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 had a loss of earning capacity between January 2, 2013 and January 15, 2013 with respect to his compensable accident of January 1, 2013. A file review was held on September 16, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from January 2, 2013 to January 15, 2013.

Decision

That the worker is not entitled to wage loss benefits from January 2, 2013 to January 15, 2013.

Decision: Unanimous

Background

On January 15, 2013, the worker filed a claim with the WCB for a middle back injury that occurred on January 1, 2013. The worker reported that he was lifting a patient on a stretcher and going down some steps when his injury occurred. The worker reported that he returned to his regular duties on January 16, 2013. The worker also reported that he did not miss time from work with his concurrent employer as they had accommodated him with office work.

A doctor's progress report dated January 2, 2013 stated that the worker had tenderness in the paraspinal muscles and he was capable of light duties if available. A physiotherapy report dated January 11, 2013 diagnosed the worker with a thoracic facet sprain/strain.

The worker confirmed the mechanism of injury as described on January 15, 2013 to his WCB adjudicator. The worker noted that his current back pain was in the same area as on a prior claim.

On January 23, 2013, the employer's representative asked the WCB to investigate the claim. The representative stated: "Our primary concerns are that [the worker] has not been forthright with his primary employer insofar as his fitness capabilities are concerned. To my knowledge he, at no time during the disability period in question, approached supervisory personnel to indicate that he was capable of work. It would certainly appear that a stacking of benefits might have occurred…"

In January and February 2013, the WCB adjudicator documented discussions he had with the worker regarding the accident employer's concerns and he also spoke with the concurrent employer.

By letter dated February 7, 2013, the worker was advised that the WCB was accepting his claim for a workplace injury on January 1, 2013 but he was not entitled to any wage loss resulting from the injury. The adjudicator was of the view that the worker did not have a loss of earning capacity given that he was able to perform modified duties with his concurrent employer and therefore would have been capable of performing modified duties with the accident employer.

On April 10, 2013, the worker appealed the above decision to Review Office. A rebuttal submission was made by the employer's representative dated May 9, 2013.

On May 29, 2013, Review Office determined that the worker was entitled to wage loss benefits from January 2 to 15, 2013. Review Office had no concerns with the worker performing sedentary duties with his concurrent employer as the work was considered within the worker's capabilities.

Review Office indicated that the file evidence did not substantiate that well-communicated arrangements were made for the worker to return to work to modified/alternate duties with the accident employer in accordance with policy 43.20.25. To support this finding, Review Office referred to the following file evidence:

• on January 29, 2013, the worker stated that the accident employer did not offer him any modified duties and therefore he did not return to work until after he was cleared to perform full duties.
• the employer's human resource consultant indicated that the employer did have office/sedentary duties that could have been offered had the WCB advised the employer of the worker's restrictions (e-mail dated February 1, 2013).
• the worker contacted the superintendent on January 2, 2013 and the discussion was that he was not fit to work his regular job duties. There was no discussion on his work capabilities or the employer's ability to accommodate.
• via e-mail correspondence dated February 7, 2013, the employer indicated that the superintendant was contacted to confirm the January 2, 2013 discussion he had with the worker. The superintendent said the worker told him that his doctor had cleared him for light duties and he suggested to the worker that he contact human resources to determine if light duties were available.
• the worker spoke with the Human Resources Department on January 7, 2013 and they recommended that he keep in contact with his supervisor about his return to work date. There were no discussions regarding his ability to return to modified/alternate duties with the employer.

Review Office said the assumption could not be made that the accident employer would have been able to provide an accommodation for the worker or that one would have been arranged solely based on the worker's phone call to the employer advising them of his restrictions. The worker was therefore entitled to wage loss benefits from January 2 to 15, 2013. On May 28, 2013, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.

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.

This is an employer appeal. The employer is appealing the WCB decision to pay the worker wage loss benefits for the period from January 2, 2013 to January 15, 2013. 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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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. Subsection 40(1) of the Act defines loss of earning capacity as the difference between the worker's net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

Employer's Position

The employer provided a written submission dated August 29, 2013. The employer also referred to its submission to Review Office dated May 9, 2013.

In its August 29, 2013 submission, the employer outlined its disagreement with the Review Office decision. The employer submitted that the matter should be considered under section 22 of the Act which deals with mitigation. The employer submitted that had the worker followed the instructions of his immediate superior and notified Human Resources regarding his fitness capabilities on January 2, 2013, the onus would be on the employer to accommodate. By not doing so, the worker negated the employer's ability to offer him alternate duties. The employer noted that the worker, at no time during the disability period, notified Human Resources that he was capable of alternate duties.

The employer concluded that:

"We are of the firm belief that [worker] did not take all reasonable steps to reduce or eliminate his loss of earnings as evidenced by the fact that he failed to notify Human Resources as to his fitness capabilities. This inaction on the part of [worker] prevented the Human Resources department from providing [worker] with a suitable accommodation. It is we suggest, unreasonable to expect the employer to offer an accommodation where the injured worker is believed to be totally disabled."

Worker's Position

While the worker did not participate in this appeal, he did make submissions to Review Office in support of his request for reconsideration.

In his submission dated April 10, 2013, the worker advised that he had contact with the employer's Human Resource department on 3 occasions and that no enquiries were made "…as to my recovery, my limitations or possibility of light duties to accommodate." Regarding his concurrent employment the worker advised that he did not disclose this information because 1) the WCB claim would not be impacted because the dates were not part of the claim, 2) the dates worked were prescheduled and were not in conflict with the employer's pre-scheduled work dates and 3) the work done was office duties and mentoring which removed him from the usual duties.

The worker expressed the view that "…there are many learning points at all levels involved, many shortcomings in communications at all levels and many misperceptions that the claimant knows exactly what to do in this process."

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits from January 2, 2013 to January 15, 2013. For the employer's appeal to be successful, the panel must find on a balance of probabilities that the worker did not sustain a loss of earning capacity during this period as a result of the workplace injury. The panel was able to make this finding. The panel finds that the worker did not sustain a loss of earning capacity as a result of the workplace injury. In other words, his earning capacity was not impaired by the injury. While the worker may have lost income, it was not due to the injury but arose from the worker's failure to participate in alternate duties.

In reaching this decision, the panel notes the following facts:

• January 1, 2013 the worker injured his mid-back at work.
• January 2, 2013 the worker saw a physician who told him he was not fit to perform his regular duties for 2 weeks, but was fit for light duties.
• January 2, 2013 the worker told his supervisor he was injured but was fit for light duties.
• January 2, 2013, the supervisor instructed the worker to contact Human Resources regarding an accommodation.
• January 7, 2013 the worker contacted Human Resources but did not advise that he was fit for light duties.
• January 16, 2013 the worker returned to his regular duties with the employer.

In his submission to Review Office the worker expressed concern that his employer did not ask him about his condition nor offer him suitable modified duties. He said that he expected there would be no light duties but feels that the employer should have checked with him. The employer's response to this explanation is that the worker was told by his supervisor to contact Human Resources about alternate duties and neglected to do so.

It is of interest that the worker worked at his concurrent employment on January 2, 2013, the day after the injury. It is noted that his regular duties with the concurrent employer are similar to his regular duties with the accident employer. However, on the two dates that he worked, in the period following his injury, he was given sedentary duties and did not work his usual duties as a paramedic. He did complete both shifts that had been scheduled in that period. The panel finds that the worker's ability to perform sedentary duties with his concurrent employer demonstrates that his earning capacity was not impaired as a result of the injury. He was not totally disabled between January 2 to 15, 2013.

Unfortunately, the employer was not aware that the worker was fit for light duties and was unable to offer the worker light duties. The panel finds that the employer would have been able to offer light duties had it been informed of the worker's capabilities. The panel notes that the worker has been a long time employee with four prior claims, and a resulting familiarity with the employer's well-established return to work programs.

In conclusion, the panel finds that the worker did not sustain a loss of earning capacity. The panel relies on section 40(1) of the Act. The panel finds that:

· the worker was capable of working light duties as demonstrated by his work with the concurrent employer and his physician's opinion; and,

· the accident employer would have been able to provide similar light duties had it been aware that the worker was fit for light duties, which would have resulted in the worker continuing to work with no loss of income.

Accordingly, the panel concludes there is no difference between the worker's pre-accident earnings and his post accident earning capacity.

The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 25th day of September, 2013