The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 18, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 18, 2002.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond August 24, 2001.

Decision

That the claimant is entitled to wage loss benefits from August 24, 2001 to August 28, 2001 inclusive and final.

Decision: Unanimous

Background

While working in a "spin chill tank" on August 21, 2001, the claimant incurred lower back and right ankle injuries when he slipped and fell when scraping chickens with a shovel that were frozen to the tank. Medical information confirmed that the claimant was seen by his attending physician on August 21, 2001 and was diagnosed with a lower back strain and a right ankle sprain. Medication and physiotherapy treatments were prescribed. The claimant was considered disabled and was incapable of alternate or modified work.

The employer's report of injury stated that the claimant was removing chicken from the spin chill tank when he fell and twisted his ankle and developed a sore back. The employer indicated that the claimant did not report the accident to management and he refused to report to work for an accident investigation. The claimant had been absent from work and was unavailable for light duty. "The claim should be refused because of his refusal to cooperate."

In an August 29, 2001 letter, the employer's representative indicated that the claimant was allegedly injured on August 21, 2001. He did not inform his supervisor or the foreman. The claimant filled out a green card with the union chief steward but neither of them informed the employer. The claimant simply did not show up for work on August 22nd as far as the employer was aware. The representative stated that the green form was later found by the supervisor and he immediately attempted to contact the claimant on August 23rd. He left a message for him to come in to work to discuss the incident, fill out an accident investigation report, and pick up a physician's form to complete and return with his physical capabilities noted. The claimant called back and left a message indicating that he would be off work for a month. His supervisor immediately called the claimant back and spoke with his mother. She was informed of the company's return to work policies and was advised that her son must come into work to complete the accident investigation form, and pick up a physician's letter to provide light duties. The claimant did not call back. Messages were also left for the claimant to come into work to pick up the forms on August 24th, 27th and 28th, but he did not show up.

The representative commented that the claimant refused to cooperate with the employer to provide any details of the alleged injury or to meet with the employer to complete the accident investigation process or to discuss light duties. As the claimant consistently and repeatedly failed to mitigate the consequences of an injury that was not reported to the employer, the representative strongly objected to the acceptance of the claim or the payment of benefits to the claimant.

On September 21, 2001, a Workers Compensation Board (WCB) adjudicator spoke to the claimant and to his mother. The claimant advised that he started working with the accident employer on July 19, 2001. At the time of hiring, he was not informed of the employer's WCB procedures. The only time that he was informed of the employer's reporting procedures was when he was injured and a union chief steward told him to fill out a green card. He filled out the green card and gave it to a secretary to pass on to his supervisor. The claimant indicated that he went to a hospital the following day but was turned away because there was no x-ray technician available. He then provided the union chief steward with this information and that was it. The claimant was not sure if this was the appropriate person to call when you were to be absent from work but he was not told otherwise by the union chief steward.

The claimant advised the WCB adjudicator that when he went back to the hospital on August 23rd, he had x-rays taken and was told by the doctor to stay off work for at least 4 weeks. He called his supervisor and left a message on his answering machine indicating what the doctor told him. The supervisor called his home and spoke to his mother. According to the mother, he became belligerent with her and was yelling at her that her son needed to come to work.

The claimant advised that he was contacted by his foreman on August 24th but his parents did not feel comfortable letting him go to the employer by himself. They were not impressed with how the employer was handing the situation and they did not feel comfortable that the employer would respect their son's rights. They were advised by a union representative that it was not a good idea for the claimant to meet with the employer with no representation.

A meeting was set up for August 28th to meet with the claimant, his mother, the shop steward and union representative, however the meeting was missed as the claimant's mother had to register her daughter for classes and it took longer than expected so they missed the meeting. The mother called the employer to apologize about missing the meeting but the employer refused to reschedule.

On October 1, 2001, a WCB adjudicator contacted the claimant's physician. The physician indicated that the claimant did not discuss modified duties with him. The claimant still had a dull ache of pain in his lower back and sharp pain with exertion and forward flexion. The doctor was unable to comment on what the claimant 'could have done'. He did tell him to stay off work as he was unaware of modified duties. The physician indicated that he was treating the claimant later that day and he would consider modified work during that exam. Subsequent file evidence showed that on October 1, 2001, a medical certificate from the physician indicated that the claimant could return to modified duties and to avoid repetitive bending at the waist with no lifting greater than about 20 lbs. as of October 2, 2001, for at least 3 weeks.

On October 2, 2001, the claimant was advised that the WCB was unable to accept responsibility for any wage loss beyond August 24, 2001 inclusive. The letter stated that the attending physician was contacted and he advised that at the time of his examination, the claimant did not discuss any modified duties with him so he did not consider them. A WCB medical advisor had reviewed the claim and in his opinion, based on objective medical information provided by the physician, the claimant would have been capable of modified duties following his injury. It was the opinion of Short Term Claims that following the supervisor's phone call on August 23rd, the claimant should have gone to pick up the forms and have the forms completed by his physician and returned to his employer, for him to return to modified work on August 27, 2001. Payment of benefits to August 24, 2001 would allow the claimant an additional day to have the appropriate forms completed and modified duties arranged. On November 5, 2001, a union representative appealed this decision to Review Office.

On November 23, 2001, Review Office determined that the claimant was not entitled to wage loss benefits beyond August 24, 2001. Review Office found it unreasonable to believe that the claimant would have been unaware of the employer's ability to accommodate workers with modified employment, especially after the conversation that took place between his mother and the employer on August 23, 2001 and subsequent attempts to set up a meeting. In spite of this, Review Office noted that the first mention to the attending physician that light duties were available is when the adjudicator spoke with him on October 1, 2001. The claimant was okayed to return to modified duties by the attending physician when he examined the claimant later that day. Review Office believed that the claimant was capable of modified work duties, which the employer could have made available. The decision to end wage loss benefits effective August 24, 2001 was a just one and should not be amended.

On April 3, 2001, the union representative appealed Review Office's decision to the Appeal Commission and submitted a letter from the attending physician dated March 11, 2002. On September 18, 2002, an Appeal Panel hearing was convened.

Reasons

This case involves a worker who was injured while working at a poultry processing plant. His claim for compensation was accepted and benefits were paid.

However, it was determined that he failed to mitigate his loss of earning capacity in that he made no effort to consider whether he could perform modified duties. Accordingly, benefits were paid for a few days only. Upon reconsideration by Review Office, this decision was upheld. He now appeals to this Commission.

The issue before the Panel was whether or not he should receive wage loss benefits beyond August 24, 2001.

For his appeal to succeed, we would have to determine that he could not have performed modified duties and therefore suffered a total loss of earning capacity.

In coming to our decision, we conducted a thorough review of the claims file and held an oral hearing, at which we heard testimony from the claimant, as well as argument from his union representative and from representatives of the employer.

It should be noted that the claimant was a high school student employed for the summer. He returned to school on August 29, 2001. He stated that he had an expectation of continuing to work, in the evenings, while at school. While there was a difference of opinion as to how much he would have worked, we find that, had he not been injured, he likely would have continued to work on a part-time, on-call basis.

There was also a difference of opinion as to whether or not the claimant had properly reported the accident to the employer. He had filled out the green card as advised by the shop steward and had turned it into a person in the administrative office, who did not inform his supervisor for two days. While he should have given it directly to his supervisor, we find that he did report the accident to his employer, very shortly after it occurred.

Following this, however, there was a breakdown in communications between the employer and the claimant. The employer has a policy of conducting an investigation of such accidents, beyond what is required for reporting to the board. The employer also has a policy of accommodating injured employees in modified or alternate duties, wherever possible. This policy requires the injured worker to take a form to the treating physician.

Had the claimant reported directly to his supervisor, both of these steps would have been addressed on the day of the accident. When informed of the accident, two days after it occurred, a company official phoned the claimant's house to inform him of his responsibilities in respect of the accident investigation and the alternate duties. Similar phone calls were made on at least two other occasions. However, the official spoke not to the claimant, but to his mother. Messages for the claimant to return the calls were not passed on to the claimant by his mother. The claimant's evidence is that he was aware that his mother was acting on his behalf with his employer.

Finally, the company set a date for a meeting, which was to include the claimant and his mother, among others. Due to other obligations, the claimant's mother did not go to the meeting. Nor did the claimant, as his mother was his source of transportation. We are of the view that, had the claimant attended this meeting, the question of alternate duties would have been resolved.

The claimant had been informed by his treating physician that he would not be capable of returning to his normal duties until early October. However, the doctor did not consider alternate duties, as he was unaware that they were a factor in the management of this injury.

We are of the view that the claimant was right to follow his doctor's advice not to return to his regular duties. But, he failed to mitigate his loss of earning capacity, as required by board policy, by not cooperating with the employer in the consideration of alternate duties. We are also of the view that the employer did have alternate duties which the claimant could have undertaken without aggravating his injuries.

Therefore, we conclude that the claimant is not entitled to wage loss benefits beyond August 28, 2001, being the date of the missed meeting with the employer.

We have concluded that he is entitled to benefits for wage loss during the period August 25 to 28, inclusive. As already noted above, had he attended the meeting with the company on that date, the matter of alternate duties would have been resolved. Because of his relative youth and inexperience in the workplace, he was unaware of company policy for management of accidents. The claimant's failure to cooperate with the company during that period was largely beyond his control, in large part, due to his mother's participation in the process. Nevertheless, he had an obligation to consider the matter of alternate duties, as set out in Board Policy 44.10.30.60.

Accordingly, the appeal is allowed as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of October, 2002