The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position

The worker was represented by a worker advocate. The Appeal of Claims Decision form lists the following reasons why the Review Office decision should be overturned:

• The return to work plan was totally unsuitable;
• The workplace environment was poisoned;
• The worker required a reconditioning program;
• The Case Manager’s original decision was reached only after several months of information gathering and meetings with their manager and director;
• The expert witness never interviewed or tested the worker personally;
• The employer embarked on a vindictive campaign against the worker and the Review Office did not take this into account.

The worker advocate also provided a written submission dated October 21, 2008 which elaborated on the grounds for appeal.

Employer’s Position

The employer was represented by an employer advocate. A written submission dated October 22, 2008 was provided to the panel. The position taken by the employer was the same as that outlined in the employer’s appeal to Review Office dated April 8, 2008. It alleged that although the worker was considered incapable of resuming his pre-accident duties, he was still capable of performing suitable alternate duties that did not involve lifting over 25 lbs and limited the amount of above shoulder work. The employer was able to accommodate the worker within these restrictions and a modified duties position was made available to the worker. The employer disputed the worker’s assertion that his level of literacy prevented him from performing the modified duties position and relied on a report from an assistant professor of education. It was submitted that the worker’s refusal to return to work was based solely on the well documented disdain the worker had for the employer and not his inability to perform the duties of that position.

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 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

As the accident occurred in March 2004, the claim is assessed under the Act as it existed at that time. Subsection 22 of the 2004 Act imposes an obligation on workers to mitigate. It states: “Where an injured worker…fails in the opinion of the board to mitigate the consequences of the accident the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable…if the worker…had mitigated the consequences of the accident.”

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits subsequent to August 28, 2006. In order to determine the appeal, the panel must consider whether the modified duties offered by the employer were suitable and ought to have been accepted by the worker. If the modified duties were suitable, the worker would have failed in his section 22 obligation to co-operate and mitigate and thereby would not be entitled to further wage loss benefits. In the panel’s opinion, the modified duties were within the worker’s capabilities and therefore were suitable and ought to have been accepted by the worker.

The central issue concerns whether or not the worker’s literacy level prevented him from working in the employer’s call centre. It was alleged by the worker that he had difficulty reading the tele-prompt script, and for that reason, the modified duties were not suitable. In support of his position, the worker provided a literacy assessment report dated December 8, 2006 prepared by the director of a learning centre. The literacy assessment found the worker’s word recognition, oral reading comprehension and writing/spelling to be at a grade 4-5 level. The general recommendations indicated a good potential to improve his literacy skills with sufficient instruction and practice.

In support of its position, the employer submitted a report dated March 7, 2008 from an assistant professor of education. Based on a review of materials, the report reached two conclusions. First, it concluded that based on the worker’s education, training and experience, there was little reason to suspect that he would encounter any serious difficulties in working in the call centre. The specific life experiences noted in the report were the completion of Grade 12 by the worker, demonstration of technical knowledge in passing tests for journeyman refrigeration mechanic status, and interpretation of blueprints containing numerous technical details, on-the-job demonstration of written and oral communication skills by completing work orders and interacting with customers, and supervisor evaluation during the one day spent actually working in the call centre. The second conclusion reached by the assistant professor was that given the clear lack of association between the scores on the literacy assessment conducted by the learning centre and the specific requirements of working in the call centre, there was very little support for using the literacy assessment as a valid measure of how well one would be expected to perform the required duties in the call centre.

On a balance of probabilities, the panel finds that the worker’s literacy issues did not prevent the worker from accepting the call centre work offered by the employer. In coming to our decision, the panel specifically placed greater weight on the assistant professor’s report than the literacy assessment. We do so despite the worker advocate’s argument that the assistant professor did not personally interview or test the worker. The panel is satisfied that the assistant professor possesses the necessary expertise to be able to draw conclusions based on review of secondary evidence. The curriculum vitae of the assistant professor indicates that he has a Ph.D in psychology with specialization in education and measurement and that he has had extensive professional involvement in the area of measurement and evaluation in schools.

The panel also relied upon its review of the type of multiple choice questions the worker would have had to read in order to complete his journeyman examinations. The panel found that the wording of the journeyman examination questions appeared to be far more complex than the tele-prompt script. This would suggest that the worker’s reading abilities were actually more highly developed than presented. Finally, the panel notes that the teleprompt script involved only a limited vocabulary in an industry with which the worker was familiar. Even though the worker was assessed at having lower than average literacy skills, the panel finds that he still would have been capable of learning enough vocabulary so as to enable him to perform the modified duties. The literacy assessment confirmed that the worker had good potential to improve his skills.

From a physical standpoint, the panel notes that on August 21, 2006, the worker was able to complete a full day of work in the call centre position. There was no indication that the condition of his right shoulder was in any way aggravated by his work that day. The panel finds that the worker’s physical restrictions arising from his shoulder injury did not prevent him from performing the modified duties position. He did not need a reconditioning program to enable him to perform that job.

The grounds of appeal submitted by the worker’s advocate alleged that the workplace environment was poisonous and that the employer embarked on a vindictive campaign against the worker. The panel finds that the employer’s attempts to facilitate a return to work by the worker by making modified duty work available to him were valid. The work offered by the employer to the worker was meaningful and legitimate work which other employees were also performing for the employer. While the panel acknowledges that the work environment may have been less than optimal, this does not create a basis for continuation of wage loss benefits. To the extent that there was acrimony between the parties, this is a labour relations issue and is not relevant to the workers compensation claim.