The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 40(1) of the Act defines loss of earning capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

Section 49.3 of the Act imposes an obligation on employers to offer to re-employ workers who have been unable to work as a result of an accident and who, on the day of the accident, have been employed by the employer for at least 12 continuous months on a full-time or regular part-time basis.

WCB Board Policy 43.20.25 (the “Policy”) deals with “Return to Work with Accident Employer”. The Policy outlines the WCB’s approach to return to work of injured workers through modified or alternate duties with the accident employer. When addressing the issue of employer re-employment obligations under section 49.3, the Policy states: “If an employer terminates the employment of an injured or ill worker within six months of re-employment, the employer is presumed not to have fulfilled the obligation. However, the employer may rebut the presumption by showing that the termination was not related to the accident.”

To assist in determining whether or not a termination was related to an accident, the administrative guidelines to the Policy set out the following factors which the WCB may review:

a. The worker’s job description, performance reviews, discipline letters, and other related documentation.

b. Explanations provided by workplace parties.

c. The terms of the collective agreement.

d. Pre-existing, written company policy.

e. Established company practices.

f. Current labour and employment standards and practices.

Worker’s Position

In his Request for Appeal, the worker requests that he be entitled to full wage loss benefits beyond August 1, 2007 on the grounds that he has not recovered from the effects of his work related injury. At the hearing, the worker was represented by a worker advisor who submitted that the issue in the appeal was whether or not the worker made an attempt to mitigate his loss of income. It was his position that the worker did not refuse to return to his employment in modified duties and that he fulfilled his obligations under section 22 of the Act by returning to work. The worker held the belief that he was only re-called back to work so that the employer could terminate him to get him off workers compensation benefits. Overall, it was argued that the injured worker should have his claim reinstated and should receive benefits until such time as he recovers from his injury and returns to gainful employment.

Employer’s Position

A representative from the employer participated in the hearing via teleconference. The employer’s position was that the worker was cleared by his doctor for modified duties and such duties were made available by the employer. Their evidence was that the worker was not totally disabled. What had occurred was that the worker was terminated for just cause and not because of the injury. With respect to the argument that the employer brought him back to work just to terminate him, the employer argued that since section 49.3 of the Act did not apply, it would not make sense for the employer to try to bring a worker back just to terminate him in the absence of an obligation to re-employ under the Act.

Evidence at the Hearing

A considerable amount of evidence regarding the reasons for the worker’s termination was presented at the hearing. The panel heard evidence about the light duties which were provided to the worker and whether he was able to perform them. The duties consisted of data entry into a computer. It appears that some conflict arose about the worker’s performance of these duties. The employer set high performance targets which the worker was unable to meet. This was not due to his ankle injury, but rather was related to the worker’s keyboarding and computer skills. Because of his allegedly slow data entry, the worker’s supervisor criticized him in front of his co-workers. This caused the worker to lose his temper and make derogatory comments which were not spoken to anyone in particular, but were overheard by others.

From the worker’s evidence, it would appear to the panel that the only way in which the worker’s compensable ankle injury impacted his performance of modified duties was that he frequently had to get up from his desk and walk around as his foot would bother him if he sat for extended periods of time. While walking around, the worker would often have a cigarette. The employer accused the worker of taking an excessive number of smoke breaks.

The panel also heard evidence regarding a missed shift by the worker. This was apparently due to miscommunication of scheduling information. The worker and the employer gave contrasting reasons for the miscommunication and allegations of dishonesty were made.

Another reason relied upon by the employer for the worker’s termination was alleged falsification of reports by the worker. At the hearing the worker acknowledged that he made changes to a written report which he entered onto the system but claims that the changes were made in the presence of the writer of the report and were done in the interests of better spelling, vocabulary and “to make it an honest report.”

Evidence regarding the disciplinary process arising out of an earlier letter of complaint sent by the worker to a client was heard. The panel also heard evidence about general dissatisfaction the worker had with the work environment and the manner in which rules and regulations were being enforced by the employer at the worksite.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits after July 20, 2007. For the worker’s appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after July 20, 2007 which was causally related to his workplace injury. In other words, the panel must find that the worker was unable to earn his pre-accident wages as of that date, because of the workplace injury. We were unable to make this finding.

In the present case, there is medical evidence to support the position that as at July 20, 2007, the worker continued to suffer disability associated with his ankle. The progress report of his attending physician dated July 16, 2007 indicated that objective findings included tender medial foot and tender right talonavicular region. At that time, recommended work restrictions were sedentary duties with the worker being able to do short walking on even ground. The issue in this case, however, is not whether the worker had recovered from the effects of his injury, but whether the worker’s loss of earning capacity can be said to have resulted from the workplace injury. Stated another way, the panel must ask itself: “Why is the worker not earning income?” The panel must consider whether the reason is attributable to an inability to perform work duties due to the ankle injury, or whether there are other causes for the lack of income.

In the present case, the worker had been placed in a modified duties position with his employer which accommodated the worker’s restrictions at that time. The worker was being paid his pre-accident wages by the employer while performing his modified duties. In cases where the employer is able to accommodate the worker in an appropriate position, but the worker is removed from the employment either by his/her conduct or by a decision on the part of the employer, wage loss benefits are generally not payable. In such cases, the loss of earning capacity cannot be said to be due to the workplace injury. It is important to note that in cases such as these, it is not the panel’s function to determine whether or not the termination of the employment was justified or appropriate. The panel is limited to reviewing all of the facts surrounding the change in the employment relationship to determine whether the injury was the cause of the termination.

The panel agrees with the employer’s submission that section 49.3 is not applicable in this case because the worker had not been employed by the employer for the requisite amount of time. Nevertheless, it is still useful to consider the factors set out in the administrative guidelines to determine whether the termination of employment was related to the compensable injury.

In the present case, it is the panel’s opinion that on the balance of probabilities, it cannot be said that the worker’s employment was terminated because of his ankle injury. It was terminated because of a number of other factors related to the worker’s relationship with his employer.

The worker alleged that he had only been recalled to work so that his employer could terminate him to get him off WCB benefits. Based on the evidence before it, the panel was not able to reach this conclusion.

At the time of the accident, the worker also held part time employment with another employer as a security guard on his days off. This position required 7 to 8 hours of walking per day, and a lot of stairs, which the worker was unable to do after his accident. As a result of the worker being unable to perform those duties, the worker was terminated from this employment. Since the termination of this employment was caused by his compensable injury, the worker remained entitled to wage loss benefits after July 20, 2007 for loss of earning capacity related to this security guard position and we understand that the WCB did continue to pay these wage loss benefits to the worker.

The worker advisor advanced an argument regarding the worker’s duty to mitigate under section 22 of the Act. In the panel’s opinion, this appeal is determined based on a consideration of the worker’s loss of earning capacity, as per subsections 4(2) and 40(1) of the Act, and therefore the issue of mitigation does not arise.