The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

As stated in the preamble, the worker developed bilateral lateral epicondylitis as a result of her work duties. The worker says that when she returned to work in March 2003 she had still not recovered from her compensable injury and that the WCB should never have lifted her compensable work restrictions. She also says that she continues to be symptomatic and has difficulties finding and maintaining employment because of this condition.

The issues related to the worker’s ongoing symptomatology and difficulties finding and maintaining employment after May 2003 are not before this panel. This panel’s jurisdiction is limited to the sole issue of the worker’s entitlement to wage loss benefits as of May 27, 2003.

The issue of entitlement to wage loss benefits hinges on whether the worker’s loss of earning capacity as of May 27, 2003 is related to her compensable injury or not. Put simply, for the worker to succeed, the panel would need to find either that she was medically unable to work after May 26, 2003 or that the termination of her employment was directly (and inappropriately) related to the compensable injury.

The evidence surrounding the worker’s return to work program in 2003 and the reasons for her termination are important. With respect to this latter evidence, we want to be clear that this panel will not make any comment or determination on the justification of the termination. That is a labour matter which is not within the jurisdiction of this panel to decide. That said, a termination may become a WCB issue if it is related to a compensable injury. For this reason, this panel needs to satisfy itself as to whether there is evidence that the termination was more likely than not related to the compensable injury.

The Return to Work

As indicated previously, the worker returned to work on March 10, 2003. The decision to return the worker to work was made after a functional capacity evaluation (“FCE”) and approval from a WCB medical advisor.

The evidence on file, which was confirmed by the worker at the hearing, is that her gradual return to work from March 10, 2003 to April 21, 2003 went well. The worker attributed this successful gradual return to work to a variation in her work duties and use of a TENS machine.

This changed however once the worker returned to full-time regular duties in the same department. Her bilateral lateral epicondylitis increased in intensity. Although she used the TENS machine on her breaks, she found it difficult to work. She called the WCB and told them about her difficulties. Her employer was contacted and agreed to change her duties by allowing more variation in her work day. The worker testified that the variation in duties helped her symptoms. The accommodation was short-lived however; she was returned to her regular duties after just one day of varied duties. The employer did not dispute this.

The worker says that she continued to call the WCB to complain about her increase in symptoms and attempted to see her doctor. She also called her physiotherapist who told her she could not help her.

The worker says that she was worried about her level of production and asked her supervisor on several occasions whether she was producing at a sufficient level. Her supervisor told her that she was.

Her conversations to the WCB about her levels of production are recorded on file:

• A May 26, 2003 memorandum indicates that the worker thought that she was terminated because of low productivity issues, and did not indicate issues with her arms at that time.

• A May 29, 2003 memorandum indicates that the worker thought that her production levels were the same as other staff members but others would harass her which made it difficult for her to work;

• A June 6, 2003 memorandum indicates that the worker thought she was let go from her employment for not producing but that her injury had not prevented her from working. There was only one job that the worker felt she could not work at; it caused her so much pain that she had to use the TENS machine for 3 hours after working on that job;

• A June 11, 2003 memorandum indicates that the worker told her case manager that she only had trouble for one day after having returned to work in March 2003 and that was when she was working on that particular job.

At the hearing, the worker confirmed that she felt able to adequately produce though she was in pain and required the use of a TENS machine to do so. The worker also confirmed that she worked full-time hours after returning to her regular duties and had no absences.

The Termination on May 26, 2003

As mentioned above, the worker was terminated on May 26, 2003. The employer says that it was for cause. The worker says that it was because of her compensable injury.

The worker told the WCB that she thought she had been terminated because of her production levels. Those conversations are referred to above. At the hearing, the worker explained that she had spoken to her supervisor on several occasions about her production levels and was told that they were fine. The worker was worried however that the supervisor was not correctly recording the full extent of her production and she therefore complained to management. It was after that complaint that the worker received a warning letter about her production levels. The employer denied knowledge of this letter.

The dispute with her supervisor escalated and on May 26, 2003 the worker handed in a complaint about her supervisor. Two hours later, she was terminated. The worker testified that she thinks she was terminated because of her complaint.

The employer denies this. It says that there was a physical altercation which required the worker’s immediate termination. The worker denies this.

Analysis

Section 39 of The Workers Compensation Act provides that a worker is entitled to wage loss benefits when a compensable injury results in a loss of earning capacity. It is paid until the loss of earning capacity ends.

In accordance with this section, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after May 26, 2003 as a result of her compensable injury. We are unable to make that finding.

In reviewing the evidence as to the worker’s return to work and the events surrounding the termination, we find on a balance of probabilities that the worker’s loss of earning capacity is not related to her compensable injury.

Indeed, the evidence is that although the worker continued to be symptomatic and require a TENS machine at work, she was nonetheless able to work full-time at her regular duties from April 21, 2003 to May 26, 2003. As such, the worker’s loss of earning capacity ended in April 2003.

We turned our minds to whether the worker’s compensable injury and its potential effect on production had any impact on her termination. We find on a balance of probabilities that it did not. Though the evidence is that a dispute arose over the worker’s production levels, this dispute appears to be more related to adequate recording of production levels rather than the worker’s inability to produce because of her compensable injury. The worker told the WCB and testified that she felt that she was producing at or above the production level of other employees. This is confirmed by the worker’s evidence that she complained to management that her supervisor was not correctly recording the full extent of the worker’s production.