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. 137/2007 which held that it was appropriate to implement a deemed post-accident earning capacity of minimum wage as of November 25, 2006.

In April 1995, the worker sustained a compensable injury to his back which required him to undergo two surgical procedures. The worker then returned to modified duties but had to cease work due to his back condition. The WCB resumed responsibility for his claim, and in particular, looked at vocational rehabilitation options for the worker. In May 2006, the WCB developed an Individualized Written Rehabilitation Plan (“IWRP”) for the worker to return to work in the field of customer service, under National Occupational Classification (“NOC”) 1453, Customer Service, Information & Related Clerks. The IWRP provided a period of time for job search in this particular category, and when the worker was ultimately unsuccessful in securing employment, his wage loss benefits were reduced effective November 25, 2006, in accordance with the wage levels anticipated in the IWRP.

The worker appealed the decision to Review Office. On February 23, 2007, Review Office was of the opinion that the worker’s deemed earnings at the end of the IWRP should be changed, and reduced to minimum wage for a 40 hour work week, as of November 25, 2006. The worker disagreed and appealed to the Appeal Commission. On August 9, 2007, a hearing was held. The worker appeared and provided evidence. He was assisted by a union representative. No one appeared on the employer’s behalf.

Issue

Whether or not a deemed post accident earning capacity of minimum wage should have been implemented as of November 26, 2006.

Decision

That a deemed post accident earning capacity of minimum wage should have been implemented as of November 25, 2006.

Decision: Unanimous

Background

In May 2005, the worker underwent a functional capacity evaluation (FCE) to determine his work capacity, and was also examined by a WCB medical advisor. Based on the FCE results and the medical advisor’s examination findings which found that the worker was at maximal medical improvement and that pain was the primary factor accounting for the worker’s reported functional limitations, it was determined that the worker was capable of returning to employment with the following work restrictions:

• To avoid lifting up to 30 lbs. on an occasional basis from knuckle to shoulder height;
• To avoid lifting of up to 10 lbs. from floor height;
• To avoid carrying up to 20 pounds for 30 feet;
• To avoid pushing at a heavy rate of work;
• To avoid pulling at a medium rate of work;
• Stooping, kneeling or crouching for brief periods on an infrequent basis; and
• Light to medium physical activities for one hour’s duration

As the accident employer was unable to accommodate the worker with work that respected the above restrictions, the WCB developed an IWRP for the worker which he signed on May 1, 2006. The occupational goal was NOC 1453, Customer Service, Information & Related Clerks. The plan was to run from May 2006 to December 2006. The IWRP noted that the worker had many transferable skills, including strong communication skills, computer knowledge, and supervisory experience, among others. It stated that there was a viable labour market in Winnipeg which was a commutable distance for NOC 1453 (the worker resides approximately 70 km away). The plan noted that the positions associated with NOC 1453 were sedentary and required almost no lifting, pulling, pushing, crouching or kneeling. Upon completion of the plan, it was established that the worker would be capable of earning $382.00 per week. This was less than the worker’s pre-accident wages, and would entitle the worker to top-up benefits from the WCB, to make up the difference. In the event that he did not secure employment after the job search portion of the plan, his benefits would be reduced in accordance with WCB policy.

During a meeting with the worker on May 1, 2006, the Vocational Rehabilitation Consultant (VRC) documented that the worker understood the IWRP but was concerned about taking on jobs as far away as Winnipeg; he felt he may not be able to highway drive, as the medication he was taking impaired his reaction times on the highway. He said he already had one accident and if he drives for any length of time he suffers from leg cramps. He said he can drive in his town, as it is a small town and takes 10 to 15 minutes to get around. The VRC advised the worker that the WCB would need medical documentation from his doctor regarding driving restrictions before the vocational rehabilitation plan could be changed.

The IWRP was later amended, once it was determined that the worker did not need to complete a planned Customer Service course offered through the Academy of Leaning, because of his transferable skills. The target dates to complete the plan were amended as follows: “Job search to being June 19/06 and to end November 24/06 (22 weeks).”

In a letter to Review Office dated June 19, 2006, a union representative requested a review of the return to work proposals that were presented to the worker. He indicated that the worker had a great deal of difficulty with sitting for extended periods and the drugs he was prescribed make driving beyond very short trips inadvisable. The worker felt he would be a danger to himself and others if he were to undertake the drives to Winnipeg. Review Office in turn referred the case back to the case manager to consider the comments put forth by the union representative.

On June 27, 2006, the WCB case manager wrote to the union representative and confirmed the WCB’s earlier position that the vocational rehabilitation plan was valid. The worker had the skills, abilities and qualifications for this labour market and the potential employment in the field of customer service was rated as “good”. She stated the customer service field made best use of the worker’s skills acquired in his pre-accident employment as a “Field Research Assistant,” and provided employment that would be within his compensable restrictions. She noted that the worker’s town and the Winnipeg areas were both considered in its labour market analysis, as the WCB expected workers to expand their search for employment within a 100 km radius of their previous place of employment. In order to change the IWRP, the WCB would require a medical report indicating that the worker could not drive.

In a memorandum dated June 27, 2006, an employment specialist (ES) stated that he met with the worker and his wife on June 26, 2006. The worker indicated that he was on strong medication for ongoing pain issues and they did not feel he was capable of an 8 hour day. The worker was asked if he felt capable of returning to work at this time and he said no. Due to medication side effects, some of which were sweats, rashes breaking out over his body, light sensitivity and difficulties driving, along with other physical issues he could not see how he could return to work or who would hire him in his condition. The ES explained to the worker that until further notice, his vocational rehabilitation plan would progress as planned. He advised the worker that they could try a graduated return to work where the worker could work reduced hours in the beginning with his hours increasing gradually over a period of time. The worker was then given two job leads by the ES, one of which he was not interested in as the establishment had “a bad reputation.” Another job lead was given to the worker in late August 2006. In terms of job search support, the worker was considered by the WCB to be a self-starter; he often declined job search assistance from the WCB, in favour of using his own skills to initiate job searches.

On September 8, 2006, the ES noted that the worker was willing to accept job leads in the Winnipeg area. He was then given several job leads to apply for by the ES (memos dated September 14, 2006 and October 18, 2006, November 2, 2006; November 27, 2006).

On September 26, 2006, the worker told the ES that his back has been worse for the past 7 weeks with increasing pain resulting in leg cramps. Muscle relaxants were ceased due to the effects on his bladder. The worker indicated that he applied for jobs at a variety of retail stores in Portage and a security position but wasn’t hired. The worker indicated he was in the process of filing for disability through his pre-accident employer. He felt his age may be a barrier as in follow up to two jobs he had applied for, as the people hired were youths. He said he commuted to Winnipeg in the past but found this took a lot out of him. He said he would consider jobs located as far away as Carman, MB, as well.

In a December 12, 2006 decision, the case manager informed the worker that effective November 25, 2006 (the concluding date of his IWRP), his wage loss benefits would be reduced as the result of a deemed post accident earning capacity (a deem) of $382.00 per week. On January 11, 2007, the worker’s union representative appealed the decision to Review Office and argued that the reduction in the worker’s wage loss entitlement was not appropriate.

On February 23, 2007, Review Office outlined its position that the worker was employable and had been provided with the appropriate assistance in seeking employment. The worker had a strong skill set and his physical limitations, while significant, were not an absolute barrier to employment. It did find, however, that commuting to Winnipeg would be difficult for the worker as would the nature of the activities required in some of the jobs within NOC 1453, in particular jobs requiring prolonged sitting. Review Office concluded that the worker’s deem was set too high, and should be reduced from $383 per week to minimum wage for a 40 hour work week, as of November 25, 2006. It found that he was capable of minimum wage employment in his home community. Review Office also commented that “ultimately, the fact that such employment may not be palatable to the worker is not germane.”

On July 3, 2007, the worker’s treating physician wrote that the worker was capable of working but not really in any occupation that involved significant physical exertion or activity. A sedentary type of job would be appropriate with the proviso that he was to get up and about periodically.

Reasons

The question then turns to what the worker’s real earning capacity was at the end of the IWRP process. The evidence discloses that the worker was medically able to work 40 hours per week, in a sedentary position. This is confirmed by the worker’s attending physician, the FCE, and the WCB medical advisor’s findings after his examination of the worker.

While the panel sympathizes with the worker’s concerns that employers will see him as unemployable since he is an injured worker, the panel notes that this is not the test or standard used either under the Act or WCB policies. The standard used is one of employability, not actual employment and looks at the worker’s compensable medical restrictions and the consequent labour market to determine the nature of the worker’s loss of earning capacity under subsection 39(2) of the Act. In this case, the panel notes that the worker does have a broad set of transferable skills, as well as good personal job searching skills, and in fact had been applying to many job positions within or near his home community that were within his compensable medical restrictions that would have paid at least minimum wage.

Based on these findings, the panel concludes that the worker was, on a balance of probabilities, able to work full time in a minimum wage job, effective November 25, 2006. Thus, it was appropriate to deem the worker’s loss of earning capacity under subsection 39(2) of the Act at that level. Accordingly, the panel would deny the worker’s appeal.

Panel Members

A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 26th day of September, 2007