Decision #96/07 - Type: Workers Compensation
Preamble
This is an employer’s appeal of the decision of the Workers Compensation Board (WCB) to pay the worker wage loss benefits beyond December 5, 2006.
The worker was injured on November 8, 2006. He applied to the WCB for benefits and his claim was accepted. He continued to work until December 5, 2006. His request for benefits was initially denied by the WCB. The worker then applied to Review Office which awarded him benefits. The employer appealed this decision to the Appeal Commission.
A file review was held on June 7, 2007 at the employer’s request.
Issue
Whether or not the worker is entitled to wage loss benefits beyond December 5, 2006.Decision
That the worker is entitled to wage loss benefits beyond December 5, 2006.Decision: Unanimous
Background
On November 8, 2006, the worker reported that while climbing steps with a coffee table in his hands, he slipped and fell and struck his neck on a chair seat. The accident description was confirmed by the employer on December 13, 2006.
Initial medical reports showed that the worker sought medical attention on November 22, 2006 for neck and low back complaints. The diagnosis rendered was a neck and low back muscle strain. The physician noted that the worker was capable of alternate or modified duty work.
On December 13, 2006, the employer advised the WCB that the worker went home the day after he filled out his WCB forms or the day afterwards. The worker said his doctor told him to take three weeks off work. The employer indicated that the worker turned in his fuel cards and cell phone and they were unable to reach the worker but would have offered him modified duties.
On December 29, 2006, a WCB adjudicator contacted the worker by phone. He advised that he continued to work up until December 5, 2006 and that he did a trip from Saskatoon to Winnipeg when his symptoms flared up. He noted that two co-workers were aware of his condition. He said he was presently back at home (he lives in another province) and was awaiting approval for physiotherapy treatment. He said he planned to return to work with the accident employer.
In a telephone conversation with the adjudicator on January 8, 2007, the employer indicated that no light duties were offered to the worker but light duties were available.
In a decision dated January 17, 2007, the adjudicator accepted responsibility for medical aid costs associated with the claim but not for any wage loss benefits. This decision was based on the rationale that the worker was fit for modified duties as indicated by his physician and that his employer would have been able to accommodate him with modified duties.
On January 23, 2007, the worker asked the WCB to reconsider its decision of January 17, 2007. He stated that he told his employer on December 5, 2006 that he was taking a couple of weeks off work to start physiotherapy treatment at the advice of his physician and that no discussion of light duties had taken place.
In a second decision dated January 31, 2007, the adjudicator advised the worker that no change would be made to the decision of January 17, 2007. The adjudicator based its decision on the rationale that the worker did not advise his employer that he was capable of doing light duties as indicated by his treating physician and that the worker left the province and therefore did not make himself available for alternate work. On February 13, 2007, the worker appealed the decision to Review Office.
On March 16, 2007, Review Office found that the worker was entitled to wage loss benefits beyond December 5, 2006. Review Office accepted that the worker was following his physician’s verbal recommendations when he advised his employer that he was to remain off work. It noted from file evidence that the worker was in contact with his employer on December 5, 2006 and that the employer confirmed that modified duties were not offered to the worker. It felt that the employer had some obligation to ensure that the worker was made aware that modified or alternate work was available even if the worker advised that he was unable to work. Review Office indicated there was no investigation made to determine what the worker’s restrictions were or what the modified duties were and whether the modified duties were within his restrictions. It noted that the worker did not reside in Manitoba and found it was reasonable for him to return home when he had been advised by his doctor to remain off work and no modified duties were offered to the worker by the employer. On March 26, 2007, the employer appealed Review Office’s decision and a file review 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 Board of Directors.
Subsection 39(2) of the Act provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends.
Section 22 of the Act places a positive obligation on an injured worker to mitigate the consequences of a workplace accident, including the financial costs such as wage loss benefits. Workers who are not fully recovered may be required to participate in a return to work program to alternate or modified duties that respect their medical restrictions. If the worker fails to do so, the WCB has the authority to reduce or suspend the worker’s wage loss benefits.
The WCB Board of Directors has made WCB Policy 43.20.20 Modified and Alternate Return to work with the Accident Employer. This policy provides that if a worker refuses to participate in modified or alternate work that is considered suitable for the worker, wage loss benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified work situation.
Employer’s Position
The employer submitted an appeal form on March 26, 2007. In the appeal form the employer noted that the worker was able to work after the injury date. It also noted that the worker “became unavailable for duties after/near employment was ended.”
In a letter dated May 3, 2007 the employer submitted further information concerning the basis of its appeal. The employer advised that:
December 5 – the worker was assigned and verbally accepted a shipment to load from the employer’s warehouse on December 6 and deliver to Kenora, Ontario on December 7.
December 5 – the worker called the employer’s office and spoke to a staff person to inquire into getting a road allowance to pay for labour and road expenses for the Kenora trip. The worker spoke to the owner who approved the request on the basis that it was needed to pay for labour, food, lodging, etc for this trip.
December 6 – the worker came by the employer’s office before 8:00 AM to drop-off his truck, truck keys, fuel cards and cell phone. The worker did not speak to anyone nor advise anyone why he was leaving these items.
The employer indicated that the worker did not advise anyone that he was unable to work. The employer submitted that the worker purposely deceived the employer into believing that he would perform the work assigned to him in order to receive money to purchase a ticket home.
Worker’s Position
In a letter dated January 23, 2007 the worker advised the WCB that he phoned the president on the evening of December 5, 2006 and left a message on his answering machine that he needed time off and that he would drop off his unit and fuel cards at the office.
In a letter dated February 13, 2007 the worker stated that at a meeting he advised representatives of the employer that his doctor told him he needed time off to heal. He advised that he was in contact with the employer on two other occasions.
With respect to leaving the province he advised that he was working as a commission driver and was responsible for his own expenses and would have to pay hotel and meal costs if he stayed in Winnipeg. He could not afford this.
Regarding light duty work, he advised that the employer never discussed the possibility of performing light duty employment with him.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits beyond December 5, 2006. As this is the employer’s appeal, for it to be successful, the panel must find that the worker’s loss of earning capacity after December 5, 2006 is not due to the worker’s workplace injury or alternatively that the worker failed to mitigate the financial consequences of his injury. The panel was not able to reach this decision. The panel finds, on a balance of probabilities, that the worker is entitled to wage loss benefits beyond December 5, 2006.
In its written submission to the Appeal Commission, dated May 3, 2007, the employer suggests that the worker did not advise anyone at its office that he could not work. The employer asks the question “If [the worker] had spoken to someone in this office to advise that he could not work, why would he go through the “motions” of accepting a job and requesting a road allowance to cover his expenses?” The employer alleges that the worker purposely deceived the employer to obtain funds to pay his way home.
The panel finds that the bulk of evidence does not support the employer’s assertion that the worker did not advise the employer that he could not work. File information establishes that the worker advised the employer. The panel notes that an employer representative advised the WCB in a telephone conversation on December 13, 2006 that the worker left Winnipeg recently. The representative assumed he went home after turning in his fuel cards and cell phone, and stated the worker said his physician told him to take three weeks off. As well an employer representative provided similar information to the WCB in a telephone conversation on January 2, 2007. The panel notes that this is consistent with the worker’s evidence. In a telephone conversation on December 29, 2006 the worker advised a WCB adjudicator that he had a flare-up in his back condition and that his physician told him to take time off. He indicated that he advised his employer. In letters dated January 23, 2007 and February 13, 2007 to the WCB, the worker repeated this information.
The panel accepts the worker’s evidence that he had a flare-up of his injury and that his physician told him to take time off to heal. The panel also accepts the worker’s evidence that the employer never discussed light duties with him. An employer representative confirmed on January 8, 2007 that the employer had not offered light duties. The panel finds that WCB Policy 43.20.20 is not applicable to the issue before it, given light duties were not offered to the worker. The panel finds it was reasonable for the worker to leave the province and return home as he had no residence in which to reside in Manitoba.
The panel notes that the worker worked for nearly a month after the workplace accident and received treatments for his condition in November and December 2006 and January and February 2007. The panel finds, on a balance of probabilities that the worker was in fact proactive in working when he was medically able to do so and thus finds that the evidence does not establish that the worker was in breach of his duty under Section 22 of the Act.
The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 18th day of July, 2007