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.

The worker has an accepted claim for a workplace injury and is seeking benefits beyond September 19, 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, or the worker attains the age of 65 years.

Worker's Position

The worker was represented by a union representative. The worker's representative outlined the worker's position that he was not fit to return to work until October 7, 2013. The worker and the worker representative answered questions posed by the panel.

The worker's representative referred to discrepancies between the Functional Capacity Evaluation (FCE) dated April 19, 2013 and the Job Demand Analysis (JDA). The discrepancies included:

• FCE states reaching is limited to less than arm extended at chest height in all directions while the JDA states arm, above shoulder work is required for climbing ladders and at shoulder level for setting and releasing hand brakes.
• FCE states maximum push /pull is 40 lbs/25lbs for 34-66 % of the workday and maximum ability to lift 35-40 lbs 34-66% of the workday.
• Employer's JDA states operating switches at a minimum of 34% to greater than 67% of the workday and that this requires lifting/pushing/pulling effort.

  
  He noted that the Review Office relied upon the April 5, 2013 report from the worker's treating physiotherapist where the physiotherapist opined that the worker "appears to be able to return to his job as a conductor." He submitted that the treating physiotherapist actually qualified this statement by adding "The only concern I have is the Grade 3+ abduction strength in the left arm, and the difficulty he may have holding onto a moving train with his arm."

  The worker's representative said that the worker would be required to hold onto a moving train and hence the worker is not capable of his job duties. He provided photos of various ladders that the worker would be expected to climb which would require the worker to raise his arm above shoulder height, contrary to his restrictions. He also identified several duties which he submitted that the worker would not be able to perform, including crawling under rail cars, connecting air hoses and "cutting brake out", and pulling manual switches which are poorly maintained.

  The worker's representative noted that the occupational therapist who conducted the JDA spent only 2.5 hours doing the assessment. He also noted that she was not aware of safety policies which require an employee to maintain specific positions when climbing ladders or riding on rail cars because of the lack of representation at the assessment by the union and the worker.

  The worker advised that he did not attempt the job. He said that he was not permitted on the employer premises due to an order from the employer's Chief Executive Officer which is in effect from January 2013 to January 2015 and subject to a review at that time. The worker declined to divulge the reason for this order. He indicated that it was not related to his workplace injury

  The worker advised that he was recovered by October 7, 2013, and is only seeking benefits to this date. He advised that on October 7, 2013, he saw his physiotherapist who examined him and advised that he "meets all job demands of yard foreman/yardman" and he could "return to work full duties." He advised the panel that he had continued to perform the exercises that the physiotherapist recommended throughout the summer so that he could return to work.

  Employer's Position

  The employer was represented by its WCB Specialist who participated by conference call. The employer's Return to Work Specialist attended the hearing.

  The employer's representative advised that the employer agrees with the Review Office decision. She noted that the Act sets out when benefits are payable. She indicated that the worker demonstrated the ability to perform his duties at the FCE and that his treating physiotherapist noted at the conclusion of the reconditioning program that he appeared to be fit to return to his job. She noted that a workplace assessment was conducted by a private occupational therapist who concluded that the worker's physical abilities as outlined in the FCE report of April 19, 2013 appear to fall within the requirements of his position.

  With respect to the worker's comments that he was not permitted to attempt the his job because he was barred from the employer's premises, the Return to Work specialist acknowledged the worker was not permitted to attempt the duties or other operational duties. She explained that pursuant to legislation the worker was restricted from performing safety sensitive and safety critical positions. The worker's regular job fell within this category as did any modified or alternate duties that the employer would otherwise have offered to the worker. She advised that there is a two year window at which time the worker's eligibility will be reassessed

  The Return to Work Specialist responded to questions about the worker's ability to perform specific tasks such as operating switch, connecting air hoses and climbing ladders. It was her position that the worker, through trial and error and with her assistance, could modify his actions and would be able to perform his regular job duties.

  Analysis

  The issue before the panel is whether or not the worker is entitled to wage loss benefits after July 9, 2013. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity due to his workplace injury beyond this date. On a balance of probabilities, the panel finds that the worker does not have a loss of earning capacity as a result of his workplace injury and is not entitled to wage loss benefits after July 9, 2013 for his workplace injury.

  The panel notes that the submissions at the hearing surrounding the loss of earning capacity were in relation to the worker's ability to return to his pre-injury employment. The employer submitted that the worker was medically fit and able to return to his pre-injury employment and referenced a report from the treating physiotherapist and a third party occupational therapist who conducted a job demands analysis. The worker submitted that he was not able to return to his pre-injury employment until October 7, 2013 and submitted that he could not perform all the duties. The worker sought wage loss benefits for the period from July 9, 2013 to October 7, 2013.

  At the hearing reference was made to a matter which was unrelated to the worker's workplace injury and which was preventing the worker from returning to his employment. The panel asked the worker details of the matter but he declined to divulge details. He did advise that he is not permitted to be on the employer's property for an indeterminate period, likely in the range of 2 years.

  The employer's WCB specialist advised that she did not have knowledge of the matter. The employer's Return to Work Specialist provided limited information, indicating that the worker was banned from working in areas classed as safety sensitive and safety critical. She did not provide a reason for this classification but indicated that as a result the worker could not return to his regular duties and the employer could not offer the worker modified duties as all available duties were classed as safety sensitive or safety critical. This prevented the worker from returning to his pre-accident job and from participating in modified duties.

  With respect to the worker's ability to perform modified or regular duties, the panel finds that the worker was able to perform modified duties and likely able to perform regular duties in consultation with the return to work specialist who is an occupational therapist but due to the unrelated intervening matter was not able to attempt a return to work. These duties would have allowed the worker to be paid his pre-accident earnings.

  The panel finds, on a balance of probabilities, that the worker, as a result of personal actions not divulged to the panel but acknowledged to be unrelated to the workplace injury, removed himself from his employment. The panel therefore finds that the worker is not entitled to wage loss benefits as a result of the workplace injury. This intervening act made the worker's return to regular or modified duties impossible as of July 9, 2013.

  The worker's appeal is dismissed.