The Appeal CommissionThe Workers Compensation Act of Manitoba

1. Entitlement to wage loss benefits after January 6, 2006

As stated in the preamble, the issue before us is entitlement to wage loss benefits. As the worker returned to full time modified duties between January 9 and 13, 2006, and received full salary, this issue is really wage loss benefits as of January 16, 2006. The determination of this issue essentially comes down to whether or not the worker did something to cause his termination from employment that would disentitle him to these benefits. The employer says that he did. The worker says that he did not.

The worker’s WCB file provides the following evidence from the employer about the worker’s employment and termination:

• The worker was hired on July 26, 2005. Since that time, the worker had shown up late for work 3 or 4 times and had not shown up at all on a few occasions. (September 28, 2005 WCB memorandum to file);
• When hired, the worker was placed on a three month probation period. The employer was thinking of terminating the worker due to poor performance but then the worker was injured and it could not terminate him because he was on WCB claim. (September 28, 2005 WCB memorandum to file);
• The worker’s probation period was extended on December 12, 2005 for another three months. (May 18, 2006 Review Office memorandum to file);
• The worker was terminated on January 16, 2006 for performance issues. Were it not for the worker’s termination, the employer would have continued to accommodate the worker, full time, with or without restrictions. (May 18, 2006 Review Office memorandum to file).

There is no evidence on file as to worker’s position on these statements.

At the hearing, the reasons for the worker’s termination were explored. The evidence was as follows:

• The worker testified that prior to his workplace injury he was told by his employer that he was doing a “great job”. He admitted he was late on two occasions; the first time he was late due to foggy conditions on the road; the second time he was late because his alarm did not go off. He was reprimanded once because of his tardiness. He was also reprimanded twice for smoking in a no smoking area. He denied missing any work;
• The supervisor testified that the performance issues related to the worker’s absences. He conceded that the worker had only been reprimanded for smoking and missing work. When asked about the number of times the worker was absent or late he was unable to provide particulars. He did however recall the two instances the worker provided;
• The supervisor testified that the worker’s probation period was extended on December 12, 2005 to provide the employer with additional time to assess the worker’s performance;
• The worker returned to modified duties from January 9 to 13, 2006. The supervisor testified that the worker performed these modified duties well;
• The supervisor and worker both testified that on January 12, 2006 the WCB informed them that the worker could return to regular duties on January 16, 2006. The worker said that his back was still hurt and that he knew he would not be able to do his regular job without hurting. It was then that the employer decided to terminate the worker on January 16, 2006 when he showed up for work. The reason for the termination was stated at the hearing as being related to the worker’s record and the employer’s fear that the worker would get re-injured and it would be liable for another WCB claim. He conceded that the worker did not tell him that he would not return to his regular duties.

The worker testified that after his termination he applied for several jobs before obtaining one in May 2006 at a reduced salary.

Analysis:

As noted in the background, Review Office has found that the worker had not medically recovered from his workplace injuries by January 16, 2006 to the point that he could return to his regular duties with his employer on that date. This finding leaves the worker with a potential entitlement to wage loss benefits under section 39 of The Workers Compensation Act (the “Act”) if the worker could not be accommodated at his workplace.

This finding also leaves the worker with a potential disentitlement to wage loss benefits if he failed to mitigate his loss under section 22 of the Act. Indeed, this section places a positive obligation on the worker to mitigate the cost consequences of a workplace accident, and states that a worker who is otherwise entitled to benefits can have those benefits reduced or eliminated if the worker fails to do so. This was, in fact, the underlying reason used by Review Office in denying wage loss benefits to the worker as of January 16, 2006, with its finding that the worker was responsible for his loss of employment on that date.

Much of the evidence at the hearing focused on these section 22 issues, in particular the evidence as to the worker’s performance, absences, lateness, and smoking on the job prior to his workplace injury, and the employer’s apparent decision to terminate the worker on those issues. The panel notes that the earlier incidents were infrequent and were not documented by the employer, and that the worker had performed his modified duties well from January 9 – 13. There were no performance issues of any sort with the worker in that period of time.

Of particular importance to the panel was the evidence of the employer at the hearing that the reasons for the termination were motivated by the employer’s fear that the worker would get re-injured and that it would be liable for another WCB claim.

Given the absence of recent performance issues and the worker’s willingness to participate in his return to the workplace, the panel finds that the worker did not fail his obligations to mitigate under section 22 of the Act. As such, his loss of earning capacity as of January 16, 2006 continued to be related to his compensable injury. We therefore find that the worker is entitled to wage loss benefits after January 16, 2006.

Accordingly, the worker’s appeal on this issue is granted.

2. Travel expenses to see his doctor

The worker lives in a different town than his place of employment. There are doctors in his home town as well as in close proximity to his place of employment. When the worker was injured in September 2005 he saw a doctor in close proximity to (though farther than) his workplace and continued to see him for ongoing care. The WCB refused to provide the worker travel expenses to see this doctor as it took the position that there was a doctor in his home town that was closer.

The worker says that he is entitled to mileage to see the doctor close to his employer as it was reasonable to do so and as that doctor became his primary caregiver. He relies on WCB Policy 44.120.10 (the “Policy”) section 3(a)(i) that provides that the WCB will reimburse reasonable travel costs for medical care if the mileage incurred is in excess of that travelled to work. The employer did not take any position on this issue.