Decision #92/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on July 23, 2003, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to wage loss benefits from May 14, to August 1, 2002.

Decision

That the claimant is entitled to wage loss benefits from May 14th up to May 22, 2002, inclusive and final.

Decision: Unanimous

Background

On April 12, 2002, the claimant felt a pull in her back during the course of her employment as a resident aide. The diagnosis rendered by the attending physician was a low back strain. The Workers Compensation Board (WCB) accepted the claim and wage loss benefits were paid to the claimant commencing April 13, 2002.

On August 7, 2002, primary adjudication confirmed to the claimant that her wage loss benefits would be suspended between May 14, 2002 and August 1, 2002 inclusive. The reason for suspending wage loss benefits was due to the following factors:
  • the attending physician had determined that the claimant was capable of modified duties such as feeding patients, handing out/folding laundry and minor resident care;

  • the employer was able to accommodate the claimant with modified duties.

  • the claimant had left the province due to a family emergency and therefore she was unable to participate in the modified duty program.
On August 8, 2002, the claimant and an interpreter met with a WCB case manager to discuss the suspension of benefits. The claimant indicated that she was not aware that she was fit for light duties. The case manager explained to the claimant that she was unavailable for contact when it was determined that light duties were available. It was also pointed out that if the claimant had been working at the time she needed to leave the province, her employer would also not have paid her. On August 9, 2002, the claimant appealed the decision to Review Office.

In a decision dated October 25, 2002, Review Office noted that the claimant left the province without notifying the WCB or her employer while in receipt of benefits through the WCB. Review Office said it did not condone the actions of the claimant and felt that it was irresponsible to leave the province without proper notification of the parties who were significantly involved in her compensation and physical rehabilitation. Review Office commented that the claimant was gone from the end of the third week of May until a return home on July 31, 2002. This time frame alone was basically beyond the range of recovery norm for her condition. Review Office confirmed that the case manager's decision to suspend benefits from May 14, 2002 to August 1, 2002 was appropriate.

On December 3, 2002, the claimant appealed Review Office's decision to the Appeal Commission. The claimant made reference to various reports on file from her physician and a physiotherapist which implicated that she was not ready to return work during the period in question. On July 23, 2003 a non-oral file review was conducted to consider the claimant's appeal.

Reasons

This case involves a health care worker who, in April 2002, injured her back in the course of her employment. Her application for benefits was accepted and benefits paid accordingly.

In May of the same year, she left the province - and the country - for just over two months to attend to family matters. This was unanticipated on her part; and, she did not inform either the Workers Compensation Board or her employer that she would be leaving. The board denied her benefits for the period that she was away. This decision was upheld on reconsideration by Review Office. She has appealed that ruling to the Appeal Commission.

For her appeal to be successful, the Appeal Panel would have to determine that her loss of earning capacity, during that period, was as a result of her workplace accident. For the most part, we did not come to that conclusion.

In coming to our decision, we conducted a thorough review of the claim file.

We note that both the Case Manager and Review Office relied on section 22 of The Workers Compensation Act, which requires that an injured worker must not "fail to mitigate the consequences of the accident." Board Policy 44.10.30.60 elaborates on this noting that "[t]hese sections create a requirement and expectation that the worker should be a full participant in attempting to ensure full and timely recovery from the effects of the compensable accident." This would include any medical or physiotherapeutic treatment, as well as potential return to work programs.

The claimant left the country at the time when, in the normal course, her treatment should have led to recovery. While the claimant did undergo some physiotherapy while out of Canada, the board and those treating her here in Manitoba lost control of her treatment and, thus, were unable "to ensure full and timely recovery." By leaving the country at that point in her treatment, she failed to mitigate the consequences of the accident.

The Case Manager also noted that the claimant admitted, through her husband, that, had she been working at the time of the family emergency, she would have taken a leave of absence and left the country to attend to the matter. Had she done so, she would not have been paid. The Case Manager concluded that, by extension, there would not be a loss of earning capacity. This reasoning was adopted by the Review Office. We also agree with it.

In the days before she left Canada, the board was working with the employer and the claimant's physician in an attempt to set up a return to work program for the claimant. They were successful in doing so. The employer was able to define a job that she could do within the restrictions due to her back injury. Her family doctor agreed that she would be able to perform the modified duties of this position. However, the claimant was unaware of this, as she had suspended her phone service prior to leaving for her home country. As a result, neither the board, nor the employer was able to contact her.

A return to work program is often an important part of an injured worker's rehabilitation plan. Pursuant to Board Policy 43.20.20, a worker is required to participate in a return to work plan that is consistent with the worker's rehabilitation plan. In this case, three parties - the board, the employer and the worker's doctor - agreed that the proposed plan was safe and appropriate. By not being available to participate, the worker further failed to mitigate the consequences of her accident.

We do disagree, to a small extent, with the findings of the Case Manager and the Review Office. We are of the view that wage loss benefits should have been paid up to and including May 22, 2002. It was not until that date that all three parties had signed on to the proposed return to work program.

It was noted, in a memo to file, dated May 21, 2002, that, in a telephone conversation with the Case Manager, the employer stated that it was able to provide light duties to the claimant. In another memo to file, dated May 22, 2002, the Case Manager wrote that, in a phone conversation with the claimant's doctor, the doctor stated that she was capable of performing the light duties described by the employer.

From the foregoing, we conclude that the claimant did not incur a loss of earning capacity, as a result of her compensable injury, for the period from May 23, 2002 to August 1, 2002.

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 September, 2003

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