The Appeal CommissionThe Workers Compensation Act of Manitoba

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.

WCB Policy 43.20.25, Return to work with the Accident Employer (the “Policy”) outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer.

Employer’s submission:

The employer was represented at the hearing by an advocate, a human resources officer and a director of maintenance (who participated by teleconference). The position of the employer was that implementation of the deemed post-accident earning capacity of $600 per week was appropriate and was made in accordance with WCB policy. The worker suffered a shoulder injury at work, and as a result of her labral tear, restrictions were imposed. In January 2010, the employer was able to accommodate the restrictions and an offer of light duties was made. The location of the light duties position, however, was too far for the worker to travel on a daily basis, so the worker continued to receive full wage loss benefits, even though she was fit for modified duties. In the fall of 2010, the worker moved and was now within driving distance to the office. Modified duties were offered again and approved by the WCB. The position included a variety of office work, light cleaning, inventory and other duties. On November 9, 2010, the worker began a graduated return to work program which increased over the next month to a full eight hour day. It was submitted that although the worker did a very good job in both her office and cleaning duties, she complained about all of the light cleaning duties and made it clear she only wanted to do office work. There was not, however, enough clerical worker available to complete a whole day.

It was submitted that in December 2010, the worker began to miss work due to reasons unrelated to the compensable injury. On March 15, 2011, the WCB contacted the employer asking why the worker was missing time from work. The worker's attendance continued to deteriorate and in August 2011, her employment was terminated. The employer submitted it was not due to her compensable injury but to other reasons which were well documented on file.

The employer took issue with the Review Office decision which overturned the case manager's implementation of a post-accident earning capacity of $600 per week. It was submitted that significant weight was placed on misrepresentation by the worker as to the nature of her actual duties. In fact, the worker did not work outside her restrictions; her work was varied and as tasks which the worker was capable of performing came up, they were assigned to her. Her days were full, although she was able to work at a relaxed pace.

It was submitted that the light duties were suitable, did not aggravate or enhance her injury, and took into account her pre-accident skill level. She managed to work in these duties for nine months, with complaints of pain and discomfort, which continued unabated even when she was off work. Her employment was terminated due to non-work related factors and under WCB Policy 43.20.25, she was not entitled to further benefits as her loss of earnings occurred for reasons unrelated to the injury.

Worker's submission:

The worker participated in the hearing by teleconference. She noted that the labral tear in her shoulder was still an ongoing issue for her. When performing modified duties, the worker stated that her injury still hurt but she worked through it. The repetitive duties, such as mopping and sweeping, caused her more harm than good. With respect to the amount of work, the worker's position was that there were several instances where there was not enough work and she had nothing to do. As a result, she would leave early. The worker acknowledged that she had very significant issues to deal with in her personal life at the time, and missed some time from work as a result of these issues. However, the employer's policy allowed for five steps to corrective action, and she only made it to two before she was dismissed. The worker felt that her life had been torn apart by her injury and expressed disappointment in the way her employer handled her modified duties position. She had enjoyed working for the employer as a truck driver but felt she was not treated well in the modified duties position.

Analysis:

The issue before the panel is whether or not the implementation of a deemed post-accident earning capacity of $600 per week effective August 27, 2011 was appropriate. The employer submits that it was appropriate and in accordance with WCB policy. For the employer’s appeal to succeed, the panel must engage in a twofold analysis.

First, the panel must determine whether or not the termination of the worker's employment with the accident employer was related to her compensable injury. If the termination was related to the effects of her compensable injury, then the worker is entitled to full wage loss benefits and it would not be appropriate to implement a deemed post-accident earning capacity. If the termination is found to be due to non-compensable reasons, then the panel must consider a second issue which relates to the nature of the duties which were assigned to the worker.

The second issue asks whether or not the accommodation provided by the employer to the worker was suitable. If the modified job duties were suitable, then the implementation of a deemed earning capacity of $600 was appropriate and the employer's appeal is allowed. If the modified job duties were not suitable, then implementation of the deemed earning capacity was not appropriate and the employer's appeal must be dismissed.

After considering both the evidence on file and the testimony given at the hearing, the panel finds, on a balance of probabilities, that the termination was not related to the worker's compensable injury and that the accommodation provided by the employer was suitable. It therefore follows that the implementation of the deemed earning capacity was appropriate and the employer's appeal is allowed. Our reasons follow.

Reasons for Termination

On August 26, 2011, the worker was terminated from her employment in the modified duties position with the employer. The disciplinary documentation of the employer indicates that the employer considered the termination to be for cause based on absenteeism and behaviour.

The employer provided the WCB with a two page chart which tracked the worker's attendance record from November 8, 2010 to August 26, 2011. At the hearing, the worker was asked to comment on the chart and she confirmed that the chart notations reasonably reflected the circumstances surrounding her absences.

The panel has reviewed the chart in detail and we note the following:

• During the almost 10 month period in question, the worker had 69 full day absences from work. The explanations for the absences were as follows:
• 16 no show/no call
• 4 personal family issues
• 19 workers compensation related
• 21 illness not related to compensable injury
• 9 non-specified
• In addition, there were 30 days where the worker reported for work, but remained at work for 6 hours or less (her scheduled shift was 8 hours).

The panel is extremely sympathetic to the serious family issues the worker was facing at the time; our jurisdiction, however, is limited to considering the extent to which the worker's compensable shoulder injury was the cause of her absences. Our review of the absences would indicate that the majority were not related to the effects of her compensable injury. WCB related absences (for medical appointments, meetings with the WCB, etc.) constituted only about 25% of the absences during the worker's term of modified duties. The other 75% cannot be related to the shoulder injury. The worker's evidence at the hearing was that her shoulder was sore after performing some of the modified duties and that her sleep was interrupted. The panel considered whether the unexplained absences could be attributed to these difficulties, but in the absence of contemporaneous reports to the employer of shoulder pain as the reason why she did not report for work, coupled with the lack of medical authorization to support changes to the physical restrictions for her shoulder, the panel is not convinced on a balance of probabilities that the shoulder was the cause of the absences. The worker acknowledged at the hearing that she was facing serious personal non-work related issues at the time, and confirmed that many of her absences were caused by her need to have to deal with these issues.

For the foregoing reasons, the panel concludes that the termination of the worker's employment with the accident employer was not related to her compensable injury. We therefore will proceed to consider whether or not the modified duties were suitable.

Modified Duties

When considering the modified duties performed by the worker, the panel had the benefit of reviewing time sheets kept by the worker which outlined her daily activities when she was performing modified duties. The physical restrictions in place for the worker were no lifting/pushing/pulling/carrying more than 25 pounds, no overhead work and no repetitive/resisted work with right arm outside body frame.

In the panel's opinion, the modified duties being performed by the worker were appropriate. The weights involved were within her restrictions of no more than 25 pounds. There was a significant amount of mopping, sweeping and vacuuming, but this work could be done with the right arm within the body envelope and indeed, the worker's evidence was that she often performed the tasks one-handed using primarily her left arm. There was an occasion where the worker was assigned a duty which was outside her restrictions (checking trailer doors which required the worker to perform overhead work). The worker did it once and advised the employer she could not perform the activity. The modified duties were then altered to remove this job.

The daily logs kept by the worker show varied activity performed for short periods of time. There were no quotas or time deadlines. The worker could perform the work at her own pace with ample opportunity to rest her shoulder between tasks. The job was not too onerous for the worker to perform within her restrictions. The worker felt that there was not enough work to keep her busy the entire day, but also noted that when she repeated the same motion for too long, her shoulder started to hurt. In the panel's opinion, the surplus time was appropriate in order to allow the worker to take breaks when required for her shoulder. Overall, the panel feels that the work was appropriate and while there were occasionally some make-work jobs, the work being performed by the worker was sufficient and of value.