Decision #140/19 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss benefits after April 24, 2018. A hearing was held on October 9, 2019 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits after April 24, 2018.
The worker is entitled to wage loss benefits after April 24, 2018.
The worker reported to the WCB on September 19, 2017 that he injured his left shoulder at work on August 21, 2017. He reported that it was a repetitive strain injury from his job duties, including heavy lifting, with "…a lot of twisting and turning and lifting overhead."
On August 24, 2017, the worker sought medical treatment from his family physician. The treating physician diagnosed the worker with a left rotator cuff injury and referred the worker for an MRI and physiotherapy. At his initial assessment with the physiotherapist on September 6, 2017, the worker was diagnosed with left rotator cuff tendinitis and cervical nerve root impingement. Restrictions of no overhead work, no heavy lifting and no repetitive left arm tasks were recommended.
In a discussion with the WCB on September 27, 2017, the worker reported that he had left shoulder difficulties for a year and a half to two years, with an increase in his symptoms after an incident lifting a heavy object at work around the end of July 2017. The worker also reported that he was continuing to work for the employer but was "on light duties, doing more supervising."
The worker continued to be accommodated by his employer working his regular hours performing modified duties in a supervisory capacity until his last day of work on April 24, 2018.
The worker's file was reviewed by a WCB medical advisor on October 17, 2017 who opined that the worker's diagnosis was a rotator cuff tendonopathy. The WCB advised the employer on October 18, 2017 that the worker's claim was acceptable. The worker was seen by an orthopedic specialist on October 18, 2017. The orthopedic specialist noted that the worker had "…mild pain before this injury" and diagnosed a rotator cuff tear and acromioclavicular pain. A pain injection was provided and physiotherapy and continuation of light duties was recommended.
An MRI of the worker's left shoulder was conducted on November 1, 2017. The MRI study indicated a partial thickness partial width intratendinous tear of the infraspinatus tendon, an isolated teres minor muscle atrophy, probable degenerative tearing of the posterosuperior labrum and minimal acromioclavicular joint osteoarthritis.
The worker's orthopedic specialist referred the worker to an orthopedic surgeon who saw the worker on January 2, 2018. The orthopedic surgeon recommended that the worker continue with physiotherapy and as the cervical spine MRI had not yet been conducted, wanted to see the worker again for further assessment after the results of the MRI were received.
On April 23, 2018, the worker's spouse contacted the WCB to advise that the employer had advised the worker there were no further modified duties within his restrictions available for the worker. The worker's spouse further advised that the worker had been offered a management position that she stated the worker did not have the training for. The WCB contacted the employer on the same date and spoke to the employer's safety coordinator who confirmed that there were no further modified duties available. On April 24, 2018, in a subsequent conversation, the employer's safety coordinator advised the WCB case manager that they felt no further wage loss should be paid at that time as the worker had been offered a management position and he had declined it. The WCB case manager advised the employer's safety coordinator that she understood that the job offer had occurred approximately three weeks prior when the worker was being accommodated and that it was her understanding, from speaking to the worker's supervisor, that the management job would not be offered to the worker again as the employer required someone long term, not just to accommodate the worker's restrictions, which were likely to be temporary.
The employer was formally advised on May 8, 2018 that the worker would be entitled to full wage loss benefits after April 24, 2018. The WCB determined that because the employer did not have any further modified duties available for the worker, the worker's loss of earning capacity was due to his compensable injury.
On September 5, 2018, a left shoulder arthroscopy with subacromial decompression and distal clavicle excision with possible rotator cuff repair was recommended by the orthopedic surgeon and approved by the WCB on September 13, 2018.
The employer's representative requested reconsideration of the WCB's decision that the worker was entitled to wage loss benefits after April 24, 2018 to Review Office on November 8, 2018. In their submission, the employer's representative noted that by offering the worker the management position, they were offering "…suitable alternate employment". It was further noted that as the worker had refused the position, the worker's loss of earning capacity was not a result of his compensable injury but because of his choice not to accept the management position. The worker provided a response to the employer's appeal on January 2, 2019, with the employer submitting a response on January 21, 2019.
On February 11, 2019, Review Office determined the worker was entitled to wage loss benefits after April 24, 2018. Review Office found that the worker had a loss of earning capacity as a result of his compensable injury. Review Office accepted the evidence on the worker's file that he had been accommodated with modified duties within his restrictions until April 24, 2018 after which those duties were no longer available. As well, Review Office found that a formal offer of the management position had not been made to the worker nor was the position, which required the worker to change professions, part of a formal vocational rehabilitation program.
The employer filed an appeal with the Appeal Commission on February 20, 2019. An oral hearing took place on October 8, 2019.
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 the Directors.
Payment of wage loss benefits
4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of 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.
Worker to co-operate and mitigate
22(1) Every worker must
(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.
Board may reduce or suspend compensation
22(2) If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.
Obligation to re-employ
49.3(1) In accordance with this section, an employer within the scope of this Part must offer to re-employ a worker
(a) who has been unable to work as a result of an accident; and
(b) who, on the day of the accident, had been employed by the employer for at least 12 continuous months on a full-time or regular part-time basis.
WCB Policy 43.20.25 - Return to Work with the Accident Employer
When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her 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.
Under The Workers Compensation Act (the Act), some employers are required to offer to re-employ injured and ill workers. The WCB will provide assistance to all employers, whether or not they are required to offer re-employment, to help them return an injured or ill worker to work.
This policy outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. It also provides guidance and interpretation of the re-employment obligations outlined in section 49.3 of the Act.
The employer was represented by an employer advocate and accompanied at the hearing by the owner of the company as well as the employer's safety coordinator. The employer's advocate provided the panel with a written submission prior to the hearing and made an oral presentation regarding the matter under appeal and answered questions from the panel.
The employer's position, as stated by the employer's advocate, was that they were in disagreement with the WCB's decision that the worker was entitled to wage loss benefits after April 24, 2018.
The employer's advocate explained that, subsequent to the worker's left shoulder injury on August 21, 2017, the employer provided the worker with modified duties in a foreman/supervisory role that accommodated his physical restrictions; however, for economic reasons, the employer was unable to continue to provide those modified duties after April 24, 2018. In its place, the worker was offered a permanent alternate position of Branch Manager that became available. The position accommodated the worker's restrictions, was aligned with the worker's skills and work experience, and exceeded the worker's pre-accident wages.
The worker declined the employer's offer. The employer's position is that the employer had fulfilled their re-employment obligation by offering the worker suitable alternate employment as a branch manager, which the worker had declined.
The employer advocate submitted that any loss of earning capacity beyond April 24, 2018 (not including the recovery period post-surgery) was unrelated to the worker's compensable injury and was instead due to the worker's refusal of the management position offered to him that accommodated his injury.
The employer advocate reviewed various sections of the Act as well as WCB policies that they felt were relevant to the claim and explained how their position was consistent with the Act and WCB policies.
The employer advocate reviewed the rationale provided in the Review Office decision that the worker was entitled to wage loss benefits for the period at issue. They provided the panel with the employer's explanation as to why they disagreed with that decision.
The employer advocate also submitted evidence through the owner of the company that outlined the employer's position regarding the circumstances surrounding the employer's offer of the management position.
In summary, the employer advocate stated:
The employer met their re-employment obligation by offering suitable work that involved an alternate permanent management position. The position was the first available opportunity of suitable employment while the worker was unable to perform the essential duties of his pre-accident position.
We understand that the worker may have had personal reasons for not accepting the offer of suitable work. However, the obligations and responsibilities dictated by WCB legislation and policy, as well as the Human Rights Code, imposes consequences for such a decision such as access to wage loss benefits.
As a result of the information presented, the employer's position was that the worker was not entitled to wage loss benefits after April 24, 2018.
The worker was represented by a worker advisor and he was accompanied at the hearing by his spouse.
The worker advisor provided the panel with a written submission prior to the hearing and made an oral presentation and answered questions from the panel.
In general, the worker's position, as stated by his worker advisor, was that the employer's offer of the management position was not offered to accommodate the worker's injury and the worker reasonably believed he had the right to decline it as he had in the past. In addition, the worker advisor submitted that the management position was not available to the worker when his existing modified duties ceased as of April 24, 2018.
In support of this, the worker advisor submitted that the employer last offered the worker the management position on April 4, 2018 and did not contact the WCB to advise or seek input about offering the worker the management position prior to it being discussed during the April 23 and 24, 2018 telephone conversations between the WCB case manager and employer representatives.
The worker advisor referred the panel to a WCB claim file memo dated April 23, 2018 regarding telephone conversations the WCB case manager had with the worker, the employer's safety coordinator as well as with the worker's supervisor. The worker advisor stated the file memo noted the following:
The employer told the worker to finish out his day and that they did not have any more work for him because of his injury limitations. [The Safety Coordinator] confirmed this information, and for the first time mentioned that the employer offered the branch manager position several weeks earlier, which she said might no longer be available.
Compensation Services then spoke with the worker's then supervisor, who stated that the branch manager position would not be offered to the worker again because, and I'm quoting from that memo, they need someone long-term, not just to accommodate [the worker's] restrictions, which are likely to be temporary.
With a representative of the employer admitting that they did not intend to offer the worker the position again because of his injury and limitations, we believe Compensation Services correctly determined that the worker was entitled to ongoing wage loss benefits.
The worker advisor noted that the employer had offered the worker the same management position several times in the past and the worker had not accepted their offer on each occasion without repercussions and he questioned how the worker was to know that the latest job offer for the same position was a bona fide offer to accommodate the worker's injuries when the employer "seemingly presented it to him in much the same way as before the accident."
The worker advisor submitted that the proper approach for adjudicating this issue is to consider what the WCB and worker knew when the employer last offered the worker the branch position in early April 2018.
The worker advisor also referred the panel to a copy of a letter dated May 4, 2018 that was placed on the file as part of the employer's submission to the Review Office on November 8 2018 (It was the employer's position that the original document was forwarded to the WCB on or about May 4, 2018; however, there is no record in the WCB file of the letter being received prior to the November 8, 2018 employer submission). The worker advisor submitted that the employer's letter (regardless of the date it was submitted) stated that after the employer last offered the worker the branch manager position in early April 2018, the employer was "…not inclined to have the worker assume the branch manager position out of concern the worker would not have the company's best interest in mind if forced into the position."
In summary, the worker advisor submitted that the evidence supported the worker was entitled to wage loss benefits after April 24, 2018.
In order for the employer's appeal to succeed, the panel must find that the worker was not entitled to wage loss benefits after April 24, 2018. The panel is unable to make that finding for the reasons that follow.
At the outset, the panel commends the employer for their efforts to accommodate the injured worker. The employer described the worker as very good employee and expressed regret as to how the situation unfolded. The panel accepts that the employer legitimately believed that the worker was an excellent candidate for the vacant management position. However, when looking at the evidence as a whole, the panel finds that the employer's April 4, 2018 job offer could not have been reasonably interpreted by the worker, or the WCB, as an attempt to accommodate the worker's compensable injuries.
The panel accepts the worker's position that when he was offered and subsequently refused the management position on April 4, 2018 he was not aware that the position was being offered as part of an employer accommodation for his workplace injury. He had been offered, and had declined, the same position in the past without issue and the employer provided no evidence that they advised the worker on or about April 4, 2018 that the job offer was part of a workplace accommodation.
The employer's evidence was that they offered the worker the management position verbally and, had the worker accepted the position, then a formal written offer would have been provided to the worker. The panel's view is that this process further confirms that the April 4, 2018 job offer was just that, an offer that could be accepted or rejected by the worker.
Further, there is no information contained on the WCB file or available to the panel that the employer contacted the WCB to discuss the job offer either before or after the worker was offered the position. Not informing the WCB of the employer's job offer removed the WCB's ability to determine whether the work was suitable and advise the worker of his rights and responsibilities regarding such an offer if it was determined to be suitable. By failing to involve the WCB in this process, the worker was placed at a disadvantage in making an informed decision as to the possible ramifications of his refusal to accept the job offer on his WCB claim entitlement.
The panel finds that the management position no longer existed as of April 23, 2018.
In this regard, the panel places significant weight upon the WCB file memorandum dated April 23, 2018 that documented the WCB Case Manager's conversations with the worker, his supervisor and the employer's Safety Coordinator which states, in part, the following:
Spoke with [spouse's name], [worker's] spouse:
• [worker] was told to finish out the day and then they don't have any more work for him at the present time within his restrictions
• Discussed that he was previously offered management job
• [Worker's spouse] indicated he does not have the training for this position
• Advised I would speak with emp to find out what has changed that the AE is no longer able to offer mod duties at this time
• Explained that if the manager position is still available, we would have to look at if it was suitable -- within his restrictions and suitable in that they would have to provide training
• Explained that an injured worker, when offered mod duties that are suitable and within restrictions, is expected to take the mod duties position - if s/he refuses, WCB is unable to pay wage loss
• [worker's spouse] asked that I call [worker] ASAP
Spoke with EMP rep [Safety Coordinator]
• She thinks that there are no further modified duties available at this time as they are going into their slow part of the season
• Re: manager's position. Was offered to [worker] a couple of years ago but he turned it down.
• It was offered within the last month but he turned it down
• Explained we will revisit the issue as they are no longer able to accommodate him in his regular duties - is it available? What are the duties? Need to be within his restrictions. He would need training to do the job
• [Safety Coordinator] is unsure if this position is still available - she will find out and get back to me
Spoke with [worker]:
• Explained the above conversations.
• Explained it is WCB's position that he will be issued wage loss at this time
• Just needed clarification on the job offer of manager - review to consider if this was an offer of modified duties and how refusal might play into his claim - explained that it appears they will not be offering this management position to him at this time
• Will call him with update after speaking to emp rep [Safety Coordinator]
Call with [supervisor], [worker's] supervisor:
• Slow season therefore no jobs in general and nothing that would be within [worker's] restrictions
• Discussed manager's job was offered approx. 3 wks ago - won't be offering it to him again as they need someone long term not just to accommodate [worker's] restrictions which are likely to be temporary
2nd call with [Safety Coordinator]: Apr. 24/18
• [Safety Coordinator] thinks no further wage loss should be paid at this time as [worker] was offered the management position and refused - I explained that the last time he was offered this was approx. 3 weeks ago when he was being accommodated on modified duties. I explained that these modified duties no longer are available per supervisor [Supervisor's name] as it's the slow season at the moment. [Supervisor] had indicated that the management job would not be offered again as [worker] had previously refused it (including approx. 2 years ago). I told [Safety Coordinator that [Supervisor] and I discussed that the restrictions are likely to be temporary and the management position is not - modified duties have to be within restrictions and suitable - this position would not be considered suitable.
• [Safety Coordinator] asked for a decision letter re the wage loss so she can include it in their appeal and I advised I would send one in the next short while.
At the hearing, the employer did not dispute that the contents of this memorandum are an accurate summary of the conversations between the WCB case manager and the employer representatives.
The panel also notes the April 23, 2018 memorandum does not indicate that the employer's safety coordinator disputed the WCB case manager's understanding at that time that the management position was no longer available to the worker as of April 23, 2018, as stated by the worker's supervisor. Instead, it appears to the panel that the safety coordinator had asserted that, since the worker declined the management job offer on April 4, 2018, he should not be entitled to wage loss benefits after April 24, 2018 when the employer was no longer able to provide him modified work.
The panel's finding that the management job was not available to the worker after April 24, 2018 is further supported by the employer's correspondence dated May 4, 2018, that the employer asserts was prepared and submitted to WCB on or about the date noted on the correspondence, which states, in part:
As [the worker] has refused the position and has indicated in writing he does not want the position, we do not feel he that would have the best interests of the company and his fellow employees, if he was forced into the position.
The employer's evidence at the hearing was that another individual was hired into the management position between April 23, 2018 and May 4, 2018 which was why the employer wrote the May 4, 2018 letter.
Based on the information contained in the file memorandum, the panel finds that it was reasonable for the worker and the WCB to conclude that the April 4, 2018 job offer was not a bona fide offer to accommodate the worker's injury, and further, even if the position of Branch Manager was considered acceptable modified work by WCB, the WCB was advised that this job offer no longer existed when the employer discontinued the worker's modified duties after April 24, 2018.
As a result, the worker experienced a loss of earning capacity due to his compensable injury after April 24, 2018 for which wage loss benefits were payable for.
For the reasons noted, the employer's appeal is denied.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. Kernaghan - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of November, 2019