Decision #12/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on December 6, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 6, 2000.
Issue
Whether or not the claimant is entitled to payment of wage loss benefits for the period July 12, 1999 to July 30, 1999 inclusive.
Decision
That the claimant is not entitled to payment of wage loss benefits for the period July 12, 1999 to July 30, 1999 inclusive.
Background
In May 1999, the claimant submitted an application for compensation benefits indicating that he developed pain in both wrists and fingers due to excessive grinding at work. The claimant's condition was diagnosed as bilateral wrist sprains. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. On June 25, 1999, the claimant returned to alternate duties with the accident employer and was paid full regular wages by his employer.
On July 16, 1999, the claimant contacted the WCB to indicate that there were no longer any alternate duties available due to a plant shutdown from July 12th to July 30, 1999 inclusive. The claimant and his employer requested that the WCB issue full wage loss benefits during the plant shutdown. It was later determined that some employees did work during the plant shutdown and that the claimant had not worked during the plant shutdown during the previous five years.
On August 25, 1999, the claimant was notified by Rehabilitation & Compensation Services that if an injured worker was performing modified/alternate duties full time and was earning full salary prior to the plant shutdown, there was no entitlement to wage loss benefits as the loss in earning capacity was due to economic circumstances and not the compensable injury. No responsibility would therefore be accepted for the claimant's time loss from work between July 12, 1999 to July 30, 1999 inclusive. Both the union representative and the employer disagreed with this decision and the case was referred to Review Office for consideration.
In a decision dated January 28, 2000, Review Office confirmed that the claimant was not entitled to wage loss benefits during his employer's 1999 summer shutdown. Review Office referred to sections 39(1), 39(2) and 60(2) of the Workers Compensation Act (the Act), in addition to WCB Policy 43.20.20 (later amended July 2000 and numbered 43.20.20.01) entitled, "Modified/Alternate Work Programs". Review Office summarized that in its opinion, the claimant did not have a loss of earning capacity during the shutdown as a result of his compensable injuries and as such, was not entitled to wage loss benefits during that period of time. On August 1, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.
Reasons
In support of his case for the entitlement to wage loss, the claimant's union representative advanced the argument that WCB policy 43.20.20.01 was applicable. Reliance was placed upon the following provision:
- "Workers actively involved in a modified/alternate work program who are receiving wage loss benefits or would be receiving wage loss benefits if it were not for the program, and are not eligible for the pre-injury level of unemployment insurance due to the effects of the compensable injury, will preserve the previously established eligibility (i.e., based on earning capacity) for further WCB benefits where the worker is considered to be at a competitive disadvantage (i.e., in comparison to other similarly employed workers) by reason of:
- b) A placement is temporarily interrupted due to lay-off, strike, company shutdown, economic conditions, etc."
We consider the above policy to be inapplicable in this particular case for two reasons. Firstly, the claimant was not eligible for employment insurance not because of the effects of his compensable injury, but rather, he was not eligible because his seniority entitled him to a greater number of vacation days than was the period of the shutdown. Secondly, the claimant cannot be considered to be at a competitive disadvantage when by collective agreement most, if not all, workers must take their annual vacation during the period of the shutdown.
The evidence confirms that the claimant received full wages prior to the company's annual shutdown, that he was entitled to and subsequently received full vacation pay over the period of the shutdown and that he also received full wages after the shutdown. We find that there was no loss of earning capacity on the part of the claimant over the period of the annual shutdown. Therefore, there is no entitlement to wage loss from July 12th, 1999 to July 30th, 1999.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of January, 2001