The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to full wage loss benefits in relation to his left knee and was considered capable of finding employment equivalent to 40 hours per week at the minimum wage level. A hearing was held on June 27, 2016 to consider the worker's appeal.

Issue

Whether or not a deemed post-accident earning capacity equivalent to 40 hours per week at the provincial minimum wage should be implemented effective June 15, 2011.

Decision

That a deemed post-accident earning capacity equivalent to 40 hours per week at the provincial minimum wage should be implemented effective June 15, 2011.

Decision: Unanimous

Background

On November 16, 2005, the worker injured his left knee in a work-related accident. His claim for compensation was accepted and various types of benefits were paid. Claim records show that the worker has permanent work restrictions related to his left knee and for a compensable low back condition. In November 2008, the worker was referred to the WCB's vocational rehabilitation branch to assist with a return to employment as the accident employer was unable to accommodate him with employment that met his compensable work restrictions.

On June 21, 2011, the worker was advised by his WCB case manager that he was considered capable of employment within NOC 6621, Gas Station Attendant, and that in keeping with his vocational rehabilitation plan his wage loss benefits would be reduced to $230.98 effective June 15, 2011. The worker disagreed with the decision and an appeal was filed with Review Office.

On July 29, 2011, Review Office determined that there was insufficient evidence to support the worker's position that he was unable to return to any employment as a result of his compensable injuries. Review Office found that the case manager's decision to implement the deemed earning capacity at the end of his vocational rehabilitation effective June 15, 2011 was consistent with the WCB's Deemed Earning Capacity Policy. Review Office found that the vocational rehabilitation plan with a goal of working in NOC 6621 was not appropriate but concluded that the worker had an earning capacity of no less than the provincial minimum wage based on a 40 hour work week effective June 16, 2011. The decision was again confirmed by Review Office on November 4, 2013.

On September 10, 2015, the worker underwent an MRI assessment of his left knee which was compared to a previous assessment in 2007. The findings were read as showing "severe chondromalacia of the medial tibial femoral compartment."

In a follow up report dated September 17, 2015, the treating orthopedic surgeon noted that the worker was a good candidate for either a high tibial osteotomy or an Oxford knee.

On October 22, 2015, the worker spoke with a WCB case manager to advise that he did not want any knee surgery as the benefits from surgery would only last 5 years. The worker requested full WCB benefits as he tried working but was unable to do so due to his knee status.

Following consultation with the WCB's healthcare branch, the worker was advised by letter dated December 11, 2015 that there was no new medical information to change the permanent restrictions of his left knee and that the WCB remained of the opinion that he was capable of minimum wage duties that were within his restrictions. On January 4, 2016, the worker appealed the decision to Review Office.

On January 20, 2016, Review Office confirmed that the worker was capable of minimum wage employment. Review Office considered the worker's restrictions related to his knee and back and found that they did not render him unable to find employment as there were numerous minimum wage jobs the worker could pursue that were either considered sedentary or within a light job demand for lifting or overall physical activity. Review Office stated that the worker's current restrictions would remain until such time as there was a significant change in his left knee condition or if/when he elected to undergo the recommended surgery. On February 9, 2016, 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.

The WCB has accepted the worker's claim arising from his 2005 workplace injury. The worker is currently deemed capable of working full time at the provincial minimum wage. The worker submits that he is unable to work. The panel must determine whether the worker is capable of working full time at the minimum wage.

Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Under subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers.

Worker's Position

The worker was self-represented. He explained the reasons for his appeal and answered questions from the panel.

The worker advised he has worked in construction his full life. He worked as a framer. He advised that since the injury he has attempted to return to construction work and did find work on a pipeline project for short periods. He also looked at buying a business but could not obtain financing. He attends at his union office but has not received any employment offers.

He advised that he cannot write and has never worked in an office. Regarding a job at a gas station, he advised that he does not like the smell of gas. He is not looking for work at this time. He said that he has not considered working at a minimum wage job.

The worker advised that his neck is very painful from years of lifting. He gets pain down both shoulders. He said that the muscles in his left leg are shrinking. The worker advised that walking is his only form of exercise.

With respect to future treatment, the worker advised that he does not want to undergo a total knee replacement yet. He is concerned about getting it done too early and that it will not last long.

The worker advised that he cannot get by on the amount of compensation that he is currently being paid.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel was whether a deemed post-accident earning capacity equivalent to 40 hours per week at the provincial minimum wage should be implemented effective June 15, 2011.

For the worker's appeal to be successful, the panel must find that the worker is not capable of working 40 hours per week at a minimum wage position. The panel is not able to make this finding. On a balance of probabilities, we find that the worker's compensable injury does not prevent him from achieving and sustaining this level of earning capacity and that it was appropriate to implement a deemed earning capacity equivalent to 40 hours per week at the provincial minimum wage effective June 15, 2011.

The panel has considered the medical information on file and finds that the medical information does not support the worker's position that he is unable to work as a result of his workplace injury. The restrictions in place at the time of the decision to deem the worker included no walking greater than 30 minutes without the ability to rest, no frequent stair climbing and no crawling/crouching/kneeling. The panel finds that these restrictions do not render the worker unemployable.

The panel notes that a WCB medical advisor reviewed the worker's medical status and restrictions on November 24, 2015. The medical advisor indicated that the worker is capable of participating in work activities and that his restrictions in place since 2008 are still appropriate.

In a memo to file dated November 25, 2015, a WCB orthopedic consultant advised that "Appropriate restrictions would include climbing, repetitive deep squatting, as well as pushing a wheelbarrow or carrying heavy loads."

The panel notes the worker was provided a comprehensive ESL upgrading program to elevate his academic standing. He attended a literacy program from January 2009 to about August 2010 and did extremely well in his courses, to the point where he was considering higher level courses. He declined further upgrading. He was then provided with 24 weeks of job search assistance and was paid full wage loss benefits during this time. The panel also notes that the worker did not participate in the job search. He repeatedly advised the WCB that he could not work. At the hearing the worker advised that he wanted work in the construction industry where he would earn a significant wage, and in fact did obtain some employment in the construction industry.

The worker indicated that he did not want to work in a minimum wage position.

The worker has been deemed with a post-accident earning capacity to 40 hours per week at the provincial minimum wage. The panel is satisfied that the worker has the skills and ability to work full-time in a position which pays the provincial minimum wage.

The panel finds that the worker's deemed post-accident earning capacity equivalent to 40 hours per week at the provincial minimum wage was appropriately implemented effective June 15, 2011 and that the deem remains appropriate.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of July, 2016