The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 16, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 16, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits for the period December 23, 2001 to December 29, 2001 inclusive.

Decision

That the worker is entitled to partial wage loss benefits for the period December 23, 2001 to December 29, 2001, less the 12 hours available for modified duties.

Decision: Unanimous

Background

On November 29, 2001, the claimant was lowering groceries into a customer’s cart when she heard a pop in her right hand. On November 29, 2001, the attending physician diagnosed the claimant with tendonitis of the right 2nd finger and determined that the claimant was capable of modified or alternate duties. The claim was accepted by the Workers Compensation Board (WCB) and the claimant commenced modified duties shortly after the accident.

In e-mail correspondence to the WCB dated December 24, 2001, the employer’s representative noted that the claimant was employed as a part-time cashier and was provided with modified duties that involved working in customer service and doing product returns. The employer looked to provide the claimant with 12 hours of modified duties per week. The e-mail correspondence contained details regarding the hours that the claimant worked between November 30, 2001 and January 5, 2002.

With respect to the issue under appeal, namely the period between December 23 to December 29, 2001, the employer’s representative noted that the store had 12 hours of modified duties available for the claimant. This included four hour shifts scheduled for December 24, December 28 and December 29. The claimant, however, self-restricted herself to only being able to work after 6:00 p.m. on these dates when the modified duties that were available would have been prior to 6:00 p.m. The basis for the self-restrictions was because of the claimant’s inability to coordinate child care arrangements prior to 6:00 p.m.

On January 17, 2002, the claimant was informed by her WCB adjudicator that she was entitled to partial wage loss benefits from December 2 to 14, 2001. For the period December 23rd to December 29th, the claimant was not entitled to wage loss benefits because she restricted her hours during this time frame.

In a February 26, 2002 letter addressed to a WCB case manager, a union representative contended that the decision to deny wage loss benefits to the claimant between December 23 to 29, 2001 was unfair and should be revisited. The union representative noted that the claimant was unable to participate in a return to work program scheduled only on the day shift between the period December 23 to 29, 2001 but was more than willing to participate in working hours later in the day, i.e. after 6:00 p.m.

In a response to the union representative dated April 5, 2002, the WCB case manager indicated that the claimant was denied wage loss benefits between December 23 to 29th based on Section 22 and 39(2) of The Workers Compensation Act (the Act) and policy 44.10.30.60. The letter stated that the claimant signed a declaration of availability indicating that she was unavailable for work Fridays after 6:00 p.m. and that this declaration was in effect until the end of February 2002. As there was no signed declaration of availability limiting her hours, the WCB was of the opinion that the modified duties offered by the employer for the period in question were suitable. As such, there was no loss of earning capacity for this period.

On May 10, 2002, Review Office considered the case based on an appeal submission from the union representative dated April 10, 2002. Review Office confirmed the decision that the claimant was not entitled to wage loss benefits for the periods of December 23, 2001 to December 29, 2001 inclusive.

Review Office established that the employer allowed for its workers to request hours when they were not scheduled to work. This was done through the completion of a Declaration of Availability form. The claimant had utilized this option in the fall of 2000, which precluded the employer from scheduling her to work after 6:00 p.m. on Fridays.

According to the employer, Review Office indicated that the claimant would have had to complete a Declaration of Availability form by December 19, 2001 in order to limit the hours that she could be scheduled between December 23, and December 29, 2001. The claimant approached an Assistant Manager on December 21, 2001 to pass a message to the store manager that she would be unable to work prior to 6:00 p.m. from December 23 to 29, 2001. No Declaration of Availability form was completed.

Based on the evidence, Review Office felt that the claimant failed to take the necessary steps to limit her hours of availability between December 23 and 29, 2001 in accordance with the established procedures agreed upon by her union and the employer. On June 6, 2002, the union representative appealed Review Office’s decision and an oral hearing was arranged.

Reasons

The claimant suffered a compensable injury to her right hand on November 29, 2001, and shortly thereafter was placed in a modified duties position with her employer. The employer provided 12 hours per week in this position, which was less than her pre-accident hours of employment. The claimant started on the modified return to work program but shortly thereafter was off work due to a non-compensable medical condition. When she was recovered from that condition, she attempted to return to her position, but the employer could not accommodate the hours she requested. The claimant did not work the week of December 23 to 29, 2001, and the WCB adjudicator and Review Office both concluded that she had not taken reasonable steps to participate in the modified return to work program, and denied her wage loss benefits for that period. The claimant has appealed that decision to this panel.

For the claimant to succeed and for benefits to be restored for that period, we would have to find that the employer’s modified duties schedule was somehow inappropriate, either in terms of the flexibility of hours offered to the claimant or in the management of the claimant’s request for a change in hours. We were not able to make these findings, and find that the claimant should not be paid wage loss benefits for the 12 hours for which modified duties were made available in that period by the employer. However, as noted later in these reasons, we do find that the claimant has an entitlement to partial wage loss benefits during the period of December 23 to 29, 2001.

The evidence on file and from the claimant at the hearing is that a modified return to work program was established at the beginning of December 2001, in which the claimant was expected to work 12 hours of modified work per week, in a position that respected her compensable medical restrictions. After a review of the employer’s scheduling practices, we accept their evidence that they had routinely scheduled the claimant for 12 hours of modified duties each week. The hours of these shifts were set in accordance with the claimant’s stated availability for work and the person-hours allocated for the particular store.

The claimant was absent from the workplace after December 13, 2001, because of a non-compensable medical condition that required a period in the hospital followed by a period of convalescence at home. The employer continued to schedule the 12 hours per week of modified duties, even during the claimant’s absence.

The claimant’s evidence was that she approached the store’s assistant manager on December 21, indicating that she was prepared to resume work on December 23, two days later, but that she was only able to work after 6 p.m. because of difficulties in arranging child care. From the evidence, it appears that the claimant’s hours had already been scheduled in conjunction with the entire store’s staffing schedule. On that basis, the assistant manager indicated that the store could not accommodate her request to have her shifts rescheduled. The claimant left the store, did not communicate further with the employer, and did not attend the store during the following week, except to provide a medical note clearing her for a full return to regular duties as of December 30, 2001.

We find that the employer had acted in good faith in allocating the 12 hours per week of modified duties to the claimant during the claimant’s ongoing absence from December 15, 2001 and onward. These shifts were established in accordance with the claimant’s medical restrictions, her previously established work availability, and the general scheduling process used by the store. The claimant, on the other hand, had been absent from the workplace for a period of time, and this did place an onus on the claimant to keep the employer informed as to her availability on a timely basis. The claimant was also fully aware of the timeframes involved in setting work schedules, of the process of making changes as established in the collective agreement, and of the necessity for her to arrange child care during the holiday period. For these reasons, we find on a balance of probabilities that the claimant’s inability to work the scheduled 12 hours in the period under appeal was due more to the actions of the claimant than the employer. As such, we
conclude that the claimant should not be paid for the 12 hours of work which the employer had scheduled for the period of December 23 to 29, 2001.

The employer’s representative noted at the hearing that the employer only had made available 12 hours of modified duties per week to the claimant throughout December 2001, including the period of December 23 to 29, 2001 which is under appeal. In the early part of December, the claimant did in fact receive partial wage loss benefits (a “top up”) over and above the 12 hours of employment provided by the employer. The representative further noted – and we concur – that the claimant had had her wage loss benefits erroneously suspended completely during the December 23-29 period by the adjudicator and the Review Office.

Accordingly, we find that the claimant’s appeal is allowed in part, and that she is entitled to partial wage loss benefits for the period December 23 to 29, 2001, removing the 12 hours of scheduled modified duties from her normal wage loss entitlement for that period.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of November, 2002