The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer disagrees with the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits effective July 14, 2012.  A hearing was held on April 13, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefitseffective July 14, 2012.

Decision

That the worker is not entitled to wage loss benefitseffective July 14, 2012.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for physical and psychological injuries resulting from an assault in the workplace on July 25, 2008. At the time of the accident, the worker was employed part-time with the accident employer and full time with a concurrent employer.

On December 8, 2010, an oral hearing was held at the Appeal Commission to decide whether the worker was entitled to wage loss benefits from August 24, 2009 to January 4, 2010 resulting from her concurrent employment. For a complete background leading up to the December 8 hearing, please see Appeal Commission Decision No. 23/11.

On October 21, 2013, a WCB case manager wrote the worker to advise that she was entitled to wage loss benefits from the accident employer retroactive to July 14, 2012. The worker was also advised that she was not entitled to wage loss benefits between July 8, 2010 and July 14, 2012 or between March 8 and 23, 2011. With respect to wage loss benefits retroactive to July 14, 2012, the case manager stated:

You refused to participate in a return to work program with your accident employer in July 2010 and subsequently ended up quitting to avoid getting fired. There is no supportive psychological information to substantiate that you were incapable of participating at that time. In fact, your psychiatrist advised for participation. In wasn't until July 2012 that you were considered "medically unemployable" by your psychiatrist and the WCB agrees with his position. Therefore, your wage loss entitlement starts at that time...You chose to voluntarily retire in June 2012 after reaching your "magic 80" and being eligible for a full pension. Therefore, there is "no loss of earning capacity" and no entitlement to concurrent wage loss benefits...the rationale for paying wage loss at [accident employer] is that you are "medically unemployable" effective the above date. Therefore, it's a moot point whether you were fired or resigned.

In July 2014, the employer submitted an appeal to Review Office regarding the case manager's decision of October 21, 2013. The employer argued that the worker was not eligible for wage loss benefits after her resignation date of July 9, 2010 as she removed herself from employment and therefore did not have a loss of earning capacity.

On October 23, 2014, Review Office determined that the worker was entitled to wage loss benefits effective July 14, 2012 from the employer and the concurrent employer. Review Office outlined the opinion that the worker's resignation from her employer did not initially result in a loss of earning capacity based on the return to work plan and the status of her compensable condition at that time. However, when her compensable condition deteriorated as supported by the medical evidence, Review Office concluded that the worker was not capable of continuing to work. Therefore a loss of earning capacity began effective July 14, 2012.

Regarding the worker's retirement from her concurrent employer, Review Office referred to WCB Policy 44.60.20, Date of Retirement. The policy recognized that some individuals may apply for and receive retirement benefits prior to or after the age of 65 without intending to retire or completely withdraw from the labour force.

Review Office accepted the worker's statement that she did not withdraw from the labour force or voluntarily retire. It found that the worker's compensable injury affected her ability to continue working as supported by her psychiatrist. Review Office noted that the worker was not in receipt of CPP retirement benefits but disability benefits. The worker's retirement did not eliminate her loss of earning capacity associated with her accident. The compensable injury was the cause of her full loss of earning capacity beyond July 13, 2012.

Review Office concluded that the worker's loss of earning capacity effective July 14, 2012 was in relation to the 2008 accident and was based on a material change in her compensable psychological condition. There was therefore entitlement to wage loss benefits from both employers.

On December 19, 2014, the employer appealed Review Office's decision to the Appeal Commission and an oral 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.

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.

Employer’s Position

The employer was represented by a benefits coordinator and a human resources consultant. It was acknowledged that the worker's claim was a complicated one with two employers and that consideration had to be given to the nature of both employers, her medical history as well as her own personal life history. Taking all the factors into consideration, it was submitted that the worker was not entitled to further wage loss benefits past the date that she decided to retire from the concurrent employer on July 14, 2012.

With respect to the worker's position with the accident employer, it was submitted that the worker was offered a reasonable, well-organized return to work. She did not, however, return to work as planned and her employment ended. By resigning from the accident employer, she removed herself from employment and there was no loss of earning capacity. It was submitted that the worker was not entitled to further wage loss related to her July 2008 compensable injury due to the fact that she made an informed decision to resign.

Although the worker resigned from her position, she continued to work on a full time basis with the alternate employer in a clerical position. The WCB claim files revealed numerous issues that the worker was dealing with over and above the 2008 compensable injury. It was well established that the worker had absenteeism issues with both the accident employer and the concurrent employer, labour-related issues with the concurrent employer, permanent restrictions from an earlier WCB injury, non-compensable health issues, and had experienced past traumas to herself and close family members. The employer noted that there was evidence of absenteeism issues back to 2004 and that by 2011, the worker was under an attendance management program with the concurrent employer. It would appear that the worker reached the point of frustration with her employment contract when she was told in a meeting with human resources that she would be terminated due to absenteeism. It was submitted that it was at this point that the worker confirmed her plan to retire at the date that she was eligible for a full unreduced pension from the concurrent employer.

Overall, it was submitted that the worker's situation was one of burn-out, rather than aggravation of the 2008 compensable injury, with respect to the extension of benefits past the date of retirement. It was submitted that the worker had been fairly compensated for her compensable injury of July 25, 2008. This was a situation where the worker decided to retire from her position with the concurrent employer as a result of burn-out and an ability to access a full unreduced pension. The employer did not agree that the worker should be entitled to further wage loss benefits past her date of retirement from the concurrent employer.

Worker’s Position

The worker was self-represented and accompanied by a friend at the hearing. The worker advised the panel that she worked over 25 years for the concurrent employer as a clerk when she developed myofascial pain from the program. The accident employer was aware of her restrictions the night she was assigned to care for a volatile client. After the assault, her once manageable myofascial injury became unmanageable. She also struggled with a post traumatic stress disorder diagnosis after the injury. The worker stated that she had been working with a psychiatrist but it was a struggle to keep even one job. She was susceptible to outbursts, pain, and poor sleep.

The worker described how her life had been changed by the compensable injury. Her family relationships were affected and she found life very difficult. She took pain killers everyday as well as anti-anxiety and sleeping medications. When asked what her pre-accident intentions were with respect to retirement, her evidence was that she always thought she would continue her part-time job with the accident employer and retire at age 60 from the concurrent employer. As she was getting older, she wanted to have more time for herself to do things that she liked to do. She stated that as she came close to the magic 80, she thought she could work for another five years to make sure that her pension was topped up.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits effective July 14, 2012. In order for the employer’s appeal to be successful, the panel must find that the effects of the worker's compensable injuries were not the cause for her decision to retire from her concurrent employment. We are able to make that finding.

The main issue for the panel was to determine the reason why the worker retired from her employment effective July 14, 2012. Were the effects of her compensable injuries such that she could no longer function in her concurrent employment or did she leave as a result of other factors? It is always difficult to make these types of determinations, but on a balance of probabilities, the panel feels that the evidence weighs more heavily in favour of the finding that the worker's decision to leave was a personal decision to retire. In reaching this conclusion, the panel relied on the following:

• File information indicates that the worker had already been considering retirement in March 2010. The notes from the psychological call-in examination dated March 3, 2010 state: "... she does indicate that she will reach her "magic 80" with the [concurrent employer] in two years and her strong consideration is of retiring at that point." The panel notes that these comments were made at a time before the worker experienced the deterioration in her psychological condition.
• In the panel's opinion, the more proximate cause for the worker's decision to retire were labour relations issues related to absenteeism, and the stress arising from disciplinary measures being taken by her concurrent employer. These were escalating stressors in the months prior to her retirement date.
• The worker's absenteeism was a long term work issue with both the accident employer and the concurrent employer and was therefore present well prior to the deterioration in her ability to cope. The issue related not only to the absence from the workplace but also included the worker's failure to call-in to the employer to report the absence.
• The file also references interpersonal issues between the worker and her colleagues at work. The panel finds that poor relationships with co-workers would not be related to the effects of the compensable injuries.
• The WCB psychological advisor's notes of April 20, 2011 referenced chronic and pre-existing problems in coping, anxiety and depression. At the time of the opinion, the psychological advisor felt that any need for ongoing psychological care was, in majority, related to non-WCB issues. The panel finds that it was these chronic issues and her pre-existing inability to cope, combined with the disciplinary and interpersonal issues at work, that caused the worker to choose to accept her retirement at the earliest possible date.

Based on the above, the panel finds on a balance of probabilities that the worker's decision to retire from her concurrent employment was a personal decision and her loss of earning capacity resulting from this decision is not compensable. The panel's decision extends not only to loss of earning capacity from the concurrent employment, but also to loss of earning capacity with the accident employer. For the reasons set out above, we find that the effects of the compensable injuries did not disable the worker from engaging in a return to work with the accident employer effective July 14, 2012.

The worker is therefore not entitled to wage loss benefits effective July 14, 2012. The employer's appeal is allowed.

Panel Members

A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Presiding Officer

Signed at Winnipeg this 8th day of May, 2015