Decision #105/99 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on June 28, 1999, at the request of the claimant.
Issue
Whether or not the claimant should be restored to full wage loss benefits effective August 1, 1998.
Decision
That the claimant should not be restored to full wage loss benefits effective August 1, 1998.
Background
In December 1996, the claimant injured his back, neck and shoulder region during the course of his employment as a truck driver. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. In 1997, the claimant developed a non-compensable eye condition which caused him to lose his Class I driver’s license. As a result of the non-compensable condition as well as temporary physical restrictions, it was determined that the claimant would be unable to return to his former occupation as a truck driver and the light duties offered by his employer would be inappropriate. Under these circumstances, the WCB set out to establish the claimant’s earning capacity as it could have been, prior to the non-compensable eye condition.
On July 21, 1998, the claimant was advised that based on his compensable restrictions, aptitudes, interests, transferable skills, employment history and a positive labor market, that “Customer Services Representative” was the most appropriate salary with which to establish his earning capacity. Therefore, effective August 1, 1998, his benefits would be adjusted by the starting salary of a customer service representative. This was established at $432.06 per week.
In a letter to the Review Office dated September 15, 1998, a worker advisor agreed with the WCB’s position that the claimant was not capable of working at the modified duties offered by the employer by reason of his compensable injuries. The worker advisor, however, disagreed with the decision to implement a deemed post accident earning capacity effective August 1, 1998.
On January 8, 1999, the Review Office made the following decisions:
- that the deemed post accident earning capacity should not have been implemented effective August 1, 1998;
- that the claimant should be restored to full wage loss benefits effective January 8, 1999; and
- that the claimant should be provided with vocational rehabilitation services.
In arriving at these decisions, the Review Office made reference to Section A.5 of WCB policy 44.80.30.20.. The Review Office was of the view that the policy excerpt did not apply in this instance as it was considered that the policy was intended to apply to catastrophic single events which prevent a claimant from participating in any reasonable vocational rehabilitation plan. The policy did not contemplate progressive degenerative conditions which did not immediately preclude workers from participating in a vocational rehabilitation plan.
The Review Office stated there was nothing to indicate that the claimant’s vision complaints would substantially affect his ability to participate in the vocational rehabilitation process. He may well be able to work in a customer service representative environment. However, he was not provided with the usual range of services to facilitate his obtaining any employment. The Review Office directed that a vocational rehabilitation plan should now be developed and the usual range of services be provided to the claimant.
With respect to entitlement to wage loss benefits, the Review Officer indicated that during a telephone conversation with the claimant, the claimant indicated he had done nothing since his benefits were reduced in August 1998. Section 22 of the Act requires workers to mitigate the consequences of accidents. As the claimant had not done so, Review Office was of the opinion that full wage loss benefits should be restored effective the date of the Review Office’s decision as a continuance and be continued based on the claimant’s willingness to participate in the vocational rehabilitation process.
On May 10, 1999, the worker advisor appealed the Review Office’s decision stating, “Deemed Post Accident Earning Capacity should not have been implemented”. Assessment of restrictions by WCB medical advisor was not done until Jan. 21/99 therefore retroactive payment should be made.” A non-oral file review was scheduled and took place June 28, 1999.
Reasons
Commissioners Vivian and Finkel:
The issue in this appeal is whether or not the claimant should be restored to full wage loss benefits effective August 1, 1998.
The relevant subsections of the Workers Compensation Act (the Act) are subsections 60(2); subsection 39(2); and section 22.
Subsection 60(2) states in part:
Particular jurisdiction
60(2) Without hereby limiting the generality of subsection (1), it is declared that the exclusive jurisdiction of the board extends to determining
(c) the existence and degree of disability by reason of any injury;
(e) the loss of earning capacity resulting from an accident;
Subsection 39(2) states in part:
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends as determined by the board;
Section 22 states:
Practices delaying a worker’s recovery
22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.
In its decision 19/99 dated January 9, 1999 the Review Office determined in respect of this claim that a deemed post accident earning capacity should not have been implemented effective August 1, 1998; that the claimant should be provided with vocational rehabilitation services; and that the claimant should be restored to full wage loss benefits effective the date of their decision, January 8, 1999.
The claimant has appealed the Review Office decision to make the payment of full wage loss benefits effective January 8, 1999 and not make them retroactive to August 1, 1998. We note the claimant received partial wage loss benefits during the period in question.
In light of the above the only issue we have to address in this appeal relates to whether or not the claimant mitigated his claim during the period August 1, 1998 to January 8, 1999 therefore entitling him to the payment of full wage loss benefits for that period.
We note as above, in their decision of January 8, 1999 the Review Office found that the claimant had been inappropriately “deemed” on August 1, 1998 and that the claimant should be provided with vocational rehabilitation services. Therefore the issue of “deeming” is not before us to determine and is irrelevant to the issue under appeal. WCB policy 44. 80.30.20, Post Accident Earnings - Deemed Earning Capacity is also not relevant to the issue in this appeal.
We note the claimant was restored to full wage loss benefits January 8, 1999 with the recommencement of vocational rehabilitation services. With respect to the claimant’s entitlement to full wage loss benefits retroactive to August 1, 1998 we find that there is no such entitlement. We concur with the Review Office decision that the evidence suggests, on a balance of probabilities, that the claimant did nothing to mitigate the circumstances of his claim and therefore is not entitled to full wage loss benefits retroactively for the period August 1, 1998 to January 8, 1999. In this regard we note a WCB memorandum to file dated January 8, 1999 from the Review Officer:
“ I asked the claimant what he had been doing since his benefits were reduced in August 1998 and he replied ‘Nothing’. He said that he is capable of working within particular limitations and wants assistance in finding work.”
The evidence reveals that the claimant took part in an Interview/Job Search workshop at the WCB July 27 to 31, 1998 and a resume writing workshop August 6, 1998. We note that the claimant was found to be a willing and active participant in the workshop and demonstrated the knowledge, ability and skills to perform independent job interviews and job searches.
We also note that the claimant participated in Interest and Aptitude Testing, was involved in a review of the test results and the possible employment avenues of sales, administration, customer service, and parts service that had been identified. The evidence further indicates that the claimant was involved in the process of narrowing down the employment alternatives to Customer Service Representative after due consideration of physical restrictions, training requirements, his extensive previous experience in customer service in a retail/sales setting and the existence of a positive labour market in this field.
We find that the duty to mitigate a claim persists notwithstanding the receipt of any benefits/services from the WCB and in this regard we note that the claimant informed the Review Officer that he was capable of certain work yet the claimant did nothing to achieve this goal.
We further note in this appeal of the Review Office decision that the claimant failed to mitigate his claim, the claimant did not offer any submission to us with respect to the issue under consideration other than that stated on his application to appeal form:
“ Review Officer states: “deemed post accident capacity should not have been implemented”. Assessment of restrictions by WCB medical advisor was not done until January 21/99 therefore retroactive payments should be made.”
In this regard, we note in a letter dated June 4, 1999 from the Appeal Commission that the claimant was advised that any additional evidence or written argument should be submitted by June 15, 1999.
Therefore for the reasons outlined the claimant’s appeal is denied.
Panel Members
D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
Recording Secretary, B. Miller
D.A. Vivian - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of August, 1999
Commissioner's Dissent
Commissioner Frisken’s Dissent:
The minority is of the opinion that the claimants benefits should be restored to full wage loss from August 1, 1998 to January 8, 1999.
The claimant’s wage loss benefits were reduced on August 1, 1998. The reduction was based on the rationale that the claimant could earn $432.06 per week as a Customer Service Representative.
On June 30, 1998 the claimant was interviewed by a Vocational Rehabilitation specialist to determine whether rehabilitation services would be warranted. It was noted that restrictions on employment were temporary and due to be reviewed in November 1998. The claimant’s physician did not think that a return to his pre-accident work would be possible and suggested that a functional capacity evaluation be performed to determine what the claimant’s abilities were. It was also noted that the employer had made on offer of modified employment.
The Vocational Rehabilitation counsellor (VRC) recommended that vocational rehabilitation benefits be authorized. On July 3, 1998 the same VRC wrote the employer and advised that the claimant could not accept the offer of “an accommodated position as a truck driver”.
The letter also stated: the claimant has temporary restrictions that preclude him from lifting greater than 15 pounds, no lifting above shoulder height and no repetitive lifting.
As you are aware, Mr. (claimant) has a non compensable eye condition dating back to 1997, which resulted in the loss of his Class 1 drivers license. The loss of his Class 1 license precludes him from taking any truck driving positions. As well, his compensable restrictions would preclude him from most driving positions. Emphasis mine.
On July 16, 1998, an earning capacity analysis was requested by the VRC. On July 17, 1998, the analysis was completed by an Employment specialist. The memo reads in part;
Transferable skills, abilities & education:
The claimant has a grade 11 education. His work history is that of long haul truck driver, sales representative, sales/marketing manage (SIC), customer service clerk and supervisor of product services. The claimant has performed job duties such as customer service, purchasing and selling products, merchandising, product knowledge and supervision of staff. He has experience working with computer software at retail establishment. These skills are transferable and related to his occupational goal of customer service clerk.
Up to August 1, 1998 the claimant had been paid regular benefits. On August 1, the file was transferred to Vocational Rehabilitation and his benefits reduced.
The minority does not agree with the majority that this is a Section 22 issue. The minority believes the issue is whether the benefit rate should have been reduced over the period August 1, 1998 to January 8, 1999.
The Workers Compensation Board has adopted policy in regard to Post Accident Earnings - Deemed Earning Capacity (Policy # 44.80.30.20). The policy outlines how and when a deemed earning capacity can be applied.
The policy reads in part;
1.b) the decision to use deemed earning capacity will be secondary to the more important consideration of developing and completing an effective vocational rehabilitation plan. Deemed earning capacity will generally be used as a last resort after all reasonable or available vocational rehabilitation/re-employment options have been exhausted. Emphasis mine.
and also:
3. Requirements For WCB to Demonstrate Deemed Earning Capacity:
a) The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, completing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.
b) The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.
c) The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based.
d) The WCB will use the Individualized Written Rehabilitation Plan (or similar format) as described in Policy 43.00, Vocational Rehabilitation as the basis for collecting and weighing information about the worker’s earning capacity. At a minimum, the rationale presented in the initial plan must:
In part d) a written plan is demanded, the file does not contain one.
Part 4 of this policy states in part;
a. Deemed earning capacity will be used in the loss of earning capacity calculation where:
i. The worker has completed the training part of the vocational rehabilitation plan designed to help the worker obtain new skills or improve current skills;
ii. The worker has been given reasonable job search assistance (i.e. separate from the training part of the plan); and,
The claimant got assistance/guidance in how to handle an interview and do a job search. He was never provided with job search assistance. He was deemed the same day as his file was transferred to Rehabilitation.
In conclusion the claimant’s benefits were terminated inappropriately in that the procedure to deem did not follow the path laid out in policy. Schedule A attached to the policy states:
MINIMUM LENGTH OF JOB SEARCH ASSISTANCE REQUIRED BEFORE DEEMING MAY OCCUR USING 1996 LABOUR FORCE SURVEY DATA
(In Weeks)
Level of Education at Comments Length of Job
the end of the Search Assistance
Individualized Written
Rehabilitation Plan
(IWRP)
No training Claimant has 13.1 x 2.3 = 30 week less that high
school graduation
l. Minimum threshold of 12 weeks provided for all categories
2. Rounded to the nearest week
The claimant has grade 11 in Ontario and theoretically should have received 30 weeks of job search assistance. The minority feels benefits should not have been reduced over the period as procedures were not followed. It is noted that the claimant’s benefits were reinstated following an appeal. The Review Office stated in part:
Review Office considers that the claimant should have been provided with full vocational rehabilitation assistance when is was determined that he was unable to return to his pre-accident work by reason of his compensable restrictions.
The minority believes the claimant did try to mitigate his circumstances by appealing for reconsideration of the deem.
Section 22 of the Act is intended to ensure compliance of WCB wishes and to apply it retroactively is misapplication of this section of the Act.
Practices delaying worker’s recovery
22 Where an injured worker persists in unsanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.
R. Frisken, Commissioner