The Appeal CommissionThe Workers Compensation Act of Manitoba

Background:

The Employer’s Issue:

On September 30, 2002, the worker filed a claim with the WCB for increasing pain in both shoulders that he attributed to the repetitive nature of his job duties as a meat cutter. The date of accident was recorded as being September 23, 2002. The last day he worked was September 19, 2002 when he started his holidays. While receiving treatment for his bilateral shoulder complaints, the worker returned to modified duties at reduced hours on October 9, 2002.

The worker had signed an employer document on September 17, 2002 requesting a voluntary “buyout” package. The acceptance of this offer was confirmed on October 4, 2002. On October 22, 2002, the worker indicated that his “buyout” would not be in effect until January 2003. He stated that he planned to work elsewhere but had no confirmed plans of what he wanted to do.

On November 4, 2002, the WCB accepted the worker’s claim for bilateral shoulder difficulties. The worker was paid partial wage loss benefits while he performed modified duties. On January 6, 2003, the worker advised the WCB that his last day of modified duties was on December 20, 2002. He stated he saw a specialist on that date and was advised to remain off work. Subsequent file records showed that the worker continued to receive WCB wage loss benefits beyond January 2003. In August 2003, he was provided with vocational rehabilitation benefits and services.

On March 28, 2007, the employer’s advocate appealed the WCB’s decision to provide the worker with wage loss benefits after January 4, 2003. The advocate argued that the worker voluntarily resigned his position with the employer when he took the buyout package on September 17, 2002. As he chose not to exercise his option of continued employment with the company, his loss of earning capacity beyond January 4, 2003 was not due to his compensable injury but was due to his employment status.

On May 10, 2007, Review Office determined that the worker was entitled to wage loss benefits after January 3, 2003. Review Office accepted that the employer had a practice of providing injured workers with suitable employment and did so at one point in time during the claim. However, Review Office was not convinced that the weight of evidence supported that the employer would have provided the worker with suitable employment on a long term basis. Therefore, the worker’s decision to take the buyout package did not affect his entitlement to wage loss benefits. The employer’s advocate disagreed with the decision and appealed to the Appeal Commission.

The Employer’s Position

The employer was represented by an advocate and a staff person.

The employer’s advocate noted that in 2002 the employer was reorganizing its operations and eliminated a category of positions which had an impact on the worker’s position as a meat cutter. She also noted that pursuant to the collective agreement in force at the time, the worker was offered different options regarding his continued employment with the employer. The options included receiving a cash buyout, or remaining an employee in a different position. She advised that the worker chose the buy-out option and that his last day of employment was January 4, 2003.

The advocate referred to Policy 43.20.20 and submitted that the worker was not laid off but made a conscious decision to leave his employment. She stated that his loss of earning capacity after January 3, 2003 was due to his voluntary removal from the workforce and not due to the workplace injury. As for accommodation by the employer, the advocate submitted that the employer could not accommodate the worker after that date, as he ceased to be an employee. She stated that had the worker wanted to be accommodated, he could have selected an option which continued his employment. She noted that the worker had previously been accommodated by the employer for a similar injury.

The staff person provided a copy of the applicable provisions of the collective agreement and provided clarification regarding the number of employees eligible for the buy-out.

The Worker’s Position

The worker’s representative submitted that Policy 44.80.30.10 applies to this case. He suggested that the buy-out payment is best classified as severance and that severance is excluded from wage loss calculation.

The worker’s representative submitted that if Policy 43.20.20 applies in this case, there is a loss of earning capacity for which the WCB is responsible. He submitted that the WCB is responsible for the loss of earning capacity arising from the compensable workplace related restrictions where this would result in a competitively disadvantaged position. He noted that no light duties were available, and that subsequent vocational rehabilitation assistance was rightfully provided.

In answer to a question, the worker advised the panel that when he accepted the buy-out package, he thought he would recover from his injury and would be able to work as a meat cutter again elsewhere.

Applicable Legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the Act) and policies of the WCB’s Board of Directors. Subsection 39(2) of the Act provides that wage loss benefits are payable until the worker’s loss of earning capacity ends. The WCB determines when this happens based upon medical and other evidence.

The WCB’s Board of Directors has made policies dealing with benefits and services for workers who are not able to return to their pre-accident employment. In this case, the employer has submitted that Policy 43.20.20, Modified and Alternate Return to Work with the Accident Employer, is applicable. The worker has submitted that Policy 44.80.30.10, Establishing Post Accident Earning Capacity, is applicable.

Analysis

The employer has appealed the WCB’s decision that the worker is entitled to wage loss benefits after January 3, 2003. For the employer’s appeal to be successful the panel must find that the worker’s loss of earning capacity after January 3, 2003 was not due to the workplace injury but was due to the worker’s personal action, in particular, his acceptance of a buyout offered by the employer. The panel is not able to make this finding.

In making its decision the panel relies upon the following:

• the buyout option was instigated by the employer which had declared the worker’s position and those of other meat cutters to be redundant;

• the worker accepted the buy-out option before he submitted his claim for a cumulative workplace injury to the WCB;

• the worker was working full-time at the time he accepted the buyout option;

• the worker thought that he would fully recover from the workplace injury at the time that his employment ended;

• the worker has never fully recovered from the workplace injury and as a result has a limited work capacity;

• the worker was only being accommodated in modified employment for five hours per week in January 2003 when his employment ended.

The panel finds that the worker’s loss of earning capacity was caused by his workplace injury. The panel places significant weight upon the fact that the worker did not file his claim for the workplace injury until after the buyout was offered to him and accepted. On careful examination of all the facts including those presented at and subsequent to the hearing, the panel finds that once accepted the buy-out was effectively irrevocable. This placed the worker in the position of only being able to access modified duties with the employer until his employment clock ran out in 2003.

This leaves the worker in a situation where as a result of an employer-instigated buyout program (and the worker’s acceptance of the buyout option prior to the WCB claim), he is left with a limited capacity to work as of January 2003 for circumstances which are largely out of his control.

Given the unique circumstances of the buyout and its acceptance prior to the submission of a claim to WCB, the panel finds that the buyout is not an absolute bar to benefits beyond January 3, 2006.

The panel finds that the worker suffered a loss of earning capacity due to the workplace injury. As the worker was only accommodated for five hours per week when his employment ended, he sustained a loss of earning capacity equal to the remaining hours per week that he was not accommodated. Accordingly, the panel finds that the worker was entitled to partial wage loss benefits after January 3, 2003.

In support of this decision the panel notes the medical report from the worker’s treating orthopedic surgeon dated December 19, 2002 in which the surgeon notes that the worker is not functioning well on his light duties, which still involved heavy and overhead activities.

Unlike the Review Office findings, the panel places no weight upon the discussions held with the employer after January 2003 regarding employment of the worker as there was no employment relationship on which to base a return to work program.

The employer’s appeal is partially successful.

The Worker’s Issue:

As noted above, the worker filed a claim with the WCB in September 2002 for worsening pain in both shoulders that he attributed to the repetitive nature of his job duties as a meat cutter. The claim for his bilateral shoulder difficulties was accepted as a WCB responsibility. The worker has since undergone two surgeries to his left shoulder and one to his right shoulder. He has permanent restrictions to avoid repetitive activities with his left shoulder and not to lift weights over five lbs.

On August 11, 2003, the case was referred to the WCB’s vocational rehabilitation branch on an early intervention basis. It was decided at that time to provide the worker with career planning and a literacy skill assessment while awaiting further decisions about his medical status, work capabilities, etc.

In March 2005, an Individualized Written Rehabilitation Plan (IWRP) was developed for the worker. The occupational goal was Security Guards NOC 6651. The plan included 22 weeks of job search assistance between May 2, 2005 and September 30, 2005. In April 2005, the worker’s vocational rehabilitation (VR) plan was placed on hold as he submitted new medical information for consideration.

On July 15, 2005, the worker expressed interest in other jobs rather than the security field. The worker was advised by his case manager that he could look for other work as long as it was within his restrictions.

On August 1, 2005, the worker restarted the job search portion of his original IWRP and the job search period was extended to December 31, 2005.

In a memo dated September 15, 2005, a vocational rehabilitation consultant (VRC) noted that the worker required further surgery to his shoulder and the WCB’s healthcare branch was to determine whether it was accepting responsibility for the surgery. On September 21, 2005, the WCB case manager advised the worker to continue with his job search efforts until further notice. In October 2005, the WCB accepted responsibility for the worker’s left shoulder arthroscopy and the worker’s VR plan was placed on hold until he recovered from surgery.

On November 21, 2005, the worker advised the WCB that he moved out of Winnipeg to a new location on November 18, 2005. He moved to his new residence/location as he could get a job as soon as he recovered from surgery, i.e. cutting grass and doing yard work. He also commented that a casino was being built in his area and he would get a job there once it was complete.

On September 9, 2006, the worker was advised by his case manager that based on an opinion expressed by the WCB healthcare branch, he had reached maximum medical improvement regarding his left shoulder and was now able to return to his VR program. On September 20, 2006, the worker was advised that the WCB was reverting back to his original IWRP for Security and that he was entitled to 12 weeks of job search assistance as he already received 10 weeks of job search assistance. The worker then underwent surgery for a non-compensable right shoulder condition.

In a letter dated September 20, 2006, the VRC advised the worker of his amended vocational plan which provided him with job search assistance between October 2, 2006 and December 22, 2006. If he did not secure employment at the completion of his VR plan, an earning capacity of $305.00 per week would be implemented.

On September 20, 2006, the worker asked the WCB to restart his job search assistance back to 22 weeks. He argued that his previous job search was affected by the impending surgery to his left shoulder and that no employers would hire him because of it.

In a letter dated November 10, 2006, the VRC confirmed to the worker that his job search period was limited to 12 weeks. As a rationale for the decision, the VRC referred to the WCB’s operational guidelines related to job search assistance. On November 22, 2006, the VRC provided the worker with an additional four weeks of job search assistance after discussing the case with a worker advisor and WCB sector manager.

On February 14, 2007, the case was considered by Review Office based on an appeal submission from the worker dated November 25, 2006. Review Office determined that the worker was entitled to a period of job search and associated benefits up to and including February 20, 2007, which was 22 weeks after September 20, 2006. Review Office’s opinion was that the worker should have been provided with the full 22 weeks of job search for the second job search period. It said that while job search periods are typically cumulative, policy 44.80.30.20 indicated that “minimum job search times may be extended based on the merits of individual cases.” In this case, Review Office felt it was appropriate to extend/restart the job search. However, Review Office was also of the opinion that the worker had some responsibility with respect to his search for employment, and should have begun looking for work more immediately, despite any formal dates later established as the worker was aware and understood by at least September 20, 2006 that he was expected to job search and that the job search was of a limited duration. The worker disagreed and appealed to the Appeal Commission.

Applicable Legislation and Policy

The WCB’s Board of Directors have made Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity, which provides for job search assistance where a deemed earning capacity is implemented.

The Worker’s Position

The panel notes that in a written submission to the Appeal Commission dated March 14, 2007, the worker disagreed with the Review Office decision granting him benefits to February 20, 2007. He agreed that 22 weeks is the correct amount of benefits but that the benefits period should have been calculated from the date that he received written notice that job search benefits were being provided. He noted that he had always received written notice and did not feel that verbal notice was appropriate on this occasion. At the hearing, the worker’s representative advised that the worker was seeking one week of additional job search benefits.