The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

This appeal deals with the consequences of the worker’s failure to accept the employer’s offer of modified duties.

The worker regularly works the day shift. On September 18, 2004 he suffered a compensable injury which took him off work. He attempted a return to work on October 12, 2004 but only lasted a little over an hour. On October 27, 2004 his chiropractor cleared him for modified duties over a three week period commencing November 1, 2004; the first week was to be full-time office duties and the second and third weeks were to be half days of office work and half days of regular duties. This information was transmitted to the WCB case manager who forwarded it to the employer. On that same day, the employer offered the worker modified duties as night security. There is no evidence that these duties were to be combined with part-time regular duties over weeks two and three (as prescribed by the chiropractor). The worker turned down the modified duties for non-compensable reasons related to medication-induced fatigue. The file suggests that there was no further contact between the employer and the worker about other modified duties, including the possibility of working part-time regular duties for weeks two and three.

On November 3, 2004 the WCB case manager e-mailed the employer to ask whether the worker had commenced modified duties. The employer responded on November 4, 2004 and asked the WCB case manager for his position on the worker’s refusal. While the WCB case manager’s response is not clear, it appears as though he thought that subject to a collective agreement provision to the contrary, the worker was not in a position to refuse the modified duties; this was the position he ultimately took in a January 12, 2005 letter to the worker.

Internally the employer examined the provisions of the collective agreement and determined that they did not apply in the present case. Externally however, the WCB did not have any further contact with either the employer or the worker until November 30, 2004, nine days after the worker had returned to regular duties. It was at this time that the WCB case manager called to discuss the worker’s refusal and advise him that if the employer had made a legitimate offer of modified duties and he refused them, then the WCB would not be responsible for the subsequent time loss.

Analysis

To accept the employer’s appeal we must find on a balance of probabilities that the worker should be penalized for not accepting the employer’s offer of modified duties. We are unable to make that finding on the basis of subsection 6c) of the Policy and section 22 of the Act.

Subsection 6c) of the Policy deals with situations such as the present where there is a disagreement between the employer and the worker over the suitability of the modified duties offered by the employer. It clarifies that in such cases it becomes incumbent on the WCB to determine if the work placement is appropriate under the policy. If it is, and the worker refuses to participate after being informed by the WCB, compensation benefits are to be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified work situation. In the case at hand, the evidence on file is clear that although the WCB case manager was advised as of November 4, 2004 that the worker had refused the duties, the WCB case manager did not inform the worker until November 30, 2004 of the consequences of a failure to accept what he considered to be suitable duties. The Policy is clear that it is only from that time forward that wage loss benefits can be affected; in other words, the worker’s wage loss benefits cannot be affected retroactively (except in specific situations that are not present here).

The employer has submitted that the wording of the Policy in its prior (i.e. prior to June 1, 2000) and current (as of January 1, 2007) versions do not contain the provision “after being informed by the WCB”. While that may be so, the Policy does provide that it is applicable to accidents that occurred between June 1, 2000 and December 31, 2006. It is therefore the Policy that is applicable to the case at hand.

We also find that the worker did attempt to mitigate his damages pursuant to section 22 of the Act. As stated in the background, the return to work program outlined by the chiropractor was to last three weeks. The first week was office duties whereas the second and third weeks required the worker to also work his regular duties. The evidence before us is that the employer did not offer a combination of modified duties and part-time regular duties for weeks two and three as set out by the chiropractor. The goal of the chiropractor’s gradual return to regular duties was therefore not met. We also note that the employer did not offer the worker even part-time regular duties for weeks two and three. Based on these facts, we concur with Review Office that the worker cannot be penalized for the consequences of the disagreement over the modified duties.

Based on the foregoing, we find on a balance of probabilities that the worker is entitled to wage loss benefits to November 20, 2004.