Decision #97/09 - Type: Workers Compensation
Preamble
The accident employer is presently appealing decisions made by Review Office of the Workers Compensation Board (“WCB”) to deny cost relief and to provide the worker with wage loss benefits beyond July 27, 2008. A hearing was held on August 18, 2009 to consider the matter.Issue
Whether or not the employer is entitled to cost relief; and
Whether or not the worker is entitled to wage loss benefits beyond July 27, 2008.
Decision
That the employer is not entitled to cost relief prior to July 27, 2008; and
That the worker is not entitled to wage loss benefits beyond July 27, 2008.
Decision: Unanimous
Background
On February 22, 2006, the worker sustained injuries to her wrist, shoulder, head and knees when she fell during the course of her work activities as a waitress. The claim for compensation was accepted based on the diagnosis of rotator cuff tendonitis and benefits were paid to the worker.
On May 18, 2007, it was determined by the WCB that the worker was fit to return to work with restrictions that included the avoidance of lifting greater than 10 pounds and no repetitive or prolonged work related to her right arm. The employer was asked to contact the WCB and confirm whether they were able to accommodate a return to work program that met the worker’s restrictions. If they were not able to provide appropriate work, the worker would be referred to a WCB Vocational Rehabilitation Consultant (“VRC”) to explore alternate employment opportunities that met the worker’s restrictions.
File records showed that the employer advised the WCB that they were unable to accommodate the worker with duties that met her compensable work restrictions. On June 7, 2007, the worker was advised that a VRC would be in contact with her to assess her employability within the restrictions and alternate employment opportunities.
In a Vocational Rehabilitation Deem Summary dated July 3, 2007, the VRC noted that the worker had spent 35 years working as a food/beverage server and attempts to return her to alternate or modified employment had been unsuccessful. It was the opinion of the VRC that the worker was “unemployable” and recommended that full wage loss be paid until the worker reached the age of 65 or re-captured her pre-accident earnings.
In a letter dated September 5, 2007, the worker was formally advised that the WCB would not proceed any further with vocational rehabilitation activity. The WCB would continue to issue full wage loss benefits until the worker reached the age of 65 on August 3, 2012.
On May 9, 2008, the employer spoke with a WCB case manager to discuss firm experience costs. The employer indicated that he did not receive the WCB’s letter to the worker dated September 5, 2007. If he had, he would have provided the worker with appropriate modified duties. On May 12, 2008, the employer offered the worker employment as a cashier/hostess which consisted of the following duties:
· greet and seat customers
· clean tables to the nearest side stand
· reset tables
· answer telephone and take reservations
· settle all transactions and balance charges and cash at the end of the day
· co-ordinate take-out orders
On May 23, 2008, the worker voiced concerns to her case manager that she would not be able to handle the physical aspects of the modified duty job offered by the employer. She said she could not lift her right arm to brush her hair or grasp objects, she was unable to reach her right arm out over the table to pick up an object, she could only hold a pen for a limited amount of time in her right hand and was uncomfortable about her ability to do monetary transactions.
In a report dated June 5, 2008, the attending physician outlined his examination findings and concluded that the worker’s ability to effectively write, use a cash register or move dishes off and onto the table would be quite limited, and he could not see the worker effectively carrying out the duties of a hostess.
On July 13, 2008, a WCB medical advisor reviewed the file information and stated that the attending physician’s clinical findings were similar to when the worker was seen previously, so there was no evidence of any objective worsening. She stated that writing or picking up a plate would not be related to rotator cuff dysfunction. The medical advisor stated that the job duties offered to the worker fell within her restrictions and recommended that the worker gradually increase her hours given that she had been off work for a considerable length of time.
On July 18, 2008, the case manager wrote to the worker to advise that he completed a review of the employer’s job offer with the assistance of a WCB rehabilitation specialist and WCB medical advisor. He concluded that the duties offered by the employer were within the worker’s compensable restrictions. The worker was advised that she would not be entitled to wage loss benefits from the WCB after a return to work date had been established. In a further letter dated July 24, 2008, the worker was told that wage loss benefits would be paid to July 27, 2008 inclusive, the date that the employer could start offering modified duties.
On August 5, 2008, the worker’s representative outlined reasons to reinstate the worker’s wage loss benefits beyond July 27, 2008 and for the WCB to clarify the discrepancies between the restrictions noted by the attending physician and the restrictions outlined by the WCB. The representative also asked the WCB to pursue action against the employer in relation to the obligation to re-employ injured workers.
On August 27, 2008, the employer outlined his position that he was entitled to cost relief as the WCB erred in not copying him on the decision dated September 5, 2007.
On September 5, 2008, the case manager advised the employer that he was not entitled to cost relief based on the argument that he was not notified of the WCB’s decision that the worker was deemed competitively unemployable and would receive wage loss benefits until her anticipated retirement date at age 65. The case manager indicated that Cost Relief/Cost Transfers, Section 30, Policy 31.05.10, did not provide the WCB with the ability to provide cost relief in such circumstances. On September 30, 2008, the employer appealed the decision to Review office.
In a letter dated September 10, 2008, the case manager wrote to the worker in relation to the submission made by her representative dated August 5, 2008. The case manager indicated that no change would be made to his previous decisions that the worker was capable of working full time, or to her work restrictions. The case manager noted that the employer was willing to alter the employment duties if certain tasks caused the worker difficulties. The case manager indicated that the diagnosis rendered by the attending physician on June 5, 2008, namely right elbow ulnar neuropathy, was a non-compensable condition and was the reason for the difference in the restrictions provided by the WCB and the worker’s physician. The case manager also noted that the requirements of section 49.3(1) involved an employer’s obligation to re-employ an injured worker. As this section came into effect for claims occurring after January 1, 2007, this section of the Act did not apply to this case. On November 3, 2008, the worker’s representative appealed the case manager’s decision regarding the denial of WCB benefits effective July 28, 2008 and the difference of medical opinion concerning permanent restrictions.
On October 16, 2008, Review Office determined that the employer was not entitled to cost relief. Review Office stated that neither the Act nor WCB policies allow for cost relief due to an employer’s lack of understanding of a process, or because of Rehabilitation and Compensation Services’ omissions in communicating with the employer regarding return to work options or the vocational rehabilitation process.
In a further Review Office decision dated December 11, 2008, it was determined that the worker was entitled to wage loss benefits beyond July 27, 2008. Review Office noted that the worker relocated to a distance of greater than 100 km outside of Winnipeg due to economic reasons. It therefore found it an unrealistic expectation that the worker would be expected to drive in excess of 100 km each way to work given her established restrictions.
Review Office outlined its view that the modified duties proposed by the employer were not a suitable accommodation for the worker given the severity of her injuries, the length of time she had been out of the workplace and her established permanent restrictions. It felt that the physical demands of working in a busy restaurant at peak times were not appropriate for the worker.
On February 3, 2009, the employer was advised by primary adjudication that there was no medical evidence to support that the worker had a pre-existing medical condition to her right shoulder and therefore the employer was not entitled to cost relief on this basis.
On March 9, 2009, the employer’s advocate contended that the worker’s pre-existing right elbow condition prolonged and enhanced the dysfunction of her compensable right shoulder condition and was a barrier to a successful return to work. Therefore, it was the advocate’s position that the employer was entitled to cost relief.
On March 16, 2009, Review Office confirmed the employer was not entitled to cost relief. Review Office found no medical evidence to support that the worker’s right elbow condition had extended the duration of the claim for the right shoulder injury.
On March 30, 2009, the employer appealed the decisions made by Review Office that the worker was entitled to wage loss benefits beyond July 27, 2008 and that the employer was not entitled to cost relief. A hearing was arranged to consider both issues.
Reasons
Submissions by the parties:
Employer’s Position
The president of the employer and an employer advocate appeared at the hearing. With respect to the issue of whether or not the worker is entitled to wage loss benefits beyond July 27, 2008, the employer advocate identified four errors in the rationale given by the Review Office in its decision of December 11, 2008. It was the employer’s position that the Review Office did not properly interpret the evidence and that it should have found that there was a bona fide job offer of suitable alternate employment made to the worker as soon as the employer learned the status of the claim. Once the alternate duties position was made available by the employer, there was no longer a loss of earning capacity on the part of the worker and therefore she was not entitled to wage loss benefits beyond July 27, 2008.
On the issue of cost relief to the employer, the employer submitted two arguments. The first related to the fact that the medical evidence on file made reference to a non-compensable elbow condition. It was the employer’s position that if some of the permanent restrictions which were causing the worker’s loss of earning capacity were attributable to the elbow condition, the employer was entitled to cost relief due to the prolonging effects of that non-compensable condition.
The second cost relief argument related to the fact that the employer felt it had not been properly informed by the WCB about the status of the worker’s claim. The employer’s evidence at the hearing was that in May 2007, it received a letter from the WCB which set out the worker’s limitations and inquired whether or not the employer could accommodate a return to work program for the worker based on those restrictions. The employer determined that the worker would not be able to perform her previous duties with those restrictions and advised the WCB that it did not have a position for the worker. The next communication the employer received from the WCB was dated June 7, 2007, which advised that the worker was being placed in a vocational rehabilitation program. The employer then heard nothing further about the status of the worker’s claim.
In May 2008, it came to the employer’s attention that its firm experience had been significantly impacted by the worker’s claim. The president contacted the WCB and it was only then that the employer became aware that in September 2007, the WCB determined that the worker was not competitively employable. It was only at this point in time that the employer was informed that it could offer any type of employment in its workplace to accommodate the worker. The employer immediately considered whether there were any positions available and shortly thereafter, the employer made an offer of employment in a different position than the one which the worker previously held.
It was the employer’s position that due to the WCB’s failure to explain the accommodation process, and more importantly, the WCB’s administrative error in failing to advise the employer of the decision to deem the worker unemployable, the employer was unable to assist in the accommodation process, and incurred substantial costs and losses as a result. Had the employer been provided with proper notice of the compensation determination made in September 2007 and the option of accommodation in an alternate position, a job could have been offered to the worker at an earlier date.
The employer advocate argued that due to administrative errors by the WCB, WCB Policy 35.40.50 provides cost relief, on the grounds that an overpayment to the worker was created when she could have been working in an alternate capacity. Section 3.ii of the Policy addressed overpayments that result from: “… administrative error by the WCB, or the receipt of incorrect information from [the] employer that affected eligibility or the amount payable.” Appendix “A” of the Policy defines “administrative error” and includes: “failure to obtain relevant information before making a decision.” It was submitted that the employer should be relieved of costs under section 13 of the Policy for the period August 2006 to July 2008, or at minimum, for the period between September 5, 2007 and July 8, 2008.
Worker’s Position
The worker attended the hearing accompanied by a union representative. They spoke only to the issue of entitlement to wage loss benefits beyond July 27, 2008. It was submitted that the employer was asked on three different occasions to accommodate the worker in a position at the workplace and the employer was not willing to accommodate. The worker was told that the employer did not have any work available with the current restrictions. It was only when the employer’s rates went up that it became concerned. It was submitted that the worker did everything she was asked to do and it was only when the employer said the third time that he was not going to take her back that she and her husband made the decision to relocate. She had always planned to go back to work. It was submitted that the employer had every opportunity to fix the problem and it did not until after the worker had already moved.
Analysis:
There are two issues before the panel. We will address each issue separately.
1. Whether or not the employer is entitled to cost relief
The employer claimed two grounds upon which cost relief ought to be granted. The first related to a pre-existing elbow condition.
WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Cost Relief Policy”) describes certain specific circumstances when a claim cost may be transferred from an accident employer to a shared cost pool. This process is called “cost relief”. Section 3(a)(i) of the Cost Relief Policy provides that cost relief may be available to eligible employers: “Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition.”
In the current case, the panel is of the view that section 3(a)(i) of the Cost Relief Policy does not apply. There is insufficient evidentiary support for the position that the worker’s elbow condition either prolonged the worker’s recovery or factored into the imposition of permanent work restrictions. There is no evidence that the restrictions put in place for the worker related to anything other than her compensable shoulder injury. The panel concurs with the file review conducted by the WCB medical advisor dated January 26, 2009 where she notes that the attending physician does not mention any pre-existing condition in his reports, the initial x-ray report notes no abnormalities, no mention of prior problems or any other medical conditions that could delay recovery was made by the worker during the call-in exam and the MRI did not show any abnormalities. The medical advisor concluded that there was no evidence that a pre-existing condition delayed recovery and we agree with her conclusion.
For these reasons, the panel does not accept that the worker’s claim was either caused by a pre-existing condition or was significantly prolonged by a pre-existing condition, and we therefore decline to grant cost relief on this ground.
The employer’s second ground was based on WCB Policy 35.40.50 Overpayments of Benefits (the “Overpayments Policy”). Essentially, the employer is trying to use a “back door” and is asking the panel to make a finding of an overpayment, and then to remove the overpayment from the employer’s cost experience record, as provided for in the Overpayments Policy. The panel is unable to accept this argument because we do not believe that the Overpayments Policy applies to this case. An overpayment to the worker does not exist.
Any entitlement to cost relief must come from the Cost Relief Policy, which is very specific in its terms and narrowly defines the circumstances when cost relief will be granted. The employer in this case alleges that it was prejudiced as a result of an administrative error on the part of the WCB in failing to inform the employer of its rights. Even if the panel were to accept that an administrative error occurred, the Cost Relief Policy makes no provision for cost relief as a result of an administrative error. As a result, we are unable to grant the employer’s request for cost relief.
For the foregoing reasons, we find that the employer is not entitled to cost relief. The appeal on this issue is dismissed.
2. Whether or not the worker is entitled to wage loss benefits beyond July 27, 2008
In order for the employer’s appeal to be successful, the panel must find that as at July 27, 2008, the worker no longer had a loss of earning capacity as a result of the workplace accident. We are able to make that finding.
By letter dated May 12, 2008, the employer had extended an offer for modified work to the worker. The offer was for the position of cashier/hostess and the duties were described as: “greet and seat customers, clean tables to nearest side stand, reset tables, answer telephone and take reservations, settle all transactions and balance charges and cash at end of day, coordinate take-out orders.” The modified duties were available effective July 28, 2008. The employer also indicated a willingness to alter the employment duties if a particular task caused the worker difficulties.
Although at the hearing, the worker claimed that she would be unable to perform the hostess duties, the panel is of the opinion that the worker could have performed enough of the duties such that she would have been able to maintain employment in the hostess/cashier position. The employer was willing to modify the duties as necessary to accommodate the worker, and the panel accepts that the job offer was a legitimate attempt to get the worker back into the work force. The medical evidence on file was not consistent with the degree of disability claimed by the worker. The September 6, 2006 call-in examination by the WCB physiotherapy consultant documented the worker as reporting that although she had ongoing functional limitations, writing was not a problem if she kept her elbow against the chest wall. She also reported being independent in self care and that aside from changing the sheets and vacuuming, she could perform most other activities in the home as tolerated. She did note soreness when chopping vegetables. At the time of the call-in, she walked every morning and would ride a bike in the evening.
At the December 7, 2006 call-in examination by the WCB medical advisor, the worker reported that while she wasn’t able to do much of the housework at first, she was now able to do everything. She could do the shopping, but needed help with the heavier items. She was able to drive. She did have some difficulty holding the blow dryer to dry her hair, but was otherwise able to look after herself. The medical advisor opined that the worker was capable of working modified duties with restrictions of no lifting greater than 10 lbs, no prolonged or repetitive work with her right arm at or above chest level and no repetitive work with her right arm away from her body and against force.
There was little evidence on file to indicate that the worker’s compensable shoulder condition became worse over time. On July 13, 2008, the WCB medical advisor indicated that the restrictions remained reasonable given the diagnosis of rotator cuff tendonitis. The panel is therefore of the view that the worker could have maintained employment in the modified position and therefore no longer had a loss of earning capacity beyond July 27, 2008.
The panel notes that there was some discussion regarding the worker’s relocation to a residence outside of Winnipeg and the fact that it was unreasonable to expect the worker to drive in excess of 100 km each way to work. It was also argued that she had made certain lifestyle choices based on the vocational rehabilitation plan presented to her by the WCB. The fact that the worker chose to move was a personal choice and the consequences of that choice are to be absorbed by the worker. The panel does not accept that the worker relied upon the vocational rehabilitation plan when she chose to relocate. Rather, the panel finds that she had accepted an unsolicited offer to purchase her Winnipeg residence in May, 2007 and made her cottage her primary residence within a month. As the decision to discontinue vocational rehabilitation activity and pay full wage loss benefits to age 65 was not finalized until September 5, 2007 it cannot be said that the worker relied on this decision. We find that the move out of Winnipeg has no relevance in determining whether or not the worker is entitled to wage loss benefits beyond July 27, 2008.
The employer’s appeal on this issue is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of October, 2009