The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on August 30, 2005, at the employer's request.

Issue

Whether or not the worker is entitled to wage loss benefits to November 20, 2004.

Decision

That the worker is entitled to wage loss benefits to October 31, 2004.

Decision: Unanimous

Background

On September 18, 2004, the worker was involved in a motor vehicle accident during the course of his employment as a bus driver. Following the accident, the worker was treated by a chiropractor and a general practitioner and was diagnosed with the following conditions: "whiplash with C6 radiculopathy" and a "cervical strain". The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly.

On October 25, 2004, the treating chiropractor advised the WCB that the worker could return to light duties effective November 1, 2004. For three weeks the light duties would include one week of office duties and then half days of driving and half days of office work for an additional two weeks.

In an e-mail memo dated November 3, 2004, the worker's supervisor stated that the worker had been offered light duties on October 27, 2004 but he turned the offer down as the light duties involved night security work and he went to bed early. In a further e-mail memo dated November 19, 2004, the worker's supervisor indicated that the worker returned to full regular duties effective November 21, 2004.

On November 30, 2004, the worker confirmed with his case manager that his supervisor had offered him security work but on a night shift. The worker said he turned down the job as he went to bed at 9 p.m. and also because he took medication for cholesterol, blood pressure and his stomach. He said his medication "puts him to sleep" and he did not want to change his schedule. The supervisor then told him that he would get back to him but he never did. The case manager asked the worker if there was anything in his union contract that would prohibit his changing shifts and the worker said he was unsure. The case manager advised the worker that if his employer made a legitimate offer of modified duties and he refused them, then the WCB would not be responsible for his subsequent time loss.

In a conversation with the case manager on December 1, 2004, the worker's union representative stated that there was nothing within the union contract to stop a worker from changing shifts. The union representative did have concerns, however, that the worker's supervisor did not get back to the worker when he said he would.

On December 21, 2004, the case manager spoke with the worker's supervisor. The supervisor indicated that he had offered the worker modified duties but the worker advised that he went to bed at 8:30 and that he could not work nights. There was no mention of any medication that the worker took at night. The supervisor advised the worker that this was the only modified duties that the employer had to offer. He did not recall his telling the worker that he would get back to him.

In a decision dated January 12, 2005, the case manager informed the worker that the WCB was unable to approve any additional wage loss benefits beyond October 31, 2004. It was the case manager's position that appropriate modified duties were offered to the worker effective November 1, 2004 and that his refusal to accept these modified duties were due to reasons unrelated to the work place injury. Attached with the decision was a copy of WCB policy 43.20.20 entitled "Modified and Alternate Return to Work with the Accident Employer." On January 26, 2005, the union representative appealed the decision to Review Office.

On May 3, 2005, Review Office considered the union representative's appeal submission of January 26, 2005 along with a submission tendered by the employer's representative dated April 5, 2005. Based on its review of all of the file evidence, Review Office extended the worker's wage loss benefits to his return to work date of November 21, 2004. Review Office felt that the worker had a valid reason, in his mind, for not accepting the October 27, 2004 change in shifts offer, that the WCB did not obtain the worker's version of events until November 30, 2004 and that the WCB was not pro-active in investigating whether or not the October 27, 2004 offer of alternate/modified duties would have respected the worker's restrictions.

On May 10, 2005, the employer's representative disagreed with Review Office's decision to extend the worker's wage loss benefits to November 21, 2004. A non-oral file review was then arranged.

Reasons

The employer appeals Review Office's decision of May 3, 2005, wherein it was determined that the worker "…should receive WCB coverage up to his November 21, 2004, return to work date as, in his mind, he had a valid reason for not accepting the change in shifts offer of October 27, 2004…".

The treating chiropractor submitted a progress report dated October 21, 2004 to the WCB and in this report he estimated that the worker would be capable of a return to light duties on November 1, 2004. The treating chiropractor later confirmed in a facsimile message of October 25, 2004 to the case manager the following medical restrictions: "Return to light duties Nov 1/2004 for 3 wks: 1 wk light office duties, 2wks - half day of driving & half day office duties."

The evidence confirms that on or about October 27, 2004 the employer offered light duties involving night security to the worker, which he refused. The worker's reasons for refusal were documented in the case manager's memorandum to file of November 30, 2004:

"I spoke to the claimant regarding the 3 weeks he did not return to work up to November 21, 2004. He confirmed that his supervisor offered him modified duties which was security work but on a night shift. He stated that he turned down the job as he goes to bed a (sic) 9 pm. He takes medication for cholesterol, blood pressure and for his stomach. This medication puts him to sleep. He did not want to change his schedule. If his employer made a legitimate offer of modified duties and he refused them then the WCB would not be responsible for the subsequent time loss."

We find that the employer's offer of evening shift light duties was not unreasonable, whereas the worker's refusal was unreasonable given the preponderance of evidence indicating that it would be appropriate for the worker to commence light duties on November 1, 2004. We further find that the worker is entitled to wage loss benefits up to and including October 31, 2004 and not beyond. Accordingly, the employer's appeal is successful.

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 14th day of October, 2005