The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 23, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to income replacement benefits commencing January 2004 because of the absence of an ergonomic chair at the workplace.

Decision

That the claimant is not entitled to income replacement benefits commencing January 2004 because of the absence of an ergonomic chair at the workplace.

Decision: Unanimous

Background

The claimant was the victim of a stabbing incident that took place in June 1995. The Criminal Injuries Compensation Board, presently known as Compensation for Victims of Crime Program (the Program), accepted the claim and various types of benefits and services were issued to the claimant.

On March 11, 2004, the Program's manager advised the claimant that his request for income replacement benefits was denied as there was no medical evidence to support that he was disabled from completing his duties as a customer service representative in January 2004 or that his disability was related to his 1995 compensable accident. When rendering this decision, the program's manager relied on a report from the claimant's treating physician dated February 18, 2004 and from a physiotherapist who assessed the claimant's workplace on February 22, 2004. It was the Program's opinion that the claimant could have continued working using his Obusforme cushion until an appropriate chair was purchased. On July 19, 2004, this decision was confirmed by the Program's director.

On September 24, 2004, an Appeal Panel hearing was held at the Appeal Commission in light of the claimant's disagreement with the Program's decision.

Reasons

A review of the evidence confirms that the claimant had been vocationally retrained to the point where he was capable of earning his pre-accident income. However, we further find based on the preponderance of evidence that the claimant's inability to secure pre-accident income subsequent to his dismissal from employment in February 2004 was not due to an ongoing medical condition or to the absence of an ergonomic chair, but rather, was due to his own personal resolve not to pursue other avenues of employment.

The claimant acknowledged at the hearing that an arrangement had been struck whereby a mutually agreed upon style of ergonomic chair would be purchased for him by the Program at such time when he found and accepted suitable employment. With respect to the transition period from the time the claimant accepts employment to the time when the chair is delivered, we note the treating physiotherapist indicated in her March 15, 2004 report that the claimant could use an ObusForme cushion on a short term basis. "Although Mr. [the claimant's] chair was not optimal, it did have an ObusForme cushion that offered back support, making it suitable to use on a short-term basis until a more appropriate chair was found."

In our view, the claimant is not entitled to income replacement benefits commencing January 2004 because of the absence of an ergonomic chair at the workplace. 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 27th day of October, 2004