Decision #24/08 - Type: Workers Compensation
Preamble
A file review was held at the Appeal Commission on January 23, 2008 at the worker’s request.Issue
Whether or not the worker continued to experience a loss of earning capacity due to his workplace injury after his return to work on June 18, 2007.Decision
That the worker did not experience a loss of earning capacity due to his workplace injury after his return to work on June 18, 2007.Decision: Unanimous
Background
The worker has a claim with the Workers Compensation Board (WCB) for a hernia condition which occurred during the performance of his work activities on February 26, 2007. The WCB accepted the claim for compensation and the worker was paid wage loss benefits up until June 18, 2007 when it was determined by his attending surgeon that he was capable of returning to his regular work duties.
On September 12, 2007, the worker advised the WCB that he was only capable of completing his regular work duties but could not accept any of the frequently offered overtime shifts because of his compensable injury. He requested that the WCB reimburse him for the wages that he missed for his overtime shifts.
In a decision dated September 26, 2007, primary adjudication informed the worker the WCB was unable to compensate him for specific overtime shifts he could have worked in the future unless they were mandatory. As the employer confirmed that overtime shifts were optional and not mandatory, the WCB would not cover these wages. On October 11, 2007, the worker appealed the decision to Review Office.
On October 24, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits for missed overtime shifts. Review Office stated there could be a multitude of reasons for a worker to decline overtime shifts. For this claim, the employer confirmed that any overtime shifts were optional and were not mandatory. Review Office said there was no provision in The Workers Compensation Act (the Act) to compensate a worker for missed optional overtime shifts following a return to work. It also indicated there was no evidence to support that the worker’s loss of earning capacity following the June 18, 2007 return to work was solely related to the compensable injury. In November 2007, the worker disagreed with the decision and filed an appeal with the Appeal Commission.
Reasons
Worker’s evidence:
The worker notes in his submission to the Appeal Commission that the WCB’s initial calculation of wage loss benefits reflected the additional shifts he worked over his .08 position to guarantee a 1.0 equivalent position.
The worker maintains that when he returned to work in June 2007, he was not able to accept the extra or overtime shifts that would supplement his .08 position to a 1.0 EFT position. He felt he should be compensated for these missed shifts.
Analysis:
To accept the worker’s appeal, the panel would find that any loss of earning capacity following his return to work after surgery in June 2007 is due to the effects of the workplace injury. The panel has not made this finding.
The panel notes that while the worker had worked a full time equivalent position by making up additional shifts prior to his compensable injury, he did not do so following his post surgery return to work in June 2007. He has not made any argument why he declined the additional shifts but maintains he should be compensated for missed shifts between June and September 2007. The panel disagrees.
We find there is no medical evidence to demonstrate he could not have worked the additional shifts. We relied on his physician’s report of June 8, 2007 that notes “should gradually resume regular duties –i.e. avoid all lifting for first 2 -3 weeks.” The evidence shows the worker resumed his .08 regular duties with these restrictions. There is no indication that he could not have taken on the additional shifts between June and September 2007.
His 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 February, 2008