Decision #21/10 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for right shoulder difficulties that he attributed to his work duties on March 11, 2007. It was subsequently determined by the WCB that the worker was not entitled to wage loss benefits for the period June 9, 2008 to December 11, 2008 as he continued to work his regular duties until he was laid-off in June, 2008 and that the layoff was due to economic reasons, not his workplace injury. The worker disagreed and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on January 26, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from June 9, 2008 to December 11, 2008.

Decision

That the worker is not entitled to wage loss benefits from June 9, 2008 to December 11, 2008.

Decision: Unanimous

Background

On March 11, 2007, the worker was lifting and moving office furniture when he felt pain in his right shoulder. The worker noted that over the past year, he had had pain in his right shoulder from a previous WCB claim (right shoulder and neck). He also had a previous WCB claim for carpal tunnel syndrome. The worker did not incur any time loss as a result of his right shoulder difficulties.

A report received from a neurologist dated April 12, 2007, indicated that the worker was seen on March 14, 2007. The worker advised the neurologist that he thought his shoulder pain was related to a previous neck problem. The worker advised that he had pain and stiffness in both of

his shoulders and that the left shoulder had been static for the past six months. The worker stated that his right shoulder condition had become dramatically worse. The neurologist recommended an MRI of both shoulders.

On June 15, 2007, an MRI examination of the right shoulder showed a large complete rotator cuff tendon tear. A home exercise program was prescribed to the worker by the treating orthopaedic specialist.

When speaking with a WCB adjudicator on August 21, 2007, the worker indicated that the home exercises prescribed to him were helping slightly. He stated that he was able to perform his regular duties as a supervisor and the physical work was limited but was not avoidable. He indicated that the amount of physical work he performed daily was from 1 to 3 hours.

On August 22, 2007, the orthopaedic specialist reported that the worker’s right shoulder condition was improving but his left shoulder had been bothering him somewhat over the last few months. The specialist noted that an MRI showed a partial bursal surface tear.

In his October 18, 2007 follow-up report, the orthopaedic specialist noted that the worker “continued to function reasonably well”. He noted that the worker’s right shoulder had some pain through 90 degrees of forward elevation. “Based on his large cuff tear, we will leave things be. If things change, he will be in touch. He is happy with the present status of his left shoulder.”

On January 30, 2008, the worker advised a WCB case management representative that he was thinking of calling his specialist because of constant pain he had been experiencing for the last three months.

On April 30, 2008, the orthopaedic specialist reported that the worker’s left shoulder had been bothering him more over the winter and that it was the same as his right shoulder. The worker had trouble with any motion above shoulder height. “…I offered him cuff repair on both sides, although his cuff tear is smaller on the left than the right. He will consider this and let us know.”

A WCB case manager spoke with the worker on May 29, 2008. The worker stated that he continued to work his regular duties; he did not have a new injury; his symptoms were related to the original injury; that he had not yet decided on having surgery because he would be off work for at least 8 months; and he and his wife were starting a new business in approximately one month, so he would be terminating his employment.

On September 9, 2008, a different WCB case manager spoke with the worker by telephone to obtain additional information regarding the history of his right and left shoulder problems. The case manager advised the worker that there was no relationship between the accident of March 11, 2007 and his left shoulder difficulties and that the worker should file a new claim for his left shoulder.

The worker advised the case manager that he quit his job with the accident employer on June 6, 2008 to start his own business. The worker indicated that so far he had one employee and had not made an income. He noted that the job required very little heavy lifting. The worker indicated he was in receipt of Employment Insurance (“EI”) sick benefits. The worker further indicated that he had been having problems with his right shoulder for a long time which he related to the combination of the repetitive work duties as a machinist and the March 11, 2007 accident when he moved furniture. The worker stated that he had not made a decision about surgery as he would prefer to wait until he started earning money in his new business. The case manager advised the worker that if the surgery was considered compensable, he would receive full wage loss benefits until he recovered or was capable of returning to his pre-accident position or alternate/modified duties with the accident employer.

A WCB medical advisor reviewed the file on September 30, 2008. He indicated that the worker’s right shoulder rotator cuff tear was related to the workplace injury and that arthroscopic surgery was appropriate for the right rotator cuff tear.

On October 27, 2008, the worker called the WCB to advise that surgery was scheduled for December 12. He noted that he had not been working since June 6 and that his EI benefits had ended the previous week.

In adjudication claim notes dated November 5, 2008, it was indicated that the worker was not entitled to wage loss benefits until after the shoulder surgery as he quit his job in June 2008.

On November 7, 2008, an employer representative advised a WCB case manager that the reason the worker stopped working was that he had been laid off for economic reasons in June 2008. The employer indicated that the worker was a supervisor and there were too many employees for the same amount of work.

On November 7, 2008, the worker advised his case manager of the following:

· he did not quit his position. His physician recommended that he stop work due to his right shoulder symptoms and he was given a note authorizing time off.

· he was not laid off and there was a job for him if he wanted it. He was off work strictly for his right shoulder condition.

· in April or May 2008, he advised the accident employer that he was having trouble with heavy lifting and asked if he could do supervisory work. The employer told him that they could not afford to pay him for supervisory work only and that they did not have modified duties available. The employer indicated that he would have to quit if he did not perform his regular duties.

· the worker was asked about the comments he made on May 29, 2008 to the WCB adjudicator that he would be quitting soon to start his own business. The worker denied making the comment but acknowledged that he did start his business in June 2008. The worker indicated that he is not generating income from the business as the profits go back into the business.

· the worker was asked about the comments he made in September 2008 that he quit his job in June 2008. The worker said that it must have been a misunderstanding. He said he did not quit for the reasons already noted.

· the worker was claiming wage loss benefits from the time his EI benefits ended on October 11, 2008 until he recovered from the upcoming surgery.

On November 14, 2008, it was determined by the WCB that the worker’s entitlement to wage loss benefits would begin after his December 12, 2008 surgery and that he was not entitled to wage loss benefits from June 14, 2008 to December 11, 2008. The case manager’s decision was made on the following factors:

· the worker advised the WCB on May 29, 2008 that he was starting a new business in a month and would be quitting his job.

· the employer’s information that the worker was laid off for economic reasons on June 13, 2008. The worker was provided with a doctor’s note one week after the lay off occurred. Prior to the date of lay-off, the worker was performing his regular duties.

· a June 17, 2008 doctor’s note stated, “Off work indefinitely due to medical reasons”. The note was dated after the lay-off occurred and did not identify that the reason for time off was related to the compensable injury.

· the conversation of September 9, 2008 wherein the worker indicated that he quit his job in June 2008 to pursue self-employment.

Based on the above evidence, the case manager felt that the file information did not support that the worker left his employment with the accident employer due to his compensable injury but that he was laid off by his employer which prompted him to claim EI.

A narrative report was received from the worker’s family physician dated December 5, 2008. On December 19, 2008, a WCB representative spoke with the family physician to gather additional information concerning the worker’s shoulder condition from June 7, 2008 onward.

A second decision letter was sent to the worker on January 14, 2009. The worker was advised that no change would be made to the decision of November 14, 2008. The case manager confirmed that the worker was laid off from employment due to reasons unrelated to his compensable injury and that the medical information did not support a loss of earning capacity/time loss from work. The case manager noted that the medical findings from June 17, 2008 were no different from the medical findings of March 2007 to June 2008 when the worker continued to work.

On January 23, 2009, a worker advisor appealed the decision of January 14, 2009. The worker advisor referred to WCB Policy 43.20.25, Return to Work with the Accident Employer, in her submission. She stated,

“..in cases of layoff, if the work interruption is due to economic conditions there is further entitlement to wage loss benefits, in Mr. [the worker’s] case. [The worker] remained competitively disadvantaged as a result of his compensable injury. This Policy also addresses when there was no expectation to return to the previous employment in a reasonable period of time, wage loss benefits are payable. In this particular case, there was no expectation to return to the previous employment in a reasonable period of time since the Workers Compensation Board accepted surgery as of December 12, 2008.

…[The family physician] fully supports he recommended [the worker] stay off work for two weeks until he could reassess his condition on June 17, 2008. He also states he prescribed medication to [the worker] on June 6, 2008. [The family physician] also provided his medical direction that [the worker] was to remain off work as of June 17, 2008, which is on file. This supports a loss of earning capacity exists.”

The WCB gathered additional information from the worker and the accident employer regarding the events that lead to the worker’s lay off.

On April 8, 2009, it was determined by the WCB case manager that no change would be made to the January 14, 2009 decision which stated that the worker was not entitled to wage loss benefits from June 6, 2008 to December 11, 2008. In making her decision, the case manager relied on the following evidence:

· the information received from the employer that the reason for lay off was not related to the compensable injury but was due to economic reasons/shortage of work, i.e. administrative work and the opening of the worker’s business in June 2008.

· co-workers who confirmed that the worker continued to work his regular duties with some complaints of shoulder difficulties;

· the fact that the worker continued working his regular duties up until June 6, 2008, the last day of work prior to his holidays and date of lay-off.

On April 30, 2009, the worker advisor appealed the case manager’s decision to Review Office. The worker advisor referred to file evidence to support the argument that the worker did not terminate his employment with the employer, that there was an entitlement to benefits if the employer no longer was willing to accommodate the worker with suitable alternate duties, the reason for lay off was due to the compensable injury and the medical evidence which supported that the worker was in a loss of earning capacity due to his compensable injury from June to December 2008.

In a May 20, 2008 decision, Review Office determined that there was no entitlement to wage loss benefits from June 9, 2008 to December 11, 2008. Review Office found no reasonable explanation as to why the worker did not report to the WCB at any time between March 2008 and June 2008 that he was unable to perform all of his regular duties or that he was experiencing side effects from his medication. There was also no reasonable explanation as to why the worker did not submit a claim for WCB wage loss benefits in June 2008 if he felt he was unable to work due to his compensable injury.

With respect to the medical information on file, Review Office noted that there was no significant change in the clinical findings provided in June 2008 that would support that the worker was unable to perform his regular duties. It determined that the worker’s lay off was not due to the compensable injury of March 11, 2007. On June 8, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

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, or the worker attains the age of 65 years.

Worker’s Position

The worker was assisted by a worker advisor at the hearing. The worker’s position was that he had a loss of earning capacity due to his compensable injury. It was submitted that the evidence on file supported that the worker’s shoulder problems were increasing in April, 2008 and that the family physician recommended the worker be off work indefinitely due to the injury as of June 17, 2008. The termination of the worker’s employment was solely based on the worker’s inability to perform the work that was required of him. There was no alternate work available from the employer as of June 13, 2008 and the worker continued to suffer from the effects of his compensable injury, thus he was precluded from returning to regular work. As the worker was in a position of loss of earning capacity, wage loss benefits ought to have been paid.

Employer’s Position

The employer appeared at the hearing. He did not make a formal submission, but indicated he was available to answer any questions the panel might have.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits from June 9, 2008 to December 11, 2008. In order to determine the issue, the panel must consider whether the worker’s loss of earning capacity during the relevant time was a result of his workplace injury, or whether the loss of earning capacity was due to another cause.

There was a significant discrepancy in the evidence in this matter as to the reasons why the worker was no longer employed by the accident employer after June 9, 2008. After considering both the evidence recorded on the WCB file and the evidence given at the hearing, the panel is satisfied, on a balance of probabilities, that the worker’s loss of earning capacity was due to a mutually held intention by both the worker and the employer to end the employment relationship for reasons unrelated to the workplace injury.

In arriving at this decision, the panel made the following findings:

  • The worker’s compensable right shoulder injury did not disable him from continuing to perform his job duties with the accident employer. He had been working at the same level since approximately January 2008 and there was a lack of medical evidence to support that his right shoulder condition was deteriorating such that he was unable to continue to perform his duties. The only evidence of a changing condition related to the left shoulder which is not part of this claim. Further, there was no record of any performance issues and the worker’s evidence at the hearing was that he never had the sense that there was a job security issue for poor performance.
  • The worker chose to pursue a new business interest, thus effectively abandoning his position with the accident employer. In coming to this finding, the panel relied upon records of two separate conversations where the worker advised the WCB that he would be terminating his employment/quitting his job with the accident employer to work in his own business (memos dated May 29, 2008 and September 9, 2008). The panel also noted that although the worker claimed that he was off work effective June 6, 2008 due to his doctor’s advice, the evidence at the hearing was that he had made a spontaneous request for vacation leave from his employer for the period June 7 to 22, 2008 inclusive immediately prior to June 7, 2008. This coincided with the sudden and unexpected availability on June 1, 2008 of leasehold premises for the worker’s business. The panel does not accept that the worker’s right shoulder condition became disabling at the exact same time when he and his family were setting up new storefront premises which had been a long time dream of theirs.
  • On June 17, 2008, the employer terminated the worker’s employment primarily on account of a breakdown in their relationship which was attributable to the worker’s involvement in his new business. At the hearing, the employer indicated that he had confronted the worker in March, 2008 to ask whether he was setting up a competing business. The worker denied setting up as a competitor, but also did not advise the employer about his plans to set up the new business (which was not in the same market as the employer’s). The employer’s evidence was that in early June, 2008, he was very surprised to read in the newspaper that the worker was having a grand opening of his new business that month. The employer stated that he now started to understand why the worker seemed so tired at work and why there had suddenly been multiple packages being delivered to the employer’s premises for the worker’s business. In the employer’s words, he was thinking: “Okay, I’ve had enough.”

With respect to medical evidence, the worker relied on a brief medical note dated June 17, 2008 from his family physician, as well as narrative reports dated January 14, 2009 and March 16, 2009. In his letter of March 16, 2009, the family physician reported: “(Worker) stated that the medications side effects included dizziness, drowsy, sedation, therefore, recommended off work from June 6, 2008 @ 1630 until reassessment on June 17, 2008. In conjunction with the side effects, the pain was causing sever (sic) insomnia and sleep deprivation.”

In contrast, however, the worker’s evidence at the hearing was that any dizziness caused by medications was related to a prescription he took in December, 2007, and that in June, 2008, he was not experiencing dizziness problems from his prescription medications. The worker also indicated that on June 6, 2008, he went for a regularly scheduled appointment with his family physician. When he arrived, the physician told him that he was unable to spend any time with the worker, but that he recommended that the worker remain off work until June 17, 2008. The physician did not examine the worker, and there was no discussion about the status of and any changes in his medical condition since the physician had last seen the worker several months prior. The conversation took place in the waiting room.

Because of the discrepancy in the evidence regarding the worker’s condition on June 6, 2008, and the limited nature of the medical examination on that date, the panel places little weight on the family physician’s reports, particularly given that the narrative reports were only provided in 2009, several months after the dates in question.

Overall, the panel is not satisfied on a balance of probabilities that the worker was medically unable to continue his job in early June, 2008. We find instead that the worker chose to pursue another business interest, and although the worker may have preferred to retain his position with the employer until the new business was well established and making a profit, the worker’s involvement in the new business was the reason why the employer chose to end the employment relationship on June 17, 2008. We therefore find that the worker is not entitled to wage loss benefits from June 9, 2008 to December 11, 2008. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of March, 2010

Back