The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 24, 2003, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on April 24, 2003.

Issue

Whether or not the claimant is entitled to temporary total disability benefits effective June 16, 2002.

Decision

That the claimant is not entitled to temporary total disability benefits effective June 16, 2002.

Decision: Unanimous

Background

The claimant sustained multiple fractures to his right ankle and foot as a result of a mining accident that occurred on June 2, 1983. File records showed that the claimant was awarded a permanent partial disability award as a result of the accident and has permanent work restrictions.

During a telephone conversation with the claimant on June 20, 2002, a Workers Compensation Board (WCB) case manager noted that the claimant had quit his job on June 15, 2002 as he felt that he was unable to perform his job duties because of right foot difficulties. In order to determine whether or not the claimant was entitled to wage loss benefits effective June 15, 2002, the case manager contacted the employer to gather information regarding the claimant's job duties and his job difficulties.

In a letter dated November 15, 2002, the case manager advised the claimant that the WCB was unable to accept responsibility for his time loss from work commencing June 15, 2002 as being directly related to his 1983 compensable injury. The case manager made this determination based on the following evidence:

• Since leaving employment with his accident employer in 1988, the claimant continued to work in the mining field in various jobs such as shift boss, cage tender, jumbo operator and shaft leader. During the last four years the claimant worked as an underground superintendent and shift boss.
  
  
• Between 1987 and August 2000, the claimant had been employed in the mining industry working underground in various jobs and had never contacted the WCB with respect to any ongoing right foot problems.
  
  
• The employer advised the WCB that the claimant had a disagreement with his supervisor and that this disagreement led him to leave his employment. The employer had no record of the claimant experiencing any right foot difficulties or of any problems performing his job duties.
  
  
• Recent medical information demonstrated that the claimant obtained pain medication from his physician but there was no documentation to indicate that the claimant could not perform his job duties or that this had been discussed with the physician during any of his appointments.

It was the case manager's opinion that the claimant's time loss effective June 15, 2002 was the result of a disagreement with his employer and was not a direct result of his compensable injury. The adjudicator believed that the file documentation clearly indicated that the accident employer was able to accommodate the claimant with modified duties and that the claimant chose to leave this position to pursue other employment opportunities. Since then, the claimant's work history demonstrated his ability to work in the mining industry performing jobs that may or may not have been within his previous restrictions. On November 18, 2002, a worker advisor appealed this decision to Review Office.

In a decision dated January 24, 2003, Review Office confirmed that the claimant was not entitled to benefits beyond June 16, 2002. Review Office felt that the loss of earning capacity experienced by the claimant as of June 16, 2002 was through his own actions and was not due to the June 2, 1983 work injury. Review Office agreed with the case manager's position that had the disagreement not occurred, the claimant would still be functioning as he had been since 1987. In February 2003, the worker advisor disagreed with Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker who sustained a serious injury to his right ankle and foot in a mining accident in 1983. His application for compensation was accepted and benefits were paid accordingly.

In 2002, he left a job as a shift boss in a mine, allegedly because he was unable to perform the duties required due to ongoing problems with his ankle/foot. The board did not accept his reason for leaving this job. On reconsideration by Review Office, this decision was upheld. He then appealed to this Commission.

For his appeal to be successful, the Appeal Panel would have to determine that his inability to work beyond June 16, 2002 was causally related to his workplace accident. If so, he would be eligible for temporary total disability benefits. We were not able to make that determination.

In coming to our decision, we conducted a thorough review of the claim file and held an oral hearing, at which we heard testimony from the claimant, as well as argument from his representative and from representatives of the accident employer.

We considered the following factors in our deliberations:

• Following his injury, the claimant was off work for about four years. He then returned to work - with permanent restrictions - for the accident employer.
  
  
• He left this employer shortly thereafter. His testimony was that he was not offered alternative duties and found the regular duties to be too difficult for him to do. The employer testified that he was offered an alternative position that could have been available permanently.
  
  
• From that time to the present, he has been able to find a succession of jobs in the mining industry, at which he earns an amount similar to his pre-accident earnings.
  
  
• From April 1998 to June 2002, the claimant was employed by one mining company, working at mines in Ontario and Saskatchewan. For about four years, the work rotation was two weeks on-site; two weeks off.
  
  
• For much of that time, his position was an assistant mine superintendent. According to his own testimony, this position was not too difficult for him, as it involved only periodic trips underground.
  
  
• Following a management "shake-up", in April 2002, his position was changed to shift boss. This involved a significant shift in his work duties. He was now required to go underground repeatedly, to check on workers every two hours. Many of these trips underground required him to climb down and up 200 foot ladders.
  
  
• As well, the work rotation changed to four weeks in; two out.
  
  
• On June 15, the claimant had a disagreement with the new mine superintendent and quit the job.
  
  
• On June 20, he reported to the board that he had quit because he was unable to do the job, because of the condition of his ankle and foot.

Unfortunately for the claimant, there is no medical evidence to substantiate his position that it was his inability to work that forced him to quit. This is not to suggest that he does not have ongoing problems with his ankle and foot. There is significant, recent medical evidence to support this, including the need for another operation in January 2001. It is also a fact that he has permanent restrictions in respect of his ability to work.

Since 1987, he has had a series of mining jobs that may or may not have been within his restrictions, but which he was able to perform. Indeed, since January 2003, he has returned to mining.

There is evidence on the file, from his employer and from some co-workers which supports the finding of the board's case manager that the immediate cause of his quitting the job was his disagreement with the new mine superintendent, not his physical inability to do the job.

As a result, there was no total temporary disability, as required under the 'old' Act for the payment of benefits.

We conclude that this decision of the case manager, upheld by the Review Office is correct. Thus, the appeal is dismissed.

We would note, however, that there is medical evidence on file indicating that the claimant's ankle/foot condition is deteriorating. It may well come to the point that he is no longer able to continue at mining jobs. At that point, it may be necessary for the board to reassess his restrictions; or to consider other options such as a job search for a position more appropriate to his compensable restrictions or, even, vocational rehabilitation.

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 16th day of May, 2003