The Appeal CommissionThe Workers Compensation Act of Manitoba

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 the amount the worker is determined or deemed to be capable of earning after the accident. 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 was represented by legal counsel who assisted the worker with the presentation of his appeal. The worker answered questions posed by his counsel and the panel.

The worker told that the panel that at the time his benefits were terminated he was receiving treatments (injections) for his condition which were also terminated by the WCB. The worker said the treatments were working. He said he believes he would be healed today, if the treatments were not terminated.

The worker said that after the WCB terminated his benefits in 2007, he was forced to find employment because he had no other source of income and had a family to support. He said that he feels he must lie about his condition so that he can work but when it is determined that he cannot perform the duties, he is terminated. The worker said it was unfair to use the fact that he found employment outside his restrictions to confirm that he is capable of working.

The worker confirmed that he has not worked since late 2010. He said that his condition was worsening and that he could not work. He said that while there is other work, he was not qualified for these jobs. The worker acknowledged that he has not applied for a job since 2010 but has contacted an agency that assists persons with disabilities find employment. He provided a resume to the agency but has not heard back from the agency.

The worker's counsel submitted that deeming the worker at minimum wage was not appropriate and asked the panel to remove the deem. As an alternative, counsel said that if the panel finds that the minimum wage deem is appropriate, it should be reduced to part time hours from full time hours. He said that historically the worker has worked 20 to 30 hours per week. Counsel said the worker forced himself to work because he had financial obligations for his family.

Counsel also asked the panel to give consideration to the intent of the Act in determining the amount of deemed earnings. He said the panel should consider what is fair and what is realistic. It was suggested that the small payments received by the worker, the top up partial wage loss between the worker's pre-accident earnings and the deemed provincial minimum wage, are not fair.

The worker was asked which duties he could not perform at a group home. He said he could not shovel snow, change diapers, bath clients, lift and place clients in wheelchairs, do laundry, lift and move garbage bags, slice vegetables, perform lawn and yard work, and intervene in fights between clients. The worker acknowledged that he has worked in a similar work environment to his pre-accident job from 2007 to 2010, and has been able to self-modify his job duties in concert with his co-workers. He also has not had a violent confrontation at work since his compensable injury.

In answer to questions, the worker said that he sees a physiatrist on a periodic basis and his family physician on a regular basis.

When asked if there was any medical support for the worker's claim that he was not capable of working, counsel provided a copy of a form completed by the worker's family physician, for taxation purposes, on February 15, 2012 which indicated that the worker was prevented from working due to his current illness or condition and that the worker will never be able to work again.

When asked if there is any medical support for the worker's alternate position that he is only capable of part-time work, counsel indicated that he could not refer to any medical evidence that supports this position. He indicated that the worker's history indicates that he worked part-time.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not a deemed post-accident earning capacity of Provincial Minimum Wage should be implemented effective December 1, 2007. 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 prevented him from achieving this level of earning capacity.

After considering the evidence on file and the testimony given at the oral hearing, the panel finds that the worker was capable of working in a minimum wage position effective December 1, 2007.

The panel notes that the worker was a poor historian. He appeared to have difficulty remembering details of his employment, income and treatment. Accordingly, the panel places greater weight on contemporaneous documentation that is in the file.

The panel notes that although the worker maintained he cannot work, his taxation records show that he was employed during 2007, 2008, 2009 and much of 2010 with a variety of employers in similar positions. For some of these years he earned more than the provincial minimum wage. The panel acknowledges that the worker was able to work in a number of positions that had potential risks but finds that the worker was able to modify his duties by himself and in conjunction with his co-workers.

From answers to questions at the hearing, it appears to the panel that the worker has restricted his employment to jobs related to group homes services. The worker's deemed earning capacity is based upon employment in NOC 4212, Community and Social Services. We consider this to be an appropriate category given the worker's proven employability in this area in the years following his compensable injury and the description of his work duties.

While the worker told the panel that he was terminated from his employment because he could not perform his duties, the evidence does not support this claim. The worker said that he was terminated from one position because he was not able to shovel snow, while the employer denied this was the reason for the termination. Information on file indicates that the employer had in fact tendered out yard work and snow removal months before the worker's termination. The panel was not able to find that the worker's employment was interrupted for compensable medical reasons.

In making our decision, we also considered the worker's post accident condition and abilities. We note that a Medical Review Panel ("MRP"), which found that his pre-existing condition had been enhanced, was asked if the worker had any physical work restrictions limiting his ability to return to work as a residential care home counselor in November 2007. The MRP replied that he would have required restrictions related to the use of his right arm which should not be subjected to pushing, pulling, or lifting of weights greater than 10 pounds. The panel also notes that there were no restrictions related to days or hours of work.

In addition to the MRP's recommendation, as recently as March 26, 2012, the worker's family physician indicated that the worker "…should avoid any job that requires extensive use of his right shoulder and physically the use of his right hand." Again, the worker was not restricted from full time work.

The only medical evidence that the worker was not able to continue working was in a form dated February 15, 2012 which was completed by the worker's family physician for taxation purposes. In the note, the physician indicated that the worker was prevented from working due to his current illness or condition and that the worker will never be able to work again. This opinion is contrary to the opinion provided by this physician in his March 26, 2012 report to the worker's counsel. We give more weight to the more recent report which was prepared for the worker's appeal and not for taxation purposes.

The worker described symptoms of increasing numbness in his right hand below the elbow and in the fifth and fourth digits. The panel notes that the worker's claim is for a right shoulder injury and is unable to relate the worker's complaints about right hand numbness to his compensable right shoulder injury.