Decision #103/11 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board
("WCB") which determined that the worker was entitled to wage loss benefits after June 21, 2009. The employer disagreed with the decision and an appeal was filed with the Appeal Commission through the employer's legal representative. A hearing was held on June 7, 2011 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss benefits after June 21, 2009.Decision
That the worker is entitled to wage loss benefits after June 21, 2009.Decision: Unanimous
Background
In September 2008, the worker injured his right elbow and forearm in a work related accident. His claim for compensation was accepted based on the diagnosis of right lateral epicondylitis.
On November 27, 2008, the employer advised the WCB that the worker was offered modified duties on October 14, 2008 to supervise a crew which would require him to climb a ladder but he would not have to perform any manual work. The worker never showed up for work and had not communicated with them. On November 28, 2008, the adjudicator advised the employer that the worker was not fit for modified duties at this time as it was a safety issue for him to climb ladders.
On February 18, 2009, the WCB advised the employer that the worker was fit for work with the following temporary restrictions: no lifting of heavy weights and no ladder climbing.
On March 13, 2009, the employer advised the WCB that they had duties for the worker that would accommodate his current restrictions. The worker would be working regular hours doing inventory which involved counting supplies and material and recording the information. The worker would be called the same afternoon to advise that he could start working on Monday morning at 8:00 a.m.
Information from the employer showed that the worker was contacted on March 16, 2009 to advise him of his return to light duties. The worker indicated that he could not lift because of his bad arm. The employer advised the worker that he would not be required to do any lifting and if he needed anything moved he could ask any number of employees who were present in the shop. The worker indicated that he would contact the WCB as he did not believe that he was required to return to work on modified duties.
On March 16, 2009, the worker told a WCB case management representative ("CMR"), that he received a call from his employer to do inventory work. The worker said he was not sure what kind of inventory work was available but he had a difficult time using his right hand for anything. He attended physiotherapy twice per week and was only using three pound weights. The worker was told that if the duties fell within his restrictions, he would have to try returning to work. The CMR indicated that she would be contacting the worker's physiotherapist and employer to verify information regarding the return to work issue.
The CMR documented a telephone conversation that she had with the employer on March 16, 2009 and obtained additional information regarding the light duty work that was available. The employer noted that the worker did not sound interested and did not want to return to work. The employer indicated that the worker could take breaks as needed and would be paid his regular rate. They had two weeks of work available and were willing to accommodate at reduced hours if needed.
The CMR advised the employer that based on information from the treating physiotherapist, the worker would be capable of light duty work with one week at four hours per day and if it went well, the hours would increase to eight hours per day the next week. The employer wanted it noted on file that they had a light duty return to work policy and were trying to get the worker back to work at some capacity. This was their third attempt at offering light duties and hoped it was successful. The employer felt the worker did not want to come back to work unless he was provided with management duties.
The CMR called the worker who indicated that he would call the employer to confirm a start time for his return to work and that he would be working four hours per day.
The WCB confirmed in a letter to the worker dated March 19, 2009, that he would start work at four hours per day the first week and would return to eight hours per day the week of March 23. Workplace restrictions would be reviewed again after his call in examination with a WCB medical advisor on March 30, 2009.
On March 25, 2009, the WCB case manager recorded a telephone conversation he had with the worker. The worker indicated that the return to work was going okay but he was being asked to work outside his restrictions. He had to work in a trailer that was structurally unsafe due to ice and that he had been removed from it.
The employer advised the WCB case manager on March 25, 2009 that the worker was working the modified duties and was doing well with no complaints. The worker was not required to do any lifting and he could call a helper if he needed something moved.
The worker was assessed by a WCB medical advisor on March 30, 2009. It was concluded that the worker was not capable of returning to his regular work duties. Temporary restrictions were: to avoid lifting more than 10 pounds; avoid repetitive or sustained gripping and grasping activities with the right hand; avoid repetitive push and pull activities with the right hand.
On April 6, 2009, the worker advised the CMR that he was still performing light duties but had a lot of trouble working during the day. He knew that he was not to use his right hand/arm but found this to be very difficult. He was asked by the employer to pick something up with the work truck but he had trouble shifting gears. He was cleaning the shop or having to get in and out of the box of the trucks and found it hard not to use his right arm. He had trouble putting on his own jacket or pulling on his boots with his right hand.
On April 8, 2009, the worker advised his WCB case manager that since being back to work, he sorted nuts and bolts, cleaned up the shop and did some driving. He also worked at cleaning the yard outside. He tried not to use the right arm but could not completely avoid using it. The worker indicated that his arm was swollen, turning blue and he had bruising along the inside. He denied any new injuries and would be seeing his doctor soon.
By letter dated April 13, 2009, the employer indicated that the worker had been instructed by a supervisor not to lift any objects and he was told numerous times that if he required anything to be lifted or moved, he was to ask for help. On April 9, 2009, the worker said he was going home and would not be able to work that day. The worker claimed that he injured his arm the day previous while lifting a roll of material. The worker claimed that he was going to see his doctor and would be in contact with his supervisor. As of 10:00 a.m. on April 13, the employer had not heard from the worker.
The WCB wrote the employer on April 14, 2009 with a list of temporary restrictions outlined for the worker. The employer was asked if they were able to accommodate the worker with a return to work program within these restrictions.
On April 15, 2009, the employer advised the WCB case manager that it was very challenging to reach the worker and communication had been a real problem since the start of the claim. The worker had come in and said that he hurt himself again and was going to his doctor. The case manager indicated that with the type of injury the worker had, it was not uncommon to have flare ups. The case manager said he would continue to monitor the medical information and would advise them when the worker was fit to return to work.
The case manager spoke with the worker on April 15, 2009. The worker noted that his family doctor told him to stay off work until further notice. The case manager reminded the worker of the importance to keep his employer advised of his status.
On May 12, 2009, the worker advised the WCB that he was having an MRI on May 20 and was to stay off work. He was keeping his employer updated regularly at least once a week. On May 21, 2009, the worker said he saw his doctor on May 20 and was still awaiting an appointment date for the MRI.
On May 22, 2009, the WCB advised the employer that the worker was fit for work with temporary restrictions and asked whether they could accommodate the worker with a return to work program within those restrictions.
The employer advised the WCB on May 22, 2009 that they had grass cutting and general yard clean up duties available that would be within the worker's restrictions. It was indicated that the worker and the yard supervisor would be told that the worker was not to do any lifting outside of his restrictions. On May 22, 2009, the WCB confirmed in a letter to the worker that arrangements were made for him to return to work on May 25, 2009 and he would be placed back on the employer's payroll.
On May 28, 2009, the employer's safety officer said the worker was working outside of his restrictions - he was seen carrying armfuls of phone books. The worker had told him he was also lifting 100 pound propane tanks earlier in the day as he did not want to be perceived as being weak. On June 2, 2009, the worker confirmed to the WCB that he had been working outside of his restrictions. The worker indicated that they had him cutting grass and using a reacher all day.
On June 12, 2009, the employer's safety officer advised the WCB case manager that the worker continued to work outside of his restrictions. The case manager spoke with the worker the same day to discuss mitigation and his working outside of his restrictions. The worker indicated that he was having trouble with a co-worker but that he had straightened this out. On June 12, 2009, the WCB wrote to the worker to confirm that if he chose to work outside the workplace restrictions and re-injured himself, the WCB may limit responsibility for his claim.
The employer's safety officer spoke with the WCB case manager on June 16, 2009 to indicate that they had a major incident of insubordination the previous day. The worker began to scream and swear at the yardman and as a result he was sent home at 2:00 pm. The employer was waiting to meet with the worker but he was 15 minutes late and had not yet shown up. If the worker did, he would at minimum be suspended for the rest of the week. The employer wanted to terminate the worker's employment and needed to know from WCB if they could in light of the obligation to re-employ.
On June 16, 2009, the worker spoke with a WCB benefits information representative. The worker stated in part that the new individual who was assigned to give him his duties had been harassing him, calling him a wimp when he said that a task was outside of his restrictions, but then assigning him extremely difficult jobs to perform. On June 16, 2009, the worker came to the WCB offices and spoke with his case manager and the case manager's supervisor about his version of the events that occurred at work on June 15, 2009.
On June 17, 2009, the employer provided the WCB with the following documents: a draft letter to terminate the worker's employment, two Disciplinary Action Notices, a report from the yardman who was assigned to watch and make sure the worker did not work outside of his restrictions, and a copy of the company's harassment policy.
On June 18, 2009, the WCB case manager spoke with the employer's safety officer to advise that the re-employment obligation was met because the reasons given for the firing did not directly relate to the claim or restrictions. They related to the worker violating the harassment protocol. With this information, the employer could make its decision.
On June 22, 2009, the worker advised the WCB case manager that he had been dismissed from his job. The case manager advised the worker that he no longer had a loss of earning capacity as he was dismissed for a variety of reasons, but mainly because he violated the harassment policy. The worker indicated that he did not think this was right. The case manager noted that it was not the WCB's position to determine if he was fired for just cause and that this would be a labour board issue.
The worker provided the WCB with a copy of his written response to the Notice of Termination dated June 25, 2009.
On July 15, 2009, the sector services manager noted to the file that the worker requested the WCB to review its position regarding the obligation to re-employ legislation subsequent to his termination. It was agreed that additional investigation was required to determine whether the employer met the "Termination Presumption" set out in the legislation.
On July 15, 2009, the CM spoke with the employer's safety officer. He said there was no action taken against the other employee as they felt the incident was all due to the worker's situation. The case manager referenced the Harassment Policy and asked if an investigation and meeting or phone conversation was ever held with the worker to ascertain his side of the story. The safety officer indicated that this was not done as they treated this situation as a progressive matter with the worker and that this was the final straw in regards to his employment.
On July 21, 2009, the sector services manager spoke with the employer's safety officer. The safety officer believed that the termination was just and that the WCB did not require any historical information about past practices or a copy of their disciplinary procedures. He stated that he would not have terminated the worker if the WCB obligation was not met.
On July 28, 2009, the sector services manager spoke with the worker about his employment history with the employer. He said there were no specific alternate duties. They varied and were often outside his restrictions. He talked about working in the dilapidated semi-trailer where the screws were embedded in ice and him doing nothing as he could not remove the screws; working at general yard maintenance where most of the material lying about was outside of his lifting restrictions; mowing grass but only with difficulty as he did this with only one arm. The worker refused to mow ditches as it was unsafe given his limitations. The worker also outlined the abuse he received in his dealings with the individual who had been assigned to provide him duties.
On July 29, 2009, a meeting was held with the WCB's Director of Rehabilitation and Compensation Services, the employer's safety officer and the sector services manager. It was felt that the obligation to re-employ criteria had not been met. The safety officer was asked to provide the WCB with a copy of their discipline policy. He did not believe it was required and that he would not release it unless given permission from his vice-president. The safety officer noted that the duties assigned to the worker were appropriate and they did everything they could to ensure that the worker worked within his restrictions. Problems arose when the worker chose to work outside his restrictions. It was felt that the worker should have some ownership in the situation. The safety officer noted that the worker was also offered an estimator position.
On July 29, 2009, the worker confirmed that he was offered an estimator position sometime before his accident. He said he declined the offer because the job paid $20 per hour plus required use of his personal vehicle. At the time, he was making $28 per hour.
In August 2009, several discussions took place between representatives of the accident employer and the WCB's vice-president of Rehabilitation and Compensation Services and the sector services manager.
In a decision dated August 25, 2009, the vice-president of Rehabilitation and Compensation Services advised the employer: "In reviewing the documentation, I noted that we had initially confirmed that [the worker's] dismissal would be supported by the WCB. However, in reviewing the claim documentation, I had concern with this position. Specifically, I didn't find anything in the events that led to his dismissal to suggest that the dismissal was supported by either your company harassment policy, which was passed on to us by your company, or by any reasonable approach to discipline that I am familiar with (the documentation on the claim file indicates that you were not amenable to passing on to the WCB your company disciplinary policy/protocol). Consequently, I directed the involved case management staff to extend [the worker's] wage loss benefits effective the date that he was initially suspended by your firm….when I met with your company officials, while I took issue with some of [the worker's] actions as outlined in the documentation on the claim file, I remained of the view that all of the parties to this situation should renew their commitment to assisting [the worker] in his return to work…"
On September 16, 2009, the employer replied to the letter of August 25, 2009. They noted that the worker was also written up for two Disciplinary Action Notices for insubordination due to refusing to work within the restrictions of his return to work arrangement. The worker re-injured himself at one point as a direct result of not working within his restrictions. The employer noted that the worker's dismissal was in line with the basic employment standards with regard to termination. The employer noted that the worker refused to return phone calls, did not report for work on more than one occasion and he generally had been uncooperative with regard to all of the process since his injury. It was felt that the worker's dismissal, whether or not he was on a return to work program, was completely supported by the company policy as well as by the Employment Standards Code.
On November 16, 2009, the employer was advised that after review of the September 16, 2009 letter, the WCB remained of the view that the worker's termination could not be supported by the WCB. It was believed that all parties to this return to work program could have done more to try to ensure its success.
On February 13, 2010, an advocate for the employer wrote to the Review Office, appealing the WCBs' decision to reinstate wage loss benefit coverage to the worker effective June 22, 2009. On April 20, 2010, a worker advisor submitted to Review Office that the evidence supported the entitlement to wage loss benefits contrary to the employer's representative's argument. A rebuttal submission was later received from the employer's representative dated May 13, 2010.
On June 30, 2010, Review Office determined that the worker was entitled to wage loss benefits after June 21, 2009. Review Office's rationale was that the work provided by the employer was not suitable for the worker, that the worker's termination was directly related to the accident and resulting injury and that the employer did not fulfill its re-employment obligation. Review Office did not accept the employer's suggestion that the worker was terminated for insubordination and harassment unrelated to the accident and determined that the employer had not discharged its burden under subsection 49.3(3). Review Office felt that at the time of the worker's termination, he had not achieved his pre-accident status and continued to suffer a loss of earning capacity due to the effects of his compensable injury.
With regard to whether the worker failed to mitigate, Review Office noted that while working outside his restrictions may have temporarily caused a flare up of his injury, there was no evidence to suggest that the worker permanently exacerbated his condition and there was no basis to reduce or suspend benefits. Review Office did not agree with the employer that the worker failed to mitigate by failing to cooperate with the return to work program. Review Office noted there were problems with the return to work but the fact remained that before these problems could be worked out, the employer terminated the worker's employment, depriving him of any further opportunity to mitigate in that respect. The decision made by Review Office was appealed to the Appeal Commission by the employer's legal representative 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.
Pursuant to section 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.
Subsection 22(1) of the Act imposes an obligation on workers to co-operate and mitigate and provides as follows:
Worker to co-operate and mitigate
22(1) Every worker must
The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and
The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.(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.
The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.Subsection 22(2) of the Act sets outs the consequences of a failure to co-operate and mitigate:
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.
WCB Policy 44.10.30.60 Practices Delaying Worker’s Recovery explains the obligations of the worker, the obligations of the WCB and notes the potential consequences to a worker of non-compliance with subsection 22(1) of the Act. The Policy provides that if a worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to co-operate with the development of a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.
Section 49.3 of the Act imposes an obligation upon employers to offer re-employment to qualifying workers who have been unable to work as a result of a workplace accident. WCB Policy 43.20.25, Return to Work with the Accident Employer provides guidance and interpretation of the re-employment obligations outlined in section 49.3 of the Act.
Employer’s submission:
The employer was represented at the hearing by legal counsel and one of its owners. It was submitted that the worker was not entitled to wage loss benefits for two reasons. First and foremost, it was submitted that the worker had been terminated for insubordination, which arose out of two things: first, a failure to meet his restrictions that were imposed in order for him to have a return to work; and his behaviour with respect to his supervisor. The second reason why the worker was not entitled to wage loss benefits was that he failed to mitigate pursuant to section 22 of the Act. Specifically, the worker failed to adhere to his restrictions and failed to actively participate in the return to work process by failing to keep in touch with his employer and case manager, and ultimately by failing to participate in the work that was assigned to him, which the employer maintained was within the worker's restrictions. For those two basic reasons, the employer submitted that the worker lost eligibility for wage loss benefits after June 21, 2009.
At the hearing, the employer called two witnesses to provide evidence. The first was the safety officer who dealt with the worker at the time he was dismissed. The second was the yardman who worked alongside the worker and who was referred to by the employer as the "yard supervisor."
Worker's submission:
The worker attended the hearing accompanied by a worker advisor. The worker's position was that he was entitled to wage loss benefits beyond June 21, 2009 because his loss of earning capacity was not the result of his termination, but rather, the accident employer's decision to discontinue his accommodation. It was submitted that the alternate work assigned to the worker was not suitable and caused conflict between the worker and his employer over his abilities and their expectations. While "insubordination" was the employer's stated reason for termination, the dispute between the worker and the yardman arose when the worker was attempting to refuse work he considered to be outside his restrictions and that was unsafe. With respect to a failure to mitigate, it was submitted that while some of the activities done by the worker during his return to alternate work may have caused a temporary flare up of his symptoms, there was no evidence that this had any impact on his recovery. It was suggested that the worker fully cooperated with the WCB in their efforts to return him to the workplace. Overall, it was submitted that section 49.3 of the Act provides that a termination is presumed to be related to the accident and that the onus is on the employer to rebut this presumption. It was submitted that the employer failed to demonstrate that its decision to terminate the worker was not affected by his workplace injury. Given the worker's ongoing loss of earning capacity and the employer' s failure to fulfill its obligation to re-employ, the panel was requested to dismiss the appeal.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits after June 21, 2009. At the hearing, the employer conceded at the time of termination of the worker's employment in June 2009, he had not fully recovered from his compensable injury and that he still had a loss of earning capacity. The focus of the hearing was therefore directed towards two sub-issues:
- What was the reason for the worker's termination from employment?
- Did the worker fail to mitigate pursuant to section 22?
We will address each issue separately.
Termination of employment
The worker's employment was terminated effective June 21, 2009. Pursuant to the re-employment provisions in the Act, the employer was under an obligation to re-employ the worker in suitable work. The panel accepts that suitable work within the meaning of the Act and policies was made available to the worker and we are of the view that the crux of the matter involves the termination.
Subsection 49.3(8) provides as follows:
Effect of termination
49.3(8) If an employer re-employs a worker in accordance with this section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer's obligations under this section. The employer may rebut the presumption by showing that the termination was not related to the accident.
The question for the panel concerns the reason for the worker's termination from employment. The onus is on the employer to establish that the termination was not related to the accident. If the employer is unable to satisfy the panel on a balance of probabilities that the termination was not related to the accident, then the re-employment obligation was breached, and the worker is entitled to receive wage loss benefits beyond the termination date.
After considering the evidence as a whole, the panel finds on a balance of probabilities that the termination of the worker was, at least in part, directly related to the compensable injury and its effects, and therefore the employer was in breach of its re-employment obligation. In coming to this conclusion, the panel relied on the following:
- The evidence was that prior to the workplace accident, there had been no issues with the employee with respect to communication or attitude. It was acknowledged by the safety officer that the worker was "a man that likes to work hard." The panel finds that it was only when the worker returned to alternate duties that the troubles began.
- The employer cites insubordination as the reason for dismissal and refers to two disciplinary action notices. The panel notes, however, that both incidents of insubordination related to the suitability of alternate duties. The April 15, 2009 notice indicates that the insubordination was related to the fact that the worker failed to follow light work duties (in addition to a failure to communicate with his supervisor). The June 16, 2009 notice refers to violating return to work job restrictions. While insubordination in the normal sense refers to a willful attitude or behaviour demonstrated by an employee which the employee can control, in this case, the panel feels that the two disciplinary action notices were inextricably linked to the worker's recovery from his compensable injury. In other words, while the worker was in control of his behaviour, this behaviour was still very much influenced by the effects of the worker's injury.
- The termination itself occurred as a result of an incident of insubordination which occurred on June 15, 2009. The employer stated the insubordination of the worker was with the Yard Supervisor. The evidence at the hearing was that the dispute was more akin to a disagreement between co-workers, more so than with a person in a supervisory position as was portrayed to the WCB, over how a job should be performed. The worker's evidence was that the yardman wanted to use certain equipment to take a cable off a winch. In the worker's opinion, the equipment was completely inappropriate for the task and he was asked by the yardman to "try to hold the tire so the front-end loader doesn't move." The worker wanted no part of this endeavor and said he would not do it. The worker questioned the yardman's authority and told him to review the page which set out his physical restrictions. This evidence was confirmed by the yardman who testified that during their verbal exchange, the worker pulled out a sheet of paper outlining his restrictions but the yardman did not read it as he felt he did not need to because he was already aware of the worker's restrictions. In the panel's opinion, the dispute was clearly related to a request made by the yardman to perform a task which would have exceeded the worker's restrictions. We find that the worker was refusing unsafe work and that the request was one by a co-worker rather than a person in a known supervisory capacity.
- The disagreement ultimately led to an exchange of insults, initiated by the worker, which included name calling and use of inappropriate language. At the hearing, it was admitted by the safety officer that the language used during the verbal exchange was not foreign to the culture of that workplace environment. While conduct of this nature is objectionable in any workplace, the panel does not view the verbal exchange to have been an egregious violation of the employer's harassment policy, and we do not accept that the verbal exchange alone would have warranted immediate dismissal from employment in that work setting. We find that it was a culmination of all of the frustrations regarding the worker's return to work which led to the dismissal. The dispute over working outside the worker's restrictions was the tipping point.
- The safety officer testified that: "We felt that -- well, I felt and I confirmed with the owners that he was -- he had poisoned the workplace. Other employees had complained about his attitude, his constant complaining about having to do the kind of work that he was given to do that were within the restrictions set out by the Workers Compensation Board. And it was a concern that we had, that if we brought him back, it was just going to be more of the same issues and that we weren't prepared to deal with that anymore."
Overall, while the panel readily acknowledges that the worker's attitude contributed significantly to the employer's decision to terminate his employment, we do not accept that the termination was unrelated to the accident. We find that the worker's ongoing disability and the difficulties encountered in establishing his return to the workplace played a large role in the decision to terminate. The panel therefore finds on a balance of probabilities, that the presumption is not rebutted, and that the employer was in breach of its obligation to re-employ.
Failure to mitigate
Section 22 of the Act imposes on workers an obligation to co-operate and mitigate the effects of their injuries. If the worker fails to do so, the compensation payable to the worker may be reduced or suspended. Based on the evidence before us, the panel sees no basis for reduction or suspension of wage loss benefits due to the worker's actions.
With respect to communication, although contact between the worker and the employer and WCB may not have been consistent, the worker regularly attended his treatment providers who in turn provided the WCB with written reports confirming continued disability. The WCB was at all times reasonably up to date as to the worker's status.
With respect to working beyond restrictions, the panel is not satisfied that the evidence supports, on a balance of probabilities, that the worker exceeded his workplace restrictions.
At the hearing, the worker denied that he worked beyond his restrictions. His testimony was that he did not lift anything more than 15 pounds and that he would modify the way he did things so that he would not hurt his arm. The worker denied lifting propane tanks or chain link fencing. The WCB file, however, references instances where the worker was reported to have said that he completed tasks which would have exceeded his restrictions, most notably moving/carrying propane tanks and chain link fencing.
The yardman who worked alongside the worker testified that he saw the worker exceed his restrictions, but was only able to identify the task as "lifting more or do some stuff like that." The yardman did not specifically see the worker lifting propane tanks, fencing or shoveling. The safety officer testified that the worker admitted to him that he worked outside of his restrictions, but he was also unable to confirm that he actually saw the worker exceed his restrictions.
In the WCB file, there were allegations that the worker had carried 20 to 24 phone books at one time. At the hearing, this information changed to 6 to 10 phone books. The persons witnessing the worker exceeding his restrictions did not testify at the hearing. The safety officer could only repeat what he had been told by other employees, and even then he was not certain as to the exact number of phone books carried. The worker denied carrying more than two phone books at a time.
The April 15, 2009 disciplinary action notice was issued in part due to the worker shoveling some snow on April 8, 2009. The employer claimed this was outside the worker's restrictions. The worker's evidence was that the shoveling consisted of removing a small drift of fluffy snow (approximately 1 foot by 4 inches) that had accumulated against an overhead door. He used his left arm only and claimed that it took only a few seconds to complete. The worker claimed that no one spoke to him about exceeding his restrictions in performing this task.
In view of the conflicting testimony and the limited incidents where the worker was actually observed to have exceeded his restrictions, the panel finds that the evidence does not, on a balance of probabilities, establish a regular pattern by the worker of exceeding his workplace restrictions.
Even if we were inclined to find that the worker failed to mitigate, the panel notes that a breach of section 22 by a worker typically results in a temporary suspension of benefits until the worker participates. In this case, the termination of employment by the employer eliminated any ability on the part of the worker to correct his actions. We would not find that any failure to mitigate on the basis of poor communication or exceeding restrictions would permanently disentitle the worker to benefits beyond June 21, 2009.
For the foregoing reasons, the panel finds that the worker is entitled to wage loss benefits after June 21, 2009. The employer's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerC. Devlin, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
P. Walker - Presiding Officer
Signed at Winnipeg this 27th day of July, 2011