The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue in the review before us is whether or not the worker is entitled to wage loss benefits for the period July 17 to August 22, 2006. We have determined that the worker is entitled to those benefits.

The Workers Compensation Act ("Act") requires workers to co-operate with the Board in promoting their recovery and reducing their loss of earnings. Section 22 provides that workers must mitigate the consequences of their accident and a failure to do so may result in a reduction of the compensation payable to the worker.

Based on the facts set out in the Background to these Reasons we do not find that the worker failed to mitigate the consequences of the accident. Accordingly we find there is no reason to reduce or suspend the compensation payable to the worker pursuant to the provisions of section 22 of the Act.

The correspondence exchanged between the employer and the worker after the worker sustained a compensable injury in August of 2005, demonstrates several attempts by the employer to terminate the worker's employment, once it became apparent that the worker was not capable of performing his pre-accident duties. For example, on April 21, 2006, the employer sent the worker a letter asking him to resign his position and enclosing a final release and indemnity. In response, the worker wrote back requesting an indefinite leave of absence to deal with the medical issues that prevented him from returning to his pre-accident duties.

In a letter dated April 26, 2006, the employer advised that it was prepared to accommodate the worker's request for an unpaid leave of absence. It stated that as per company policy, the leave was for a 30 day period with the right to apply for an extension. At the worker's request the employer did extend two additional 30 day leaves of absence as set out in its letters dated May 25, 2006 and June 27, 2006 respectively.

On July 12, 2006, however, the employer sent a letter to the worker advising that it had received information that the worker was deemed fit by his doctor to return to modified duties/desk job. It also advised that because the worker had requested a further extension to his leave of absence and had not told the employer that he had been cleared to return to work his leave of absence was cancelled. The letter stated that shortly after he returned to work the worker would be required to participate in an Independent Medical Functional Ability Assessment to develop a plan to return him to his full time regular job at the earliest possible time. It required the worker to report to work on July 17 for temporarily assigned modified duties on a full time basis failing which, the employer advised, it would acknowledge that the worker had abandoned his job and his employment would be terminated effective that day.

Although the worker did not contact the employer by telephone he did respond to the employer's letter by way of his own letter dated July 15, 2006 in which he identified that there appeared to be a number of discrepancies between the employer's most recent correspondence and previous conversations and letters he had had with the employer.

The worker denied any knowledge of medical information stating that he was able to return to modified duties and therefore asked for clarification. He also confirmed that the only reason he had taken an indefinite leave of absence after April 21, 2006 was because the employer had told him that it could no longer accommodate him on modified duties. He stated, therefore, in response to the employer's allegations that his leave of absence was extended under false pretenses, that there would have been no reason to discuss his status.

With respect to the employer's reference in its letter of July 12, 2006, to modified duties, the worker stated in his letter of July 15 that he would be pleased to return on that basis but that his concerns resided in not having his restrictions assessed recently and in having no knowledge of the type of job in which the employer intended the worker to participate. The worker therefore requested clarification of those matters.

A WCB memo dated August 8, 2006 sets out that the employer had not received the worker's letter of July 15, 2006 by the time it delivered its termination letter on July 17. Further, it appears that the medical report of June 14, 2006 in which the worker's physician advised the WCB as to the worker's employment restrictions, was not communicated either to the employer or the worker until August of 2006.

Indeed, once the WCB became involved in the dealings between the employer and the worker regarding the worker's return to modified duties the file discloses that the WCB contacted the worker's treating physician to advise him of the modified duties which the worker would commence August 21, 2006 and requested confirmation that the duties respected the restrictions set out in the physician's report of June 14, 2006. The WCB then delivered a letter to the worker on August 17, 2006 in which it detailed the modified duties the employer was offering to the worker and confirmed that those duties had been reviewed with the WCB Health Care Advisor who agreed that the duties were within the worker's restrictions.

In our opinion, the response by the worker to the employer's letter of July 12, 2006 was entirely reasonable. The employer's letter of July 12, 2006 did not set out any information as to the nature of the modified duties or their duration. Given this fact, coupled with the history of communications between the employer and the worker evidencing a lack of modified duties on the part of the employer, we do not find that the worker failed to take reasonable steps to reduce or eliminate any loss of earnings resulting from the original compensable injury. As a result we find that the worker has not failed to comply with the provisions of section 22 of the Act and accordingly find that the worker is entitled to wage loss benefits for the period July 17, 2006 to August 22, 2006 inclusive.

We have made this decision having regard not only to the provisions of the Act but also to the policies of the WCB.

The WCB recognizes the importance of assisting workers to return to work following a compensable injury and that some times the return to work will require a return by the worker to modified or alternate duties. In particular, WCB Policy 43.20.20 entitled: Modified and Alternate Return to Work with the Accident Employer sets out as its purpose the following:

A. POLICY PURPOSE

One of the WCB's goals is to reduce the impact of injuries by helping the worker to return to work. This is best achieved by returning the worker to the same job with the same employer. Most of the time the worker and the employer will make their own arrangements. The WCB encourages these permanent and transitional arrangements and does not intend that the principles described in this policy will replace these arrangements.

The WCB will only become involved in two situations. The first is when either the worker or the employer requires financial or technical support to help the worker return to work. The second is when the worker and the employer disagree about whether the modified work placement is appropriate. …

Subsection B.2 of WCB Policy 43.20.20 sets out that the goals and objectives of modified or alternate work programs are to facilitate a safe return to work with the accident employer and to help workers regain their earning capacity. Specifically, the Policy provides:

The primary goal after the injury is to safely return the worker to work. The best approach is a co-operative arrangement between the accident employer and the disabled worker. Returning to work with the same employer (if either temporarily or permanently returning to the same work is not possible) includes modified or alternate work.

The worker and employer should establish most placements jointly to ensure the return to work is safe and timely. The WCB will become involved when there is a need for special services or assistance.

In this case, the correspondence from the employer to the worker with respect to the worker's return to modified duties, sent before the employer terminated the worker on July 17, 2006 is in stark contrast to the correspondence the employer sent to the worker subsequent to the termination and ultimate reinstatement of the worker.

For example, in reviewing the employer's correspondence to the worker dated July 12, 2006 we find that there is nothing in that correspondence which would have provided the worker with assurance that the duties the employer was requiring the worker to return to would in fact constitute a safe return to work. That correspondence can be contrasted with the correspondence the employer sent to the worker on August 15, 2006 following its discussions with the WCB. In that letter, the employer set out:

…

• Your return to work on Monday August 21, 2006.
• Your participation in an Independent Medical Examination combined with a 2 day Functional Abilities Evaluation. The purpose of this examination will be to provide all parties with a clear evaluation of your current level of function. This will also provide all parties an opportunity to work together to design a graduated return to work/work hardening program. An appointment will be scheduled for you and you will be apprised of the details, as they are available.
• Until the appointment occurs we will provide you with modified duties for eight (8) hours per day, following the restrictions listed from the report dated June 21, 2006. These are:
• Avoid frequent bending
• Avoid frequent trunk rotation
• Avoid frequent twisting
• Avoid frequent lifting
• It will remain our management right to assign you suitable duties as the business demands warrant.

During this period of modified duties we understand that you may require breaks in order to address pain associated with your injury. We ask that you alert your supervisor (or myself) as to the methods of pain management you are using and what schedule you follow. We agree that there may be times when you will require additional breaks and we encourage you to take them as required. If this break or your need for a recovery period extends (sic) what we have agreed is "normal" I would ask that you take steps to inform your supervisor immediately.

The spirit and intent of both the Act and the WCB policies is that employers and workers work co-operatively on an informed basis to facilitate a safe return to work. This did not happen in this case until the worker was provided with an opportunity to return to modified duties after August 21, 2006. Accordingly we find that the worker is entitled to wage loss benefits for the period July 17, 2006 to August 22, 2006.