The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits related to a seasonal lay-off from December 22, 2014 to April 18, 2015. A hearing was held on March 7, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from December 22, 2014 to April 18, 2015.

Decision

That the worker is not entitled to wage loss benefits from December 22, 2014 to April 18, 2015.

Background

The worker has an accepted claim with the WCB for multiple injuries sustained in a work-related accident that occurred on July 21, 2014.

In October 2014, the worker returned to work on a graduated basis, and on December 14, 2014, she began to work 8-hour shifts. Effective December 22, 2014, the worker was laid-off from her employment. File records indicate this was a normal seasonal lay-off due to economic conditions that affected all employees regardless of whether the WCB was involved or not.

On January 13, 2015, a WCB case manager advised the worker that she was entitled to receive wage loss benefits during the time of her lay-off as she was competitively disadvantaged in terms of her ability to recover loss of earnings due to her compensable injury and did not qualify for employment insurance ("EI") benefits. The worker was advised that if she did qualify for EI benefits, the WCB would retroactively cancel her WCB coverage during the lay-off period and she would be responsible for reimbursing the WCB for any benefits paid during that time.

On March 12, 2015, the worker submitted information to show that she started receiving EI payments effective January 4, 2015.

On March 23, 2015, the WCB advised the worker she was overpaid benefits for the period December 22, 2014 to January 14, 2015 in the amount of $2,269.66 which had to be reimbursed. The worker's EI payments ended April 18, 2015, and payment of full wage loss benefits was reinstated effective April 19, 2015.

On July 9, 2015, the worker's union representative wrote Review Office requesting that the worker be paid wage loss benefits for the period December 22, 2014 until May 3, 2015 (should have read April 18, 2015), the date she was placed back on full wage loss benefits. The representative noted that the worker was unable to work during the lay-off period due to her compensable injury (confirmed by the treating physician in a note dated January 14, 2015) and that EI supported this finding by providing the worker with a maximum of 15 weeks of special sickness benefits instead of regular EI benefits.

On September 1, 2015, the employer's representative submitted to Review Office that they agreed with the decision that the worker was not entitled to wage loss benefits from December 22, 2014 to April 18, 2015, and agreed that the decision was made in accordance with WCB policy and the provisions of The Workers Compensation Act (the "Act").

On September 30, 2015, Review Office determined there was no entitlement to wage loss benefits from December 22, 2014 to April 18, 2015.

Review Office acknowledged that the worker was in receipt of EI sick benefits, but said the criteria for being entitled to wage loss benefits from the WCB and EI differ. Review Office was of the opinion that the medical information on file did not support the worker's inability to perform modified duties as a result of her compensable injury during the period December 22, 2014 to April 18, 2015, and was therefore unable to find that the worker was at a competitive disadvantage.

Review Office concluded that the worker's loss of earning capacity between December 22, 2014 and April 18, 2015 was not related to the compensable injury, but was due to her seasonal lay-off. The lay-off was temporary and was a normal cyclical event which the worker had experienced over several years of her employment. The circumstances had not changed as a result of her compensable injury.

On October 25, 2016, the worker's union 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 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 "Policy") deals, in part, with workers who are performing modified or alternate work and are laid-off. The Policy provides that when determining whether the worker is eligible for additional benefits, the WCB will consider whether there is a loss of earning capacity, and if so, whether or not it is due to the injury.

The Policy states, in part, as follows:

The WCB recognizes that when the work is interrupted due to economic conditions (labour issues or other factors that affect all workers), the initial loss of earning capacity is not due to the injury. If the worker is expected to return to the previous employment in a reasonable period of time, the worker is not at a disadvantage compared to other workers at that workplace who are also experiencing a loss of earnings.

If the work interruption becomes prolonged to the point where similarly employed workers are pursuing other employment opportunities, and the injury places the injured worker at a competitive disadvantage in the general labour market, then the WCB will determine whether there is further entitlement to wage-loss benefits and rehabilitation services.

Worker's Position

The worker was represented by a union representative, who made a presentation on her behalf. The worker responded to questions from the panel.

The worker's position was that she was competitively disadvantaged with respect to her ability to seek employment, and was entitled to wage loss benefits from December 22, 2014 to April 18, 2015.

It was submitted that the worker did not have enough hours to qualify for regular EI benefits when she was laid-off, because of the time she had been off work with her injury. Due to her restrictions, she could also not perform her regular duties or accept certain work. She provided EI with a note from her physician advising that she was unable to work. EI deemed her unable to work because of her injuries, and advised that she qualified for special sickness benefits for a maximum of 15 weeks. In the representative's submission, EI therefore recognized that the worker was competitively disadvantaged as a result of her injuries.

It was further submitted that because the worker was on special sickness benefits, as opposed to regular EI benefits, she did not qualify for certain supplemental payments from the employer to "top up" her EI payments. She was therefore also disadvantaged with respect to her entitlement to these supplemental benefits.

The union representative submitted that the worker's injuries were a direct result of a compensable injury for which the WCB had accepted responsibility. In the representative's view, the WCB's ongoing responsibility was evidenced by the fact that the worker was still experiencing pain and not deemed ready to work when she was called back to work on May 3, 2015, and was therefore placed back on full wage loss benefits. Ongoing responsibility for wage loss benefits was also supported by the fact that for the entire period of time that the worker was on EI benefits, she continued to be covered by the WCB for physiotherapy and the cost of medications due to her injuries.

Employer's Position

The employer was represented by an advocate and a Disability Management Analyst.

The employer's position was that this case involved a straightforward application of policy, and there was no reason to reverse the decision, as the worker's loss of earning capacity was due to a normal seasonal lay-off and unrelated to her workplace injury.

It was submitted that at the time of the lay-off, the worker was not incurring a loss of earning capacity, and was not at a competitive disadvantage compared to other workers. Medical information confirmed the worker's ability to work, albeit with restrictions. The restrictions did not render the worker unemployable. The worker could have looked for clerical or other light work within her restrictions. It was also significant that the worker did not have a pattern of working in previous years during lay-offs.

The advocate noted that the lay-off was not prolonged, and was shorter than previous years. While the worker did not return to work at the end of the lay-off, this was because she was taking a new medication which resulted in drowsiness and an inability to work. The employer had supported reinstatement of benefits at that time due to those conditions. Once the worker was taken off that medication and dizziness was no longer an issue, the worker was accommodated and returned to work in the position she had prior to the lay-off.

It was submitted that the fact that the worker's claim for EI sick benefits was accepted is not relevant; that the WCB and EI have different criteria. The fact that the worker received full medical benefits while on lay-off was also immaterial in terms of the application of this Policy.

In summary, it was submitted that the Policy is clear: if, as in this case, a lay-off is due to a normal seasonal lay-off for economic reasons, it is unrelated to the workplace injury and the loss of earning capacity is not compensable. The worker is therefore not entitled to wage loss benefits during the lay-off period, in keeping with the Policy.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits from December 22, 2014 to April 18, 2015. For the appeal to be successful, the panel must find that the worker's loss of earning capacity during this period of time is a result of her July 21, 2014 workplace injury. The panel is unable to make that finding, for the reasons that follow.

File information shows that the worker was laid-off on December 22, 2014 as part of a normal seasonal lay-off for economic reasons. At the hearing, the union representative confirmed that the employer has a peak season which runs from approximately April to October or November. In the off-season or off-peak season, a number of part-time and general workers would generally be laid-off by the employer. The worker had been subject to such lay-offs in previous years.

Prior to December 22, 2014, the worker had been participating in a graduated return to work. Medical information on file shows that the worker had progressed to the point where she had been cleared to go back to working 8 hours a day performing modified duties, with restrictions. Reports from the treating physiotherapist and the treating physician, dated December 11 and December 12, 2014, respectively, indicate that they were satisfied that the worker's condition was sufficiently stable and she could return to work on a full-time basis. As at December 22, 2014, when the worker was laid off, she was therefore able to recoup her full pre-accident wages and was fully employed. The panel finds that the worker was not suffering a loss of earning capacity due to her injury at that time.

The evidence further indicates that the worker's condition did not change in the 4-month period after December 22, 2014. While there is reference to a note from the worker's physician dated January 14, 2015 having been provided to EI, stating that the worker was "off work due to an injury" and was "unable to work at this time," the worker and her union representative acknowledged at the hearing that there was no change in the worker's restrictions, and that no one had actually taken the worker off work in that period of time. The same restrictions that had been set in December 2014 continued to apply throughout the whole period of the worker's lay-off.

The panel further finds that the worker was expected to return to her employment in a reasonable period of time. The worker and her union representative confirmed that there is somewhat of a flexible timeframe, in terms of a definite call-back date, in that everyone is recalled as soon as it is peak season again. Workers can also be called back earlier, if they are needed.

Information from the employer was that the seasonal lay-offs in the previous two years had been longer than the 2014-2015 lay-off. The worker acknowledged at the hearing that in 2012/2013 and 2013/2014, she was on lay-off for approximately 6 months and worked approximately 6 months, while in 2014/2015, she would only have been laid-off for approximately 4 months and worked approximately 8 months.

Based on the evidence, the panel therefore finds that the worker's loss of earning capacity was initially due to her layoff, and not to her compensable injury, and that the worker was not at a disadvantage compared to the other workers at the workplace who were experiencing a loss of earnings.

The panel is further satisfied, based on the information before us, that the lay-off was not sufficiently indeterminate or long enough to have reached the point where the worker would have been at a competitive disadvantage in the general labour market as compared to other workers who were similarly laid-off.

The panel notes that the worker had a pattern of not working elsewhere while she was laid-off. While the worker stated at the hearing that she had applied for jobs during the previous lay-offs (as required by EI), she also indicated that she did not find any other work. It was very difficult to find something that was close to her wage and she loved her job with the employer.

In the circumstances, the panel is unable to find that the worker was competitively disadvantaged as contemplated under the Policy.

The panel notes that in arriving at our decision, we have considered the argument that the worker was disadvantaged in terms of her entitlement to EI benefits and a "top-up" benefit from the employer. In the panel's view, however, a disadvantage with respect to the entitlement to such benefits is not part of the criteria under the Policy. The Policy speaks to competitive disadvantage, as opposed to entitlement disadvantage.

Similarly, the ongoing payment of medical aid benefits falls under a separate policy, and in the panel's view, is not relevant to the determination of this appeal.

The panel has also considered the argument that the worker's WCB benefits were reinstated once her EI payments ended. The panel is satisfied that the reinstatement of the worker's wage loss benefits at that time was due to her having been prescribed new medication at the end of March 2015, with the result that she was unable to return to the workplace when she was called back to work.

Based on the foregoing, the panel finds that the worker's loss of earning capacity is not a result of her workplace injury and she is not entitled to wage loss benefits from December 22, 2014 to April 18, 2015.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 4th day of May, 2017