Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was not entitled to two days of wage loss benefits with respect to hiscompensable ankle injury.  A hearingwas held on October 28, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefitsfor the period September 23 and 24, 2013.

Decision

That the worker is not entitled to wage loss benefits forthe period September 23 and 24, 2013.

Decision: Unanimous

Background

On November 8, 2013, the worker filed a claim with the WCB for a right ankle/right knee injury that occurred on September 22, 2013. The worker described the accident as follows: "There was a hole in the residence yard and my foot went in and I felt my ankle roll and I dropped all of my equipment and dropped to the ground. After a few minutes, I got up and worked through it. As the night progressed, it got worse, stiff and sore."

The worker advised that he was injured on a regular shift and was not able to work some "pick up shifts." He was docked sick time on September 23 and 24, 2013 (14 hour night shifts).

By e-mail correspondence dated October 3, 2013, the employer confirmed that the worker missed two night shifts (28 hours) on an alternate platoon. There was no wage loss, however, for those shifts as they were change of platoon, an agreement between two employees to swap shifts. There was no dollar figure attached to working these shifts. The department would not have paid the worker to work on September 23 and 24.

On November 20, 2013, the worker advised the WCB that he did swap shifts with a co-worker. His co-worker had worked two shifts for him in the past and the worker was supposed to work for his partner after his injury. Given that he suffered a work injury, he was not able to work those two extra shifts. The WCB adjudicator advised the worker that "in the past WCB hasn't paid time loss given the fact that he was suppose to reimburse the time worked for him by his partner and that this wasn't an extra shift."

On July 22, 2014, legal counsel acting on the worker's and union's behalf appealed the decision dated November 20, 2013 to Review Office. On July 25, 2014, Review Office advised the worker that his file was being returned to primary adjudication so they could provide him with a written decision regarding his entitlement to benefits.

By letter dated August 7, 2014, primary adjudication advised the worker that there was no entitlement to wage loss benefits as there was no loss of earning capacity in relation to the compensable injury of September 22, 2013. The adjudicator stated:

"In this instance a co-worker previously worked two shifts for [the worker] on May 22, 2013 and May 23, 2013. [The worker] received full pay for these shifts and was to work two shifts for the co-worker on September 23, 2013 and September 24, 2013. As a result of the workplace injury, [the worker] was unable to fulfill his part of the contract...My understanding is that the collective agreement speaks to this exact scenario and is clear that the absence will be charged to the appropriate account."

On August 19, 2014, the worker's counsel advised Review Office that the decision made on August 7, 2014 was being appealed as it was felt that the worker should be paid wage loss benefits for the days of work he missed on September 23 and 24, 2013. A copy of the August 19 submission was forwarded to the employer's representative for comment and his response is on file dated October 22, 2014. In a final submission to Review Office dated November 5, 2014, the worker's counsel responded to the arguments set out in the employer's submission of October 22, 2014.

On November 18, 2014, Review Office determined there was no entitlement to wage loss benefits for September 23 and 24, 2013.

Review Office referred to the contract signed on May 1 between the worker and his co-worker. It found that based on the contractual arrangement, neither worker received additional pay for the "change of platoon" shifts, as their salaries are not reduced for their leave of absence. Therefore, Review Office found that had the worker carried out his obligation of the agreement, he would not have been financially compensated. The worker was simply "paying back" a co-worker for the shifts he had worked on May 22 and May 23.

Review Office referred to the worker's position that he was entitled to wage loss benefits for September 23 and 24 regardless of the type of shift he was scheduled to work. Review Office's response was that the worker did not have a loss of earning capacity (inability to earn a wage) on September 23 and 24 as, based on the agreement, he was not being financially compensated (paid) for work he would have performed.

Regarding the worker's position that the requirement to "pay back" wages for May 22 and May 23 used his sick time went against the basis of the WCB and the Act, Review Office disagreed with this interpretation and found this to be a labour relations issue. On April 13, 2015, the worker's legal representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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 injury which arose from a workplace accident but was found not to have sustained a loss of earning capacity. He is seeking benefits for September 23 and 24, 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 4(2) of the Act provides that wage loss benefits are payable for the worker's loss of earning capacity "...but no wage loss benefits are payable when the injury does not result in a loss of earning capacity during any period after the day on which the accident happens."

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..."

WCB Policy 44.80.10.10 Average Earnings (the "Average Earnings Policy") states, in part:

Policy Purpose

When a worker is injured at work, income from various sources may be interrupted. The workers compensation system is designed to replace the employment income lost as a result of a workplace accident or disease. It is essential, therefore, that the Workers Compensation Board (WCB) accurately determines a worker’s actual loss of earnings at the time of a compensable injury.

...

Definitions:

Regular Earnings:

Regular earnings are the amount of earnings a worker normally receives as remuneration in the occupation(s) in which he or she was employed at the time of injury. Regular earnings are based on the normal payment schedule (daily, weekly, monthly, annually, etc.) converted to a weekly amount. Earnings from concurrent employment (whether in a covered or non-covered industry) which are reduced or eliminated due to an accident in a covered industry are included in regular earnings.

Regular earnings do not normally include overtime, special reimbursements for employment expenses or bonuses that are not regularly paid.

...

Worker's Position

The worker was represented by legal counsel who referred to a detailed brief she supplied in advance of the hearing.

The worker's counsel noted that the worker is employed in a department of the employer. A collective agreement governs the relations between the worker's union and the employer. A copy of the agreement was included in the brief.

Counsel noted that there are two Articles (13 and 41) under the collective agreement which are applicable to the appeal. The articles deal with the ability of employees to change shifts, cancel the proposed changed shift, and the consequences if a party to the shift change becomes incapacitated due to illness or injury and is unable to work.

The worker's counsel referred to Article 13.10 and 13.11 which deal with change of shifts. She noted Article 13.10 provides that nothing in the collective agreement relating to hours of work prevents the head of the department from granting a request of an employee for a shift or day off provided he or she has arranged for a co-worker to substitute for him/her. Article 13.11 provides that it is the responsibility of the substitute (co-worker) to contract with the applicant (worker) for paying back at some future date the time owing to the substitute. In other words, the co-worker works a shift, or shifts, for the worker, and in return the worker works a comparable number of shifts for the co-worker.

The worker's counsel advised that Article 41 deals with changes of days, tours, holiday entitlement:

Article 41.1 provides that all changes of day shall be between employees of the same rank.

Article 41.4 provides that it is the responsibility of the substitute to contract with the applicant for any paying back at some future date. It also provides that neither the union nor the employer is responsible for the payback of time between the two individuals.

Article 41.6 provides that the agreement can cancel if the parties agree.

Article 41.7, provides that if a substitute becomes ill or incapacitated due to a compensable injury and is unavailable for work, he or she must notify the station and to report to the sick line. It also provides that the absence will be charged to the "appropriate account."

The worker's counsel advised that Article 41.7 does not define "appropriate account" and that in this case, the employer charged the worker's absence to his sick leave account, rather than to a workplace injury account. She said this amounts to the worker paying for his injury time from his sick leave bank, and he is thus suffering a financial loss.

On the question of whether the worker sustained a loss of earning capacity, the worker's counsel submitted that:

And we take the position that the loss of earning capacity was this, because he is unable to work on September 23 and 24 because of an accident that occurred in the course of his employment, he was unable to earn the money that he had been paid in advance back in May 2013. Because he did not have the capacity on those days to earn the two days of pay, he’s forced to repay the employer through a reduction in his sick leave bank…

The worker's counsel advised that had the employer deducted the missed days from a "WCB account" and not the worker's sick leave account, there would not be an appeal.

The worker's counsel disagreed with the position of the WCB and employer that the issue in this case, payment for the time missed from work, is a labour relations matter. She said it is the WCB's responsibility under the Act to determine the loss of earning capacity and ensure that

payment is made. She advised that a grievance has been filed on behalf of the worker regarding the employer's assignment of the missed days to the worker's sick leave account. She said that the grievance is being held in abeyance pending this appeal.

The worker's counsel stated that:

It’s our position that through this process the Appeal Commission ought to determine that yes, there was a loss of earning capacity resulting in a payment of the time loss for the two days. The parties then would use the labour relations process to work out the accounting, which would then need to occur between [the worker] and the [employer] in reconciling the various accounts, and ensuring that there is no double payment.

The union is not looking for any double payment for [the worker]... to get him ahead of the game in any way. It’s simply looking to ensure that the Act...is properly applied and that WCB-related injuries are recognized as such.

In support of the worker's position, counsel referred to WCB Policy 44.80.30.10, Establishing Post-Accident Earning Capacity. She submitted that in the second line, the policy states a wage loss system pays a worker based on the difference between the worker’s average earnings before the accident, and what the WCB determines the worker is capable of earning after the accident. She said that in this case, the worker "...wasn’t capable of earning anything in those days, he was unable to work."

The worker's counsel said that to the extent that there is a collective agreement whereby the parties have decided to deal with how this matter will be dealt with, it is not competent for them to contract out of the Act. She cited Section 14 of the Act in support to this position. She also noted that Section 15 of the Act provides that an employer shall not, directly or indirectly, deduct from wages of a worker any part of any sum that the employer is liable to pay to contribute towards indemnifying the employer against liability that it has incurred under the Act. She submitted that:

So by requiring [the worker] to fund his absence through his sick bank instead of through WCB wage loss benefits, we take the position the employer has indirectly deducted from the wages of this worker and caused him to indemnify the [employer].

She also submitted that at its root, the employer's action is a form of claim suppression. She noted that the employer's action has an impact in terms of skewing statistics on workplace injuries and on time loss injuries.

In response to questions from the panel, the worker's counsel confirmed that she was not seeking a ruling on the application of sections 14, 15 or 19.1 to the issues in this appeal.

Employer's Position

The employer was represented by its compensation coordinator. The employer representative advised that the employer agrees with the Review Office decision and submitted the issue is a labour management issue which is best addressed under the collective agreement.

With respect to the facts in this case, the employer representative noted that although the worker did not work on May 22 and 23, he received full pay for the days in question as if he had personally worked those dates. He also noted that the co-worker with whom he had traded shifts, received no compensation for the two days (May 22 and 23) that he worked for the worker. He said that the worker would not have been compensated for the shifts of September 23 and 24 had he, in fact, worked the two shifts.

He submitted that as the worker would not have been compensated for the shift change even had he worked the two shifts in question, there was therefore no loss of earning capacity.

The employer representative stated:

In a nutshell, [the worker] got paid for two days that he did not work. When he failed to fulfill his part of the contractual agreement, the two days that he got paid for but did not work were recovered as provided for in article 41.7 of the collective agreement.

The employer representative argued that WCB Policy 44.80.30.10, Establishing Post Accident Earning Capacity, is not applicable because there was no loss of earning capacity. The employer disagreed with the suggestion that section 14 of the Act is applicable. He said that the worker has not contracted out of the Act, rather it is the application of the Act to the circumstances that resulted in the worker's disentitlement. He also disagreed with the worker's counsel's assertion that the employer actions amount to a form of claim suppression under section 19.1.

The employer's representative submitted that section 15 of the Act is not applicable to the issue as it deals with prohibiting employers from deducting monies from a worker's account to cover their payroll assessment.