Decision #131/08 - Type: Workers Compensation
Preamble
The worker filed two claims with the Workers Compensation Board (“WCB”) for work related accidents that occurred on January 10, 1983 and February 22, 1994. Both claims were accepted and benefits were provided. It was subsequently determined that the worker was unable to return to his pre-accident employment and so he was provided with WCB vocational rehabilitation benefits. The worker is presently appealing the decision made by Review Office in October 2003 pertaining to his entitlement to full wage loss benefits beyond October 20, 2001. A hearing to consider the matter was arranged for September 4, 2008.Issue
Whether or not the worker is entitled to full wage loss benefits beyond October 20, 2001.Decision
That the worker is not entitled to full wage loss benefits beyond October 20, 2001.Decision: Unanimous
Background
On January 10, 1983, the worker sustained injury to his left hip, shoulder, neck and back when he fell from a roof during the course of his employment as a carpenter. On March 4, 1983, the treating physician reported that the worker was still undergoing physiotherapy but his condition had markedly improved and he only had pain in certain positions. The hematoma on the worker’s left back had disappeared and the only remaining factor was his teeth which was being attended to by a dentist. The physician indicated that the worker was able to resume work.
On February 22, 1994, the worker fell four to five feet off of a ladder and reported injuries to his left hand, low back and hips. He was subsequently diagnosed with severe degenerative arthritis and avascular necrosis of the left hip and on June 26, 1997, a total left hip arthroplasty was carried out. The worker has permanent physical restrictions to avoid heavy lifting, climbing, prolonged walking, sitting and standing and working in confined spaces.
The WCB determined the worker could not return to his pre-accident employment, so vocational rehabilitation benefits services were provided. An Individualized Written Rehabilitation Plan (“IWRP”) was developed for the worker with the occupational goal of Agricultural Inspectors, NOC 2222. In September 1997, the worker commenced an Agricultural Diploma Program and successfully completed the program with distinction in April of 1999.
In July 1999, the worker commenced a training on the job program as a Y2K Project Co-ordinator. He participated in the program until November 15, 1999. The employer advised the WCB that there were no permanent positions to offer the worker but noted that he was a good employee and would do well as a field representative but was not well suited for an office type environment.
In November 1999, the worker obtained employment as a Fabrication Manager. When speaking with his Vocational Rehabilitation Consultant (“VRC”) on January 12, 2000, the worker advised that this was not the type of job he anticipated doing after graduation but was planning to stay on with the company for now. He noted that he supervised a minimum of 12 staff in the shop and had been involved with several cost saving product negotiations.
File records show that the worker owned a small cattle operation which he ran from home with the assistance of his wife and brother.
On June 22, 2001, the worker indicated that the shop he managed had welding booths, grinding areas and metal fabricating equipment and that the shop produced items related to the hog industry. At times, he was involved in all aspects of the shop and operated all of the equipment. The VRC was of the impression that the worker was working outside of his restrictions particularly related to standing/walking and heavy lifting. Following a job site visit by a WCB rehabilitation specialist, it was concluded that the job was outside of the worker’s physical restrictions.
On October 25, 2001, the worker advised the WCB that he was no longer employed as a Fabrication Manager and requested additional VR assistance.
In a memorandum dated November 7, 2001, a VRC provided rationale to support his position that the worker was not entitled to further benefits or services and that his present earning capacity should be increased to the earning capacity as listed in the IWRP. The VRC noted that the worker had received adequate educational retraining to secure employment in a valid labour market which offered him significant potential income for the future that was within his physical restrictions. The WCB subsequently implemented a deem of $661.29 effective March 1, 2002.
In June 2003, the worker commenced part-time work as a crop inspector.
On May 21, 2003, a worker advisor appealed the WCB’s decision that the worker was not entitled to further vocational rehabilitation services. In support of her position, the worker advisor referred to certain file evidence to show that the WCB’s vocational rehabilitation plan did not enable him to competitively find, complete, obtain and keep employment.
On October 10, 2003, Review Office rendered a number of decisions on the worker’s claim. In particular, Review Office indicated that the deemed expected post plan earning capacity of the vocational rehabilitation plan was reasonable. Review Office indicated that WCB policy 43.00, Vocational Rehabilitation, was appropriately applied. It stated there was no basis for providing the worker with another vocational rehabilitation plan on the basis that the gap between his pre-accident earnings and his post accident earning capacity was excessive. It stated that the vocational rehabilitation plan mutually agreed to was an appropriate balance between all competing factors.
Review Office also determined that the worker’s post accident earning capacity should have been implemented as of October 20, 2001 as opposed to March 1, 2002. It stated there was no basis to restore the worker to full wage loss benefits effective October 20, 2001. Review Office indicated that the worker worked up to October 20, 2001 and would have continued doing so (albeit in a job that was outside of his restrictions) for an indefinite period of time had he not been terminated for reasons unrelated to his compensable injury.
On February 6, 2004, an Earning Capacity Analysis determined that the worker was capable of earning a minimum weekly starting wage of $686 per week in NOC 6221, Technical Sales Representative. This decision was confirmed to the worker in a letter dated May 3, 2004.
In a memorandum dated March 3, 2004, it was recorded that the worker was currently driving a school bus twice per day and was also tending to his farm. He was not working for the crop insurance company as this was seasonal work but he expected to return to the job in May 2004.
On May 11, 2004, a WCB case manager outlined the worker’s transferable skills, experience and education. She stated, “…although [the worker] is stating that he is not suitable for sales, the information available to us regarding his abilities supports that he has all of the necessary characteristics to work within this field and therefore no further VR services are appropriate. Wage loss benefits will be based on the earning capacity of NOC 6221.”
The case was again considered by Review Office on December 9, 2004. Upon its review of the file information, Review Office determined the following:
· that the deemed post accident capacity of $597.00 per week should have been implemented as of October 20, 2001;
· the maximum deemed earning capacity should be $659.00 per week;
· the worker would be provided with the usual vocational rehabilitation assistance if he choose to fully participate in a time limited job search in the field of agricultural sales; and
· the effective date of his PPD award should be August 1, 1996.
On March 15, 2005, it was documented that the worker had 100 head of cattle and wanted to decrease his herd to 25 or so to better manage his ongoing back difficulties. The worker noted that he continued to work for the crop insurance company but his hours were limited.
On November 16, 2005, it was documented that the worker obtained new employment as a field representative and that he was being paid $45,000.00 a year. Based on the worker’s new position, his earning capacity analysis was increased from $659 to $865.38 per week. In a further memorandum dated September 25, 2007, it was documented that the worker’s two year term appointment in the field representative position was ending and that the worker was going to look at finding a different type of work.
On May 7, 2008, the worker filed an application to appeal with the Appeal Commission. On May 16, 2008, the Appeal Commission clarified with the worker that the issue being appealed was related to the decision made by Review Office on October 10, 2003 pertaining to the worker’s entitlement to was loss benefits after October 20, 2001.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. As the worker’s claim was made in 1983, his benefits are assessed under the Act as it existed at that time (the “1982 Act”). Under subsection 4(2) of the 1982 Act, a worker who suffers a personal injury by accident is entitled to compensation for so long as the injury disables the worker.
WCB Board Policy 44.80.30.20 (the “Policy”) deals with “Deemed Earning Capacity” and applies to all initial decisions on or after April 1, 1996, regardless of the date of the accident. As such, the Policy applies to the present case. The Policy sets out guidelines for establishing the amount that the worker is capable of earning where the amount that the worker is capable of earning is determined to be different from the amount that the worker is actually earning. This amount is referred to as “deemed income”. The Policy provides that: “A worker’s post-accident earning capacity will be equal to his/her actual earnings unless the WCB demonstrates that the worker is capable of earning more than the amount actually being earned.” The Policy then sets out a number of requirements for the WCB to demonstrate when determining a worker’s deemed earning capacity.
Worker’s Position
The worker represented himself in this appeal. In his written submission, the worker asks for loss of wages between October 2001 and July 2005. He argued that he was an excellent worker in the field of carpentry when his injury forced him to change vocations. The WCB made him take a course he did not want, but he still attended and did his best. Since he graduated, there have been few jobs in his field and he wants to be compensated for the wage loss he has suffered as a result of his work injury.
At the hearing, the worker responded to a number of inquiries from the panel as to his employment history since the completion of his vocational rehabilitation program in April 1999. He described the job positions he has held, which included working as a barn inspector to ensure Y2K compliance, manager of a production (welding) shop, a crop insurance adjuster, a school bus driver, a cattle farmer (up to 100 head), a hunting/fishing outfitter, and a field representative in the poultry industry.
When asked about his current medical condition, the worker advised that his hip and shoulder are doing okay after the surgeries, but his lower back remains sore and he is awaiting a referral to an orthopedic specialist.
Analysis
The stated issue before the panel is whether or not the worker is entitled to full wage loss benefits beyond October 20, 2001. We note that as of July 13, 2005, the worker obtained full time employment and at the hearing he acknowledged that in this appeal, he claims full wage loss benefits for only the period October 20, 2001 to July 13, 2005.
In order to determine the issue before us, the panel must consider whether or not the deemed post accident earning capacity of $597.00 per week which was implemented by the WCB effective October 20, 2001 fairly represents the worker’s disability at that time. The panel must review the evidence regarding the worker’s post-accident condition and abilities and determine whether he was physically capable of earning this amount. Essentially, by requesting full wage loss benefits, the worker is asking the panel to find that his deemed earning capacity at that time was zero. We cannot make that finding. In our opinion, the worker was capable of earning $597.00 per week and therefore is not entitled to full wage loss benefits beyond October 20, 2001.
It is clear from the evidence that during the relevant time period, the worker was not totally disabled. In fact, the panel was impressed by the worker’s versatility and ability to adapt to his circumstances. The worker repeatedly stated that he is a dedicated and hard worker and the panel believes this to be true. At the Fabrication Manager job he held prior to October 20, 2001, the worker had no time loss from work, despite the pain he was experiencing in his hip and shoulder. Similarly, at the two year term position as a field representative from 2005 to 2007, there was minimal time loss. At the hearing, the worker’s evidence was that the reason why his employment ended on October 19, 2001 was because he grew tired of the job and the way that he was treated as an employee. When the employer was not able to meet his demands for an increased salary and use of a new vehicle, he took that opportunity to part ways. The employment did not end because he was physically unable to get the job done. He was able to do the work, even though performing some of the duties “just killed me.”
During the period October 20, 2001 to July 13, 2005, the worker was partially employed in various occupations, including as a crop insurance adjuster, a school bus driver, and a cattle farmer. He also tried to start up a hunting/fishing outfitting business, which ultimately did not prove to be feasible. From the worker’s employment history, it is clear that he had a wide ranging skill set and the ability to perform numerous job duties. When asked about the limitations created by his injuries, the worker indicated that anything which required extended standing or sitting would cause him pain in his back and his hip. He also stated that he would never be able to work in an office setting; however, that statement appeared to be related more to personal preference than to physical inability. The worker indicated that the crop insurance work was ideal for him, but that there were not enough hours available to create full time employment in that occupation.
At the hearing, the worker argued that he has done everything that the WCB has asked him to do. He claimed he did not want to take an agriculture degree and that structural engineering or wildlife biology would have been his preference. After earning his agriculture degree, he looked for work all the time and did not just sit at home. As noted earlier, the panel recognizes that the worker is a hard working and adaptable individual. Although the vocational rehabilitation goal of an agricultural degree (NOC 2222) did not result in the worker obtaining permanent employment in that field, he has demonstrated a wide ranging skill set and the capacity to perform jobs outside of NOC 2222, despite the restrictions caused by his work related injuries. Based on his demonstrated wage earning capacity during the relevant time period, we see no reason to disturb the deemed post-accident earning capacity of $597.00 per week. We believe that the worker was capable of earning at least that amount had he chosen to do so.
For the reasons stated above, the worker’s appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of October, 2008