Decision #72/24 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to full wage loss benefits. A hearing was held on May 27, 2024 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to full wage loss benefits.
Decision
The worker is not entitled to full wage loss benefits.
Background
This claim has been the subject of four previous appeals. Please see Appeal Commission Decision Nos. 85/03, dated July 29, 2003, 160/04, dated November 24, 2004, 115/05, dated July 14, 2005 and 61/16, dated May 3, 2016. The background will therefore not be repeated in its entirety.
In brief, the worker has an accepted WCB claim for a left elbow and forearm injury that occurred at work on February 28, 1996. As a result of the compensable injury, the worker has received various benefits from the WCB including vocational rehabilitation services and wage loss benefits. The worker has been in receipt of partial long term wage loss benefits as after they completed the vocational rehabilitation program provided by the WCB, the worker had been deemed capable of earning minimum wage. In June 2015, after a review of the worker’s income tax information, the WCB determined the worker had been overpaid. The worker appealed that decision to both Review Office and the Appeal Commission, with Appeal Commission Decision No. 61/16 determining the worker was responsible for the overpayment.
As part of the WCB’s long term wage loss benefit policy, the worker’s income was reviewed and indexed annually, with adjustments made when the worker had income greater than the current minimum wage. On January 10, 2018, the worker contacted the WCB to advise they had not worked in 2017 and requested their average earnings be adjusted to be based on minimum wage. Additional information was gathered from the worker and on September 7, 2018, the WCB implemented a minimum wage deemed capacity for the worker effective January 1, 2017.
On March 23, 2020, the worker contacted the WCB to advise they remained off work as a result of their permanent injury and due to their inability to find employment due to the COVID-19 pandemic, requested the WCB place the worker back on full wage loss benefits. The WCB advised the worker on April 9, 2020, there was no medical evidence to support the worker was totally disabled from working or that a change to their permanent restrictions was necessary. In addition, it was noted the worker’s inability to obtain employment due as a result of the global pandemic was not related to their compensable workplace injury and as such, they remained entitled to partial wage loss benefits only.
The worker requested reconsideration of the WCB’s decision to Review Office on April 14, 2020. In their submission, the worker noted their permanent left arm disability made it difficult for them to find and retain employment and with the restrictions in place due to the COVID-19 pandemic, it was even more difficult. They noted their belief that due to those reasons, they should be placed back on full wage loss benefits by the WCB.
Review Office determined the worker was not entitled to full wage loss benefits on May 22, 2020. Review Office found the worker had been provided with vocational rehabilitation services based on their permanent restrictions and there was no current medical evidence to support those restrictions required changing. It had been previously found the worker was physically capable of working within their permanent restrictions at a minimum wage position and had found employment previously. Review Office further found the worker’s current difficulties in finding employment were not related to their workplace injury and accordingly, the worker was not entitled to full wage loss benefits.
The worker filed an appeal with the Appeal Commission on March 25, 2024 and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), the regulations to the Act and the policies established by the WCB Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) states 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.
Worker’s Position
The worker was self-represented at the hearing and relies on their written submission dated April 2, 2024, their Worker Appeal of Claims Decision form and their past written submissions made to the Review Office.
The worker’s position is that their left arm is totally disabled. The worker submits that when attempting to work, they overcompensate and overwork their right arm in the process. For this reason, the worker’s position is that he is unable to work.
The worker also submits that they suffer from stress as a result of their permanently injured left wrist, elbow and arm. The worker states that they have a lack of skills and qualifications and therefore are incapable of employment.
In response to questions by the panel, the worker denied that the COVID-19 pandemic plays a role or is an impediment to finding employment at this time.
The worker is seeking full wage loss benefits.
Employer’s Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to full wage loss benefits. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports the worker is not capable of returning to work. The panel is unable to make that finding, for the reasons that follow.
The worker did receive vocational rehabilitation services in the past and it was determined that the worker was capable of minimum wage employment. The panel has reviewed the reports of the treating physician and notes that the physician indicated that the worker was capable of modified work.
Through questions from the panel, the worker admitted that they can still function decently with their right arm, however stated that when it comes to doing a regular job with two functioning arms, he cannot and argues that this has limited their ability to find employment. The evidence of the worker is that he has attempted several jobs but has not been employed since 2018. The panel is of the view that the worker has not exhausted all the options available to them to find a minimum wage job.
The panel heard evidence of the worker’s concern with overworking their right arm and that they have been “burning the tendons” in their right arm. The panel understands that the worker believes that they are causing irreparable damage to their right arm, however there is a lack of medical evidence before the panel at this time concerning the worker’s right arm and any symptoms related thereto. There is also a lack of evidence to support the overuse of the worker’s right arm and any impact of said overuse. Furthermore, the evidence before the panel is that the worker has not been employed since 2018, and therefore, the panel does not find it reasonable that the worker could be overusing their right arm such that the worker would be considered fully disabled.
Based on a lack of medical evidence to state otherwise, the panel is of the opinion that the worker is capable of finding employment within the permanent restrictions. Therefore, the panel finds, on a balance of probabilities, that the worker is not entitled to full wage loss benefits. The worker’s appeal is denied.
Panel Members
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of July, 2024