The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

Subsection 39(2) of the Act provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends.

Section 22 of the Act does place a positive obligation on an injured worker to mitigate the consequences of a workplace accident, including the financial costs such as wage loss benefits. Workers who are not fully recovered may be required to participate in a return to work program to alternate or modified duties that respect their medical restrictions. If the worker fails to do so, the WCB has the authority to reduce or suspend the worker’s wage loss benefits.

The WCB Board of Directors has made WCB Policy 43.20.20, Modified and Alternate Return to work with the Accident Employer. This policy provides that if a worker refuses to participate in modified or alternate work that was considered suitable for the worker, wage loss benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified work situation.

Worker’s Position and Evidence at Hearing

The worker attended the hearing with her husband who assisted the worker in presenting her case before the panel. The worker answered questions posed by the panel.

At the commencement of the hearing the worker asked the panel to address the issue of the relationship between her depression and compensable injury. The panel declined to address this issue as it had not been identified for consideration before the hearing.

The worker’s husband explained the worker’s position. He referred to a note from the worker’s treating physician dated June 21, 2006 which indicated that the worker was examined on that date and that the worker was not able to return to modified duties for about four to six weeks. He advised that the employer and WCB were provided with copies of the note. He submitted that the worker complied with the physician’s instructions and disputed the WCB’s finding that the worker missed work on her own accord.

The worker’s husband questioned the information attributed to the treating physician in a telephone conversation with a WCB medical advisor on September 14, 2006. The worker provided the panel with an undated letter from the treating physician which she indicated was signed the day before the hearing. The letter was entered as Exhibit 1. The worker acknowledged that she wrote the letter for the physician. The worker’s husband advised that the letter only concerned a note that the physician had already signed. The letter dealt with the worker’s condition on June 21, 2006 and the physician’s discussion with the WCB medical advisor.

The worker’s husband advised that the worker was willing to be examined by the WCB and that she did everything required of her. He advised that the ordeal of dealing with this injury has caused the worker to be depressed and to see a psychiatrist.

The worker advised that her back is constantly in pain and that she uses a TENS machine. She advised that the reconditioning program provided by the WCB in 2007 was helping her back. She also advised that the treatment was aimed at her whole back. When asked to compare her back in late June 2006 with its current state, she advised that her back is 50% better. The worker advised that she is seeing an orthopedic surgeon in April 2007. She advised that she is currently unable to do anything around the house.

Regarding the restrictions on the file in June 2006, the worker advised that she worked with the physiotherapist in preparing the list of restrictions. The worker advised that she took the offer of employment she received from her employer to her treating physician and that he advised her that she could not do the job. He provided her with the June 21, 2006 note to confirm this. She also advised that her treating physician denied that he had agreed that the restrictions were appropriate.

The worker confirmed that in a discussion on June 30, 2006 she told the WCB case manager that she could not perform the modified duties but denied that she said that her employer would not meet the restrictions. The worker also denied that she was advised that if she did not attempt the modified duties the WCB would not pay her as the duties were within her restrictions.

The worker explained that she resigned from her job with the accident employer and took a new job at a site very near her home. She did not feel she could travel to her old job. She advised that her back was 50% better in August 2006 when she started the new job. She advised that she was unable to perform the duties at the new job and had to quit.

Regarding a conversation with a representative of the employer, the worker denied that she expressed concern about the legality of the offer and that it related to her performing different duties at a lower rate of pay. She advised that she told the employer representative that she was unable to perform the duties and said the offer was not fair.

Employer’s Position and Evidence at Hearing

The employer was represented by its loss control manager who made a submission on behalf of the employer and answered questions posed by the panel.

The employer’s representative submitted that the employer offered suitable work but the worker refused the offer. He noted the offer was based upon the advice from her treating physician. He submitted that in refusing to return to the modified duties, the worker failed to meet her obligations under subsection 22(1)(c) of the Act. He submitted that in resigning from her position in August 2006, she also failed to meet her obligations under the Act. He advised that the employer agrees with the decision of the Review Office.

Regarding a conversation that took place with the worker between June 16 and 21, 2006, the employer representative advised that the worker complained about the legality of the offer of modified duties. He said she was concerned about being paid at a lower rate than her regular position. He advised that the modified position was working as a cashier at the rate of $7.75 per hour. He said he explained to the worker that she would be topped-up to her pre-injury wage by the WCB. He advised that he could not remember any conversation with the worker about the worker’s inability to perform the modified duties.

Analysis

The issue before the panel was whether the worker has a compensable loss of earning capacity beyond June 25, 2006. For the appeal to be successful, the panel must find that worker’s loss of earning capacity after June 25, 2006 was caused by her workplace injury. In this case, the panel finds that the worker’s loss of earning capacity is due in part to her failure to mitigate the consequences of her workplace accident.

The panel notes that the worker was injured and was unable to perform her regular duties as of June 25, 2006. However, the worker’s employer offered her modified duties which the worker refused. The WCB then determined that the worker was not entitled to wage loss benefits as a loss of earning capacity did not exist as of June 26, 2006, the date that modified duties were to commence.

The panel finds that the modified duties offered by the employer were appropriate. The panel finds that the duties were consistent with the restrictions identified by the treating physician in the Functional Abilities Form completed on June 15, 2006 which were similar to the restrictions identified by the treating physiotherapist in her report dated June 9, 2006.

The panel also finds that the worker’s refusal to return to work was not reasonable in the circumstances. The worker argued that she was justified in refusing to return to work as she relied upon the advice of her treating physician recorded in a handwritten note dated June 21, 2006. The panel is unable to attach any weight to the opinion expressed by the treating physician in a hand written note that was provided to the worker on June 21, 2006. This note does not provide any evidence of how the worker’s condition changed from June 15, 2006 to June 21, 2006. The panel notes that on September 14, 2006, the WCB medical advisor contacted the treating physician who acknowledged that the restrictions identified by the physiotherapist in June 2006 were appropriate. The treating physician is also noted to have advised the WCB medical advisor that the worker’s concern on June 21, 2006 was that she would have to work outside her restrictions.

The panel attaches no weight to Exhibit #1, the undated letter signed by the treating physician. This letter does not provide any explanation of why the worker could not perform modified duties on June 21, 2006 and, in any case, was written by the worker.

From the evidence, the panel concludes that the worker refused to perform the modified duties because of concerns that she might be asked to work outside her restrictions and because of concerns about the status of the duties and the rate of pay.

By failing to accept the modified duties position the panel finds that the worker failed to meet her obligation under subsection 22(1). The worker did not take all reasonable steps to reduce or eliminate her loss of earnings. The panel notes that the worker was advised by the WCB case manager that her wage loss benefits would be affected by a refusal to accept the modified duties position.

Section 22 provides that the worker’s wage loss benefits can be reduced by the amount that she would otherwise have received had she participated in the modified duty program. The evidence before the panel is that the worker’s pre-accident salary was the sum of $1,121.25 bi-weekly and that the modified duties paid $7.75 per hour. This suggests the worker would not have recovered her pre-accident wages while working at the modified duties position.

In accordance with subsection 22(2) of the Act and the WCB Policy 43.20.20, to the extent that it is applicable, the panel finds that the worker’s benefits should be reduced commencing June 26, 2006 taking into account the amount the worker would have earned had she returned to the modified duties position. The panel refers the file to the WCB to calculate the entitlement and to determine the period of entitlement beyond June 25, 2006.