The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 374/2007 which held that it was appropriate to implement a post-accident deemed earning capacity as of June 1, 2007.

On June 24, 2001 the worker sustained a compensable injury to her right wrist. As the worker was unable to return to her pre-accident employment, she was provided with vocational rehabilitation benefits and services. In about May 2003, it was determined by vocational rehabilitation services that while the worker was potentially able to return to some type of full time work, the area the worker lived in was economically depressed and there were limited job opportunities. Despite this fact, the worker refused to relocate to a more economically viable community. In accordance with her decision and WCB Policy 43.20.40, Relocation, the worker was provided instead with a 3 year relocation plan that ended May 31, 2007. This effectively gave her 3 years of full wage loss benefits without her need to participate in any vocational rehabilitation activity. As of June 1, 2007 she was considered or deemed employable within the occupation that had been identified by vocational rehabilitation services as suitable alternate employment, and her wage loss benefits were reduced accordingly.

This decision was upheld by Review Office on June 1, 2007. The worker appealed to the Appeal Commission and a file review took place on July 31, 2007.

Issue

Whether or not it was appropriate to implement a deemed post-accident earning capacity effective June 1, 2007.

Decision

That it was appropriate to implement a deemed post-accident earning capacity effective June 1, 2007.

Decision: Unanimous

Background

Reasons

Background

On June 24, 2001 the worker suffered a workplace injury to her right wrist that prevented her from returning to her regular duties. She was referred to vocational rehabilitation services (“VRS”) with the aim of identifying suitable alternate employment.

In this context, she was referred for a functional capacity examination that revealed she required several permanent restrictions including, no frequent lifting above 10 pounds, occasional lifting up to 20 pounds, no end range movements through the right wrist, no frequent or sustained movement beyond neutral at the right wrist, forceful grip of only up to 20 pounds with the right hand, and pinch grip of only up to 5 pounds.

Psychological testing revealed that the worker was interested in both clerical and manual occupations. The psychologist thought that given her physical limitations, she might best be suited for clerical work but would likely require some basic academic skills and computer knowledge. He also noted that the worker had very good people skills.

Given the worker’s transferable skills, level of education and physical capabilities, VRS determined that the worker would be employable in an occupation within the national occupation code (NOC) 6683, Other Elemental Occupations. An earnings capacity analysis for this NOC done on May 14, 2004 demonstrated that there was no employment market within the worker’s community or within 100 kilometres of that community. There was however a viable job market in Winnipeg.

The worker talked with her case manager on several occasions regarding her vocational rehabilitation, and in particular, the consequences of not relocating to a different community with greater employment opportunities. A memorandum dated May 6, 2003 notes that the worker was informed about the WCB relocation policy, and in particular the 3 years of full wage loss benefits after which she would be deemed capable of earning the average salary in her chosen alternate occupation. She recognized that job opportunities within her community would be limited but had no intention of relocating.

On May 20, 2004, the worker was advised that based on her decision not to relocate, she would be entitled to 3 years of full wage loss benefits starting May 31, 2004 through to May 31, 2007. As of June 1, 2007 she would be considered employable within the occupation of NOC 6683, Other Elemental Occupations and her benefits would be reduced accordingly. An Individualized Written Rehabilitation Plan (IWRP) was drafted with these parameters.

On May 10, 2007, the worker was reminded that effective June 1, 2007, her wage loss benefits would be reduced based on her post-accident deemed earning capacity in an occupation in NOC 6683.

The worker appealed the implementation of the deem to Review Office stating that she was still unable to find employment within her community given her continued physical difficulties and was unable to survive on her reduced wage loss benefits. As indicated in the preamble, Review Office upheld the decision to deem and the worker appealed to the Appeal Commission. In her application, the worker states that the Review Office decision should be overturned because she is unable to live on the reduced wage loss benefits and never signed the IWRP.

Analysis

Section 39 of The Workers Compensation Act (Act) provides that a worker who suffers a loss of earning capacity as a result of a workplace accident is entitled to wage loss benefits calculated in accordance with section 40 of the Act. In the event it is anticipated that the worker could experience a long-term loss of earning capacity, the WCB can offer vocational rehabilitation in accordance with subsection 27(20) of the Act and WCB Policy 43.00, Vocational Rehabilitation.

During the course of vocational rehabilitation the worker continues to receive full or partial wage loss benefits consistent with the specifics of the plan. When the vocational rehabilitation ends, the worker only receives wage loss benefits if she has not recaptured her pre-accident earning capacity; in that case, the worker will only receive the difference between the pre-accident earnings and the post-accident earnings or the deemed post-accident earnings.

Where however there are few suitable employment opportunities within the community in which the worker lives and there are greater prospects for suitable and optimum re-employment in another community, and the worker refuses to relocate, the WCB will either reduce or discontinue wage loss benefits or pay them for a fixed 3 year period depending on whether the worker’s refusal is considered reasonable. WCB Policy 43.20.40, Relocation sets forth the rules that apply when the WCB considers the refusal to relocate reasonable:

“i. Benefits will be provided on the basis of the worker's earning capacity in the original community and may be continued in this manner for 3 years; and,

ii. After the 3 years, the level of benefits may be established on the basis of the worker's deemed earning capacity in other communities; and,

iii. Implementing a deemed earning capacity is subject to Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity. The exception is that the WCB is not responsible for the worker's marketable skills deteriorating since the worker declined relocation.”

In the case before us, the worker’s injury prevented her from returning to her regular duties and she was referred to VRS. In reviewing the worker’s medical restrictions, transferable skills, level of education, and social skills, as well as the employment prospects for this NOC, we find that NOC 6683, Other Elemental Sales was appropriate.

While the worker did not sign the IWRP that was developed by the WCB, there is no such requirement in the Act or the Policy to do so. The IWRP is not a contract. It is simply a document identifying the factors the WCB examined in determining the appropriateness of the NOC and the consequences to the worker once the IWRP ends.

Given our finding that the NOC was appropriate and that the worker refused to relocate, the WCB relocation policy (43.20.40) applies. We note in the worker’s WCB file that she was advised of the consequences of refusing to relocate and that she remained adamant that she would not move. We also note that the worker did indeed receive 3 years of full wage loss benefits, being the maximum allowed under the policy.

While we recognize that the deemed earning capacity at the end of 3 years significantly reduces the worker’s financial resources, the Act is only meant to compensate workers for their loss of earning capacity, not their inability to find a job or their financial difficulties. As we find that the worker does have an earning capacity consistent with employment in NOC 6683 and that she has refused to relocate, we find that it was appropriate to implement a deemed post-accident earning capacity effective June 1, 2007.

Accordingly, the worker’s appeal is dismissed.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of September, 2007