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 was entitled to wage loss benefits after December 21, 2012 in relation to her December 20, 2012 work-related accident. A file review was held on August 21, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after December 21, 2012 to January 1, 2013.

Decision

That the worker is entitled to wage loss benefits after December 21, 2012 to January 1, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries to her head, knees and hands when she tripped and fell on December 20, 2012 during the course of her employment as a production worker. The date of accident and injury description was confirmed by the employer on January 3, 2013.

Initial medical reports showed that the worker attended a hospital emergency facility and her family physician for treatment on the day of the accident, December 20, 2012. The worker reported symptoms of head, eye brows, hands, wrists and knee pain. She also had pain in her upper back/neck and complained of dizziness. The worker was diagnosed with head and soft tissue injuries as well as headaches and dizziness. The hospital emergency physician indicated that a modified or alternate return to work was up to the employer and that the worker would be disabled beyond the date of injury. The family physician reported that the worker was not capable of alternate or modified duties and a follow-up appointment was arranged for December 24, 2012.

On December 24, 2012, the family physician reported that the worker still had pain in her head, wrists, neck and back but was slowly getting better. The worker still had some tenderness over the scalp, eye brow, wrists, neck and back.

The worker advised the WCB on December 27, 2012, that she still had head, neck and upper back pain and that she was not offered light duties by her employer.

At a follow-up appointment on January 2, 2013 the family physician reported that the worker still had tenderness over the trapezii/neck and back along with cold symptoms.

On January 3, 2013, the WCB advised the worker that her claim for compensation was accepted and that wage loss benefits commencing December 21, 2012 had been approved.

A WCB medical advisor stated on January 21, 2013 that the likely diagnoses related to the December 20, 2012 workplace accident included contusion to both knees and forehead and a mild contusion/strain to the left hand. The medical advisor referred to three consultation reports from the hospital emergency facility that the worker attended on the day of her accident and she stated that the reported medical findings do not support total disability. She stated: "…in relation to the December 20, 2012 workplace accident, it appears that [the worker] would likely have been capable of returning to work by January 2, 2013. At that point, [the worker] saw her physician and indicated that she had some pain in the neck and back, "worse since got cold sx 3 days ago." The pain over the forehead, knees and wrist(s) appears to have resolved by January 2, 2013."

On January 28, 2013, the employer submitted an appeal to Review Office outlining the position that the worker was not completely disabled beyond the date of her workplace accident and that she could have performed alternate light duties that they had available. The employer referred to the doctor's report of December 20, 2012 and stated that the worker was advised to take time off work on December 21, 2012 due to medical reasons but there was no medical report or objective evidence that the worker was totally disabled to perform any kind of work beyond December 21, 2012. The employer noted that the plant was shut down between December 24, 2012 and January 2, 2013, hence, no one was scheduled to work during those days. The worker had also been paid a stat holiday for December 25 and 26, 2012 and January 1, 2013.

On February 28, 2013, the employer made a further submission to Review Office after receiving a copy of the worker's file. The employer stated:

"…we now have objective evidence stating that [the worker] was not totally disabled from work and unable to do the light duties offered by the employer. Based from the medical opinion provided by [WCB medical advisor] dated January 21, 2013, "The reported medical findings do not support total disability." Evidently, though [the worker] was diagnosed with contusion to knees, forehead and left hand, according to the medical opinion provided by [WCB medical advisor], [the worker] was not totally disabled which was a contradiction of the Adjudicator's opinion which she used to conclude for the acceptance of wage loss benefits. Given the above and based from our original request for review submission which is also attached to this letter, we believe that the decision made to accept the wage loss benefit for [the worker] workplace injury claim was not in accordance with WCB Policy 44.40.10."

On April 30, 2013, Review Office determined that the worker was entitled to wage loss benefits after December 21, 2012. Review Office indicated in its decision that WCB Policy 44.40.10 Evidence of Disability was not applicable in this circumstance and that based on subsection 4(2) of the Act, the worker had a loss of earning capacity after December 21, 2012.

Review Office indicated that the adjudicator's decision to pay wage loss benefits was based on the family doctor's comment that the worker was totally incapacitated as a result of the workplace injury sustained on December 20, 2012. Review Office indicated that it agreed with the emergency doctor's opinion and that of the WCB medical advisor that the worker was not totally incapacitated after December 21, 2012 and that workplace restrictions were likely indicated at that time. Review Office further noted that: "The preceding aside, the employer did not follow through with any meaningful efforts to accommodate the worker prior to the shut down nor from December 24, 2012 to January 2, 2013. The information from the employer shows the last day of production as December 21, 2012 and that it did not resume until January 2, 2013. The employer's inability to accommodate the worker is considered a material factor in establishing a loss of earning capacity during this period and wage loss benefits are payable as a result. The Review Office therefore finds that a loss of earning capacity related to the injury continued to exist beyond December 21, 2012." On May 6, 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”), its regulations and the policies of the Board of Directors.

The employer has appealed the WCB’s decision to pay benefits to the worker after December 21, 2012. The worker was found to have been entitled to wage loss benefits from the date of her accident, December 20, 2012 to January 1, 2013. She would have returned to work on January 2, 2013 but for a cold that was unrelated to the injury that she suffered.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends.

Employer’s Position

The employer has advanced the following in support of its submission that benefits should not have been paid beyond December 21, 2012:

1. The worker was not completely disabled beyond December 21, 2012 and could have returned to work to perform light duties;

2. No work was scheduled during the plant shutdown (Monday, December 24, 2012 to Tuesday, January 1, 2013, inclusive) and therefore no work would have been available to the worker on those days; and

3. During the period from and including December 24, 2012, up to and including January 1, 2013, the employer paid the worker a combination of statutory holiday pay (December 25 and 26, 2012 and January 1, 2013) and vacation pay (December 24, 27, 28 and 31, 2012.) The employer submits that the worker was paid twice for these days, in that she continued to receive wages during the period from December 24, 2012 to January 1, 2013 inclusive while at the same time receiving WCB wage loss benefits (7 days) in respect of those same days.

Worker`s Position

The worker, through her advocate, submitted that:

1. Wage loss benefits were properly payable, in that the worker, although capable of modified work, was not offered such work, prior to being authorized to return to work on January 2, 2013; and

2. Vacation pay is a benefit earned prior to the workplace accident and is not properly considered in determining the worker's loss of earnings capacity.

3. The occurrence of a plant shutdown does not change the fact that the worker was unable to work due to her workplace injuries.

Analysis

The issue to be determined is “Whether or not the worker is entitled to wage loss benefits after December 21, 2012 to January 1, 2013 inclusive.”

The facts as determined by the panel, are as follows:

1. The worker suffered a compensable injury on December 20, 2012. Medical evidence supports the fact that as of December 22, 2012, the worker would have been capable of performing modified work, but the circumstances of her workplace were such that modified work was not extended to her. The medical evidence further supports the fact that the worker had recovered from her accident injuries and was able to resume her regular full-time duties as of January 2, 2013.

2. The workplace was closed for a holiday shutdown during the period from Monday, December 24, 2012 to Tuesday, January 1, 2013, inclusive. By memo dated December 7, 2012, the employer advised its employees, including the worker, that they would be paid statutory holiday pay for Christmas Day, Boxing Day and New Years Day. Employees were given the option of scheduling vacation days for the balance of the days that the plant would be shut down (i.e. December 24, 27, 28 and 31). The worker elected this option, and consequently, her wages continued uninterrupted during the period of the plant shutdown.

3. By reason of the plant shutdown, the worker was unable to return to work in modified duties or otherwise, and but for having utilized vacation credits, would not have received regular pay for December 24, 27, 28 and 31. The employer however compensated her for December 25, 26 and January 1, 2013 on the basis that it recognized those days as statutory holidays. It should be noted that December 26 (Boxing Day), while frequently recognized by employers as a paid holiday, is not a legislated holiday and is not treated as such by the WCB.

4. WCB paid the worker for seven days lost wages subsequent to December 21, 2012. This included payment for the two statutory holidays (December 25, 2012 and January 1, 2013). All seven days were paid for at the rate of $73.82 per day.

In the result, WCB paid the worker for three days that had been paid for by her employer, with two of them being the legislated statutory holiday days of December 25 and January 1, and the third being the non-legislated (but employer-recognized) holiday on December 26, 2012.

The Panel’s determinations are as follows:

(a) Payment of Wage Loss Benefits Subsequent to December 21, 2012.

Section 39(2) of the Act provides that except for a specific age-related exception, wage loss “benefits are payable until (a) the loss of earnings capacity ends, as determined by the board; or (b) the worker attains the age of 65 years.”

The panel accepts that during the period subsequent to December 21, 2012, the worker was cleared to return to work on modified duties, but that she was not cleared to return to regular duties until January 2, 2013. However, given the circumstances of the plant shutdown, no modified duties were extended to her during this period. In accordance with WCB’s established policies and practices, the worker was entitled to benefits for those days where she suffered a loss of earnings capacity by reason of her inability to return to her pre-accident duties and for which no modified duties were offered.

The panel assessed whether WCB Policy 43.20.25 (Return to Work with the Accident Employer) is applicable to this case. It "outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer." The Policy addresses factors that the WCB is to consider when determining if the worker’s loss of earnings occurred for reasons unrelated to the injury. Included in those reasons are work interruptions such as a lay-off, shutdown, lockout or strike. The Policy is however inapplicable to this claim, for it only operates where a worker is engaged in a return to work program.

(b) Impact of Payment of Vacation Days for Days Where the Worker Suffered a Loss of Earnings

Paragraph 1 of WCB Policy 44.80.30.10 (Establishing Post Accident Earnings Capacity) states that “Employment benefits earned or accrued prior to receiving WCB benefits will not be included in post-accident earnings.” The Policy further provides that “vacation pay cash-out or severance pay” are specifically excluded when calculating a worker’s post-accident earnings. Based on this policy, the panel finds that payments that the worker received from her employer in respect of December 24, 27, 28 and 31 should properly be considered as a “pay-out” of her pre-earned vacation entitlement. Those benefits were earned or accrued prior to receipt of WCB benefits, and as such, do not reduce her WCB benefit entitlement in respect of those days.

(c) Impact of Employer’s Payment of December 25, 26 and January 1, 2013 as Employer-Recognized “Statutory Holidays”

Paragraph 1 of WCB Policy 44.80.60 addresses payment of statutory holidays. It states

The WCB generally pays compensation for statutory holidays that fall within the period of disability or loss of earnings capacity, except where the statutory holiday falls on a day that the worker would not have worked if she or he had not been injured or the employer pays the worker for the statutory holiday.

If the employer pays the worker for a statutory holiday for which the WCB would pay the worker, the WCB will reimburse the employer for that day at the rate of compensation it would have paid the worker.

In this case, the WCB paid the worker directly for two legislated statutory holidays (December 25 and January 1) while the employer at the same time paid the worker for those two days. In this circumstance, the worker has been double paid for these days, which is not the intent of this policy. It will be up to the WCB and the employer to determine the appropriate approach to resolve this matter.

The employer treated December 26 (Boxing Day) as a paid holiday. The worker was paid for that day by the employer, and then again by the WCB when it compensated the worker for that day when calculating her lost earnings. The panel notes that the WCB payment for this day is not contemplated in the statutory holiday policy. It remains up to the WCB and the employer to determine the appropriate approach to resolve this matter.

The employer’s appeal is dismissed.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 17th day of October, 2013