical condition he stated that "No, I don't feel that I was discriminated against over the actual back problem." He also advised that his doctor did not tell him to leave his employment, but suggested that he try to find something more suitable. He advised that he did not regularly see a doctor for his back.
After considering the evidence presented at the hearing, we find that the worker's employment was not terminated due to his medical condition or economic conditions. Rather, the termination was part of a settlement of long standing issues between the worker and the employer. In addition to the worker's evidence at the hearing we note and rely upon the evidence provided on behalf of the employer. In a record of a discussion between a WCB manager and a representative of the employer, the employer's representative advised that the worker's termination was not medically based or economically based. The representative confirmed that a replacement was hired to carry out the worker's duties. The representative advised that the worker was released from his employment based on a mutual agreement. This mutual agreement was confirmed by the worker in his evidence.
In support of our decision we also note that the medical information from the worker's physician identifies degenerative changes occurring in the worker's back. As well, the x-ray report of the worker's lumbar spine dated March 3, 2004 notes that "No change has occurred since October 4, 2002." These x-rays do not show a worsening of the claimant's back condition as he contends.
After considering all the evidence we find, on a balance of probabilities, that the worker is not entitled to further SAC benefits or other WCB benefits or services related to his loss of employment. We find that the worker was not terminated from his employment due to his compensable medical condition or to economic considerations.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of April, 2005