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 wage loss benefits. A hearing was held on November 29, 2016 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is entitled to wage loss benefits.

Background

The worker filed a claim with the WCB for an injury to his right shoulder and lower back that occurred on December 19, 2014 when a pallet filled with product tipped over and "came crashing down on me."

On December 20, 2014, the worker sought medical treatment for right shoulder and back complaints related to the December 19, 2014 incident, and was referred to physiotherapy and given a work note.

On December 29, 2014, the employer provided the WCB with a return to work form which showed that the worker was offered the following modified duties at no wage loss as of December 24, 2014: "Clerical duties - sitting and standing as tolerated." The employer asked the WCB to determine whether loss of earnings should be granted as modified duties were offered to the worker on December 19, 2014.

When speaking with the WCB on January 5, 2015, the worker advised that he had not yet returned to work and had provided capabilities forms to his supervisor on December 30, 2014. The supervisor told him to call again on January 6, 2015 regarding a return to work.

On January 13, 2015, the worker advised the WCB that he was still off work and that his supervisor had told him that his employer was unable to provide him with modified duties based on his work restrictions.

On January 13, 2015, the adjudicator noted to the file that he left a message on the supervisor's answering machine to call him back regarding modified duties. As of January 16, 2015, no call back had been received.

On January 14, 2015, the worker told the adjudicator that his supervisor had advised that he was unable to call the adjudicator back as there was another party that handled WCB claims for the employer.

On January 14, 2015, the adjudicator noted to the file that he called the employer's representative responsible for claims and left a message on her answering machine. By January 16, 2015, he had not received a call back.

The worker returned to a part-time modified duty position effective January 16, 2015.

On January 29, 2015, the WCB adjudicator wrote the employer's representative to advise that the worker had discussed the offer of modified duties with his treating physician and the physician had advised the worker to be off work. It was also noted that the worker's supervisor had advised the worker that the employer would not be able to accommodate the worker with modified duties within his restrictions.

On February 19, 2015, the worker advised the WCB that he returned to regular duties that day and felt 100%.

On March 29, 2016, the employer's representative appealed the WCB's decision of January 29, 2015 to allow wage loss benefits. The representative stated:

The employer's objection is based on the fact the modified duties were offered to the worker on December 20, 2014, at regular hours and regular wages.

WCB did not provide any formal ruling that the duties offered by the employer was (sic) not suitable.

The January 29, 2014, (sic) letter in response to the employer's concerns advise (sic) that the worker provided the Supervisor with a capability form and that the Supervisor advised him that the employer would not be able to accommodate modified duties within his restrictions.

WCB failed to verify this information with the employer's representative who is authorized to manage WCB issues, instead WCB insisted on speaking only with the worker's Supervisor who is not responsible for communicating with WCB directly for claim related issues.

It is evident that loss of earning benefit was granted to this worker without any consideration given to the employer's ability to mitigate the worker's wage loss by offering suitable modified duties within his medical restrictions at regular wages.

There is no objective medical evidence presented to demonstrate that the duties offered by the employer was (sic) not within the worker's functional ability.

In a decision dated April 20, 2016, Review Office determined that the worker was entitled to wage loss benefits.

Review Office said the medical information following the worker's injury supported that he was disabled from performing his full regular duties for three weeks. A document on file referred to clerical work as a possible accommodation. When the worker presented medical documentation to remain off work, it was not questioned by the employer, their representative or the WCB. When the worker returned to modified duties on January 16, 2015, he was not offered clerical work and the work that was offered was part-time.

Review Office noted that the file evidence referred to several conversations between the WCB and the employer's representative regarding the worker's pay. There was no mention in that time by the employer or their representative that the worker could be offered more hours or work similar to the initially proposed sedentary type work. What was confirmed on file was that more hours were not available due to limited modified duties.

Review Office concluded that the worker was accommodated when it was possible for the employer to do so and when hours were available. Review Office did not accept the employer's assertion that they would have been able to accommodate the worker in full hours and pay the day following the accident, given the noted history regarding the worker's return to work.

On July 15, 2016, the employer appealed Review Office's decision to the Appeal Commission and a 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 WCB's Board of Directors.

Subsection 4(1) of the Act 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

The Return to Work Policy describes suitable modified or alternative work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

Employer's Position

The employer was represented by an advocate who participated in the hearing by teleconference. A written submission was also provided in advance of the hearing.

The employer's position was that suitable modified duties were available and offered at the worker's regular hours, and that loss of earning capacity was strictly due to the worker's non-cooperation with the return to work situation and his refusal to take the available work.

It was submitted that modified work was offered to the worker on December 19, 2014, to commence on December 24, 2014, his next scheduled shift. The modified duties consisted of clerical duties, with the opportunity to sit and stand as needed. The duties were to be at no wage loss and therefore at regular hours. The worker acknowledged and accepted the modified duties at regular hours by signing the modified work agreement form.

The worker provided a medical note dated December 20 indicating he was to be off work for five days, and the employer accommodated that restriction by offering duties to commence on December 24. The worker had not been scheduled to work from December 20 to 23, so there was no loss of earnings in respect of this period.

It was submitted that subsequent medical documentation did not restrict the hours to be worked and therefore supported that the worker was fit to participate in modified duties at regular hours. The worker returned to modified duties on January 16, but worked reduced hours only, and continued that way until February 19 when he returned to his pre-injury level of employment.

In the employer's submission, no medical evidence was presented to demonstrate that the duties offered were not within the worker's functional ability. Nor were there any investigative findings to support that the worker was only offered part-time modified duties. On the contrary, it was submitted that the worker's reduced hours of work were of his own doing.

It was also noted that reports from the physiotherapist indicated that the worker had been non-compliant by missing appointments, which hindered his recovery.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity as a result of his workplace injury. For the reasons that follow, the panel is unable to make that finding.

In response to questions from the panel, the employer's representative confirmed that they were not contesting the initial medical note dated December 20, 2014 or that the worker should have been off work for five days at the outset, as indicated in that note.

The representative also advised that they were not contesting the December 30, 2014 capabilities form advising that the worker was unfit for any work until January 5, 2015. The representative acknowledged that the issue on appeal therefore related to wage loss benefits after January 5, 2015.

The employer relied heavily on the modified work agreement form dated December 19, 2014, as an offer of clerical duties, with no wage loss. The panel finds that there was no evidence or indication that the worker was actually offered any specific office or clerical duties subsequent to that date, or that he had refused to perform any such duties.

File information shows that after the worker advised the case manager that the supervisor had told him they could not provide modified duties within his restrictions, the case manager attempted to speak to both the supervisor and the employer representative, without success.

Notes on file record that the case manager called the supervisor and left a message for him to call back regarding the worker still being off work and the employer's inability to accommodate him for modified duties within his restrictions, but that no call back was received.

Additional file memos show that the case manager then called and left messages for the employer's representative to call him back, indicating that he needed to speak with the worker's supervisor, but that no call back was received from either the representative or the supervisor. The employer's representative at the hearing, who was not the representative on the file at that time, stated that he had no further information in this regard.

When it was put to the employer's representative at the hearing that it appeared that the WCB was essentially barred from speaking with the supervisor with respect to the worker's return to work, the employer's representative candidly stated that he could not explain this, but was not contesting the records or that this had happened.

The worker returned to work on modified duties, at reduced hours, on January 16, 2015. There is nothing to indicate that full-time clerical or other duties within the worker's restrictions were available or offered to him at that time.

It was alleged in the employer's written submission that the worker had scheduling challenges due to personal obligations, and that his reduced hours were the result of his own doing. However, no further details were provided and there was no evidence to support these allegations.

While the employer also argued that the worker was non-compliant in not attending physiotherapy appointments, the panel is unable to find non-compliance with his actual treatment. The panel notes that the first reference to the worker having missed appointments is in late February 2015, which is after the worker had returned to regular duties and was feeling 100%.

Based on the evidence, the panel is therefore unable to find any lack of cooperation on the part of the worker.

Based on the foregoing, the panel finds that the worker sustained a loss of earning capacity as a result of his December 19, 2014 accident and injury.

The panel finds that the worker is entitled to wage loss benefits.

The employer's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2017