The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker is seeking wage loss benefits beyond October 27, 2007. 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.

Worker's Position

The worker attended the hearing with legal counsel who made a presentation on behalf of the worker. The worker answered questions posed by his counsel and the panel. The worker's wife was called as a witness.

The worker's counsel advised that the reason for asking the worker's wife questions was to give the panel an idea of the worker's condition and his ability to have navigated the claims with his employer and his interactions with the WCB from the outset of his claim. He noted that the wife has, in a lot of respects, been acting in the worker's shoes in communicating with his employer and the WCB.

The worker's wife gave evidence about a calendar with her handwritten notes and other hand written notes numbered from page 26 to 50 (with a typed copy attached). These documents were included with the materials filed by the worker. She said that she made the entries on the calendar and that she made the notes with the help of her daughter but in the presence of the worker. She said that prior to 2006, the worker looked after his own affairs but after late 2006, he could not do it anymore so she had to help him. She described the interactions that she and her husband had with the employer, doctors and WCB. She advised that the first time her husband saw his family doctor after September 7, 2007 was on October 19, 2007. She confirmed that on this date the family doctor had both letters that the employer had sent to the worker about return to work. She also confirmed that the family doctor indicated that he did not feel comfortable signing off on this matter, so they arranged an appointment with a specialist.

The worker answered questions from his counsel about his back condition and related medical reports. He indicated that the back condition referenced in the file was a result of two auto accidents that occurred before he started working for the employer. He indicated that he told a representative of the employer about his back in 1997 when he was having a photo taken of a rash on his back.

The worker answered questions about the safety equipment he used at the employer's premises. He said that he always used the safety equipment which included masks with charcoal filters, paper jumpsuits, plastic glasses and rubber gloves. He said that he did not have a fitted respirator.

With regards to his 2007 injury, the worker said the irritants got in his eyes and on his hands and face. He said that it took about three weeks or more for the rash to clear up.

The worker advised that he saw his family doctor who completed the Capabilities Form, dated September 7, 2007, which indicated that he needed to wear a fitted respirator at all times. The worker advised that he was never asked to take a respirator fit test and was never fit-tested.

The worker advised that he attended the employer's premises on September 10, 2007 to return to work. However, he was told there was no job available and that he should go to the unemployment office. He said that he asked about an office job but there was a concern raised about the presence of perfume in the office.

The worker advised that on September 26, 2007 he received a letter from the employer setting out a return to work plan. The worker expressed concern about the plan which required him to return to his painting job and to wear protective gear while at work. He said the gear would be heavy and would be too hot to wear in the summer. He had other concerns including where he could safely change into the gear and how he would communicate with other staff. He responded to the employer by a letter dated October 2, 2007.

The worker acknowledged receiving another letter from the employer dated October 10, 2007 which outlined 3 options for a return to work. He said the first option was the option offered in the September 26, 2007 letter. The second option was to work in the sealed unit section, crating product for shipping. He said that he thought he would have to wear the protective gear and that it would be difficult to do the job with the gear. His main concern about this option was that he could not do the work due to his back. The worker acknowledged that the third option was to bring in medical documentation that supports the need for retraining along with an indication of the type of employment that would meet his restrictions. The worker indicated that he proceeded to get information regarding his back injury.

The worker acknowledged that on October 17^, 2007 he and his wife participated in a conference call with employer representatives. He said that on October 19, 2007 he saw his family doctor who was to arrange an appointment with a specialist.

The worker confirmed that he sent a letter to the employer dated October 22, 2007. He was asked what he meant in the letter where he wrote "I also do not feel that providing you with additional medical information as said in Option No. 3, this is referring to the return-to-work offer, will help since you are unable to accept what [specialist's name] had said in the previous letter I have provided you." He responded that "Well, I thought at this time, they had all the doctors’ letters, and they had that about my back, and I’d also like to indicate that [employer's name] knew about my back long ago when I first started with [employer's name]."

The worker acknowledged that he attended a meeting in an office at the employer's premises on September 10, 2007 and that he did not have any physical reaction after he left the premises. He also acknowledged that he had not worked in the shipping area and had not tried the duties identified in option #2 from the employer. He said the whole plant is full of chemicals and that he could not perform the duties because of his back. The worker was asked what he meant in his October 22, 2007 letter to the employer when he wrote that option # 2 is not a viable option because the employer has stated that he is not entitled to employment counseling or involvement in deciding his own career. The worker responded that it was because he was not capable of doing the job.

The worker's counsel commenced his submission with comments regarding the worker's 2006 inhalation claim. He noted that the worker was never supplied with a proper respirator and was not fit tested for a respirator as recommended by Workplace Safety and Health officials.

The worker's counsel stated:

Our main point in this appeal has been whether or not [the worker's] loss of earning capacity ended at the point in time when [the employer] offered him the return-to-work jobs, and whether or not it is now appropriate for the Compensation Board to be able to rely on those actions taken by the employer in order to conclude for itself that his failure to accept those jobs was sufficient for their purposes to conclude that he was no longer entitled to benefits.

He further submitted that the employer's offers were not reasonable and it was not reasonable for the WCB to rely on these offers in determining that the worker's loss of earning capacity ended on October 27, 2007.

With respect to the employer's offer of September 26, 2007, he noted that the worker posed a series of questions regarding the offer and that neither the employer nor the WCB answered the questions in a real way.

The counsel said the question of whether or not a job that has been offered is reasonable is entirely different than the question, "does this job meet the restrictions that have been imposed on this individual to be able to complete their job." He submitted that the September 26, 2007 offer was not a reasonable offer and that WCB can’t now say that he should have taken it when there were obviously some deficiencies in the plan.

The counsel noted that in a letter dated October 10, 2007, the worker was given two weeks to provide a response to the return to work plan. He said the worker saw his family doctor but that he was unwilling to give advice so referred the worker to a specialist.

Regarding the second option set out in the employer's letter of October 10, 2007, the counsel stated that the second option of crating product was not acceptable because of the worker's back condition. He stated that the WCB did not do an assessment on whether the worker could perform the job duties and that no one tried to determine what restrictions applied to the worker's back.

Regarding the third option to provide more medical information which supports the need for retraining, along with an indication of the type of employment that might meet the worker's restrictions, the counsel said that the worker and his wife had not given up their search for more medical information.

The counsel noted there was reference to an office job in the file materials. He said that this job is not referred to in the written offers by the employer and that it is not open to the WCB to even consider that the worker did not accept the job in the office for the simple fact that it was never contained in any of the formal offers to return to work.

The counsel questioned the WCB Review Office position that the only restrictions regarding the worker's return to work after the contact dermatitis was to wear long gloves and long sleeves. He noted that the job offered by the employer included wearing significant protective equipment.

The counsel said there’s obviously a component there that has to do with the respirator and stated "…so I’m trying to make it clear that the job was not reasonable for reasons that have to do with the respirator. And it’s not now appropriate for the Compensation Board to step into the shoes of the employer and say that they did all that they could when it’s our position that there should have been more done…"

The worker's counsel stated:

Just to summarize: it is our position that [the worker's] loss of earning capacity did not end by virtue of his failure to accept the return-to-work offers that were made because these return-to-work offers were not reasonable. His loss of earning capacity was continued by virtue of the loss of his job at his employer, and not because he failed to accept -- and it is not appropriate to say that because he did not accept jobs that we say were not reasonable for that to be a justification for termination of his benefits. If he was refusing to provide more medical information, why would he have continued to seek out the advice of his doctors, and he described to us the different plans that he had in August, September, October and November to continue seeing those doctors.

Employer's Position

The employer was represented by legal counsel and its Director of Human Resources. The employer's counsel commented that the worker's position seems to be that the employer didn’t appropriately offer, explain or follow through on return-to-work options. She stated that it appears that the worker is suggesting that the WCB wrongly relied on the efforts of the employer to return the worker to work when the WCB at the time made its determination that he ought to have returned to work in some fashion by at least October 24, 2007.

The employer's counsel referred the panel to the employer's submission to Review Office. The employer's counsel commented that it is not accurate to suggest that the WCB was not involved in the claim. She referred to a note in the claim file from a WCB staff person, dated September 17, 2007, which references a discussion with a representative of the employer, and notes that he discussed restrictions and accommodations with the employer's representative. This note indicates the employer representative advised that they were trying to put things together where the worker would have limited exposure to chemicals. The note also indicates that the employer discussed office-type work with the worker and he didn’t seem interested. There is also a reference to return-to-work options.

The employer's counsel noted that the letters that were being sent to the worker were also being sent to the WCB. She noted that the employer advised the WCB in a letter dated October 10, 2007, that the worker had indicated that he was refusing to try the return to work plan and that he did not share the return to work plan with his physician.

The employer's counsel submitted that that it is appropriate for the WCB to view the employer’s attempts to return-to-work as reasonable because the obligation to accommodate someone on a return-to-work basis is the same whether from a human-rights perspective, which was always at play here, or whether from the perspective of the WCB policy on return-to-work.

The employer's counsel submitted that the real issue is what happened in this return-to-work situation, and whether the worker actually, either through his conduct or verbally, refused to return to work. She said that the worker's submission establishes that the worker did refuse to return to work.

She referred to information in the employer's file that states the worker was contacted to take a fit test and that through his wife, he refused the test. She noted that later the worker changed his mind and asked to be fit tested.

With respect to medical information, the employer's counsel noted that the only medical information that the employer ever received was a sickness certificate dated September 7, 2007, signed by the family doctor, a capabilities form dated September 7, 2007 signed by the family doctor, the last page of a report from a specialist, and a prescription for a fitted respirator. The capabilities form indicated that the worker is to wear a fitted respirator at all times when exposed to chemicals and the worker is to be kept in an environment free of chemicals as per the specialist's recommendation. Counsel stated that the employer never received the documentation regarding the worker's back condition.

The employer's counsel noted that the worker did not accept the employer's September 27, 2007 offer and so the employer made a further offer which contained three options. She reviewed the options. Option # 1 involved returning to his former positions and the use of protective equipment. Option # 2 involved working in the sealed unit crating area. Counsel noted that this option did not state that the worker had to wear the protective gear and she noted that it was in a different area at the employer's plant. She also said that the employer did not have any information about the worker's back problem and did not receive information until long after the decisions on this matter were made.

Regarding option three, the employer's counsel noted that it asked the worker to provide medical information that supports the need for retraining, along with an indication of the type of employment that might meet his restrictions. Counsel noted that the employer's file information indicates that the worker was not interested in considering option # 1 and # 2 but was leaning at obtaining more medical information. Counsel submits, however, that the worker never told the employer about his attempts to obtain more information. She said the only information on the file was the worker's letter of October 22, 2007 which states the worker does not "…feel that providing you with additional medical information as said in Option #3 will help since you are unable to accept what [specialist's name] has said in the previous letter I have provided…"

The employer's counsel reviewed the work done by the WCB in 2010 on this claim and commented that the investigations were extensive. She noted that one of the things the WCB did was get back to the family doctor. She referred the panel to a note from the family doctor to the WCB dated October 26, 2009. She said this note suggests the family doctor was fine with the September 26, 2007 offer.

The employer's counsel was asked about a civil lawsuit involving the worker and employer. She advised that it was settled at mediation and that no oral discovery took place. She said the suit alleged wrongful dismissal. She advised that the relationship was ended by the employer and so the allegation from the worker's perspective was that the termination was wrongful. The employer's position was that it wasn’t wrongful because the worker refused a legitimate offer of return-to-work; therefore, he resigned by his conduct.

Analysis

The worker is appealing the WCB decision to terminate his wage loss benefits. For the worker's appeal to succeed the panel must find that the worker suffered a loss of earning capacity after October 27, 2007 due to his May 2007 workplace injury. We are not able to make this finding.

We find that the worker's loss of earnings after October 27, 2007 was not due to his accident but was related to his failure to accept the offers of modified duties proposed by the employer. We consider the offers to have been reasonable and if accepted would have eliminated the worker's wage loss.

In making our decision in this appeal we are bound by Appeal Commission Decision No. 89/09. This decision dealt with two claims, a 2006 claim and this 2007 claim. Regarding the 2006 claim, that panel found that the worker's 2006 claim was a "one-off" situation where the apparent offending chemical was brought into the workplace as a sample, and was not being introduced into the workplace as a regularly used substance. The panel wrote "…there is no reason to believe that there would be further risk of inhalation exposure to this chemical."

With respect to the worker's 2007 claim for compensation, the previous panel accepted the claim on the basis of contact dermatitis and found that the rash which resulted from the exposure resolved within a matter of weeks of the worker's absence from the workplace.

The loss of earning capacity that is the subject of this appeal arises from the worker's 2007 claim. The worker was ultimately provided with wage loss benefits until October 24, 2007. He is seeking benefits beyond this date.

There was much discussion at the hearing regarding the supply of a fit-tested respirator. The use of a respirator was not related to contact dermatitis therefore was not directly related to the 2007 claim. The worker's physician recommended that the worker be provided with a fit tested respirator. The recommendation made by the worker's physicians was accepted by the employer as is demonstrated in the return-to-work discussions and the employer's offers of modified duties.

We have carefully considered the file information and the evidence provided at the hearing. We find that the employer's offers regarding the worker's return to work were reasonable and consistent with WCB practices on return to work and with WCB Policy 43.20.25, Return to Work with the Accident Employer. The employer demonstrated a willingness to accommodate the restrictions recommended by the worker's physician and a willingness to consider further restrictions that might be recommended for medical reasons. The employer offered the worker the opportunity to provide medical information and make suggestions on appropriate work.

The panel notes that the worker did not accept the employer's return-to-work options. As noted previously, there were three options outlined in the employer's letter of October 10, 2007. With respect to option # 1, the worker's response as noted in his letter of October 22, 2007 was to seek clarification. The worker included a list of more than 20 questions, many of which the panel finds to be argumentative. At the hearing the worker expressed concern regarding painting and the use of heavy protective gear. He indicated at the hearing that he could not return to painting, due to potential contamination of the air in all interior areas of the workplace.