The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

Subsection 39(2) of the Act provides that the WCB will pay benefits until such 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 is 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.

Employer’s Position and Evidence at Hearing

The employer was represented by its safety manager and controller.

The safety manager advised that the employer disagreed with the Review Office decision. She stated that “…the main reason that …our company was appealing it is that …[the worker] was awarded benefits after September 21^st based on the fact that he relied on a relative to provide transportation to work.” She noted that the worker received a ride to work from his father but that his father quit working for the employer, resulting in the worker not having a ride to work. The employer opposed the decision to pay the worker benefits after September 21, 2006 based on the fact that he was unable to get a ride to the worksite

The safety manager noted that the worker had worked for the employer on an as needed basis from September 6 to 14, 2006. She acknowledged that the employer did not have any duties for the worker at the worksite where he usually worked and offered him a position at a highway site but the worker did not attend the worksite.

The safety manager advised that she asked the worker to call the supervisor at the worksite to arrange a ride to work, but the supervisor advised her that he did not receive a call.

While the file refers to the alternate position as a flagman, the controller advised that the worker was not offered work as a flagman rather he was offered work as a dump man which requires less effort than a flagman. He noted that a dump man is not required to carry a flag. The safety manager confirmed that the position offered was a dump man position.

The safety manager advised that she called the worker on October 2, 2006 to ask him to work as a dump man at a different site. She advised that the worker responded by telling her that he did not have proper gloves to work outside and that his doctor said his finger was too sensitive to go outside. She advised that she asked the worker to call her when he had proper gloves and that he called on November 2, 2006 to advise that he had gloves but by that time no jobs were available.

In reply to a question, the safety manager advised that she was not aware of restrictions relating to cold sensitivity until after the employer had offered the outdoor duties. She confirmed that there were no positions for the worker at that time, as the employer’s business is seasonal and other staff were being laid-off.

The controller submitted that it is not the employer’s responsibility as an employer to drive its employees to work. The controller questioned the restrictions relating to “avoid cold” and specifically asked what cold is defined as for the purpose of the restrictions.

Worker’s Position and Evidence at Hearing

The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker answered questions posed by his representative and the panel.

The worker’s representative advised that the worker agrees with the Review Office decision. She noted that the Review Office found that it was unreasonable to expect a worker who did not have a driver’s license to travel to the worksite to perform alternate duties and that the lack of a driver’s license was a barrier to the worker performing these particular alternate duties. The representative also noted that there was no investigation to determine if the transitional employment would have existed for a reasonable length of time.

The representative referred to a September 13, 2006 medical report from a plastic surgeon which placed workplace restrictions on the use of the worker’s right hand including avoidance of cool temperatures. She referred to reports from other healthcare professionals which supported this restriction. She noted that the alternate duties did not comply with the restrictions.

The worker advised that in his discussion with the WCB case manager he was not debating the ride to work issue rather his concern was that he did not have the proper gloves. He advised that the gloves that he received in November were not appropriate and that he had to wait for proper gloves.

In answer to a question regarding why he turned down the alternate duties, the worker advised that the “…main reason I turned it down was because of - - technically I didn’t turn it down. It was just I was waiting for my gloves.”

The worker was asked whether he had been given the phone number for the supervisor at the highway worksite. He advised that he did not recall receiving this information.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond September 21, 2006. As this is an employer appeal, for it to be successful the panel must find that the worker’s loss of earning capacity after this date was not due to the worker’s workplace injury but rather to the worker’s non-participation in a reasonable alternate duties position. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker is entitled to wage loss benefits beyond September 21, 2006. The panel bases this decision on the medical information on the claim file setting out restrictions on the use of the worker’s right hand. The panel relies upon the report of the plastic surgeon dated September 13, 2006 in which the surgeon advises that the worker “… would be able to return to work doing light duties only with the right hand. He is to avoid any form of repetitive lifting, pinching or gripping activities and should avoid any cool temperatures for now.”

The panel also notes the following:

• on September 25, 2006, the treating physiotherapist advised the WCB case manager that the worker should continue with indoor light duties because of his sensitivity to cold.
• in progress reports commencing September 27, 2006 the worker’s family physician advised that the worker was unable to work outside.
• in progress reports commencing October 3, 2006 a second plastic surgeon advised that the worker has cold sensitivity and requires heated gloves.
• special heated gloves were ordered for the worker but were unavailable at the time of the employer’s offer of an outdoor alternate duties position.

The panel notes that the employer was not aware of the restrictions relating to cold sensitivity but finds nonetheless that the alternate duties offered by the employer did not comply with the restrictions. The panel finds that the worker’s failure to accept the alternate duties was reasonable in the circumstances given that the outdoor alternate duties position exceeded his medical restrictions, in the absence of appropriate gloves. Therefore, his benefits should not have been suspended or terminated in accordance with Board policy 43.20.20.