Decision #175/11 - Type: Workers Compensation
Preamble
Both the worker and the employer are appealing decisions made by Review Office of the Workers Compensation Board ("WCB"). The employer disagrees that the worker was entitled to wage loss benefits after January 22, 2010 and with the calculation of his benefit rate effective June 22, 2010. The worker disagrees that the modified duties offered to him in June 2010 were appropriate and with the manner in which his wage loss entitlement was calculated on September 22, 2010. A hearing was held on November 7, 2011 to consider the appeals.Issue
Employer Issues:
Whether or not the worker is entitled to wage loss benefits beyond January 22, 2010; and
Whether or not the worker's wage loss entitlement effective June 22, 2010 was properly calculated.
Worker Issues:
Whether or not the modified duties offered on June 22, 2010 are appropriate; and
Whether or not the worker's wage loss entitlement effective September 22, 2010 was properly calculated.
Decision
Employer Issues:
That the worker is entitled to wage loss benefits beyond January 22, 2010; and
That the worker's wage loss entitlement effective June 22, 2010 to September 22, 2010 was not properly calculated.
Worker Issues:
That the modified duties offered on June 22, 2010 are appropriate; and
That the worker's wage loss entitlement effective September 22, 2010 was properly calculated.
Decision: Unanimous
Background
On March 16, 2008, the worker suffered a fracture to his L2 vertebrae, a left flank hematoma and a left hip contusion when the ladder he was climbing down slipped from the upright position and he fell 12 feet to the ground. The worker was paid wage loss and other compensation benefits while he underwent treatment for his injuries.
On January 22, 2010, it was determined by the WCB that the worker was fit for modified duties with the following work restrictions: To avoid prolonged sitting/standing and lifting from floor to waist and no repetitive low back movements or lifting greater than 15 to 20 pounds. Arrangements were made for the worker to return to work on January 25, 2010. His wage loss benefits were to be paid to January 22, 2010 inclusive.
On January 26, 2010, the employer sent an e-mail to the WCB which described the modified duties that were provided to the worker:
- To sweep the paint shop and storage bays at his own pace.
- Pick up garbage in the paint shop, bays and yard at his own pace.
- Answer paint shop telephone.
- Assist co-workers in the paint shop/bays (hold flashlight, hand tools, etc).
- Keep office space and paper work organized.
Subsequent file records showed that the worker did not return to work on January 25, 2010 as he claimed that he was unable to perform the duties. On April 7, 2010, the WCB case manager advised the worker that she was unable to reinstate his wage loss benefits as it was felt that he was capable of performing the modified duties that were provided to him by his employer.
On April 21, 2010, a worker advisor submitted to Review Office that the modified duties offered to the worker in January 2010 were beyond his capabilities and that the worker was entitled to reinstatement of benefits.
In a decision dated June 1, 2010, Review Office found that the worker's return to work plan effective January 25, 2010 was not appropriate and that the worker had a loss of earning capacity beyond January 22, 2010. Review Office took the position that the modified duties outlined by the employer were not suitable for the worker. It noted that the duties of sweeping and assisting coworkers by holding tools would aggravate the worker's compensable injury. With respect to the office duties, Review Office indicated that it accepted the worker's statement, as recorded by the worker advisor, "With regard to office clean-up, he indicated that this would seldom be necessary, and that he would be unable to do any paper work due to his limited English-language skills."
A return to work meeting was held on June 15, 2010 with the worker, employer representatives and WCB case manager. On June 15, 2010, the case manager listed the job duties that were offered by the employer and she concluded that they were within the worker's restrictions and were considered meaningful work. The employer advised that they would pay the worker minimum wage for the modified duty position. Subsequent file records showed that the worker declined to attempt the modified duties offered to him.
On June 30, 2010, the worker was advised that the modified duties offered to him by his employer were within his restrictions and that wage loss benefits would be paid to June 21, 2010 inclusive based on Section 22 and subsection 39(2) of the Act. On September 2, 2010, the worker appealed the decision to Review Office. Review Office in turn referred the matter back to the case manager, as the worker had been in receipt of partial wage loss benefits since June 22, 2010.
On July 6, 2010, the employer advised the WCB that they would pay the worker $13.00 per hour for four hours per day from June 22, 2010 to July 5, 2010 and full hours on July 6, 2010.
In a submission dated August 30, 2010, the employer's representative asked Review Office to reconsider the decision it made on June 1, 2010 that the worker was entitled to wage loss benefits beyond January 22, 2010. It was the employer's position that Review Office erred in their assessment of the suitable work offered and the declaration that the duties were inappropriate. The advocate noted that the worker had the opportunity to return to his pre-accident employer to the identified duties in January 2010 and mitigate his loss of earnings, and that in refusing without even attempting to participate, he voluntarily removed himself from his employment thus eliminating any loss of earning capacity.
On August 31, 2010, the employer wrote the WCB and stated:
"When the RTW was initially proposed to [the worker], there were tasks that required some training and coaching before he would be competent and able to assume responsibility for. He was also physically deconditioned, would be working at his own pace and likely required some extra rest time during the course of the work day. Due to this we are prepared to pay $13.00 per hour and re-evaluate at this time.
As it is now 10 weeks later, it is our expectation that [the worker] would be physically reconditioned and trained, enabling him to be more efficient and performing more responsible tasks. This would entitle him to a further $5.00 per hour or $18.00 per hour effective September 1, 2010. This is closer to his pre-injury rate of pay."
On September 16, 2010, Review Office advised the employer that it considered the August 30, 2010 submission and no change would be made to its decision of June 1, 2010. On September 21, 2010, the employer appealed the decision to the Appeal Commission.
On September 14, 2010 and October 27, 2010, the WCB issued correspondence to the worker in relation to his benefit rate. On September 14, 2010, the worker was advised that his entitlement to wage loss benefits starting June 22, 2010 was based on the difference between his pre-accident earnings and the rate of pay of $13.00 per hour offered by the employer for modified duties. In the letter of October 27, 2010, the worker was advised that the WCB agreed with the increase to $18.00 per hour effective October 6, 2010.
A note to file dated September 30, 2010 stated:
"In June 2010, accident employer was willing to accommodate this worker based on his current restrictions, with alternate duties at reduced wages. This worker has refused to RTW and is therefore being paid PWL based on the difference from his pre-accident wages."
On January 13, 2011, the worker advisor asked Review Office to reconsider the decisions made by the WCB in relation to the worker's benefit rate. The worker advisor argued that the decisions should be reversed and that the worker's wage loss be calculated in accordance with the minimum wage rate that the employer initially indicated would be paid to the worker as part of the return to work arrangements.
A rebuttal submission was made to Review Office by the employer's advocate dated March 4, 2011. The advocate also asked Review Office to review the worker's current entitlement to wage loss benefits considering section 22 of the Act. It was the employer's position that the worker was not entitled to any wage loss benefits based on his failure to mitigate and reasonably participate in a RTW.
On March 25, 2011, Review Office determined that the worker's wage loss benefits were not correctly reduced effective June 22, 2010 and October 6, 2010. Review Office ultimately determined that the worker's wage loss benefits should have been reduced based on the following:
- From June 22, 2010 to July 5, 2010, the worker was capable of working four hours per shift.
- From July 6, 2010 to July 19, 2010, the worker was capable of working six hours per shift.
- Effective July 20, 2010, the worker was capable of working eight hours per shift.
- The worker would have been paid minimum wage from June 22, 2010 to September 21, 2010.
- The worker would have been paid $13.00 per hour effective September 22, 2010.
Review Office "accepted the employer's contention that based on a re-evaluation of the modified duty position, they would have paid the worker $13.00 given it was a long term accommodation and incorporated more duties than the previous RTW plan. However, we are unable to establish that an increase to $18.00 per hour, a 38% jump from $13.00 would have occurred as a matter of fact one to three months following the start of the position. The worker's pre-accident wage was $16.55 per hour.
The wage information (March, 2011) regarding the four other employees whose current hourly wages ranged from $19.14 to $21.69 showed an increase in wages of 28-60% over one and half to four years. Therefore, the wage increase to $18.00 per hour should not be applied on a retroactive basis effective October 6, 2010."
On March 28, 2011, the employer's advocate appealed Review Office's decision of March 25, 2011 to the Appeal Commission, particularly, whether or not the worker's wage loss entitlement effective June 22, 2010 was properly calculated.
On April 20, 2011, a hearing was held at the Appeal Commission. During the hearing, the worker stated that the modified duties offered to him in June 2010 were not appropriate. As this issue was never addressed by Review Office based on the worker's appeal of September 2, 2010, the panel concluded that it was necessary for the WCB to reconsider their June 30, 2010 decision in order to fully adjudicate the issues under appeal. On May 4, 2011, the Acting Chief Appeal Commissioner referred the issue to the WCB for a determination. The issue to be considered was "Whether or not the modified duties offered on June 22, 2010 are appropriate."
At the request of Review Office, a WCB rehabilitation specialist attended the work site to review the modified duties that were offered to the worker on June 22, 2010. The results of the worksite visit are contained in a memorandum to file dated June 7, 2011.
On July 20, 2011, Review Office determined that the modified duties offered to the worker on June 22, 2010 were appropriate. Review Office reviewed the file documentation which included submissions from the worker advisor dated June 20, 2011 and the employer dated June 24, 2011. Review Office concluded that the modified duties offered to the worker on June 22, 2010 were consistent with the goals and objectives of the vocational rehabilitation policy and the hierarchy with respect to return to work. As the modified duty accommodation was with the pre-injury employer, the RTW policy applied to the case and Review Office determined it met the criteria of suitable work.
Review Office confirmed that the worker was entitled to wage loss benefits beyond January 22, 2010. Review Office noted that the employer's representative submitted that the modified duties offered on June 22, 2010 were the same as what was offered to the worker in January 2010; that these duties were deemed appropriate by the WCB rehabilitation specialist on May 18, 2011. Review Office disagreed with this conclusion and noted that the list of duties outlined in the employer's e-mail of January 26, 2010 differed from the modified duties offered on June 22, 2010 noted in the employer's memo titled "Proposed Modified Duties for (worker's name) June 15, 2010."
Review Office concluded that while the worksite assessment spoke to some of the duties listed in the employer's email of January 26, 2010, it was unclear as to what job duties the worker was expected to perform. On January 22, 2010, the case manager met with the employer, however, the worker was not present to discuss the modified duties, any concerns, expectations, etc. In the case manager's memo dated April 7, 2010, it was documented the worker would not be required to do one of the five outlined tasks. It concluded the modified duties offered on January 22, 2010 were not appropriate. Review Office found a disparity between the offer of modified duties made to the worker on January 22, 2010 and June 22, 2010. Review Office indicated that the evidence did not support a change to its previous decision of June 1, 2010.
Review Office confirmed that the worker's wage loss benefits were not correctly reduced effective June 22, 2010 and October 6, 2010. Review Office considered the employer's submission of June 24, 2011 and found that the worker was not "offered" or presented with a starting wage of $13.00 upon the start of his return to work plan on June 22, 2010. The employer initially suggested minimum wage at the June 15, 2010 meeting and it was not communicated to the WCB until July 6, 2010. The information was not shared with the worker until September 14, 2010 in a WCB letter to the worker explaining what his wage loss benefits were based on.
Regarding the potential increase to $18.00 effective September 1, 2010, Review Office stated that it was unable to establish that this would have occurred as a matter of fact following the start of the modified duty position in June 2010 despite the information presented by the employer's representative. Review Office found the evidence to show that:
· The worker's pre-accident wage was $16.55.
· He was not part of the union.
· He was not offered a position as an apprentice.
· He previously participated in a return to work plan from May to November 2009 for which he was paid minimum wage.
· Other employees' wages had increased 28-60% over a period of one and a half to four years.
Review Office concluded that the evidence did not support a change to its previous decision of March 25, 2011.
On July 28, 2011, the worker advisor appealed Review Office's decision of July 20, 2011 that the modified duties offered on June 22, 2010 were appropriate and that the worker's wage loss benefits should be reduced based on $13.00 per hour effective September 22, 2010 (as per Review Office decision dated March 25, 2011, confirmed in Review Office decision of July 20, 2011.) The employer appealed Review Office's decisions that the worker was entitled to wage loss benefits beyond January 22, 2010 and that the worker's wage loss entitlement effective June 22, 2010 was properly calculated.
Reasons
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.
There are four issues under appeal. The issues arise from a workplace injury and resulting return to work plan. They involve the appropriateness of the return to work plan and the wage loss entitlement of the worker.
WCB Policy No. 43.20.25, Return to Work with the Accident Employer, applies to cases where injured workers are unable to return to their regular duties.
Worker's Position
The worker was represented by a worker advisor who made a presentation to the panel. The worker answered questions posed by the worker advisor and the panel. The worker advisor also referred the panel to the April 30, 2011 hearing transcript.
The worker advisor also addressed the issues under appeal by the employer.
On whether the worker is entitled to wage loss benefits beyond January 22, 2010, the worker advisor submitted there is an inconsistency between the job duties and the compensable restrictions. She said that the employer’s issue regarding the January 22, 2010 duties boils down to whether or not the proposed alternate duties at that time were appropriate. She said that the employer provided only a sample list of those duties which suggests that there is no clear understanding of what it is that the worker would have been expected to do had he returned to the workplace at that time, apart from the four or five duties listed. She stated that given what was put to paper with that sample list, the Review Office decision was correct and that the duties were inappropriate.
On the employer's second issue, whether the worker's wage loss entitlement effective June 22, 2010, was properly calculated, the worker adviser submitted that the worker's partial wage loss benefits should be based on the provincial minimum wage. She said that the employer’s claim of what the worker would have been paid had he returned to work was not supported by the evidence.
She noted that the employer specifically indicated their intention to pay the worker minimum wage on his return to work and without any explanation, the employer subsequently revised it to $13.00 an hour and again to $18.00 an hour. She said that the worker was previously on a return to work plan with the employer from May to November of 2009. She also said that the worker's wage rate remained at the provincial minimum wage during that entire period and there was no indication on the part of the employer of any plan to increase his wages. While the employer’s March 4, 2011 letter indicates that a re-evaluation of the wage rate was always part of the plan, she submitted that it is at odds with what had happened during the worker's return to work for the six months in 2009. She also said that in January when a new return to work program was being discussed there was no indication of a projected wage increase. She said that the evidence does not substantiate any plan or intention on the part of the employer to increase the worker's wage rates in either June or September of 2010.
The worker advisor addressed the issues under appeal by the worker. The worker's first issue was whether the modified duties offered on June 22, 2010 were appropriate. She noted that Review Office determined that the proposed list of alternate duties in January of 2010 was not appropriate, which led to a new and more elaborate list of duties being presented by the employer to the worker in June, 2010. She submitted that the alternate duties proposed in June 2010 are as inappropriate as the duties offered in January 2010. She argued that they are not a viable permanent alternative to vocational rehabilitation. She noted that many of the more administrative duties listed in the June proposal of activities are not done on a frequent basis. One of the examples of duties listed was taking inventory which the employer said was to be done once a year, but later suggested that this was something that could increase to a monthly, weekly or even daily basis. She referred to the task of answering the paint shop telephone which, given that it is an internal line, would presumably not occur very often. She said the more physical duties on the list also give cause for concern. While a WCB rehabilitation specialist considered the job duties to be suitable, he acknowledged the duties would still need to be accommodated in order to keep them within the worker's restrictions. She provided several examples of the further accommodation which would be necessary including having another person move the garbage after the worker has done the sweeping and clean-up. She submitted that the evidence shows that many of the physical demands of the proposed work are outside restrictions and that the more administrative-type duties are limited in terms of their availability.
The worker advisor also submitted that the job duties are supposed to be a viable substitute for vocational rehabilitation and that they fail to meet the goals of the policy.
She asked the panel to grant the worker entitlement to full wage loss benefits after June 2010 based on a finding that the proposed job accommodation was inappropriate, both as a short-term arrangement and as a long-term accommodation.
On the issue of whether the worker's wage loss entitlement effective September 22, 2010 was properly calculated, the worker's position is that the appropriate rate is minimum wage. She said that evidence does not substantiate any plan or intention on the part of the employer to increase the worker's wage rates in either June or September of 2010.
Employer's Position
The employer's advocate expressed concern regarding the application of WCB Policy by the WCB and Review Office. She said there is a fiduciary responsibility that the case manager represents the interests of the employer equally to those of the worker. She noted that all parties are bound by WCB policy and expressed concern that the WCB and Review Office decisions on this claim seem to disregard policy and that the Board is not respecting or not addressing and treating both parties equally, as they have an obligation to do so.
In addressing the issues, the employer's advocate referred to the employer's submission at the earlier April 20, 2011 hearing. The employer advocate said that it is clear that the worker has no desire to return to work for the employer. She noted that he was offered work in May of 2009, January 2010, June 2010, April 2011, and June 2011. She noted that the worker did return to work in May 2009 and continued to work until November 2009. However, in November 2009, he walked off work and did not communicate with the employer or come back to work.
With respect to whether the worker is entitled to wage loss benefits beyond January 22, 2010, she noted that on the return to work offer of January 22, 2010, the company was prepared to pay the worker $16.50 an hour, which is the pre-accident wage and meets the employer's obligation under the duty to employ legislation. She said this was communicated to him in writing at that time. She noted that the wage loss that was offered in June 2010 was $13.00 an hour. The reason for this wage level was that this was a transitional employment opportunity.
The employer's representative commented that it is not clear as to exactly which jobs were offered on which day but on January 21st, the worker refused to even turn up at the workplace. She noted that the documentation on file did not give a clear view of what transpired between the worker and the WCB at that time.
Regarding whether or not the modified duties on June 22, 2010 were appropriate, the employer advocate submitted that the WCB's rehabilitation specialist clearly verified the suitability of the job tasks. She said that the worker, in his comments on file, has confirmed that these were very similar to the jobs in 2010. She submitted that the January 2010 offer was appropriate because the duties that were reviewed in June 2011 were consistent with the list of duties that had been offered in January 2010.
The employer's representative stated:
"… in summary, basically, with respect to our issues we don’t believe that [worker name] is entitled to wage loss benefits beyond January 22, 2010 as it was very clear he was offered suitable work; he was offered full wages; there would be no wage loss.
Whether his wage loss entitlement effective June 22 was properly calculated – no, it was not. We feel there should have been a very short period of wage loss. We were agreeing to that as a transitional period only. During the time he was perhaps doing some training, getting more comfortable back in the workplace after having been off – so a graduated return to work, starting at four hours and gradually building; learning some new tasks. Minimal wage loss we respect was appropriate there, but certainly that was only as a transition …
So, we certainly feel that the modified duties offered on June 22nd, 2010 were appropriate; that’s confirmed and verified by the Compensation rehab specialist; in fact, there was no hesitation and the report clearly demonstrates that the duties were appropriate and the comment about the wage loss has been made."
Analysis
There are four issues before the panel. The employer has appealed two issues and the worker has appealed two issues. The issues are related to the worker's return to work after his March 16, 2008 workplace accident.
Employer Issue - Whether the worker is entitled to wage loss benefits beyond January 22, 2010.
For the employer's appeal of this issue to be successful, the panel must find that it was not reasonable for the worker to refuse to participate in the return to work at this time. The panel did not make this finding.
We note that the worker had attempted a return to work during the period from May 2009 to November 2009. This return to work was not regulated or established by the WCB. The worker's evidence is that he was required to perform duties which were outside his restrictions which resulted in further injury. An example of duties that exceeded the worker's restrictions was the task of shoveling sand from the sandblasting operation. The worker said that while he was supposed to work with his supervisor and identify the work that he could not do, his supervisor was not helpful.
We find that the worker was apparently apprehensive that the plan presented in January 2010 could result in his re-injury, because of his earlier experience which resulted in him working outside his restrictions. We find that the worker had a reasonable basis for refusing to participate in the return to work notwithstanding that the job may have been appropriate. We note the employer's representative commented at the April hearing that "It's not clear exactly as to which jobs were offered on which day…" It is unfortunate that there was little communication surrounding the proposal leaving the worker with a reasonable apprehension about the return to work.
The employer's appeal of this issue is dismissed.
Employer's Issue:
Whether the worker's wage loss entitlement effective June 22, 2010 was properly calculated
For the employer's appeal to be successful the panel must find that the wage loss was not properly calculated. The panel made this finding. We find that the worker's deemed earning during the period from June 22, 2010 to September 22, 2010 should have seen $13.00 hour and not minimum wage.
We note that the employer offered a starting wage of $13.00 per hour. This is confirmed in a memo from the case manager dated July 6, 2010. The memo notes the employer is offering $13.00 per hour. This was also confirmed in the employer's August 31, 2010 letter which indicated that it was prepared to pay $13.00 per hour. We accept the employer's explanation that the increase to $13.00 was based upon a re-evaluation of the position.
The employer's appeal is allowed on this issue.
Worker's Issue:
Whether the modified duties offered on June 22, 2010 are appropriate
For the worker's appeal to be successful, the panel must find that the modified duties offered by the employer on June 22, 2010 were not suitable. The panel was not able to make this finding. In reaching our decision, the panel is bound by WCB Policy 43.20.25, Return to Work with the Accident Employer.
The above noted policy provides that:
Suitable Modified or Alternate Work
Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers. In order to determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.
We found that the work offered by the employer on June 22, 2010 was suitable as outlined by the case manager from the June 15, 2010 meeting. In that meeting a discussion was held on the details and expectations of the worker. The work required could be self-paced by the worker, provided an opportunity to rest, and had a process to resolve any issues. In reaching this conclusion we also relied upon the June 7, 2011 report of the WCB Rehabilitation Specialist which confirmed the suitability of the duties. The Rehabilitation Specialist attended the work site and met with the worker and his advocate, and the employer's senior staff and its advocate. The Rehabilitation Specialist reviewed the job duties as set-out in a June 15, 2010 memo. The Rehabilitation Specialist looked at each of the major job functions and commented on their suitability for the worker. In conducting his review he was aware of the restrictions placed upon the worker. He stated that the outlined job duties that were offered back in June of 2010 were within the restrictions that were placed upon the file.
We note there were no medical reports indicating that the job was not suitable.
The worker expressed concern that some of the duties were outside his restrictions and that he may be injured as during his first return to work. The worker also expressed concern that he did not have the English language skills to perform some of the duties. We are satisfied that the worker could have performed the duties without exceeding his restrictions and without injury.
The worker's appeal of this issue is dismissed.
Worker's Issue
Whether the worker's wage loss entitlement effective September 22, 2010 was properly calculated
For the worker's appeal of this issue to be successful, the panel must find that the worker's wage loss was not properly calculated as being based upon an inappropriate deemed earnings amount. We did not make this finding. We found that the deemed earnings amount was properly calculated, and that the worker's wage loss benefits would be reduced as a result of increased deemed earnings.
The employer advised the WCB on July 6, 2010 that it would increase the worker's pay from minimum wage to $13.00 per hour. We find that deeming the worker at $13.00 per hour effective September 22, 2010 was reasonable. This continues the hourly rate accepted in first issue of this appeal and noted earlier in this decision.
We are not able to accept the worker's position that he should continue to be deemed at minimum wage. We accept the employer's position, noted above, that it would have paid the worker $13.00 per hour based on a re-evaluation of the modified duty position. We do not accept the employer's position set out in its letter of August 31, 2010 and subsequently, that it would have been paying the worker $18.00 per hour effective September 1, 2010. The employer noted that this would be closer to the worker's pre-injury rate. We find that the new position, which is not a union position, is not the equivalent to a painter/apprenticeship position. It is a new position which does not require the skill of a painter.
The worker's appeal of this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 20th day of December, 2011