Decision #17/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits following his lay-off in 2019. A videoconference hearing was held on December 14, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits following his lay-off in 2019.
That the worker is not entitled to wage loss benefits following his lay-off in 2019.
The worker has an accepted WCB claim for a right elbow injury that occurred at work on November 13, 2005 when the vehicle he was driving was struck by another vehicle travelling at high speed and the worker braced for the impact. The worker immediately felt pain in the palm of his right hand, which moved up to his right arm and shoulder by the following morning. The worker continued to work until January 2006 when he could no longer perform his job duties due to symptoms in his right elbow. A diagnosis of epicondylitis in the worker's right elbow was made by the worker's treating orthopedic surgeon on November 30, 2006, which led to the worker undergoing a right tennis elbow release and ulnar nerve transposition on September 6, 2007.
Due to ongoing symptoms after the surgery, the worker attended a functional capacity evaluation, and on December 16, 2008, a WCB medical advisor outlined permanent restrictions consisting of: limit work above shoulder height; maximum bilateral lift from floor to waist of 34 lbs for occasional lift and 9 lbs for frequent lift; maximum lift from waist to chest height of 34 lbs for occasional lift and 20 lbs for frequent lift; maximum push/pull of 35 lbs each for occasional activity and 25 lbs each for frequent activity; no forceful repetitive grasping with the right hand; and no repetitive crawling. On December 17, 2008, the WCB advised the employer of the worker's permanent restrictions, and on March 15, 2009, the worker began a new accommodated position with the employer within his restrictions.
On October 15, 2020, the worker contacted the WCB regarding his claim. The worker advised that the employer had ceased operations and he was laid off as of January 30, 2019. The worker said he received a buyout from the employer when he was laid off and began claiming employment insurance on August 30, 2020. He further advised that he had moved in 2019 from Winnipeg where he resided when the workplace accident occurred and now resided in a small town in another province, and inquired whether he was eligible for further WCB wage loss benefits.
On January 26, 2021, the worker was referred to a WCB vocational rehabilitation ("VR") consultant for an initial assessment and employability determination. Information was gathered from the worker, including his resume and a transferable skills assessment. On February 18, 2021, the VR consultant identified three National Occupational Classification (NOC) codes for the worker based on the information gathered: NOC 1526 - Transportation route scheduler; NOC 7305 - Supervisors, motor transport and other ground transit operators; and NOC 7512 - Bus drivers/subway operators and other transit operators, with NOC 7512 noted to possibly be outside the worker's permanent restrictions due to the requirement for forceful grasping with the right hand.
On March 10, 2021, a Vocational Rehabilitation Initial Assessment was placed on the worker's file by the VR consultant who opined that the worker was employable within NOC 7305 - Supervisors, motor transport and other ground transit operators. The consultant further opined that the worker was not at a competitive disadvantage as there was a good labour market for that occupation in the Winnipeg labour market where the worker was living prior to 2019.
On March 16, 2021, the WCB's Compensation Services advised the worker that they had determined he was not entitled to wage loss benefits. Compensation Services found that the worker's work interruption (company shutdown) was not due to his compensable injury and he was not considered at a competitive disadvantage in the general labour market. Compensation Services further found that based on the worker's transferable skills/employment history, education and the current labour market within the larger market area, his permanent restrictions would not prevent him from finding similar work with another employer.
On April 8, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted he was at a disadvantage due to his permanent injuries and restrictions. The worker stated that he felt discriminated against because he had moved to another province. He noted he had been actively looking for work and had been offered positions but they were not within his permanent restrictions and he had to refuse them.
On May 21, 2021, Review Office determined the worker was not entitled to wage loss benefits following his lay-off in 2019. Review Office found the worker's decision to move from a larger metropolitan area to a small town was not due to his workplace accident or the compensable injury but was a personal choice of the worker. Review Office found that the worker was not competitively disadvantaged from finding employment compared to other similarly trained workers, and that any loss of earning capacity was not as a result of the accident but due to the economic lay-off and the worker's decision to move.
On June 29, 2021, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(2) of the Act provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
Subsection 40(1) of the Act provides that a worker's loss of earning capacity is the difference between the worker's net average earnings before the accident, and the net average amount the board determines the worker is capable of earning after the accident.
WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker. The VR Policy states that: "The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests."
The VR Policy goes on to state that: "The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work."
The worker was self-represented. The worker made an oral submission at the hearing and responded to questions from members of the panel.
The worker's position was that he was disadvantaged in terms of finding work following his lay-off in 2019 due to his compensable injury and permanent restrictions, and was entitled to wage loss benefits.
The worker submitted that in arriving at their decision, the WCB made several assumptions which were incorrect. Those assumptions included that after he was laid off from his employment, he did not look for work and decided to move out of the province. The worker stated that two or three months prior to being laid off, he had been asked to work for another company which was starting up, and it had been agreed that he would work remotely from his home in the other province where he had a summer residence. Believing he had secured that position and could not afford two homes, he decided not to renew the lease on the Winnipeg apartment he had been living in and to move. The worker said he was laid off on January 30, 2019, and moved that same day.
The worker said he moved right away because he thought he had secured new employment, doing work which was similar to, or the same as, what he had done before. He did some negotiating and work for the new company both before and after being laid-off. His contract with the company, however, was never finalized and he heard nothing further from them after March 7, 2019.
The worker said he continued looking for work after that, both locally and in Winnipeg. He said he had never considered seeking employment insurance when he was laid-off because he thought he had secured the other job. He eventually had to collect employment insurance as his employment opportunities were limited due to his permanent restrictions and to COVID, which also played a large role.
The worker said he only started pursuing WCB benefits after another former employee mentioned he was receiving compensation from the compensation system in that province for an injury he had suffered there. The worker stated that he was just looking for some help or support to get him through the hard times when he had no money. He wondered how the WCB could say he was not at a disadvantage with respect to work when he had permanent restrictions and they were telling him he could not find work outside his restrictions.
The worker said he is not currently working and has stopped applying for jobs now, but is still looking if something comes up on emails. He said that since he is now receiving CPP benefits, he can be pickier. He is not in a rush to find anything at this point, but would be willing to work if something comes up that interests him.
In conclusion, the worker said he could not understand why the WCB would refuse him financial help when he had a legitimate claim, permanent restrictions which had been set by the WCB doctor and surgeons, and he had been told by the WCB adjudicator in April 2009 that he was being moved to long term wage loss and would be entitled to receive wage loss benefits to age 65.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss benefits following his lay-off in 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity following his lay-off in 2019 as a result of his workplace accident or injury. The panel is unable to make that finding, for the reasons that follow.
The evidence shows that the employer ceased operations and shutdown the company on January 30, 2019. The worker received a lump sum severance payment or buyout at that time. The panel finds that any initial loss of earning capacity which the worker suffered after the January 30, 2019 lay-off was not compensable as it was not due to the compensable injury but to the company shutdown which affected the employer's entire workforce, all of whom also experienced a loss of earnings.
The panel is further unable to find, based on our review of all of the information which is before us, on file and as presented at the hearing, that the worker suffered a loss of earning capacity following that initial period of time as a result of his compensable injury. Rather, the panel is satisfied that the evidence shows the worker was not at a disadvantage in the general labour market in terms of pursuing other employment opportunities based on his skills and training, as compared to other similarly employed workers who had been laid off.
In arriving at that conclusion, the panel notes that in October 2020, the worker contacted the WCB to advise that he had been laid-off and inquire as to whether he was entitled to wage loss benefits as a result. The worker had been accommodated by the accident employer permanently in 2009 through to his lay-off in January 2019. In the course of that accommodation, the worker was able to gain experience, and had advanced in his accommodated position over the years, and been successful in taking on more senior positions and gaining further skills and experience.
In early 2021, a VR consultant was tasked with assessing the worker to determine his employability and whether he would be eligible for VR benefits. The assessment involved determining whether the worker had an ongoing loss of earnings as a result of his workplace accident and injury. The VR Policy provides that the WCB will help the worker "… to be as employable as…he was before the injury…" As the injury or accident occurred while the worker was employed in Winnipeg, the consultant's focus in determining whether the worker was as employable as before the injury was on the labour market associated with the Winnipeg area.
The VR consultant determined that due to the experience the worker had gained since the accident, he was considered employable in a higher earning job classification than before his injury. The consultant further found that there was a strong job market between 2019 and 2021 and good employment opportunities within the Winnipeg area. The consultant therefore concluded that the worker was not at a competitive disadvantage in finding employment compared to other similarly trained workers and that the "net average amount…the worker is capable of earning after the accident" was that of NOC 7305 – Supervisors, motor transport and other ground transit operators, the net average earnings potential for which was greater than the worker's pre-accident net average earnings.
In response to questions from the panel as to whether the VR assessment of his skill levels was fair, the worker said that:
…yes, I could maybe find a job in transportation, but you know what, at my age, working transportation again 24/7, I can't do it.
So that's when I asked her, I said, you know, I was working 24/7, because I was injured, and I may do it with the job that I have, and I went up the ladder only to better myself, but 24/7 is not a life for anybody.
When asked whether he was saying he could not do this type of work or whether he had decided he did not want to do it any longer, the worker stated:
Well, I don't want to because of my age…
…she wants me to go back into the trucking company or transportation. Well, in the management it's not an 8:00 to 4:00 job anymore there, it's all the companies they're limited in staff, and they expect, the expectation is really high.
I wanted to do something a little different, I wanted to change the scope of my work, and I wanted to do a little bit more into Natural Resources or anything, and that's why I was asking if there was any possibility of having some sort of upgrade or something, just to help me process that or find it.
The panel places weight on the VR consultant's assessment and determination that the worker was employable in NOC 7305, which had a greater net average earnings potential than the worker's pre-accident net average earnings and that the worker therefore did not have a loss of earning capacity and was not entitled to wage loss benefits.
The worker also indicated that he continued looking for work following his lay-off. The panel questioned the worker at length with respect to his efforts to find further employment. The worker stated that he did a lot of online applications, for which there would be no paper trail. He said he was always looking and applied for jobs he heard about by word of mouth in town. When he went on employment insurance, they would send out links, and he applied for anything that really interested him and for which he had the qualifications, but in 99% of the cases they would not even want his resume. The worker said he tried applying for several government positions, but did not get any response. He also tried operating certain heavy equipment to see if he could do that, noting he had previous experience with such equipment, but found that he could not operate the equipment with his injury. A further position which originally looked promising ended up requiring him to do deliveries occasionally, which he could not do.
The evidence shows that the worker decided to move to a small town when he was laid-off. The panel acknowledges the worker's evidence that he made the decision to move believing he had secured another job which he could do remotely, and that this job unfortunately fell through. The panel finds, nevertheless, that the worker's decision to leave Winnipeg and move to a small town was a personal choice and was not the result of his workplace accident or injury.
In the circumstances, the panel is satisfied that the worker's difficulties finding employment and any loss of earning capacity following his lay-off were due to the shutdown of the employer's operations and to the worker's personal decision to move to his current residence in a small town.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity following his lay-off in 2019 as a result of his workplace accident or injury. The panel therefore finds that the worker is not entitled to wage loss benefits following that lay-off.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of February, 2022