The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker had a severe ankle sprain injury in the employer's parking lot that was accepted by the WCB as a compensable injury. The issue under appeal deals with whether the employer had offered an appropriate alternative duties position to the worker that the worker should have taken, with the result that there would have been no wage loss benefits required to be paid by the WCB for the period February 6, 2010 to March 4, 2010.

Applicable Legislation and WCB Policy

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.

The employer's position

The employer was represented by an advocate and its disability manager. Their position was that the employer has had a longstanding and comprehensive disability management program at the workplace since the 1990s. The program is very flexible in accommodating employees, whether their medical issues are work-related or not. The advocate stated that after the employer was notified about the injury on February 1, 2010, the disability manager did offer sedentary duties (sitting-type duties) to the worker by phone. The worker, however, advised that she was told by her doctor on February 4, 2010 not to work at all because she was on crutches.

The employer's position was that being on crutches did not equate to a total disability. The advocate also noted that the worker was, in any event, only cleared to be off work until February 20, 2010 (in the middle of the vacation period); the employer could have accommodated the worker at that time, and it should not be penalized (for payment of wage loss) for the worker being away from the available modified duties as of that date, while she was on vacation.

The employer also submitted that the WCB adjudicator should have followed up with the worker's doctor immediately, when the return to work form was not returned by the doctor after the worker's February 4, 2010 visit, especially since the adjudicator knew of the employer's disability management program and knew from the nature of the injury that the worker was not totally disabled.

The worker's position:

The worker was represented by a union representative. They supported the decision made by Review Office, and in particular its finding that "there is no evidence that the employer offered the worker a return to work on light duties." They also asserted that the employer did not make an actual offer of light duties until March 15, 2010 which did result in the worker's immediate return to work at that time to light duties, and by April 6, 2010, a return to her regular duties. Their position was that "until [the worker] was cleared to return to work on March 4, 2010, the employer was not in a position to offer alternate work, nor did they offer alternate work, as they did not have the information to determine an appropriate accommodation."

Analysis:

For the employer to be successful in its appeal, the panel would have to find that the worker had been offered an appropriate and available modified or alternate position with the employer that would have recouped her pre-accident wages in this time period, and that her non-participation or non-attendance at work was somehow unreasonable. After considering all the evidence and arguments presented on this matter, the panel was unable to make these findings, on a balance of probabilities, and would therefore deny the employer's appeal. Our reasons follow.

During the hearing and in response to questions from the panel, the employer expanded on the necessary steps involved to return any injured worker to alternative or modified duties with the employer. The worker and her union representative were in general agreement with the employer's evidence on these matters, and our findings are as follows:

· The employer does in fact have a comprehensive, well-established and formalized disability management program. In the panel's view, there are clear and obvious advantages to this type of program, but there are also certain disadvantages that are a by-product of this system. A number of things have to be in place for a return to work in either modified duties or alternative duties.

· At the outset, a Return to Work form (supplied by the employer) must be completed by a doctor that would set out the medical restrictions for the disability program manager to work with, in designing an appropriate set of job duties. In the absence of that form or where there is an issue with the restriction set, the employer will accept (or seek) a WCB medical opinion or decision from a WCB adjudicator setting appropriate medical restrictions for the injured worker. The panel notes that no restrictions were available to the employer from either source, prior to the worker's start of vacation on February 11. The worker had gotten the forms from her employer, and in full compliance with the instructions given to her, she took the forms to her doctor on February 4. It was her understanding (confirmed by the employer) that the doctor could complete the forms and send them in. The worker's evidence at the hearing was that the doctor did not complete the forms while she was there.

· The WCB adjudicator was aware that the forms had not been completed, in a February 4, 2010 conversation with the worker. The adjudicator did not contact the doctor or a WCB medical advisor at that time or at any time in the month of February to establish appropriate medical restrictions.

· The employer's evidence at the hearing was quite clear that a return to work initiative could not begin without medical information to guide its return to work initiative. As such, the panel finds that the employer did not have in its possession any formal medical restrictions upon which to develop a return to work offer. The employer was not in a position to make a meaningful return to work job offer at that time, within the disability program's own guidelines.

· A list of appropriate restrictions was first provided to the employer by the worker's doctor immediately following his first post-vacation examination on March 4, 2010.

· The next step in the formalized return to work process involves an internal meeting between the disability manager and the worker's manager(s) or other individuals to identify a list of possible light duties. At that time, the known medical restrictions would be discussed and an appropriate position or job duties would be determined. The disability manager's evidence at the hearing is that this standard step, the meeting or discussion, also hadn't taken place prior to the worker's departure for vacation. As such, the panel again finds that a meaningful job offer could not have been formulated or communicated to the worker prior to the vacation period.

· The next step routinely involves a full meeting between the disability manager, the worker's manager(s) and the injured worker, with an invitation to the union to participate as well. This meeting in fact took place in mid-March, leading to a return to work on March 15, to light duties.

· The evidence discloses that the employer and worker ultimately did follow the disability management process, leading to a successful return to a light duty position and ultimately a return to full time regular duties. The panel finds, however, that this process was barely started on February 4, and the first step was in fact not completed until the worker's first visit with her doctor, post-vacation, on March 4, 2010. From that point forward, the process worked quickly and efficiently, resulting in a return to work within approximately 10 days.

· As to the worker's reliance on the February 4, 2010 doctor's note recommending a complete absence from job duties to February 20 (placing her mid-vacation), the panel finds that it was reasonable for the worker to do so. Her condition had been described as severe, and in fact the continuing severity of the ankle condition was still a point of considerable concern for her doctor at the March 4, 2010 examination. The panel notes that the worker did not have a substantive conversation with the employer about specific duties at the work place prior to her departure, had no specific information in hand regarding the availability of specific job duties that could have influenced the doctor one way or the other at the February 4 visit, had no role in the doctor's not completing the forms, and was in all respects fully cooperative with her employer (in delivering the forms to the doctor), in following up with medical updates (at a clinic in Florida for follow-up assessments), and in the disability management process once she returned to Canada from her vacation.