Decision #76/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker was entitled to have his wage loss benefits reinstated when he became unemployed. The worker was injured in 1995 and was paid wage loss benefits by the Workers Compensation Board (WCB). The worker’s wage loss benefits were discontinued and he subsequently moved to a better paying job. In December 2005 the worker was laid-off and applied to have his wage loss benefits re-instated. The WCB determined the worker was not entitled to wage loss benefits. The worker appealed to the Review Office which determined that wage loss benefits were not payable as the worker demonstrated an earning capacity that exceeded his pre-accident earnings. It also found the worker was not at an economic disadvantage compared to other workers in the industry.
The worker appealed to the Appeal Commission and a hearing was held on April 18, 2007. The panel discussed the appeal following the hearing and rendered its final decision.
Issue
Whether or not the worker is entitled to wage loss benefits starting December 31, 2005.Decision
That the worker is not entitled to wage loss benefits starting December 31, 2005.Decision: Unanimous
Background
The worker sustained a compensable injury to his right hand at work on April 13, 1995. After treatment and recovery from his injury, the worker returned to work for the accident employer as a shop supervisor with permanent physical restrictions.
In May 2002, the worker advised the WCB that he had an opportunity for a new job as a supervisor with another company that was in keeping with his permanent restrictions. He asked the WCB whether he would be eligible for wage loss benefits in the event that the new job did not work out or if the company closed. He was advised by the WCB case manager that he probably would not be entitled to wage loss benefits as he would have demonstrated that his disability did not prevent him from earning an income.
On July 2, 2002, the new employer wrote to the WCB to advise that they planned on hiring the worker as a shift supervisor with the long term goal of him becoming the operations manager. The employer said they were fully aware of the worker’s injuries and restrictions and had no problem complying with those restrictions.
In January 2006, the worker advised the WCB that he had been laid off from his new job due to economic reasons as of December 30, 2005 and asked what he may be entitled to as he was now unemployed.
On January 4, 2006, a manager with Rehabilitation & Compensation Services (RCS) contacted the employer who indicated that the worker was hired as a plant supervisor and that he was laid off due to economic reasons. He said the worker’s performance was good. They were aware of the worker’s WCB claim and restrictions and did not make any accommodations for him as he did not require any. He felt the worker was competitively employable in a plant supervisory role as there were 20 employers in the industry that compete for business and qualified staff.
On January 5, 2006, the RCS manager advised the worker that in her opinion, he was no more at a competitive disadvantage than other workers pursing employment in his industry. She stated that the worker established an earning level in this area of the Manitoba labour market and maintained employment for a period of 3.5 years. These earnings recoup all ‘loss of earning capacity’ that arose out of the 1995 compensable incident and there was no further entitlement to benefits or services related to wage loss. Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity was referenced in the decision.
On November 15, 2006, the worker appealed the manager’s decision. He stated that he continued to be disabled due to his compensable injury and that he sustained a new injury to his right arm.
On January 22, 2007, Review Office determined that the worker was not entitled to wage loss benefits effective December 31, 2005. It noted that the worker had demonstrated that he was not at an economic disadvantage compared to others in the industry and that he had demonstrated an earning capacity that exceeded his pre-accident earnings. His inability to continue working past December 2005 was due to economic reasons rather than his compensable injury. On February 20, 2007, the worker appealed Review Office’s decision and a hearing was arranged.
Reasons
Applicable Legislation and Policy
Subsection 39(2) of The Workers Compensation Act (the Act) provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends, as determined by the board.
The WCB Board of Directors made WCB Policy 43.20.20, Modified and Alternate Return to work with the Accident Employer. This policy which was considered by the WCB and Review Office deals, in part, with workers who are performing modified or alternate work and are laid-off. It provides that the WCB will consider whether there is a loss of earning capacity and, if so, whether or not it is due to the injury. Where the loss of earning capacity is due to the injury, benefits may be payable.
Worker’s Position
The worker attended the hearing and explained his request to the panel. He answered questions posed by the panel.
He advised that when he was injured in 1995 the WCB promised that if he got laid-off from any job, the WCB would pay him wage loss benefits. The worker advised that several years after the workplace injury, he was offered a job with a different employer in the same industry. He said he took the job with the new employer because he was offered more money. In December 2005, the worker was laid-off by the new employer. He then asked the WCB to pay wage loss benefits, but the WCB refused.
The worker advised that since being laid-off, he has applied for employment with other employers in the industry where he had been employed but they would not hire him due to his higher wages. He has not found employment yet.
With respect to his lay-off, he advised that he was the only employee who was laid-off. The other employees who worked there with the worker are still working. He also advised that the new employer hired someone to do his job but gave the position a different title.
He noted that his injury is visible and that he has restrictions regarding the use of his arm.
The worker advised that since being laid-off he became depressed and had trouble sleeping. He has been prescribed medication to assist with these conditions.
Employer’s Position
The worker’s employer at the time of the injury (the accident employer) was represented on this appeal by an advocate. The representative did not attend the hearing but made a written submission dated April 4, 2007.
The representative advised that the accident employer agreed with the Review Office decision. He submitted that there was no compelling evidence that the worker’s current difficulties are due to his previous employment with the accident employer. He noted that the worker had not been employed by the accident employer since October 2002 and had been gainfully employed in essentially the same field for several years after leaving the accident employer. He also stated that the worker had a well-established connection to the workforce and the industry.
The advocate submitted that the worker does not meet the criteria of the Act for governing eligibility for wage loss benefits because the evidence clearly demonstrates that he had his full earning capacity up until his lay-off in December 2005. He noted that the worker was laid-off for economic reasons and not due to his physical condition.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits starting December 31, 2005. For this appeal to be successful, the panel must find that the worker’s loss of earning capacity is a result of his 1995 workplace injury. The panel was not able to make this finding.
The panel has considered all information including the information and argument submitted by the worker at the hearing. The panel finds, on a balance of probabilities, that the worker’s loss of earning capacity is not related to his workplace injury and accordingly that he is not entitled to wage loss benefits.
The panel considered whether the worker was entitled to wage loss benefits in accordance with Policy 43.20.20, Modified and Alternate Return to Work with the Accident Employer. It came to the conclusion that the worker was not entitled to wage loss benefits under this policy.
This policy applies to situations where a worker is employed in modified duties with the accident employer at the time of lay-off. It provides that if the worker is at a competitive disadvantage compared to uninjured workers, and as a result of his workplace injury he cannot compete with other workers in the job market, the worker is entitled to assistance.
The panel notes that the worker was employed by a different employer at the time of his lay-off and according to the second employer, was not performing modified duties. The panel finds that this policy is not applicable.
Although Policy 43.20.20 is not directly applicable, the panel considered whether the worker was at a competitive disadvantage compared to other workers pursuing employment. The panel finds that the worker was not at a competitive disadvantage. The worker has demonstrated his ability to find employment in a specific industry that exceeds his pre-accident earning capacity, and worked at a position which did not require accommodation. As well, there is no medical information on file to suggest that he is unable to perform the duties of a plant supervisor, since his layoff from the second employer.
In this case, the worker left his employment with the accident employer in 2002. He worked for more than three years for the new employer. He earned a higher income with the new employer than with the accident employer, completely recovering any loss of earning capacity which had resulted from the work place injury. He was employed as the plant supervisor and his duties included running a plant with 15 employees, hiring and firing, managing equipment, ordering supplies and apprising management of productivity. The new employer advised that, while aware of the worker’s restrictions, the worker performed his duties without the need for accommodation. His new employer advised that the worker was laid-off for economic reasons.
The panel finds, on a balance of probabilities, that the worker’s loss of earning capacity is not a result of his workplace injury and that he is not entitled to wage loss benefits.
The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 6th day of June, 2007