The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue before us was whether the worker was entitled to receive wage loss benefits for the period April 23 to May 25, 2004. For the appeal to be successful we must find that the worker was fit to perform modified duties, appropriate modified duties were offered to the worker and the worker refused the modified duties. We were not able to make this finding. We found that the worker was entitled to wage loss benefits for the noted period.

Evidence and Arguments presented at the Hearing

The employer was represented at the hearing by an advocate and its staff rehabilitation specialist. The worker attended the hearing with a union representative.

The employer’s representative noted that the worker was diagnosed with bilateral extensor tendonitis of both elbows. The proposed treatment included rest, ice and physiotherapy. The treating physician indicated that the worker would be totally disabled for an undetermined length of time but a minimum of four weeks. The employer’s representative disagreed with this treatment plan. The employer’s position is that the worker was fit for modified duties not requiring the use of both arms and that such duties were offered to the worker and refused by the worker. The rehabilitation specialist noted that an offer of modified duties was made by the worker’s supervisor and company nurse on April 22 before the worker saw his physician and then again on April 23. The duties that were offered involved holding a small container of paint and using a paintbrush to perform touchups.

The employer representative referred to WCB Policy 43.20.20.01. She noted that under this policy a worker’s benefits may be reduced or eliminated where the worker refuses to participate in suitable modified work. She indicated that this policy should be applied in this case. She also asked that we apply Policy 43.20.20.

The rehabilitation specialist advised that the employer has a policy of providing suitable modified duties to its injured workers. He noted the employer has hundreds of jobs that need to be done and that the employer can accommodate injured workers in meaningful positions. In his opinion the employer made reasonable efforts to get the worker back to work, but that the worker did not cooperate.

The worker acknowledged that when he first advised his supervisor of his injury the supervisor commented that the worker could finish off the shift doing different duties. However, the worker went to see his physician and returned with a note from his physician which indicated that the worker was unable to work for at least four weeks. The worker advised that no specific modified duties were offered to him after he provided the employer with the physician’s note. The worker advised that he followed the advice of his physician. He also stated that he maintained regular contact with the employer during his absence from work and at no time did the employer offer modified duties. He stated that the employer did not ask him to get more information from his physician or to clarify his restrictions. The worker also noted that when his doctor advised him to try modified duties, he immediately contacted the employer and arranged a return to work.

Applicable Policy and Legislation

As noted above, the employer’s representative referred to Policy 43.20.20.01 and Policy 43.20.20. We note that Policy 43.20.20.01 was superceded by Policy 43.20.20 effective June 1, 2000. Accordingly Policy 43.20.20.01 is not applicable.

We have considered Policy 43.20.20 which deals with the WCB’s role in the return to work process. Section 6 of the policy deals with “WCB response to non-cooperation”. This section deals with the consequence of non-cooperation by both employers and workers. Paragraph c). deals with non-cooperation by workers and provides:

c). When the employer initiates the modified or alternate work, and there is a disagreement about whether it is suitable for the worker, then the WCB will determine if the work placement is appropriate under this policy. If it is, and the worker refuses to participate after being informed by the WCB, compensation benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified or alternate work situation.

We note that the above provision only applies where the WCB is involved in determining whether modified duties are appropriate and only where the worker has been informed that the WCB considers the modified duties to be suitable. The WCB had no involvement in the placement and had no contact with the worker regarding the modified duties. Given these facts the policy does not apply to this case.

Section 22 of The Workers Compensation Act (WCA) does provide the WCB with the discretion to reduce a worker’s benefits in a case where a worker has not mitigated the consequence of an accident. We did not find the facts of this case warranted application of this provision.

Analysis

We have considered all of the evidence including the evidence presented at the hearing but were not able to find that the employer offered the worker suitable modified duties. We accept that there were general discussions between the worker, his supervisor and company nurse regarding a change in duties. We note the first discussion took place before the worker saw his physician. There was a subsequent discussion after the worker saw his physician and returned to the workplace with a physician’s note. The worker testified that he was not offered modified duties. We are not able to categorize these discussions as the employer offering suitable modified duties.

We accept the worker’s evidence that he maintained regular contact with his employer while he was off work and that no offer of modified duties was made during these calls. The general nature of these conversations was confirmed by the employer’s rehabilitation specialist at the hearing. There were opportunities for the employer to offer the worker suitable modified duties but we find that this did not occur.