The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on March 26, 2004, at the claimant's request.

Issue

Whether or not the worker is entitled to full wage loss benefits effective August 22, 2003.

Decision

That the worker is not entitled to full wage loss benefits effective August 22, 2003.

Decision: Unanimous

Background

The claimant filed an application for compensation benefits on March 10, 2003, with respect to lower back difficulties that he experienced during the course of his employment as a donut maker. Subsequent medical information revealed that the claimant was diagnosed with a lumbar disc herniation and left S1 radiculopathy. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On April 4, 2003, the claimant returned to work performing light duties. In a memo to file dated April 10, 2003, a WCB case manager noted that the claimant "would be scheduled 4 hours for 5 days a week as well as his regular 2 - ½ hour shifts on the weekend and that he would be paid $8.50 by the emp [employer] and WCB would play a PWL [partial wage loss]".

In a memo to file dated July 23, 2003, the case manager stated that she advised both the claimant and the employer that the claimant was capable of working full time hours. Modified duties included training, inventory and working the till. In a doctor's progress report dated August 14, 2003, the sports medicine specialist indicated that the claimant returned to full time work but was feeling worse. It was suggested that the claimant not work overtime but that he could work a maximum of 40 hours per week.

In a progress report dated September 19, 2003, a physical medicine and rehabilitation specialist reported that the claimant was seen on September 3, 2003 but was not examined. At this time, the claimant complained of low back and left posterior thigh and calf pain. The specialist felt that the claimant was still capable of modified work but was to limit sitting, bending and lifting.

Subsequent file information revealed that the claimant was suspended from his employment without pay for one week by his employer due to non-compensable reasons (i.e. damage to the company vehicle) and because he was not making a full effort towards his work. On August 22, 2003, the claimant was barred from the employer's premises until further notice.

In a letter dated August 28, 2003, the claimant was advised of the WCB's decision to pay him wage loss benefits based on 40 hours per week. The case manager pointed out that as the claimant was considered capable of working 40 hours per week but was suspended from work due to non-compensable reasons, the WCB would continue to pay him partial wage loss benefits.

On September 2, 2003, the employer terminated the claimant's employment with the company for reasons unrelated to his injury.

In a memo dated September 3, 2003, a WCB case manager noted that she would not be paying the claimant for one week of benefits due to his suspension. This decision was relayed to the claimant in writing on September 11, 2003.

In a physiotherapy discharge report dated October 15, 2003, it was noted that the claimant had worsening of his low back pain on August 29, 2003 with pain in his low back and left leg which increased with forward bending. The claimant was presently awaiting an appointment with an orthopaedic specialist. Restrictions were outlined to avoid lifting greater than 15 pound and to limit bending effective August 29, 2003.

On November 28, 2003, the case was considered by Review Office based on an appeal submission by the claimant dated September 4, 2003. Review Office noted that it had obtained information from the employer regarding the duties that the claimant performed when he did work along with a report from the claimant's treating orthopaedic specialist.

Review Office determined that the claimant was entitled to receive payment of partial wage loss benefits during the one week suspension with his employer and that the claimant's partial loss of earning capacity after August 22, 2003 (40 hours per week at $8.50/hour) was not related to the effects of the compensable injury and therefore he was not entitled to full wage loss benefits.

With respect to the first decision, Review Office noted that "…up to the date of the suspension the claimant was receiving partial wage loss benefits as result of lesser pay, reduced hours, modified duties etc. In our view if it were not for the claimant's suspension by his employer the claimant would likely have continued working at a partial wage loss (that is the difference between 40 hours at $8.50/hour and his pre-accident hours/rate). As he was unable to work (due to the suspension which is unrelated to the injury) the claimant is not entitled to receive full wage loss benefits. He is, however, entitled to receive partial wage loss benefits irrespective of the employer's decision to suspend as the claimant continued to have a partial loss of earning capacity (that is over and above the 40 hours of work)."

With respect to the second decision, Review Office believed that if it were not for his termination from employment, the claimant would have been accommodated by his employer in a variety of duties that were within his restrictions. The claimant's loss of earning capacity since the termination (40 hours per week at $8.50) is related to non-compensable issues and was not the WCB's responsibility. Therefore, the claimant was not entitled to full wage loss benefits for this after August 22, 2003. On January 13, 2004, the claimant appealed Review Office's decision that he was not entitled to full wage loss benefits as of August 22, 2003 and a non-oral file review was arranged.

Reasons

The medical evidence clearly established that subsequent to August 22, 2003 the claimant was capable of working 40 hours per week within specifically prescribed restrictions. An attending physician's progress report dated August 14, 2003 disclosed that the worker was capable of performing alternate or modified work duties up to a maximum of 40 hours per week but not any overtime. The evidence further confirmed that the employer had accommodated the claimant by providing him with a variety of duties, which respected his physical limitations. Accordingly, the claimant was paid partial wage loss by the WCB.

The claimant's employment was terminated as a consequence of a non-compensable event and the termination was not in anyway related to the effects of the workplace injury. This non-compensable event effectively removed the claimant from his work arrangement where he was provided full-time modified duties and paid partial wage loss from the WCB. The evidence also discloses that the claimant has made no attempt to seek employment which would respect his physical restrictions.

Section 22 of The Workers Compensation Act of Manitoba (the Act) provides in part that "where an injured worker fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable if the worker had mitigated the consequences of the accident." Inasmuch as the claimant's employment with the employer was terminated for non-compensable reasons, we find in applying section 22 of the Act that the worker is not entitled to receive either full or partial wage loss benefits effective August 22, 2003. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of May, 2004