The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) in May 2008. The claim for compensation was accepted and benefits were paid. The worker is presently appealing a decision that was rendered by the WCB’s Review Office which stated that he was not entitled to wage loss benefits after July 11, 2008. A hearing was held on November 24, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits for time that he missed from work after July 11, 2008.

Decision

That the worker is not entitled to wage loss benefits for time that he missed from work after July 11, 2008.

Decision: Unanimous

Background

In May 2008, the worker tripped over the lower leg of a paint line loading cart during the course of his employment. A doctor’s first report dated May 29, 2008 diagnosed the worker with a back strain with bruising to the right low ribs. The claim for compensation was accepted and wage loss benefits were paid.

In a June 17, 2008 report, the treating physiotherapist advised the WCB that the worker wanted to return to work at light duties. Work restrictions were outlined to avoid lifting over 20 pounds, no repetitive bending or prolonged standing or walking.

On June 19, 2008, the treating physiotherapist reported that the worker tried to work the day before but had not been given light duties. She stated that the worker should remain off work, and only work if his restrictions could be accommodated.

On July 3, 2008, the employer advised the WCB that the worker performed modified duties on June 27, 2008 but had not returned to work since. The representative indicated that the worker called to say he would return to work on July 7, 2008. By a physiotherapist note dated July 10, 2008, the worker was cleared to return to light duties as of that date.

On August 1, 2008, the worker came to the WCB accompanied with an interpreter. He advised the WCB that he started work with a new employer on July 14, but after one week he discovered that the duties were too heavy and he could not continue with that new employer. The worker advised that he was going to start another new job on August 5 and that the duties would not be as heavy. The WCB adjudicator reminded the worker that he was to return to work with the accident employer on modified duties. The worker advised that on the day he was to return to work at modified duties (July 11, 2008), he voluntarily terminated his employment in a conversation with the employer. The worker advised that he did not give the modified duties a chance because the new employer had called that day to hire him.

In a decision letter dated August 5, 2008, the worker was advised that his request for wage loss benefits between July 24, 2008 and August 4, 2008 was denied. It was indicated to the worker that he chose not to return to work on modified duties with the accident employer on July 14, 2008 and instead started a new job with a different employer performing regular duties. He therefore failed to mitigate his own recovery and removed himself from employment. Therefore, he did not have a loss of earning capacity during this time period.

On August 6, 2008, the worker appealed the above decision to Review Office. The worker stated that he left his job by mistake and that he did not understand English very well. He said this was the first time he had been injured at work, and he did not know how things worked.

The worker spoke with another WCB adjudicator on August 27, 2008. He stated that he was injured on his second shift with the accident employer. He denied that he terminated his employment with them. He said he received a letter from the accident employer confirming his resignation but stated he did not quit. He worked at a new job for four days but the work was too heavy so he quit. He then started work with another company but the cold temperatures in that work environment bothered his neck, so he only worked there for one day.

On September 4, 2008, Review Office determined that the worker was not entitled to wage loss benefits for time that he missed from work after July 11, 2008. Review Office was satisfied that the worker found other work and decided not to return to light duties with the accident employer. Review Office found no evidence to suggest that the worker misunderstood the decision that he was making nor was there any indication that he would not have been able to perform the modified duties that had been offered to him by the accident employer. On September 14, 2008, the worker appealed Review Office’s decision to the Appeal Commission and hearing was arranged.

Reasons

Applicable Legislation

In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.

This case deals with the worker’s actions (in leaving his job with his accident employer) before he was fully recovered from his workplace injury, and the impact of those actions on the wages he might otherwise have gotten from the accident employer. In this situation, section 22 of the Act is applicable. It provides:

Worker to co-operate and mitigate

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Board may reduce or suspend compensation

22(2) If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

Analysis:

At the heart of this issue lays the obligations set out in the Act that describe the expectations placed on an injured worker, his employer, and the WCB once an accident occurs. In particular, an employer is expected to accommodate an injured worker in alternate duties where at all possible (and with due regard to his compensable medical restrictions), and to pay the worker his pre-accident wages while he is in claim. It is only if the employer is unable to accommodate the worker, that the WCB will step in and pay wage loss benefits to a worker. The obligation on the worker, in the meantime, is to cooperate with the WCB and the employer, both in return to work efforts and in promoting his own recovery. If the worker fails to meet his obligations, the worker’s wage loss benefits can be reduced or suspended. These expectations on the worker are set out in section 22 of the Act.

After a review of all the information on file and from the hearing, the panel concludes that the worker is not entitled to further wage loss benefits for the time missed after July 11, 2008. His decision to leave his employment did affect the wage loss benefits that he would otherwise have received from the accident employer, and it was proper for the WCB to decline to pay further wage loss benefits. Our reasons follow.

At the outset, the panel wishes to comment that it was impressed by the integrity of both the worker and the employer representative, and the strong positive personal relationships between the two individuals that were apparent both in our reading of the file information and at the hearing itself. In this case, there is a consensus (from both the worker and employer representative) on key points of evidence, and the panel makes the following findings:

• The worker was generally aware of the alternative duties program offered by the employer to injured workers, and was specifically aware of certain alternate duties that were available for him to do. In particular, he was aware of a computer position in the office, had done it before, and had liked the position. Both parties noted that these job duties were available to the worker, and the worker specifically acknowledged at the hearing that he would have been able to do those duties full time, if he had continued to work for the employer.
• The worker acknowledged at the hearing that he initiated the discussions with the employer at a Friday, July 11, 2008 meeting, in which he indicated that he planned to leave the employer to seek another job. The employer representative, meanwhile, had set up the Friday meeting to discuss what specific job the worker was going to return to on Monday, since the worker had just been medically cleared to return to work. The conversation about Monday positions did not take place because of the worker’s advice early in the meeting that he was planning to leave his employment. The panel notes that there was some confusion between the parties as to what specific new jobs the worker was seeking, largely due to language difficulties that made it difficult to separate between the worker’s short term goals (the entry level positions he was seeking, as a new immigrant) and his long term ideal careers or jobs. There was also some confusion earlier in the file as to whether the worker actually had another job already in place when he resigned. The panel accepts the worker’s clarification that he did not have the job at the time of the July 11 meeting, but rather that he was describing a job that he knew was available, and in fact he made arrangements to get that job immediately thereafter.
• Nonetheless, the panel finds that the start of employment in a new job with a new employer on July 14 (the Monday following the Friday meeting) is consistent with a finding that the worker did in fact resign his employment from the accident employer on July 11, 2008. The Record of Employment documentation provided by the employer to the worker shortly thereafter is consistent with legislation requirements when an employment relationship ends.
• The worker’s subsequent work history over the next few months was inconsistent, as jobs in some cases wound up being outside his medical restrictions, or did not offer the permanence he sought. As such, he was not continuously employed after leaving the accident employer until his full recovery (which by his evidence was in the fall of 2008), and was thus earning less in that period than he would have, if he had remained with the accident employer.
• The alternate duties position with the accident employer continued to be available within its operations throughout the period in question, and the worker would have been able to access them on a full time basis until his recovery from his compensable injury.

Based on these findings, the panel concludes on a balance of probabilities that the worker would have been able to recoup his pre-accident wages if he had stayed employed with the accident employer after July 11, 2008. His decision to leave his employment was a personal decision which resulted in his failure to mitigate (or reduce) the loss of earnings resulting from his injury. He is therefore not entitled to wage loss benefits for time lost from work after July 11, 2008. The worker’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 8th day of January, 2009