The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to partial wage loss benefits beyond May 6, 2011. A hearing was held on April 4, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to partial wage loss benefits beyond May 6, 2011.

Decision

That the worker is not entitled to partial wage loss benefits beyond May 6, 2011.

Decision: Unanimous

Background

During the course of his employment on January 31, 2008, the worker banged his right knee twice on a desk which caused it to swell. His claim for compensation was accepted based on the diagnosis of a contusion to the right patella and benefits were paid to the worker while he attended physiotherapy treatments. The worker was later diagnosed with a right medial meniscus tear in relation to the accident and a right rotator cuff tear from a fall he incurred when his right knee gave way. Both the right knee and right shoulder conditions were accepted as a WCB responsibility. The WCB did not accept responsibility for the worker's left shoulder difficulties as being a consequence of him over-compensating for his right shoulder difficulties. In September 2009, the worker commenced a modified duty position with the accident employer.

On February 9, 2010, the worker was assigned permanent work restrictions by the WCB which were outlined as follows:

• to avoid tasks requiring repetitive right upper limb use;
• to avoid right overhead tasks;
• to avoid right upper limb lifts greater than 10 pounds; and
• no resident contact.

In February 2010, the worker ceased working in the modified duty position as the position did not meet the work restriction of "no resident contact." He was then placed back on compensation benefits until other options were explored.

In October 2010, the employer offered the worker alternate duties as a video surveillance analyst. In this regard, the WCB case manager documented a number of telephone conversations that she had with the employer's representative and the worker's wife regarding the job accommodation. The worker's wife expressed concerns that the job may not be suitable for her husband and may aggravate or enhance his shoulder conditions. Some of her concerns were related to the amount of writing involved and the amount of time required to operate a remote control for a DVR machine. The wife also expressed concerns that her husband was being "backed into a corner" by taking the position.

In November 2010, the worker was referred to a clinical psychologist to deal with his anxiety and stress symptoms and to assist with pain management. On November 11, 2010, the worker was diagnosed with major depressive disorder and with shoulder pain and limited function.

On November 25, 2010, the treating physician reported that the worker's right shoulder had a massive rotator cuff tear which was not repairable at the time of surgery. He noted that the worker was having difficulty with finding an appropriate occupation that did not aggravate his shoulder problems.

On November 29, 2010, the employer's representative advised the WCB that the video surveillance analyst position was no longer available as it was not considered a long-term permanent position. The worker was then offered a position at a reception desk starting on December 6, 2010 (later changed to December 7, 2010). The position was only temporary as another staff member was away on medical leave. The employer noted that the worker had expressed an interest in the position as he had worked there in the past.

On December 2, 2010, the worker expressed concerns that the job duties at the reception desk position may be too repetitive and would aggravate his condition. On December 3, 2010, the worker's wife advised the WCB that the return to work arrangement was not going to work and she requested that her husband be seen by a WCB medical advisor.

In e-mail correspondence dated December 6, 2010, an employer representative indicated that he was given a medical certificate by the worker which outlined the following work restrictions:

• no resident contact;
• no repetitive activity with either arm;
• no pulling or pushing;
• no lifting; and
• could use headset but still needs to break up activities - rest every 10 minutes.

The representative stated that he advised the worker not to report to the reception desk position as the job would breach at least one of the above restrictions. He noted that the position involved repetitive activity involving the arms (ie. answering telephones, writing activities such as log entries and receipt writing) and there may be activities that involved pulling, pushing or lifting.

On December 9, 2010, a WCB sector services manager advised the worker that the new medical restrictions had been reviewed but it was still the WCB's position that he was capable of performing the duties at the reception desk. The manager indicated that she would arrange to have a WCB rehabilitation specialist go to the worksite and formally review the job duties. If it was found that the job was appropriate, the worker was expected to participate.

In January 2011, a WCB rehabilitation specialist and an independent kinesiologist (hired by the worker) attended the job site to perform a worksite assessment of the reception desk position. Their reports are on file dated January 31, 2011 and January 18, 2011. It was concluded that the worker would be capable of performing the reception desk position after a few ergonomic changes were made.

As the worker expressed concerns that his compensable restrictions may not be accurate and that the reception desk position was inappropriate, arrangements were made for him to see a WCB orthopaedic consultant on February 23, 2011 as well as a WCB psychiatrist on March 30, 2011.

In the interim, a clinical psychologist provided the WCB with a medical report which stated that the worker should continue with psychological treatment to assist with pain management and provide support and reassurance with respect to his medical conditions. The diagnoses outlined were Pain Disorder Associated with a General Medical Condition and Major Depressive Disorder. It was felt that the WCB should develop and implement a graduated return to work program: "…that would involve his active participation, take into consideration all of his medical reports and limitations in functioning, and provide for a graduated return to work as an extra person starting at approximately 3 hours two times per week with gradual increases over 12 weeks contingent on his ability to cope."

On February 7, 2011, the worker underwent non-compensable left shoulder surgery.

Following the call-in assessment of the worker on February 23, 2011, the WCB orthopaedic consultant stated in part:

The claimant's reported disability is out of proportion and not consistent with a rotator cuff tear. Some improvement would have been expected with his surgery of December 17, 2008. With the rotator cuff tear, it would be expected that he would have some difficulty with some overhead work. From his objective findings he should be capable of doing light to medium work below shoulder height, as well as some strenuous work at floor to waist height. I advise no occasional lifting over 20 lb and no frequent lifting over 10 lb. I see no objective reasons why the claimant should not be capable of working at the [workplace] reception desk position.

On March 18, 2011, the employer's representative stated that the reception desk position was no longer available as they had to fill the position. Another accommodation was available for the worker that involved a desk job that had very little computer work. The position entailed answering phones, buzzing people in and delivering mail that was less than 10 pounds. The job would have to be filled by March 28, 2011. The case manager advised the employer that a WCB psychiatric appointment was pending and once this had been completed, she would be able to provide a decision on the worker's return to work capabilities.

The worker was seen at the WCB's offices on March 30, 2011 for a call-in psychiatric assessment. The consultant stated in part:

Currently, however, it is more difficult to ascertain whether he does meet criteria for Major Depression - this being because the reporting by [the worker] himself is somewhat different from that of his wife. Therefore, the possibilities are that he continues to meet criteria for a diagnosis of Major Depression or, alternatively, that his Major Depression is in partial remission at this time. Regardless, it is the case that some symptoms of depression continue, and these symptoms are impacting on his functioning in some way as indicated by the GAF of 65 as documented above.

In response to questions posed by the WCB case manager dated April 11, 2011, the WCB psychiatric consultant stated, in part:

• on a balance of probabilities, the current diagnosis was medically accounted for, to a significant degree, by the workplace injury;
• there were other non-compensable factors that contributed to the onset and exacerbation of the worker's psychiatric symptoms;
• there were no psychiatric barriers preventing the worker from returning to work at this time.

On April 21, 2011, the worker advised the WCB that he had been offered employment as a night security supervisor with a different employer. The worker indicated that the job, in his opinion, was within his capabilities. The worker noted that he would start his training on April 27 or 28 and be paid a lower salary than his pre-accident earnings. He would also be completing his GED. The worker said he advised the accident employer's payroll department that he was retiring effective May 6, 2011.

On April 26, 2011, the employer's representative advised the WCB that the reception position (as noted on March 18, 2011) was still available. If there was anything that needed to be done that might be considered outside of the worker's restrictions, there would be another staff member who could perform the duty. Then, on April 27, 2011, the employer advised the WCB that they were unable to provide the worker with the reception position as it was their opinion that the worker would not be considered well-suited for it.

On April 27, 2011, the worker advised his case manager that he had no choice but to retire from his current employer as he did not believe the job positions he was being offered were the type of job duties that he should be performing given his current difficulties and what he felt his capabilities were.

In a letter dated May 2, 2011, the worker was advised that the WCB had accepted the diagnosis of major depressive disorder, single episode, in partial remission as being related to his claim. The worker was advised that his wage loss benefits would be reduced given that he had secured alternate employment which began on April 28, 2011. With respect to his retirement effective May 6, 2011, the worker was advised in a letter that:

WCB Policy 44.60.20, Date of Retirement, indicates that the WCB may consider that the worker has retired if the evidence supports the conclusion that the worker has voluntarily retired or withdrawn from the labour force. Section 39(2) of the Workers Compensation Act indicates wage loss benefits are payable until the loss of earning capacity ends, as determined by the board. As such, wage loss benefits will be paid to May 5, 2011, inclusive and final.

In May 2011, the worker appealed the WCB's decision that he was not entitled to wage loss benefits after May 5, 2011.

In June 2011, the Vice-President of Rehabilitation and Compensation Services met with the worker and his wife to discuss various issues related to the worker's claim and his dealings with the WCB. Following the meeting, the Vice-President requested a WCB Quality Assurance Review. A copy of this report is on file dated June 30, 2011.

In a subsequent memo to file dated September 7, 2011, the Vice-President stated:

In reviewing WCB legislation and policy as it relates to this claim, I do not come to the same conclusion as the assigned Case Manager and Sector Manager relative to the worker's decision to retire earlier in 2011. Specifically, I don't view the worker was retiring from the labour force pursuant to the provisions of WCB policy 44.60.20, Date of Retirement. Under the provisions of that policy, before the WCB of Manitoba can make a determination that the worker has retired from the workforce voluntarily (and is therefore no longer experiencing a loss of earning capacity), the WCB may consider several indicators that the policy states will help to establish and adopt an appropriate retirement date.

While one of the principal factors cited in the policy as a criterion for determining whether the worker voluntarily retired from the workforce is whether they have accepted a company retirement pension as the worker has in this situation, the policy goes on to say that this factor must be weighed against evidence of the worker's continued commitment to the labour force. The worker's specific actions in finding paid employment in the community before retiring from his employer support his position that he continues to want to work and that he felt under duress in retiring from his pre-injury employment.

…

Based on my review summarized above, I will direct the involved Sector Manager for this claim to pay the worker wage loss benefits effective the date of their previous discontinuation. Partial wage loss benefits should be paid initially based on the worker's actual earnings from his alternate position of employment. I will also direct that an earning capacity analysis be completed to establish the worker's long-term loss of earning capacity.

Based on the above review, the worker was advised that he was entitled to partial wage loss benefits effective May 6, 2011 until such time as an earning capacity analysis was completed.

On May 3, 2012, the employer appealed the WCB's decision that the worker was entitled to wage loss benefits beyond May 6, 2011. The employer felt that suitable accommodation options were made available to the worker which would have paid him his full pre-accident wage, thus eliminating any loss of earnings. It was felt that the worker made a well-informed decision to retire which made it unnecessary for the employer to further pursue a reasonable accommodation for the worker.

On August 21, 2012, Review Office confirmed that the worker was entitled to partial wage loss benefits beyond May 6, 2011. Review Office stated the following in its decision:

• it was satisfied that the employer did not provide the worker with a suitable alternate duty position prior to his retirement;
• that the worker's psychological condition may have played a role in his ability to actively participate in a return to work program initiated by the employer and the WCB. This was supported by the worker's willingness and success in obtaining and maintaining outside employment without the involvement or assistance of the WCB;
• the worker did not purposely fail to mitigate the effects of his compensable injuries to warrant a suspension of his benefits. Based on the criteria outlined in WCB policy 44.60.20, the worker's actions showed that he had no intention of withdrawing from the workforce when he submitted his written retirement in April 2011;
• that the employer's assertion that they were capable of providing the worker permanent employment which respected his limitations resulting in an elimination of any wage loss entitlement was speculative given the history of events on file.

The employer appealed Review Office's decision to the Appeal Commission and a hearing was held on April 4, 2013 to consider the matter.

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.

Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

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.

The employer's position:

The employer was represented by an advocate, a WCB coordinator and a deputy superintendant. The employer's position was that the WCB's decision to reinstate wage loss benefits to the worker was in error for the following reasons:

i. At the time of his retirement, the worker, his employer and the WCB were in the process of exploring positions to accommodate the worker's restrictions;

ii. The worker failed to mitigate the effects of his injury by repeatedly presenting barriers to a successful re-employment outcome and eventually removing himself from the process entirely; and

iii. The worker made an informed decision to retire on May 6, 2011 and take on a job with another employer.

It was therefore submitted that on a balance of probabilities, wage loss benefits beyond the worker's date of retirement were not warranted.

The worker’s position:

The worker was assisted by a worker advisor at the hearing and was accompanied by his wife. The worker's position was that the WCB did not err in their determination that the worker was entitled to partial wage loss benefits. There remained a loss of earning capacity due to his compensable injury. It was submitted that the worker did not retire from the general labour force as of May 6, 2011 but rather that he was actively looking for external employment with the WCB's direction and approval, and with acknowledgement that seeking external employment was within the hierarchy of objectives of the WCB vocational rehabilitation process. The evidence supported that as of April 27, 2011, the accident employer was still unsure if they would be able to provide an alternate position and told the WCB that they usually do not hire back after retirement. At that time, there were no new, confirmed, alternate, long-term suitable duties identified. The WCB had informed the worker back in February 2010 that after they exhausted employment opportunities with the employer, they would be proceeding with the vocational rehabilitation process. Currently, the worker was in the vocational rehabilitation process and was exploring other external options with another employer. Throughout the process, the worker showed a full willingness to participate in any alterative work the employer was able to provide. It was the worker's position that there was continued entitlement to wage loss benefits when an injured worker is cooperating and participating with WCB directives. In this case, the worker mitigated the consequences of his injury when the employer clearly was unable to find suitable alternate long-term placement within his restrictions. Therefore partial wage loss benefits were payable.

Analysis:

The issue before the panel is whether or not the worker is entitled to partial wage loss benefits beyond May 6, 2011. In order for the employer’s appeal to be successful, the panel must find that the injuries the worker sustained in the workplace accident of January 31, 2008 were not the cause of his loss of earning capacity beyond May 6, 2011. On a balance of probabilities, we are able to make that finding.

At the hearing, a significant amount of time was spent describing the steps which were taken on the part of the accident employer to find a suitable alternate duty position for the worker. A number of potential job positions were identified, but none materialized. It is difficult to say whether this was due to barriers put up by the worker and his wife or to administrative challenges experienced on the part of the employer in trying to implement the worker's approach to return to work (likely a combination of both). In any event, the worker never managed to start work in any of the positions and as of May 2011, the search for accommodation continued. Nevertheless, given the fact that the accident employer is a large employer with many opportunities for accommodated employment, the panel is satisfied that had the worker continued to participate in the return to work process, the employer would have eventually found long-term accommodation for the worker within his restrictions at his pre-accident wage rate. We do not accept the submission that all employment opportunities with the employer had been exhausted. The worker's restrictions were not so extensive as to make finding an accommodated position for him impossible. In fact, it is notable that at the hearing, the worker acknowledged that he would have been able to perform the front reception job which was offered by the employer had the modifications suggested by the two worksite assessments been put in place. The panel finds that although finding a long term suitable accommodation was taking some time, the process was still ongoing.

In the panel's opinion, the action on the part of the worker to activate his pension entitlement and leave his employment with the accident employer was a voluntary and informed decision. By doing so, the worker effectively ended his ability to earn his full pre-accident wage in an accommodated position with the employer. Even though the worker had permanent restrictions resulting from his compensable injuries, these restrictions would not have prevented him from earning his full pre-accident wage had he remained employed with the accident employer.

The panel has considered whether the worker's compensable psychological diagnosis of a Major Depressive Disorder contributed to his decision to retire. The worker's evidence at the hearing was that his frustration with the WCB, his employer and the return to work process was so great that he felt he had no choice but to retire. The Review Office decision of August 21, 2012 stated that: "[The worker] did develop a Major Depressive Disorder which the Review Office believes may have played a role in his ability to actively participate in a return to work program initiated by the employer and the WCB."

On a balance of probabilities, the panel finds that the worker's decision to retire cannot be considered a sequela of his compensable psychological diagnosis. We come to this conclusion based on the following:

• Although the WCB psychiatric consultant felt that the current diagnosis of Major Depressive Disorder was medically accounted for by the workplace injury, he also opined that there were no psychiatric barriers preventing the worker from returning to work.
• The WCB conducted an internal quality assurance review of the worker's case. In a 13 page report dated June 30, 2011, the WCB quality assurance analyst reported on three issues: 1) Medical Aid and Independent Living Allowance Entitlements, 2) Whether the WCB provided proper support around the return to work plan in assessing the duties provided, respecting the worker's documented restrictions to employment, and 3) Whether the worker retired under duress. In her conclusions, the quality assurance analyst made the following statements:

• After reviewing the particulars of this claim, Quality Assurance is of the opinion that the assigned Case Manager, and to some extent, the Sector Manager, were very responsive to the numerous issues and concerns brought forward by [the worker and his wife] throughout the life of this claim and in specific relation to the various return to work programs that were proposed.
• In addition, Quality Assurance is of the opinion that [the employer] made concerted efforts to accommodate the worker in several alternate positions which respected the worker's established capabilities/restrictions.
• The [worker and his wife's] actions, in and of themselves, have unfortunately contributed to their overall level of dissatisfaction and what they perceive to be unjust treatment by the WCB.
• Quality Assurance does not accept that if an injured worker becomes disillusioned because events do not unfold as he or she feels they should, that the resultant angst experienced by the worker (or spouse) is the result of unfair or unjust treatment by WCB personnel.
• Quality Assurance is of the opinion that there is no evidence to support the worker and his wife's contention that the WCB, the [employer] (or a combination of both), forced [the worker] into retirement. Rather, evidence supports that the worker had voluntarily retired or withdrawn from his employment.
• The [worker and his wife's] contention that [the worker] retired from the [employer] under duress due to his less than positive interactions with the WCB is not supported by file documentation.

• The panel agrees with the findings reached by the quality assurance analyst and we adopt her conclusions.
• To the extent that the worker's psychological diagnosis was caused by stress related to participation in the return to work process, the panel notes that psychological difficulties resulting from matters related to the administration of a WCB claim are not compensable.

Based on the foregoing, the panel therefore finds that the worker made a voluntary and informed choice to leave his employment with the employer and by doing so, the worker's loss of earning capacity was no longer attributable to his compensable injuries. As such, the worker is not entitled to partial wage loss benefits beyond May 6, 2011. The employer's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of May, 2013