The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 14, 2004, at the request of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond August 2002.

Decision

That the claimant is not entitled to wage loss benefits beyond August 2002.

Decision: Unanimous

Background

On December 7, 2000, the claimant submitted an application for compensation benefits to the Manitoba Compensation for Victims of Crime Program ("the Program") for an assault that took place on November 16, 2000 during the course of his employment as a trailer mechanic. The claim for compensation was approved by the program and the claimant received wage loss benefits commencing November 17, 2000.

In a letter dated September 16, 2002, the claimant was informed that the program was terminating his wage loss benefits as of August 30, 2002 as he had been fired from his employment.

On December 7, 2002, the treating otolaryngologist indicated that the claimant continued to have ongoing problems with memory, cognitive function as well as focusing difficulties. The specialist reported that the claimant's problems related to his head injury and were mostly neurologic. The specialist considered the claimant to be disabled.

In a letter dated December 23, 2002, the claimant was advised by the Program that the opinion expressed by the otolaryngologist, in his report dated December 7, 2002, was not based on the results of clinical testing. The file contained no previous record that the otolaryngologist ever documented concerns about memory loss or cognitive function. The testing which had been completed by the clinical psychologist did not indicate any serious concerns in these areas. The letter also stated that these issues may not be relevant as it appeared that the claimant was not eligible for wage loss benefits based on the following rationale:

"Compensation for loss of wages is covered in section 8 of the Regulation. That sections states 'A victim who is disabled by his or her injury and who is employed when the injury occurs is entitled to compensation for loss of wages'. However, the employer information indicates that your last day of employment was November 10, 2000. Therefore, it appears that you were unemployed on the date of the incident, which was November 16, 2001 [should have read 2000]. If you have any written documentation disputing these facts, it would be appreciated if you would forward a copy to me. We could then consider the matter further."

On February 16, 2003, the claimant disagreed with the above decision and filed a "Request for Reconsideration".

In a letter dated September 24, 2003, the program's director concluded that the original decision to deny continued wage loss was correct. The "Reason for Decision" was outlined as follows:

Employment Status at the time of the criminal incident.

"…Based on the Record of Employment (attached) faxed to my office on September 17, 2003 I have concluded that your last day worked was November 10, 2000 but that you were in fact employed at the time of the criminal incident."

Amount of wage loss.

The director noted that the claimant had been employed for two months leading up to the time of the injury and that prior to this employment, the claimant had been receiving Employment Insurance benefits. Based on Section 8 of The Victims' Bill of Rights regulation, the Director stated that an error had been made "…when calculating your wage loss benefits and that the benefits paid should have been based on the average of your employment income in the 12 months immediately prior to the injury and not simply on (sic) calculated on your two months of employment at [employer's name]. In short, it appears that an overpayment was made based on this calculation error."

Discontinuation of Wage Loss

The director noted that after extensive medical testing, it was determined that the claimant was no longer disabled from returning to work as a result of the injuries he sustained on November 16, 2000. The claimant then began working half days as of August 19, 2002 but sustained a back injury on August 26, 2002 and was unable to continue with his employment. He then filed a claim with the Workers Compensation Board but his claim was rejected. The claimant claimed that he was forced back to work by the Program prematurely and, as a consequence, was injured.

Following a review of the file, the Director commented that there was medical basis as well as an accompanying recommendation that the claimant return to work gradually and that the claimant had agreed with this approach. The Director could find no evidence that the claimant was forced back to work or that a return to work was ill-advised.

Since being dismissed by the employer, the claimant had not resumed any type of employment. The Director noted that effective August 23, 2002, the claimant was no longer disabled from returning to some type of employment as a result of the compensable injury of November 2000 and accordingly, he was not eligible to receive any further wage loss benefits from the program.

The issue of ongoing impairment.

Following consultation with healthcare specialists with the Workers Compensation Board (WCB) and after reviewing the available medical reports, the Director determined, on a balance of probabilities, that the claimant did not suffer any cognitive sequelae as a result of his criminal injury of November 16, 2000.

On October 24, 2003, the claimant appealed the Director's decision and an oral hearing was arranged.

Reasons

We note that the treating otolaryngologist forwarded a letter to the Compensation for Victims of Crime Program on June 27^th, 2003. In our view, the contents of this letter strongly suggest that there were no ongoing physical difficulties in play with respect to the victim’s condition. “I suspect that no further ENT [eye, ear, nose and throat] evaluation or treatment will be useful for him”. The consultant went on further to state that he “would be in line with their [i.e., the treating psychologists’] evaluation regarding his [the victim’s] subjective complaints”.

We thoroughly reviewed the psychological evaluations dated January 2^nd, 2003, January 24^th, 2003, March 28^th, 2003 and June 10^th, 2003. The combined thrust of these various reports clearly suggests that in terms of cognitive functions there was no medical finding, which would preclude the victim’s ability to get back to his previous work. In this regard, the victim testified at the hearing, in part, as follows:

17. Is the back condition the kind of thing that would preclude you from going back to being a trailer mechanic?

1. It never has in the past.

17. Could you physically work as a trailer mechanic today, for example, because of the back?

1. Sure.

17. Would your back stop you from working?

1. No.

Based on the weight of evidence, we find that the victim is, on a balance of probabilities, capable of returning to the job duties of a trailer mechanic. Accordingly, we further find that the victim/claimant is not entitled to wage loss benefits beyond August 2002.

The victim requested the Panel to address a number of other issues, which did not form part of this appeal. The Panel suggested to the victim that he may wish to pursue these matters as follows:

We strongly encouraged the victim to pursue the foregoing and initiate contact with the appropriate entities.

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 24th day of February, 2004