Decision #121/10 - Type: Workers Compensation
Preamble
The worker suffered compensable injuries to both his arms and hands which he related to his work duties as a garage door installer. The claim for compensation was accepted and the worker is presently receiving long term wage loss benefits from the Workers Compensation Board ("WCB").
The accident employer is appealing decisions made by the WCB that the costs of the claim should remain charged to his firm and that the worker's relocation did not affect his entitlement to wage loss benefits. A hearing was held on October 26, 2010 to consider the matter.
Issue
Whether or not all claim costs should remain charged to the accident employer; and
Whether or not the worker's relocation should have affected his entitlement to wage loss benefits.
Decision
That all claim costs should remain charged to the accident employer; and
That the worker's relocation has affected his entitlement to wage loss benefits.
Decision: Unanimous
Background
On September 10, 2004, the worker filed a claim with the WCB for difficulties he was experiencing with his upper and lower arms and hands that he related to his employment activities of installing garage doors. The worker believed that his injury was caused from winding springs, lifting door panels, installing track and drilling overhead. He stated that he installed one to three doors in a day.
The employer's accident report stated: "He has complained about shoulder, arms & wrist problems over the last 15 years. I think he saw the doctor in the last couple of months for his arms. He came in to work today and said that he can't work. Has doctors note to be off work from September 7-October 7." The employer noted that the worker had been in their employ for over 20 years.
On September 17, 2004, the worker's claim for compensation was accepted based on the diagnosis of bilateral medial and lateral epicondylitis, tendinitis both shoulders and forearms/wrists.
Following a WCB medical examination on January 10, 2005, it was determined that the worker was capable of performing modified duties with the following restrictions: to avoid lifting greater than 10 lbs. with either arm, no repetitive work with either arm and no over shoulder work with either arm.
On January 25, 2005, a WCB case manager met with the accident employer to discuss a return to work plan based on the restrictions outlined by the medical advisor. The employer indicated that the majority of work performed by his company would be outside of the worker's restrictions and that he would not be able to provide the worker with office employment or work as an estimator. The employer indicated that he would give it some thought as to accommodating the worker with other work.
In May 2005, the case was referred to the WCB's vocational rehabilitation branch to perform a vocational assessment as it was considered that the worker's restrictions may be long term in nature.
On October 11, 2005, the WCB advised the worker that based on the results of a Functional Capacity Evaluation, he still required restrictions for a one year period and that the restrictions would be reviewed again in September 2006.
On October 25, 2005, the employer advised the WCB that he was able to provide the worker with a supervisory position for a short time period and would pay him minimum wage. On October 25, 2005, the worker advised his WCB case manager that he would accept the position. The case manager agreed to pay the worker partial wage loss benefits while he was working with the employer.
In January 2006, the worker advised the WCB that his wife was being asked to transfer to another province by her current employer. On January 6, 2006, the WCB case manager advised the worker that should they decide to relocate and given that the worker's position with the employer was temporary and not a permanent position, the WCB would reinstate benefits. They would allow a specific period of time for ongoing job search with support services, and if he did not secure work, his benefits would be reduced in accordance with what the WCB felt he was capable of earning.
On February 14, 2006, the case manager documented that the employer was willing to offer the worker a full time job at minimum wage. "As noted in my previous memos, [the employer] stated that he could not commit to a full time job at the time that he took [the worker] back at modified duties. The problem with the company is that it is a very small company and that an additional payroll cost is difficult for the company to absorb."
On February 23, 2006, a WCB vocational rehabilitation consultant ("VRC") documented that the worker and his wife were relocating to Saskatoon for employment purposes and that the worker thought he had a job in Saskatoon as an overhead door estimator.
On April 24, 2006, the VRC noted to file that the worker starting working as a maintenance person effective April 19, 2006 and that he would be working a 40 hour week and earning a wage of $9.25 per hour.
The WCB case manager documented in a memo dated October 30, 2006 that the worker had later moved to a different town as his wife no longer had a job due to a plant shut down. The worker indicated that his current employer was making him do more and more physical work that was causing him problems with his arms. The worker indicated that he would not quit the job at this time but would be looking for different work.
On December 8, 2006, the case manager noted that the worker was starting a new job on December 11, 2006 and that the starting wage was around $13.00 per hour which was an increase of $4.00 an hour over his last job.
On December 20, 2006, it was determined by the WCB that the worker's restrictions were permanent and compensable.
In a note to file dated May 22, 2007, the case manager recorded that the worker continued to have problems with his arms but remained working for his current employer. The worker was still looking for another job that might be more suitable.
On June 18, 2007, the worker started a new position as a cabinet maker. In a note to file dated August 23, 2007, the case manager noted that the worker was making $10.00 an hour for a 40 hour work week.
In a note to file dated April 23, 2008, the case manager recorded that the worker enjoyed working at the cabinet-making factory and that the job was well within his restrictions. The case manager stated that the WCB was paying the worker partial wage loss in accordance with his current earnings and the worker was anticipating an increase in his hourly rate.
On January 22, 2009, the worker advised his case manager that he continued to be fully employed. He still had good days and bad days but for the most part, he had not missed any time and was able to function in his job.
In a note to file dated April 17, 2009, the case manager noted that the worker had been laid off on April 13, 2009 from the cabinet making position. The case manager advised the worker that he should apply for EI benefits and that the WCB would continue to pay him partial long term wage loss benefits as if he was actually working.
On February 11, 2010, the employer outlined his concerns related to the adjudication and acceptance of the worker's claim as well as the amount of premiums that were being paid because of the claim.
In a letter dated March 12, 2010, a WCB manager wrote to the employer to advise that there was sufficient medical investigation on file to establish that there was a causal link between the worker's injuries and the specific nature and duration of his workplace activities.
On March 24, 2010, the employer requested that the WCB reconsider several issues. On April 1, 2010, Review Office advised the employer that it would address the issues of whether all of the claim costs should be charged to their firm and whether the worker relocating should have affected his entitlement to wage loss benefits.
On May 20, 2010, Review Office determined that the claim costs should remain charged to the accident employer as the particular circumstances of the claim did not meet the criteria outlined under WCB Policy 31.05.10, Cost Relief/Cost Transfers.
Review Office also determined that the worker's relocation inconsequentially impacted his vocational rehabilitation and wage loss entitlement. Review Office noted that the employer was considering providing the worker with a full time permanent minimum wage job at the time he decided to leave Manitoba. The worker quickly obtained employment after relocating and received earnings greater than what the employer was considering to pay him. This meant that the worker received lower partial wage loss benefits as a consequence of the move than he would have received had he remained with the employer and not relocated. On June 1, 2010, the employer filed an appeal with the Appeal Commission and a hearing was arranged.
Reasons
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.
WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) describes certain specific circumstances when an employer may obtain some relief from responsibility for the costs of a claim. One form of relief is that the costs may be transferred from an accident employer to a shared cost pool. This process is called “cost relief.” Subsection 3(a) of the Policy sets out the circumstances in which cost relief may be available.
Employer’s Position:
Three owner representatives were present at the hearing on behalf of the employer. They expressed concern about the dramatic increase in the firm's WCB premiums and the manner in which the worker's claim had been administrated. The employer was concerned that when the worker relocated to another province, he was pressured to accept a job position which was outside of his restrictions. The employer questioned whether this caused the worker's condition to worsen after he moved, and noted that the employer remained responsible for the costs of the claim. It was also apparent that the issue of claim acceptability is one which the employer challenged, but the issue had not been adjudicated by Review Office. The panel explained to the employer that the appeal was limited to determination of the two stated issues, but that it remained open to the employer to ask the WCB to give consideration to the issue of claim acceptability at a later time, if they so desired.
Worker’s Position:
The worker participated in the hearing by way of teleconference. He did not take a particular position on the appealed issues, but was available to respond to questions from the panel. The worker indicated that he did what he felt was best for his family to keep their heads above water and he hoped that nothing would affect his benefits as he was dependent on them given that he was starting at the bottom of the ladder again.
The panel notes that mutual respect between the employer representatives and the worker was evident and it was clear that it was not the employer's intention to negatively impact the worker's entitlement to benefits.
Analysis:
There are two issues before the panel. We will address each one separately.
- Whether claim costs should remain charged to the accident employer
With respect to the first issue, the employer questions whether it should remain responsible for the costs of the worker's claim. It was argued that the WCB pressured the worker to accept employment in job positions which were outside of his restrictions and that this may have caused the worker's condition to worsen, at the expense of the employer.
Subsection 3(a)(iv) of the Policy contemplates cost relief to employers in the following circumstance:
(iv) Where the claim cost includes rehabilitation program expenditures incurred for:
· preventive rehabilitation measures; or
· a further injury that occurs while the worker is on a vocational rehabilitation placement
The panel considered the employer's argument, but we were unable to find medical evidence to support that the worker suffered what would amount to a further injury after moving out of province and working outside of his restrictions. While there are notations on file that the worker had difficulty with certain of the job duties he was required to perform, the evidence does not establish that he suffered a worsened condition as a result or that his claim was prolonged. When queried by the panel, the worker's own evidence was that since he moved out of province, he had not filed any claim for aggravation or further injury to his arms and hands. We are therefore unable to allow the employer's appeal on these grounds.
The panel also gave consideration to whether or not the employer may qualify for relief under any of the other provisions contained in subsection 3(a) of the Policy. We found that there were no grounds for granting cost relief to the employer under the Policy.
The employer's appeal on the first issue is dismissed.
- Whether the worker's relocation should have affected his entitlement to wage loss benefits.
After reviewing the circumstances surrounding the worker's relocation to another province in March, 2006, the panel is of the view that the WCB should not have paid the worker full wage loss benefits during the initial period after the worker relocated to allow time for "job search." The panel accepts the employer's evidence that at the time the worker relocated, the employer had made available to the worker a continuing full time position at minimum wage. It was the worker's own personal choice to relocate and therefore decline the employer's offer of employment at minimum wage. Had the worker stayed in Manitoba and accepted the offer of employment, he would only have been entitled to partial "top-up" wage loss benefits, representing the difference between his pre-accident rate of pay and minimum wage. The panel therefore finds that to the extent the worker was paid full wage loss benefits instead of "top-up", these amounts should not have been paid and the employer is entitled to cost relief in respect of same. The employer's appeal on this issue is therefore allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 15th day of December, 2010