The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 289/2007 holding that he was not entitled to wage loss benefits after February 12, 2007.

On October 17, 2006, the worker suffered a compensable injury to his back. Effective February 12, 2007, the WCB ended his wage loss benefits on the basis that the employer had suitable modified duties available in their call centre that the worker did not avail himself of. He appealed the decision to Review Office. On May 1, 2007, Review Office felt the call centre duties were within the worker’s compensable restrictions and that the worker’s decision to terminate employment negated any entitlement to wage loss benefits. It felt the employer’s ongoing offer of modified duties and willingness to continue meeting with the worker to resolve ongoing concerns was indicative of ongoing employment. It concluded the worker was not entitled to wage loss benefits beyond February 12, 2007.

The worker appealed to the Appeal Commission and a hearing took place on August 23, 2007. The worker appeared and provided evidence. He was assisted by a labour representative. The employer also appeared and provided evidence.

Issue

Whether or not the worker is entitled to wage loss benefits beyond February 12, 2007.

Decision

That the worker is not entitled to wage loss benefits beyond February 12, 2007.

Decision: Unanimous

Background

The worker’s occupation involves installing and servicing furnaces and water heaters. While performing his duties on October 16, 2006, he suffered a compensable injury to his low back.

On October 26, 2006, the treating physician determined the worker could return to modified duties with the restrictions to avoid lifting over 10 lbs. and no sitting over 20 minutes without getting up to stretch. The worker returned to modified duties but stopped work on December 14, 2006 because of his back condition. He was then placed on WCB benefits commencing December 14, 2006 and returned to modified duties on January 23, 2007. His work restrictions, as outlined by a WCB medical advisor on January 18, 2007 were as follows for a two month period:

• No lifting greater than 20 lbs.
• No prolonged sitting greater than 20 minutes at a time.
• No repetitive flexion of the low back.
• Maximum five shifts per week.

It was noted that between November and December 2006 there was friction between the worker and employer. Examples were as follows:

• On November 24, 2006, the worker advised his case manager that he stopped performing modified duties the day before. He said he was given a helper and was advised that he was going to be back on his truck installing and felt he was unable to perform these duties as a result of his back injury.

• A WCB representative received a telephone call from the employer on November 24, 2006. The employer was frustrated with the worker as they were trying to accommodate him with his return to work and the worker was refusing to work.

• On December 7, 2006, the employer said there were two incidents in which the worker had breached company policy. One related to communication and interaction with another co-worker, and one related to the requirements of his job position. The case manager advised the employer that these incidents were related to performance and activities and were unrelated to the work injury.

• On December 8, 2006, the worker told the WCB that he was working every day and putting in overtime but his back was not getting better. He said his employer was forcing him to work.

• On December 13, 2006, the worker said his employer was trying to force him to quit. He said the employer was forcing him to take an hour and half bus ride to work as they took the company vehicle from him.

• On December 14, 2006, the employer advised that the worker was refusing light duties as assigned. On Monday, the worker did not show up for work and claimed his back was sore. The worker told the dispatcher that he was busy and not available for work.

The worker returned to modified duties in January 2007. On January 29, 2007, the worker reported that he was training new apprentices but his low back was still painful even after going to physiotherapy. He further commented that he believed his employer didn’t want him back.

On January 30, 2007 and January 31, 2007, the employer advised the WCB that the worker did not show up for work.

On January 30, 2007, the worker told his case manager that he did not go to work that day because his employer said they were not paying him for the work he did last week. The case manager advised the worker that he could not pay the worker if he did not perform the light duties.

On February 6, 2007, the employer said he would not be placing the worker in the field if he returned to work. Instead, he would place the worker at the call centre or give him something else to do in the shop. On February 9, 2007, the case manager advised the worker that his employer would place him in the call centre and the worker agreed. The case manager said he would arrange with the employer for the worker to start the duties on February 13, 2007.

On February 9, 2007, the employer advised the WCB that the worker did not show up for work since January 27. He said the worker was told repeatedly that they had modified duties available. An employee was sent to pick up the worker but the worker refused the ride. The worker said he would be back to work on February 12. The employer noted that in addition to not showing up for work, the worker was contacting a customer repeatedly related to work that involved another employee. Therefore, before the worker did return to work, the employer said he would determine whether disciplinary action was warranted. He said he was in the midst of arranging a meeting with the worker and invited the case manager to attend.

On February 12, 2007, the worker told a case management representative that he was aware of the invitation to return to work but given the hostile environment at the workplace, he refused to go in because his boss had threatened him. He said he attempted a return once but the employer refused to pay him. He said he was seeking the assistance of the department of labour.

Later on February 12, 2007, the case manager called the worker. The worker indicated that his boss called him last night and wanted to meet with him prior to him starting work. He said if his boss wanted to discuss employment issues, that only meant that he wanted to fire him. The case manager advised the worker that his job was to get him back to his pre-accident duties which in this case involved facilitating a return to modified duties within his restrictions. If he did not accept light duties, he would not get paid. The worker then stated that he knew this was not a WCB issue so he was going to go to the labour board and would let them deal with it.

On February 27, 2007, the worker asked his case manager why he was not getting paid. The case manager referred to the conversation he last had with the worker in which he stated he would not get paid if the employer had modified duties available within his capabilities. It was then decided the case manager would contact the employer to arrange a meeting. The meeting was set for March 2, 2007. On March 1, 2007, the worker called the case manager to state that the case manager did not have to be at the meeting as he understood that the matters to be discussed were not WCB issues.

On February 27, 2007, the case manager wrote the worker to advise that the call centre duties offered by his employer were appropriate and were within his restrictions. As the worker elected not to return to work at modified duties starting February 13, 2007, there was no loss of earning capacity beyond February 12, 2007.

On March 2, 2007, the worker advised the WCB that he walked out of the meeting that he had with the employer. He said that due to family matters, he had to leave the province.

On March 7, 2007, the worker’s wife asked the case manager to set up a meeting with the employer and advised that she wanted to be in attendance.

Subsequent file records show that the employer suspended the worker from March 19 to 26, 2007 and that the worker terminated his employment on March 20, 2007.

On March 20, 2007, the worker wrote to state that he had no problem with the modified duties of answering phones but the work environment was a hostile one. He said he was hurt during the course of his employment and that he was not paid for 72 hours of work in December 2006.

On March 21, 2007, a sector service manager advised the worker that he was unable to cover wage loss benefits after February 12, 2007 as his employer had been willing and able to accommodate him with alternate duties in the call centre that was respectful of his work restrictions. The sector manager noted that the worker did not show for the meeting that was scheduled to take place on February 12, 2007 that would have resulted in a return to work and that the information showed the employer did not cancel this meeting. As the worker was suspended by his employer for one week for a non-claim related issue, the WCB would not be able to cover this period. As the worker terminated his employment on March 20, 2007, wage loss benefits would cease in any event, effective the date of the termination. The sector manager concluded that there was an alternate duty offer and meeting set for February 12, 2007 which the worker did not attend. As this represented the initial meeting that restarted return to work discussions, he believed this was a reasonable date to conclude wage loss benefits.

Reasons

The worker attended the March meeting and agreed to begin the offered modified duties. He subsequently changed his mind and notified the WCB that he would not be returning to work with the accident employer.

At the hearing the worker expressed concern with a number of incidents that had transpired since his workplace accident including his pay, his method of transportation and his employer’s practices. These issues are not workers compensation issues and while they are upsetting to the worker, they do not excuse him from his obligations to mitigate the consequences of the accident. The panel finds that subsection 22 (1) (a) of The Workers Compensation Act is applicable in this case in that it provides that every worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury.

The panel finds the worker failed to mitigate the consequences of the accident when he refused to work at the modified duties offered by the employer. The panel finds the call centre duties offered by the employer were within the worker’s restrictions and he would have been able to perform these duties as of February 12, 2007. The worker chose not to participate in the modified duties, not for reasons relating to his medical condition but instead for other non compensable issues. We find the worker is not entitled to wage loss benefits as of February 12, 2007 and his appeal is therefore denied.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

M. Day - Commissioner

Signed at Winnipeg this 27th day of September, 2007