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 after December 9, 2016 as he did not participate in modified duties offered to him by his employer. A hearing was held on September 13, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after December 9, 2016.

Decision

That the worker is not entitled to wage loss benefits after December 9, 2016.

Background

On October 30, 2015, the worker reported that he injured his left wrist, neck and back while operating a rock truck when the rock truck flipped over 3 times when going up a dyke. His claim for compensation was accepted and various types of benefits were paid to the worker. Based on the opinion expressed by a WCB medical advisor on January 17, 2016, the diagnosis accepted by the WCB in relation to the workplace injury was a left scapholunate ligament injury. On June 14, 2016, the worker underwent a left wrist arthrotomy and open reduction with internal fixation of the left scapholunate.

On November 10, 2016, a WCB physiotherapy advisor indicated that he spoke with the worker's treating physiotherapist, who opined that the worker was capable of working with the following work restrictions:

• No left hand repetitive, forceful, gripping, twisting activities; 

• Left hand lifting up to 3 pounds occasionally; and 

• Bilateral lifting up to 10 pounds occasionally.

In a letter dated November 14, 2016, Compensation Services wrote the accident employer to advise that the worker was fit to work with restrictions (as noted above) and asked whether they would be able to accommodate the worker within the stated restrictions.

In e-mail correspondence dated November 29, 2016, the accident employer sent the worker a modified job offer to return to work on modified duties as a "spotter." The job tasks involved "To spot gravel truck and equipment when reversing." It was also noted on the offer that there was no handling of any type of material.

In a letter dated December 2, 2016, the worker was advised by the WCB that his wage loss benefits would end effective December 9, 2016 as he had not contacted his employer or the WCB case manager to arrange a return to work at modified duties.

In e-mail correspondence dated December 7, 2016, the accident employer noted that the worker had not returned to work nor did they receive the modified job offer he was provided.

By email correspondence dated December 19, 2016, the worker advised his case manager that:

I have not returned to work yet I still can't get ahold of [employer] what do I do for wage loss I have not returned to work yet…

In a memo on file dated December 20, 2016, the case manager stated:

[Employer] indicated he heard from [worker] once after the first time [employer] emailed him. He has tried emailing him several times with no response and phoned him with no response from [worker]. He emailed him the modified duties offer with no response.

He said he has a job here; he just has to come to work and he thinks he only lives about 10 minutes away. I said I have informed [worker] of that twice via email and I just wanted to confirm modified duties are still available. He said they are.

I then spoke with [worker] via phone. I again encouraged him to rtw as I just talked to his employer and there still is a job for him there. He said he will figure it out.

On January 10, 2017, the worker appealed the December 2, 2016 decision that he was not entitled to wage loss benefits beyond December 9, 2016.

On February 24, 2017, Review Office determined that the worker was not entitled to wage loss benefits beyond December 9, 2016.

Review Office stated in its decision that it accepted the worker's statement that he did not receive the employer's modified duty offer. Review Office acknowledged that both the worker and the employer reported difficulties in contacting the other party, but also found that the attempts made by both the employer and worker to contact one another could not be verified. Review Office was nonetheless satisfied that the worker was properly advised of his restrictions and his responsibilities in regards to a return to work by Compensation Services.

Review Office noted that Compensation Services called the worker on December 20, 2016 to advise him that he should return to work as modified duties were still available, and the worker said "he will figure it out." Review Office concluded that the worker did not have a loss of earning capacity related to the workplace injury beyond December 9, 2016 as suitable modified duties were available, and the worker was aware of the modified duties as he had been notified by Compensation Services.

In March 2017, the worker 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 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.

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 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:

22(1) Every worker must 

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Subsection 22(2) of the Act states that if a worker fails to comply with subsection 22(1), the WCB may reduce or suspend the compensation payable to the worker.

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 outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The 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.

Worker's Position

The worker was self-represented. The worker filed three written submissions in advance of the hearing, and made a brief presentation to the panel.

The worker said that he was told his wage loss benefits were cut off because he refused to go to work. He noted that while he was told he had been offered modified duties by email, he never received such an offer through his email. He thought he would have received something in the mail regarding the work that was being offered, but he did not. The first time he received anything was by email from the case manager around February 2017. The worker submitted that the employer had no clear set plan of exactly what he was to do, and in fact, no plan was communicated to him at all.

The worker submitted that there were contradictions between what his doctor and his physiotherapist said he could do and what the WCB said he could do. His wrist and hand had a limited range of motion; he was limited in what he could do and the little he was doing caused him a lot of pain and discomfort. He further submitted that the modified duties were not sent to his doctor or physiotherapist, and he was not cleared to return to work by his treating surgeon or physiotherapist.

Employer's Position

The employer was represented by a Safety Manager and its Director of Human Resources. The Director of Human Resources participated in the hearing by teleconference.

The employer's position was that the worker was offered modified duties, but failed to respond to the offer or to return to work.

The Safety Manager said when they were advised by the WCB that the worker was able to go back to light duties, they prepared an offer of modified duties which was designed for the worker and emailed it to him. They did not, however, receive any response from the worker. He said that the employer did not have any contact with the worker for a long time, then he received a call from the worker about a week before Christmas asking if the employer had modified duties.

The Safety Manager stated that he talked to the case manager multiple times about having the worker come in and meet with him. He noted that there were ample possibilities for the worker to get a ride to the office if he needed one, to come in and talk with the employer. He stated that if the worker did not understand what he needed to do, they could have sat down and discussed this. No such conversation ever took place, however, as the worker never came in.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after December 9, 2016. In order for the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity after December 9, 2016 due to his workplace accident. The panel was unable to make that finding, for the reasons that follow.

While the worker has maintained that he did not receive the email from the employer with the modified job duties, file information suggests that the worker knew about the job offer in general terms and that it apparently fell within his restrictions.

File information further shows that the case manager encouraged the worker on numerous occasions to contact the employer to arrange a return to work, including the following:

• By email on November 30, 2016, the case manager wrote that since the employer could accommodate his current restrictions, he was obligated to return to modified duties within his restrictions, and to "Please contact your employer asap to discuss a return to work." 

• In their letter dated December 2, 2016, Compensation Services advised the worker that his employer and the case manager had contacted him to inform him that safe modified duties were available to him within his restrictions, and that as he had not contacted his employer or the WCB to arrange a return to work, his wage loss benefits would be ending effective December 9, 2016. In her email forwarding that letter, the case manager stated: "I again encourage you to contact your employer to arrange a return to work." 

• By email dated December 13, 2016, the case manager wrote: "I would encourage you to try [employer] again…As indicated in the letter they sent you, they have work for you within your restrictions. I suggest you head to work to discuss further with the intention of working that day." 

• In a December 20, 2016 email, the case manager wrote: "As stated in my previous email, you should go to work as they have offered you modified duties…" 

• By email on January 9, 2017, the case manager forwarded a copy of the modified job offer to the worker, and noted: "…as explained, you're (sic) employer tried to reach you and I emailed you a couple of times encouraging you to contact your employer or go to your place of employment as there is modified employment there for you…"

The panel notes that the work restrictions were outlined by the worker's treating physiotherapist in a discussion with the WCB physiotherapy advisor on November 10, 2016. The worker acknowledged at the hearing that he did not have any concerns with respect to those restrictions, which remained the same throughout.

File information also shows that the treating physiotherapist and surgeon did not say that the worker was not to return to work as had been suggested by the worker. As previously indicated, the treating physiotherapist was the person who outlined the worker's restrictions in terms of returning to modified duties. The WCB physiotherapy consultant sent those restrictions to the treating surgeon on November 10, 2016, and asked that the surgeon contact him if he had concerns with the worker working with those restrictions. There is no indication that the surgeon had any such concerns.

The panel notes that in a subsequent report dated February 28, 2017, the treating surgeon indicated that his concern throughout was that the worker not to return to his full normal duties (as opposed to modified duties), stating as follows:

Currently today he has not returned to normal employment but states the WCB told him that he needed to return to his normal job and he was fit for normal duties. We reviewed all electronic medical records and the last time I stated that he was not fit for a return to normal duties.

The worker was asked at the hearing if he would have had any problem doing that kind of job, now that he understood it. His response was "Probably not, no…I wouldn't have refused it, if I got the actual offer…"

The worker had a positive obligation to co-operate and participate in a return to work program. When this was raised with the worker at the hearing, in terms of whether he had done his part in meeting that obligation, the worker's response was that "Basically it was like lack of communication pretty much."

Based on the foregoing, the panel finds that the worker's loss of earning capacity after December 9, 2016 was not related to his workplace accident. The worker is therefore not entitled to wage loss benefits after that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 10th day of November, 2017