The Appeal CommissionThe Workers Compensation Act of Manitoba

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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. 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 resulting from the accident ends.

Worker’s position:

The worker was self-represented at the hearing. The worker submitted that she should be entitled to $13.00 per hour after October 11, 2011 because that was the wage she had been making before her workplace accident. The only reason why she was being paid $11.00 per hour was because she could no longer perform all of the duties that she used to do. The worker felt that she should not have lost her $13.00 per hour wage because of an accident which she did not cause. It was faulty equipment which fell on her which caused her injury and destabilized her life in many ways. The worker noted that since her accident, she had to fight for everything, and she did not feel that this was right.

With respect to the issue regarding further wage loss benefits for specific days, the worker's Appeal of Claims Decision form identified the following dates for which she requested coverage: January 30 and 31, February 14, March 5 and 6, April 17 and May 8, 2012. At the hearing, the worker indicated that she should not have included April 17, 2012. She acknowledged that for days when she stayed at home for something non-work related (for example, the flu) she was not entitled to benefits. For the rest of the dates, however, the worker submitted that she had to miss time from work because she was sick from the effects of her workplace injury.

Employer’s position:

The employer did not participate in the hearing.

Analysis:

There are two issues before the panel. We will address each one separately.

1. Whether or not the worker's wage loss benefit entitlement effective October 11, 2011 has been correctly calculated.

The first issue deals with whether the worker's wage loss benefits should be calculated at $11.00 per hour or $13.00 per hour. In order for the appeal to succeed, the panel must find that the reduction in the worker's hourly rate from $13.00 pre-accident to $11.00 post-accident was a result of the effects of her compensable injury. On a balance of probabilities, we are able to make that finding.

At the outset, the panel notes that originally, the diagnosis accepted as compensable was a concussion type injury presenting with reports of headache, dizziness, neck pain, vision and hearing changes and loss of balance. Subsequently, in January 2012, the WCB medical advisor identified the current diagnosis as non-specific neck pain. After a call-in examination on March 26, 2012, the WCB chiropractic consultant identified the probable diagnosis as non-specific, non-radicular cervical spine sprain/strain.

Prior to the accident, the worker had been earning $13.00 per hour with the employer. The worker's evidence at the hearing was that she had been previously employed by the accident employer, but left to take a new job which paid a higher wage and was closer to her home. She worked at the new job for a year and a half, but in early 2010 when new management took over, she had to leave and became unemployed. The worker collected Employment Insurance and as a mature worker, she was eligible for a wage subsidy program to assist her in finding a job. While looking for work, the worker noticed a posting by the accident employer saying they were looking for workers. The worker telephoned the accident employer who said they were happy to hear from her and that they would love to have her back as she was already trained. The worker's evidence was that over the phone, the employer offered to pay her $13.00 per hour, which was the wage she had been earning when she had left. There had not been any discussion regarding the government wage subsidy at that time. It was only after the worker went in to the employer's premises that she told them she was eligible for the wage subsidy and gave the employer the paperwork to fill out. The wage subsidy was for half of the worker's wage ($6.50 per hour) and there was no discussion regarding what would happen to the worker's wage when the subsidy ran out after one year.

With respect to the availability of her pre-accident position after October 11, 2011, the worker stated that other people in the "baker's assistant" position were still employed with the accident employer and she believed that her position was still there. Since returning to work on October 11, 2011, she had been performing many of her pre-accident duties but acknowledged, however, that while she could still do the packing duties, she was no longer able to do the heavy work that a baker's assistant was required to do, like mixing batters and taking heavy equipment apart for cleaning. The worker submitted that she was only being paid $11.00 per hour because she could not deliver the performance she used to and therefore the employer felt she was not entitled to the higher wage. The worker also provided the panel with information regarding the circumstances surrounding her return to work on October 11, 2011. The worker had pursued a complaint with another commission and it was only after a facilitated meeting between herself and her employer that was she offered the alternate position in the packaging area at $11.00 per hour.

After reviewing the evidence as a whole, the panel finds, on a balance of probabilities, that the change in the worker's wages is attributable to the effects of her compensable injury and her inability to perform the heavier duties which were previously part of her position. We accept that the worker had been rehired by the accident employer in March 2010 at her previous wage of $13.00 and that she would have been paid this amount regardless of whether or not the government wage program subsidized her wages with the employer. This information is confirmed by a WCB memo to file dated October 22, 2010 which stated:

Called employer (name) re average earnings. She indicated that (worker) would have continued to earn 40 hrs x $13 per hour = $520.00 gross per week.

The government subsidy program has not issued any payment to the employer and therefore the employer will not decrease her earnings on this account. She is not sure if the program is continuing or not as she has not been in contact with them.

She agreed to continue her benefits based on $520.00 gross per week as this was an accurate reflection of her earnings in a 52 week period.

The panel does not accept that on April 5, 2011, when the wage subsidy period ended, the employer would have dropped the worker's wages to $11.00 per hour. This $2.00 reduction does not correlate to the amount of the subsidy which was $6.50. We find that the evidence does not support a relationship between the amount being paid to the worker and the availability of the government subsidy. As indicated in the October 22, 2010 memo, the employer was not even sure if it was receiving the subsidy from the government.

In our opinion, the evidence supports the worker's contention that the reason why she was being paid less by the employer was because she was not able to complete all the duties she performed prior to the accident. The reason why she could not perform these duties was because of the residual effects of her compensable injury. She continued to have a loss of earning capacity which was caused by the workplace accident. Accordingly, the panel finds that the worker's wage loss benefits ought to have been calculated using the hourly rate of $13.00 per hour. The worker's appeal on this issue is allowed.

2. Whether or not the worker is entitled to further wage loss benefits in addition to benefits paid for March 26, 2012.

The second issue deals with the worker's entitlement to wage loss benefits for specific identified days. In order for the appeal to succeed, the panel must find that the worker's absence from work on the specified days was caused by the effects of her compensable injury. We will address each day individually.

January 30, 2012

The evidence regarding January 30, 2012 was that the worker did not work the full day. The employer recorded that the worker volunteered to go home that day. The worker's evidence at the hearing was that she went home early that day as the only work that was available was heavy cleaning such as cleaning ovens and scrubbing walls. The worker said that she told her employer that she would love to have stayed that day but was unable to do the work so she went home.

The panel accepts that the continuing effects of the worker's compensable injury prevented her from staying at work on that date as she could not perform the heavy cleaning, which was the only work offered. As the worker's loss of earning capacity was caused by the effects of her injury, she is entitled to wage loss benefits for the hours that she was not able to work on January 30, 2012.

January 31, 2012

While this date was not addressed by Review Office, it was included in the worker's Appeal of Claims Decision form filed with the Appeal Commission. The report dated July 4, 2012 from the worker's family physician indicates that on January 31, 2012, the worker was seen with complaints of increased noise pollution which she felt was highly irritating and worsening her headaches. The panel accepts that these symptoms were related to the effects of the compensable injury. We note, however, that correspondence from the employer does not indicate that the worker was absent from work on January 31, 2012. We find that to the extent that the worker missed time from work on that date and was not paid, she is entitled to wage loss benefits. These facts will require further investigation by the WCB.

February 14, 2012

At the hearing, the worker's evidence was that she left work because she was sick and throwing up. Her head was hurting. The employer's correspondence simply indicates that the worker left one hour early with no reason recorded. Given the worker's attendance at her family physician two weeks earlier for worsening of headaches, the panel accepts that the worker's early departure from work was related to the effects of her compensable injury and she is entitled for wage loss benefits for the one hour missed from work.

March 5 and 6, 2012

The worker left work early on March 5, 2012 following a heated discussion with her employer about her working hours. The worker's evidence was that her employer had just finished talking to the worker's doctor and her employer could not understand why the worker wanted to keep her hours if she was as sick as her doctor said she was. The employer wanted the worker to cut her hours back, but the worker disagreed and said that she needed her job. The discussion escalated and expanded to issues regarding the worker's complaint to another commission and the processes they went through. By the end of the conversation, the worker was upset and she left the workplace. She had only worked for three hours and forty-five minutes. The next day, the worker said that she was sick with her head. Her head was hurting so bad that she could not cope and could not get behind the wheel to come to work.

The panel accepts that workplace conflict which had its roots based in the worker's inability to perform her job duties is sufficiently related to the effects of the compensable injury that the worker should be entitled to wage loss benefits. It was not unreasonable for the worker to be unable to complete her shift on March 5, 2012 and the panel notes that the worker went straight to her family doctor for treatment that day. His report noted that the worker appeared anxious, upset and fearful of losing her job and the headaches and neck pain were becoming progressively worse. He also confirmed that he had spoken with the employer, whom he found to be confrontational and who suggested that if the worker could not perform her duties at work that another job should be found.

With respect to March 6, 2012, the family doctor's report confirms that the worker was suffering from progressively worse headaches and neck pain at the time. We accept that her head pain on that date prevented her from working. As the loss of earning capacity was related to the effects of her compensable injury, the worker is entitled to wage loss benefits for March 6, 2012.

April 17, 2012

Information on file indicates that on that date, the worker had a mole removed. At the hearing, the worker acknowledged that this was a regular day off and she should not be covered for this time loss. Accordingly, there is no change to the determination that no wage loss benefits are payable for April 17, 2012.

May 8, 2012