The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker participated in the hearing by teleconference. The employer did not participate in the hearing.

The issue before us is whether the worker is entitled to wage loss benefits after October 1, 2009. As of that date, the worker had been declared fit to return to modified duties, with restrictions of no repetitive, resisted pushing/pulling, no use over shoulder height or outside body border, and no lifting greater than 10 pounds. Those restrictions became permanent on May 27, 2010 when the orthopoeadic surgery consultant determined that the worker had achieved maximum medical improvement and noted permanent restrictions of no work with the right upper limb above shoulder level and no lifting or carrying more than ten pounds above waist level.

The determination of the issue before us is dependent upon whether the employer had modified duties available for the worker after October 1, 2009 that were within his restrictions. If modified duties were available to the worker, he would no longer be entitled to wage loss benefits. We find that on a balance of probabilities the employer did not have modified duties available for the worker within his restrictions. The worker is therefore entitled to wage loss benefits after October 1, 2009.

Following his injury in October 2008 the worker continued to work as a long distance truck driver hauling goods between Winnipeg and Thunder Bay. In his evidence he stated that he wanted to continue working, and had requested that his employers provide him with lighter duties. The worker advised the WCB on September 17, 2009 that his dispatchers in Winnipeg had tried very hard between the date of the accident and January 2009 to accommodate him by providing him with direct loads, with no lifting along the way. When he made return trips from Thunder Bay, however, the Thunder Bay dispatcher would not accommodate him with a straight drive back to Winnipeg. She advised him that he was one of the few drivers that “did it right.” He was therefore given loads which required him to stop several times on the return trip and lift large boxes, often weighing 75-80 pounds. The heavy lifting caused increased pain in his shoulder. For a period of time he “did everything one handed,” however by January 2009 he sought medical treatment and was provided with a medical note limiting him to modified duties. In his evidence he stated that when presented the note, the Winnipeg manager informed him there was no such thing as modified duties and that he was to “just drive the truck.” He was then again given a route that required him to do lifting, and at that point he advised his manager that he was taking holidays to deal with both medical and personal issues. He advised that he was probably finished at the Winnipeg terminal, and he would be moving back to Thunder Bay. His manager advised him to see him at the end of the month following his holidays and they would see what they could do.

The worker's evidence was that when he attended on February 28, 2009 at the Thunder Bay office he was told that he would have to call his manager in Winnipeg. He did so, and on March 9, 2009 the manager called him back to advise that there was work for him in Winnipeg driving a truck. On March 12, 2009 he again spoke with the manager who advised that “we have no modified duties so come back and drive the truck.” The worker declined, stating that he could only work modified duties, and he could not perform the duties that were available in Winnipeg. On March 24, 2009 the worker was called by the Thunder Bay manager and given 24 hours to report back to Winnipeg. When he inquired as to the nature of the job that was available in Winnipeg he was told that it involved internal office duties which he understood to include “filing papers and counting and stuff.” The worker expressed concern that the Winnipeg manager would have him driving a truck and he refused to return to Winnipeg. He was then terminated on March 25, 2009.

The panel spent some considerable time with the worker reviewing the precise nature of his duties with the employer, both when based in Thunder Bay and following his move to Winnipeg. The worker’s employer moves goods across Canada. Trucks would transport goods from Winnipeg to Thunder Bay, with delivery either to the employer’s terminal, or to local Thunder Bay stores. On the return trip, product from southern Ontario and eastern Canada would be delivered either locally in Thunder Bay or en route to Winnipeg.

When the worker was based out of Thunder Bay he drove either to Winnipeg or to the United States, but primarily he drove the Thunder Bay/Winnipeg corridor. He typically drove to Winnipeg and back three times per week. While some of the work was “pin to pin”, i.e. he would pick up a trailer, and drop it off, more of it was LTL (less than load) which typically required heavy lifting of product at the point of delivery. On certain trips, in particular the trip leaving Thunder Bay on Sunday evenings, there was a lot of physical work. The trip would require him to leave Thunder Bay with a full trailer (weighing anywhere from 19,000 to 35,000 pounds). He would return to Winnipeg via three other cities, and would spend as much as 2 to 3 hours at each stop delivering product from the truck. This required “hand bombing” with limited or no assistance. He would drag skids to the back of the trailer, unload them on to a pallet and then haul them inside. This might require him to jump in and out of the trailer between 10 and 15 times. After the final stop in Kenora he would proceed with an empty trailer to Winnipeg. The trailer would be reloaded in Winnipeg for the return trip to Thunder Bay, and he would generally leave Winnipeg in the evening and arrive in Thunder Bay in the morning. On some trips goods would be unloaded at local stores with the assistance of store employees. He would then reload pallets on to the trailer and carry on to the Thunder Bay terminal. In some instances he would travel directly to the terminal where he would not be required to assist with the unloading of the trailer. On other occasions he was required to crank dollies, which he could no longer do following his injury as it required the use of two hands.

When the worker relocated to Winnipeg in August 2008 his job duties were virtually identical except they were performed in reverse. He did, however, no longer have to drive to the United States.

After his injury the worker’s job duties did not change significantly. While he requested lighter routes, and was accommodated to some degree by the Winnipeg dispatcher, the same could not be said for the return trips assigned to him by the Thunder Bay office. The employer said in a letter to the Board September 10, 2009 that “as we did not want this worker to further injure himself we offered him a slight variance to his job by eliminating most of the lifting portion of his job. We gave him mostly pin to pin which required him to drop and pick up trailers with very little lifting involved. . . . . Our records also indicate that this worker was only on this modified work program for a very short period of time (one week) and he then continued on with his regular duties with no modifications . . . At no time prior to [January 22, 2009] did he mention anything about his shoulder being sore.”

That is not, however, consistent with information provided by the worker’s manager in Winnipeg, who advised the WCB on March 5, 2009 that following the injury the worker was provided with modified duties not doing any deliveries for a one month period. He also confirmed that the worker had made occasional complaints of his shoulder problems since the date of the accident.

We find that the worker was ready and willing following surgery, to continue his employment as a driver after October 1, 2009. The job that he performed prior to his injury, and that continued to be available to him after his injury was not, however a sedentary one limited to driving duties only. While the restrictions imposed on the worker on August 24, 2009 did not prohibit driving, they did prevent repetitive, resisted pushing/pulling, use over shoulder height or outside body border and lifting greater than 10 pounds. The permanent restrictions imposed on May 27, 2010 while reduced, were nonetheless similarly restrictive, prohibiting work with the right upper limb above shoulder level and no lifting more than 10 pounds above waist level. It is clear from all of the evidence that the job duties associated with driving the truck, whether based in Thunder Bay or in Winnipeg were in excess of the job restrictions put in place by the WCB in August 2009.

We find that the worker was not at any time provided with modified duties following his injury that were within the restrictions imposed by the WCB. At best, the employer accommodated the worker for a one month period by limiting the number of trips which required lifting. Even with the attempts by the Winnipeg dispatcher to assign lighter loads to the worker following the October 2008 injury, the worker was consistently assigned routes that required him to drive 8 to 10 hours and also perform heavy lifting. Notwithstanding that his employer had an “open transfer policy” and the jobs to be performed by the worker whether in Thunder Bay or in Winnipeg were virtually identical, when he reported to work in Thunder Bay on February 28 he was advised that no position was available to him. This was notwithstanding his Winnipeg manager’s advice that he could report to Thunder Bay following his holidays and they would see what they could do. While we do not find that there was any promise of a job in Thunder Bay at the end of the worker’s holidays, we find the insistence by the employer that he return to Winnipeg, reflected an unwillingness on the part of the employer to provide the accommodation that was required whether the worker was based in either Thunder Bay or Winnipeg.

The Winnipeg manager consistently informed the worker in conversations in February 2009 and again on March 9 and 12, 2009 that no modified duties were available. That is undoubtedly the case as the terminal in Winnipeg consisted of a small office which employed only a manager, a dispatcher and a secretary. Six drivers were based in Winnipeg, of which the worker was one. In contrast, the facility in Thunder Bay was the base for twenty drivers. On March 5, 2009 the worker’s Winnipeg manager advised the WCB that light duties would be provided which consisted of driving only. Yet on March 23, 2009 the worker was offered, for the first time, a position in Winnipeg that was purported to involve modified duties, when the employer knew that the worker had already relocated to Thunder Bay for personal reasons. We find that the offer of employment at the Winnipeg terminal made on March 24 by the Human Resources manager was one that was disingenuous, and that on a balance of probabilities there was no job available to the worker that was within his restrictions. While there was a vague proposal for a job involving “filing papers and counting and stuff,” we are not satisfied that such a position was in fact available for the worker. At best the worker would have been returned to a position driving a truck, which inevitably carried with it associated duties that fell well outside of the worker’s restrictions.