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 benefits beyond February 12, 2013 as a formal offer of suitable modified duties had not been offered to the worker or that the employer did not pursue accommodation to the extent of undue hardship. A hearing was held on January 15, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from February 12, 2013.

Decision

That the worker is not entitled to wage loss benefits from February 12, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that he related to the following work activities during the course of his employment as a plumber: bending, twisting, turning, climbing ladders, awkward movements, and lifting materials of various weights and sizes. The worker said his symptoms began at work on March 14, 2012 and progressed.

On March 30, 2012, the worker advised the WCB that he was installing heating and plumbing supplies on March 14 and they had to move their equipment from the first floor to the second floor. They moved uncut pipe length fittings and tools that were of various sizes and weights and it took all day long to complete the move. When he first noticed pain in his low back, he felt a pull and he could not straighten up. The worker said he reported the injury to his employer on the day it happened and he was given lighter duties.

On April 13, 2012, the worker's claim for compensation was accepted by the WCB and benefits and services were paid.

On May 31, 2012, a WCB medical advisor reviewed the file which included test results and reports from the treating physician and physiotherapist. The medical advisor stated that the diagnosis related to the March 14, 2012 work injury was a left-sided disc protrusion at the L5-S1 level. He noted that the MRI performed in April 2012 demonstrated arthrosis of the facet joints at one imaged level. The medical advisor stated: "This is pre-existing; however the contribution of this condition to the current status of the claimant is not known. The arthrosis does not currently appear to be significant." The medical advisor felt the worker was "likely capable of light work where lifts are restricted to 10 lbs and bending at the waist is limited to occasional."

By September 2012, the worker had not returned to modified duties and his treating physician reported that the worker had ongoing pain and was receiving massage therapy.

On November 5, 2012, the worker was seen at a call-in assessment by a WCB medical advisor who stated:

• the current findings showed ongoing evidence of a left-sided radiculopathy in the L5 distribution.
• recovery norms for acute lumbar disc herniation was in the range of six to nine months and the worker was still in the recovery stage.
• the clinical examination did not reveal evidence of a significant pre-existing condition which would have contributed to a delay in recovery.
• the worker was capable of significant workplace activities with restrictions to avoid heaving lifting.
• a graduated return to the workplace would be appropriate due to the worker being de-conditioned.
• surgical intervention was not indicated.
• a referral to a rehabilitation medicine specialist for an opinion would be prudent in regards to further treatment.

On December 5, 2012, the worker was seen by a physical medicine and rehabilitation specialist who recommended lumbar transforaminal corticosteroid injections.

As of January 7, 2013, the worker's wage loss benefits were suspended by the WCB as the worker did not participate in modified duties that were offered to him by the accident employer due to reasons unrelated to his work injury.

Effective February 11, 2013, the worker was given a layoff notice by his employer.

On March 12, 2013, the WCB asked the employer to clarify what modified duties would have been offered to the worker. The employer indicated that earlier in the year, they would have offered the worker light work in the office or job site and some truck driving duties, however, the worker could not participate as he did not have a driver's license. The duties were as follows:

• Delivering parts
• Helping the job site or service calls
• Helping in the office
• Cleaning the shop or job site

The employer reported that the worker and his father came in on Friday asking that the employer complete a form for MPI so that he could get a work permit. The employer noted that there were a lot of plumbing jobs available for which the worker did not need a driver's license. The employer indicated that they had attempted several times to contact the worker in November and December 2012 without any success.

On May 13, 2013, the worker's representative appealed the WCB decision to suspend wage loss benefits stating that the worker was never offered modified duties by his employer and therefore he could not have refused to participate.

On May 13, 2013, a WCB manager with Compensation Services spoke with the worker for additional information. In a memo dated May 14, 2013, the manager stated in part:

"Despite the dominant theme being the workers loss of his driver's license, there is not perfect clarity in regards to the details of the employer/worker negotiations surrounding alternate RTW opportunities. What is known is the employer proceeded to provide the worker with an ROE lay-off notice on February 11, 2013, a time at which there was a clear ongoing impairment effect from the workplace injury which would have put the worker at competitive disadvantage if he had attempted to secure other work through his union hall. Upon reconsideration, it was determined the worker is eligible for wage loss benefits following the date of his employer lay-off (i.e. Feb 12, 2013 onward)."

On May 27, 2013, the employer was advised that retroactive wage loss benefits would be issued to the worker the day following his February 11, 2013 employment layoff based on the position that the worker continued to experience physical impairment effects from the workplace injury after February 12, 2013 which precluded him from being able to seek out similar employment with another employer. "In the eyes of the WCB this equates to a loss of earnings that is (once again) directly attributable to the workplace injury and provides a foundation for wage loss benefit eligibility."

On July 5, 2013, the employer appealed the May 27, 2013 decision to Review Office. The employer stated:

"The WCB case manager had made arrangements for [the worker] to return to work. Upon learning that he could not legally drive, he was laid off. We have and accept our duty to accommodate [the worker's] work related injury restrictions however this was not the reason for the layoff, the suspension of his license was the reason. Had he not had his license suspended, he would have had his restrictions accommodated in our modified duty program. We are also troubled by the fact that [the worker] had his license suspended while he was medically restricted from driving."

In a decision dated September 10, 2013, Review Office decided that the worker was entitled to wage loss benefits prospectively from February 12, 2013 and Compensation Services was directed to review for entitlement to wage loss benefits from January 7 through February 11, 2013. Review Office outlined the view that a bona fide offer of modified duties was never presented to the worker. Review Office indicated that the file evidence suggested that by March 13, 2013, the case manager had yet to fully determine whether the employer had offered the worker suitable work, how long it was available for and what it specifically entailed. The memo of March 13, 2013 outlined specific duties that would not require a driver's license to attend to and thus a partial loss of earning capacity appeared to have existed prior to what the case manager initially characterized to the stakeholders as a "suspension." Review Office felt that the file documentation did not demonstrate that the employer pursued accommodation to the extent of undue hardship. On October 7, 2013, the employer appealed Review Office's decision to the Appeal Commission and a hearing 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.

Relevant provisions of the Act include:

• ss. 4(1) provides that 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.

• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

• ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

• ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

The worker has an accepted claim for a workplace injury. The employer appealed the WCB decision that the worker is entitled to wage loss benefits from February 12, 2013.

Employer's Position

The employer was represented by its Director of Health, Safety and Environment. The employer made an oral submission and answered questions posed by the panel.

The employer representative noted that the worker had been off work due to a workplace injury. The WCB advised the employer that the worker's condition had improved and that he was considered fit to return to work to modified duties. The employer began to develop a return to work plan for implementation in conjunction with the case manager. The employer became aware that the worker had lost his driver's license. As a result the worker was terminated.

The employer representative said:

"There is an accommodation that we accept for workplace injuries, but we think this is outside of that scope, that losing one's licence was not a result of the injury and, had that not been the case, he would have been re‑employed on modified work until he had sufficiently recovered to his normal duties.

[The worker's] supervisor felt that he was a hard worker. We certainly didn't challenge the nature of his injury in any way and we had -- it was our hope that we could indeed get him back to work.

The loss of a licence though, as per company policy, even at fully recovered would have required us to terminate him because of the negative impact on his driver's impact [sic] and the insurance implications that would bring."

Regarding the worker's termination, the employer representative advised that the employer tried to terminate the worker in a manner which would not impede the worker's Employment Insurance opportunities.

The employer representative advised that the offer was not put in writing because it became moot when the worker lost his license and could not be employed by the employer.

The employer representative acknowledged that prior to the accident the worker was given a ride to work. He noted that at that time, the employer was involved in more construction projects but by January 2013, the firm had changed the focus of its business and was primarily doing service work and that a license was needed. He advised that the staff complement has been reduced and that the employer would be unable to employ a staff person who could not drive. He advised that 90% of the worker's activities in the return to work would have involved driving. The employer's policy is that employees must drive company branded vehicles on all service calls to customers.

Regarding the suggestion that the worker could not get insurance, the manager acknowledged that the employer had not delved into this issue as the worker did not meet the job requirement of a valid license and could not be employed. The employer also acknowledged that he was not aware of Manitoba's driver licensing scheme, as he was based in eastern Canada.

Worker's Position

The worker was represented by his father who made a presentation on behalf of the worker. Both the representative and the worker answered questions from the panel.

The worker's representative reviewed the history of the injury and claim. He noted that the worker had an x-ray on March 22, 2012, and an MRI scan on April 26, 2012 which indicated the worker had a "... very large left posterolateral disc herniation producing severe compression of the thecal sac and severe compression of the left SI lateral recess."

The representative noted that on November 6, 2012, the adjudicator wrote to the employer advising of the following temporary restrictions: "... avoiding heavy lifting, return to work on a gradual basis."

The worker's representative advised that the worker was still disabled and receiving medical attention in 2013, long after the WCB said he could return to work. He noted that the worker began receiving treatment from a chiropractor in April 2013 and continued with these treatments throughout 2013. He also participated in conditioning sessions provided by a physiotherapist which he completed on October 18, 2013.

In failing to offer the worker a return to work plan, the worker's representative expressed concern that the employer did not meet its duty to accommodate to the point of undue hardship. He noted that at the time of his layoff from the employer the worker was still receiving treatment.

Regarding the accommodation, the worker's representative indicated that the employer did not do all it could do to accommodate the worker, such as provide a letter to allow the worker to obtain a driver's license for work purposes. He advised that the worker could have used his own truck if he was not able to drive the employer's vehicle.

The worker's representative agreed with the position of the WCB manager that the evidence shows that the worker has a loss of earning capacity prospectively from February 12, 2013.

The worker's representative noted that no written offer was presented to the worker and that the WCB "adjudicator didn't even know what the duties were until -- she had to go and ask them and they weren't confirmed until March 12th or 13th of 2013, arguably, January, February, March, two months, at least two and a half months later."

In answer to questions, the worker advised that he is a journeyman plumber and has a gas ticket. He answered questions about his recovery and his current condition.

The worker confirmed that he appeared in court, was given a fine and lost his driver's license for one year. He does not have a license at the time of the hearing, which is beyond the one year mark.

The worker acknowledged that a job summary provided by the employer indicated that a current driver's license is required. As a journeyman plumber, he would be expected to go on jobs alone, unless there was a larger project underway.

The worker's representative confirmed that it was not their position that the worker was totally disabled and therefore medically unable to perform modified duties in January 2013 but that he would be very limited.

Analysis

The employer is appealing the WCB decision that the worker is entitled to wage loss benefits from February 12, 2013. For the employer's appeal to be successful, the panel must find that the worker's loss of earning capacity after February 12, 2013 was not related to the worker's workplace injury. The panel was able to make this finding.

In the file and at the hearing, there was much discussion regarding the worker's driving conviction and his ability to fulfill the requirements of his employment. The worker was of the view that the employer could have accommodated him with duties that did not involve driving or assisted the worker in obtaining a special license for work purposes. The employer's position was that it is an essential condition of employment that the worker possess a valid driver's license and that not meeting this requirement is a breach of his employment agreement.

The panel finds that the evidence, on a balance of probabilities, supports a finding that the requirement to possess a valid driver's license is a key part of the worker's employment obligation. In losing his license, the worker breached the employment contract and was terminated by the employer because he was not able to fulfill an essential employment requirement. The worker's actions precluded him from being eligible for participation in the return to work. The loss of his license was not related to his work injury. Once the employment relationship has been terminated for cause unrelated to the workplace injury, the worker has no entitlement to further wage loss benefits. Under subsection 39(2), the worker's loss of earning capacity was not due to the injury, rather it was due to his loss of employment.

The panel accepts the employer representative's position that the requirement to have a driver's license is an essential part of the employment contract. Without a driver's license the worker could not perform his employment duties. The panel accepts that given the size and type of the employer's undertaking, it is necessary that the worker, both in his modified duties and regular duties, must be able to drive. The panel accepts the employer representative's evidence that the employer has refocused its operations on service work and has reduced its staffing contingent. It is reasonable for the employer to require that the worker possess a valid driver's license, given the evidence that service work was mostly one-person trips.

The panel notes that in cell phone text communications, included on the claim file, the worker appears to acknowledge that it is necessary to have a valid driver's license to work for the employer.

The panel notes that the worker remains eligible for wage loss benefits and other benefits for periods when he is undergoing medical treatments and participating in other programs related to his injury, as approved by the WCB.

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 10th day of February, 2014