The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was not entitled to wage loss benefits for July 27, 2013 with respectto his compensable left shoulder injury. A hearing was held on October 28, 2015 to consider the worker'sappeal.

Issue

Whether or not the worker is entitled to wage loss benefitsfor July 27, 2013.

Decision

That the worker is not entitled to wage loss benefits forJuly 27, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left shoulder injury that occurred on July 24, 2013 while carrying a patient down a flight of stairs. File records show that the worker did not seek medical attention for his shoulder but treated his injury with heat and ice until his shoulder had recovered. On July 27, 2013, the worker was unable to work the change of platoon shift but did return to his regular work duties on July 29, 2013.

The worker's claim for compensation was accepted by the WCB and the worker was paid wage loss benefits for July 27, 2013.

In e-mail correspondence dated August 7, 2013, the employer's pay & benefits clerk stated that the worker "was injured on July 24, 2013, on his regularly assigned platoon...On Saturday, July 27, 2013...he was scheduled for a change of platoon which is arranged between employees, when one requires the day off they will swap days. There is no loss in pay when someone does a change of platoon; they still continue to be paid their 84 hours. The employee just works one shift less/more in a two week period if they are either off for the day or working for the other person. Therefore, [the worker] should not be paid for a change of platoon as this is additional pay on top of his regular paid 84 hours. I believe that no change of platoon should be paid for time loss as they do not get paid to take the shift."

On August 21, 2013, the WCB determined that no wage loss benefits were payable to the worker for the shift he missed on July 27, 2013.

On July 23, 2014, the union's legal representative appealed the August 21, 2013 decision to Review Office on the worker's behalf. On July 28, 2014, Review Office returned the file back to primary adjudication to provide the worker with a written decision.

By decision dated August 7, 2014, the WCB 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 July 24, 2013. The adjudicator stated:

"In this instance, a co-worker worked one shift for [the worker] on October 23, 2012. [The worker] received full pay for this shift and was to work one shift for his co-worker on July 27, 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 legal representative appealed the above decision to Review Office. A copy of the submission was provided to the employer's representative and his response is on file dated October 22, 2014. On November 5, 2014, the worker's legal representative responded to the arguments outlined on October 22, 2014.

On November 18, 2014, Review Office determined that the worker was not entitled to wage loss benefits for July 27, 2013. Review Office referred to the contract signed on October 8, 2012 and June 25, 2013 between the worker and his co-worker. It found that based on the contract arrangements, had the worker worked on July 27, 2013 he would not have received any financial remuneration from the employer, as he was completing a reciprocal agreement between himself and his co-worker. Specifically, he would have paid back the co-worker for the one shift that the co-worker had covered for him on October 23, 2012 when he did not work, but still received his full salary. Therefore, Review Office found that the worker did not have a loss of earning capacity on July 27, 2013 as the shift the worker had agreed to work was a payback of time for which he had already been paid.

Regarding the worker's position that the requirement to payback wages for his absence from work using his sick time went against the practice of the WCB and the Act, Review Office found the worker's obligation to pay back the wages using his banked sick time was a labour relations issue between the worker/union and the employer. This did not preclude the WCB from conducting a loss of earning capacity review. Review Office also referred to file evidence to support that the compensable injury itself did not result in the loss of earning capacity. On April 13, 2014, 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 July 27, 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..."

WCB Policy 44.80.10.10, Average Earnings, defines regular earnings for the purpose of calculating wage loss benefits.

WCB Policy 44.40.10, Evidence of Disability, provides that "compensation benefits are payable only when there is medical, or similar evidence of a disability arising from a compensable incident or condition".

Worker's Position

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

The primary issue in this case is whether the worker is entitled to wage loss benefits for July 27, 2013. The worker's counsel outlined the facts of the case and asked that the panel find that the worker is entitled to wage loss benefits for July 27, 2013. She noted that the worker and a co-worker agreed to trade shifts, but that the worker was injured on July 24, 2013 and was unable to work his co-worker's shift on July 27, 2013 as he had agreed.

The worker's counsel advised that the WCB found that the worker was not entitled to wage loss benefits. She asked that the panel find that the worker is entitled to wage loss benefits for July 27, 2013.

The panel asked the worker questions regarding the secondary issue referenced by the Review Office on whether the accident was sufficient to cause the worker to miss time from work.

The worker described the mechanism of injury. The worker said the injury occurred while he and a co-worker were carrying a patient down a narrow, steep stairway with 90 degree turns. He said that he felt a tweak in his shoulder but had to continue carrying the patient. The worker reported the incident immediately. The worker described his symptoms as poor range of motion, weakness. The worker advised that he self-treated with stretching, ice and heat.

In answer to a question, the worker acknowledged that on July 27 he may have been able to perform light duties but that he did not think anyone who was less than 100% would be able to perform the regular duties.

Employer's Position

The employer was represented by its compensation coordinator who was accompanied by a senior departmental official.

Regarding the primary issue, the employer representative submitted that:

It is our opinion that [the worker] has to account for the time that he took off on October 23rd and was paid full wages for and in this particular case it was offset with sick leave.

With respect to the secondary issue, the employer's representative submitted that:

In terms of the lack of medical evidence it's abundantly clear that there is no medical evidence supporting total disability on that day and how you can go from being totally disabled on the 27th and fit for full laborious duties of a [occupation] on the 29th speaks for itself.

The employer representative submitted that there is no entitlement to wage loss benefits in keeping with subsection 4(2) of the Act. He also submitted that there was no evidence of disability as required by WCB Policy 44.40.10, Evidence of Disability.

Analysis

This is one of two appeals before the Appeal Commission which were filed by the workers' union on behalf of their members. The facts of each case differ, but the primary issue and, hence, the position of the parties is the same. Accordingly the primary issue was presented and discussed on Appeal Commission Decision No. 143/15. The parties and representatives expressly consented to the incorporation of the arguments and evidence from Appeal Commission Decision No. 143/15 into this decision and they will not be repeated in detail.

Regarding the primary issue, whether the worker is entitled to wage loss benefits for July 27, 2013, for the worker's appeal to be approved the panel must find that the worker sustained a loss of earning capacity as a result of the workplace accident. For the reasons that follow and those expressed in Appeal Commission Decision No. 143/15, the panel was not able to make this finding.

The panel has made the following findings of fact in determining this case:

· the collective agreement between the employer and the worker's union provides a mechanism for workers to trade shifts (change of platoon)

· pursuant to the terms of the collective agreement, on June 25, 2012, the worker applied to take a leave of absence on October 23, 2012 and arranged for a co-worker to take his shifts

· the co-worker worked the shift on October 23, 2012 and received no pay for this date

· the worker did not work October 23, 2012 but received his regular wages for this date

· on June 25, 2013 the co-worker applied for a leave of absence on July 27, 2013 and the worker agreed to work the co-worker's shift (without remuneration)

· the worker was injured in the course of his duties on July 24, 2013 and was unable to work July 27, 2013 as he had previously committed to do

· the co-worker took his leave of absence on July 27, 2013 and received his regular pay for this date

· the employer was required to provide a replacement

· the employer charged the worker's sick leave account for the day which the worker had been absent, October 23, 2012

· had the worker worked on July 27, 2013, he would not have been paid for this date

· the worker filed a claim with the WCB arising from the July 24, 2013 accident, which claim was accepted by the WCB

The appeal panel notes that the worker had an accepted claim for injury and was absent from work for one day, being July 27, 2013. He did return for his next regularly scheduled shift. There were unique circumstances related to the July 27, 2013 shift, as he had been involved in an approved change of platoon arrangement as described in the facts and as contemplated in the collective agreement.

The evidence before the panel confirms that the worker sustained no loss of earnings as a result of his inability to work on July 27, 2013. He had already been paid for one day of work when he had not actually worked October 23, 2012 and had essentially established what the panel would describe as an accumulated wage credit. This wage credit was the equivalent of one day of "regular earnings" as defined under the Average Earnings policy. This was acknowledged by both the worker and the employer -- had the worker actually worked on July 27, 2013, he would not have been paid as he had already been paid for what he would have earned on that day due to the change of platoon agreement.

The panel therefore finds that the worker's effective wage on that day was $0.00, which was coincidentally the length of his work absence as a result of his work injury. Applying subsection 4(2) of the Act and the Average Earnings policy, the panel finds that the worker was not entitled to wage loss benefits on that day as he did not suffer a loss of earning capacity on that day. The panel notes that had the worker been unable to work his following shift, starting July 29, 2013, he would have been earning his regular wages for that day and would therefore have a loss of earning capacity, subject to the usual adjudicative criteria such as medical evidence supporting ongoing absences.

The worker's appeal is dismissed.

This appeal also involved a secondary issue. In its reasons, the Review Office found that "in the absence of supporting medical evidence, the compensable injury itself did not result in the loss of earning capacity."

The panel has reviewed the evidence on file and presented at the hearing and finds that the worker did sustain a workplace injury sufficient to cause the worker to miss time from work. In making this finding, the panel relies upon the worker's evidence on the description of the accident, the nature of the injury and the treatment for the injury. Specifically, the panel accepts the worker's evidence on the mechanism of injury which involved carrying a patient down a narrow set of stairs with 90 degree turns when he felt a tweak in his shoulder. The panel also notes that the worker reported the incident immediately and accepts the worker's evidence that he treated himself. The panel finds the worker did sustain an injury sufficient to cause the worker to miss work on July 27, 2013.

The employer representative submitted that there was not sufficient evidence of disability to accept the claim as required by WCB Policy 44.40.10. The panel notes this policy provides:

Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition.

The panel notes that the Guidelines to this policy specifically provide that consideration be given to "the details of any home treatment used." The panel finds that the worker's evidence on his self-treatment is sufficient, in this case, to establish that the worker was injured as noted above.

There was discussion at the hearing about the worker's failure to report for duty on July 27. It was suggested that if he attended and was not fit, the worker would have been sent home. The senior departmental official confirmed that it is reasonable to assume that if the worker would have attended work on July 27 in an injured state, the employer would not have been able to use his services. He noted that it usually takes four to five days to place anyone in modified duties and that they require medical restrictions provided by a physician.

While the panel does find that the workplace absence was medially reasonable for that one day, it does not affect his entitlement to wage loss benefits in this case, given our decision on the primary issue.

The worker's appeal of the primary issue is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of December, 2015