Decision #105/10 - Type: Workers Compensation

Preamble

The worker is contesting a decision made by Review Office of the Workers Compensation Board ("WCB") that he was capable of full time employment at the provincial minimum wage level. The worker contends that his compensable injury prevents him from performing a minimum wage position. A hearing was held on September 29, 2010 to consider the matter.

Issue

Whether or not the worker's wage loss benefits should have been reduced effective October 26, 2009 based on an earning capacity of full-time employment at the provincial minimum wage.

Decision

That the worker's wage loss benefits should not have been reduced effective October 26, 2009 based on an earning capacity of full-time employment at the provincial minimum wage.

Decision: Unanimous

Background

On March 6, 1989, the worker suffered an injury to his low back during the course of his employment as a logger when he was struck by a falling tree. His claim for compensation was accepted and benefits were paid to the worker. After a period of recovery of approximately six months, the worker returned to the logging industry and maintained employment for many more years. Although he was able to work, the worker continued to experience back pain, which became increasingly severe as time went on. In May 2006, the worker filed a report with the WCB claiming that he could no longer do his job due to the ongoing low back pain. The WCB accepted that although the worker had pre-existing osteoarthritis and degenerative disc disease, the combination of recurrent work related injuries to the lumbar spine and repetitive jarring forces through the spine while operating heavy machinery in the workplace likely contributed in a material way to the degenerative process. The worker's claim was therefore re-opened.

It was determined by the WCB that the worker had permanent restrictions to avoid heavy lifting, repetitive or sustained bending, flexed and/or stooped postures, repetitive bouncing and jarring strains on the lumbosacral spine. As the worker's employer was unable to provide him with alternate employment that met his work restrictions, the case was forwarded to the WCB's vocational rehabilitation branch to assist the worker in finding suitable work.

In May 2008, the WCB determined that the worker was capable of performing work under National Occupation Classification ("NOC") 6421, Retail Sales and Related Clerks. On June 3, 2009, the worker appealed the decision to Review Office. On July 16, 2009, Review Office agreed that the vocational rehabilitation plan for NOC 6421 was not an appropriate vocational goal for the worker based on several factors:

  • the worker's business skills from the 1980's were outdated and were not considered relevant in today's market;
  • Review Office agreed with the worker's opinion that he did not have any of the required skills to work with the public and did not have the attributes that were sought by employer's hiring for the occupation of retail sales.
  • it found that the worker's current restrictions related to his low back injury did not cause him to be totally disabled. Review Office suggested that the worker's earning capacity should not be less than the provincial minimum wage.

In a memo to file dated July 28, 2009, it was indicated by a WCB vocational rehabilitation consultant that the worker was considered to be unemployable after considering a variety of occupations that were either outside of the worker's restrictions, had limited labour markets or were in areas that the worker had no experience.

On August 19, 2009, a WCB case manager advised the worker that: "Although the Review Office has determined that you do not have the requirements to reach the maximum earnings in Retail Sales (NOC 6421), it has determined that you are capable of working at minimum wage. Minimum wage encompasses employment in segments of various occupations including Retail Sales….your benefits will be reduced to a minimum wage which is currently $350.00 per week, effective September 2, 2009."

In a further letter dated September 1, 2009, the WCB case manager indicated to the worker that he was entitled to full wage loss benefits until the completion of his job search on October 25, 2009. The worker was advised that his benefits would be reduced from $1,367.46 bi-weekly to approximately $827.56 on October 26, 2009. The reduction was based on the fact that he was capable of earning the provincial minimum wage salary at 40 hours per week.

On November 23, 2009, the worker appealed the WCB's decision to reduce his wages as he felt that he was not fit for any type of minimum wage job.

In support of his position, the worker submitted a report from an occupational health physician dated November 18, 2009. The occupational health physician outlined the opinion that the worker was incapable of employment within retails sales and that it was not realistic for him to perform full time work in a position that paid minimum wage. The specialist indicated that minimum wage employment typically involved working on your feet, i.e. fast food, gas attendant. He noted that jobs such as a parking lot attendant where you can sit with the needed back support was not available in the rural area where the worker lived. He stated that work allowing the worker to alternatively sit (five hours) and stand (three hours) would offer best prospects of avoiding aggravation and recurrence.

On December 3, 2009, a WCB medical advisor reviewed the specialist's November 18, 2009 report, and indicated that no change should be made to the worker's compensable restrictions. He stated that the recommendations contained in the specialist's recent report were somewhat arbitrary and was therefore difficult to substantiate or to implement. He felt that the worker's restrictions were clear and should allow him to continue to participate in modified workplace duties.

On January 21, 2010, Review Office confirmed that the worker's wage loss benefits were correctly reduced effective October 26, 2009 based on an earning capacity equivalent to full time employment at the provincial minimum wage. Review Office outlined the opinion that the worker's low back injury did not cause him to be totally disabled from working; that the specialist's November 18, 2009 description with respect to minimum wage positions was speculative; that there was no evidence to support that the worker's restrictions should be altered; that the worker was fit for work on a full time basis 40 hours per week; and that the 20 weeks of job search assistance was in accordance with the duration outlined in WCB Policy 44.80.30.20, Post Accident Earnings-Deemed Earning Capacity. On February 3, 2010, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is defined as the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.

Worker’s Position

The worker attended the hearing in person and was assisted by a friend/advocate. The worker's position, as stated in his Appeal of Claims Decision form, was that he was not fit for full time minimum wage employment.

Analysis

The issue before the panel is whether or not the worker's wage loss benefits should have been reduced effective October 26, 2009 based on a deemed earning capacity of full-time employment at the provincial minimum wage. In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities, and then determine whether the worker was capable of earning this amount or whether his compensable injury disabled him from achieving this level of earning capacity. The panel finds that while the worker is capable of working at the provincial minimum wage, we do not feel that he is able to maintain this employment on a 40 hours per week full time basis.

In coming to our decision, the panel relied on the following:

  • At the hearing, it was argued quite strenuously by the advocate that the worker was incapable of working for an eight hour day. It was acknowledged, however, that the worker was not totally disabled and may be capable of working for something less than a full time, 40 hour work week.
  • The worker did attempt to work full days, and then eventually half days at a job placement with a parts shop, but found that he could not continue. It is notable that in this position, the worker would spend approximately the first hour of each day on the job putting away a pallet-load of automotive parts. This would involve lifting boxes which weighed up to 50 lb, walking on concrete floors and lots of bending over. While the worker was unable to sustain this employment, the duties were also beyond the worker's restrictions. The panel feels that if the worker found a job which involved less physical work, he would be able to maintain some type of employment.
  • At the hearing, the worker acknowledged that he is probably capable of doing some work. He could try to work as a cashier, so long as he had a stool with a proper backrest which would allow him to alternate between sitting and standing. He is mobile and is able to drive for up to one hour at a time. He is capable of doing housecleaning, running errands, spending time with his grandchildren and camping. He cannot, however, do yard work or anything that involves kneeling or prolonged standing. He can only walk for a few blocks before he needs to sit down and rest. In the panel's opinion, there are minimum wage positions available which would accommodate the worker's limitations.
  • The report of the occupational health physician acknowledged that work which allowed the worker to alternatively sit (five hours) and stand (three hours) would offer the worker the best prospects for employment. This suggests that the worker does retain some degree of earning capacity.
  • There was some discussion on the WCB file as to whether or not the worker was prevented from engaging in minimum wage employment due to his interpersonal skills and an inability to work with the public. On the contrary, the panel found the worker to be personable and well-spoken at the hearing. We do not accept that the worker has a barrier in this regard.
  • The medical evidence indicates that the worker has advanced degenerative disease in his low back. Persons with a degenerative back condition are often described as having a "back at risk" and will be susceptible to flare-ups. At the hearing, the worker confirmed that if he overextends himself, he will experience increased pain. Because of this and the worker's own description of his capabilities (which the panel found to be credible), the panel finds that it is unrealistic to expect that the worker could work a full 40 hour week. The panel feels that a reduced work schedule of 20 hours per week would permit the worker to manage the hours which he works so as to minimize the risk of an aggravation or recurrence.

Overall, the panel finds that the worker is capable of working in a minimum wage position, but only for 20 hours per week. It therefore follows that the worker's wage loss should only have been reduced effective October 26, 2009 based on an earning capacity of half-time (20 hours per week) employment at the provincial minimum wage. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of November, 2010

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