The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue in this appeal revolves around whether the worker’s decision not to work on January 11 and 12, 2007 amounted to a failure to mitigate within the meaning of section 22 of The Workers Compensation Act (“the Act”).

Subsection 22 provides:

        Worker to co-operate and mitigate 
        22(1) Every worker must 

                    (a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting
                     from an injury; 

                    (b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the 
                    worker's recovery; and 

                    (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. 
                                                                                                                                                                     (emphasis added)

Therefore, the question before us was whether, on the facts of this case, the worker, after sustaining an injury on January 8, 2007, took all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from that injury and sought out appropriate medical aid to promote her recovery. Put another way, did the worker’s actions, in not returning to work on January 11 and 12, amount to a failure to mitigate within the meaning of section 22 of the Act?

At the hearing of this appeal, the Panel listened to extensive evidence from both the worker and the employer. The worker gave evidence with respect to her visits to her physician, seeking treatment for her injury. She also testified as to the nature of the alternate duties which were offered to her upon her return to work on January 10 and as to the effect of those duties on her injury. The employer gave evidence about its process regarding accommodation of injured employees in general and with respect to the specific alternate duties offered to the worker in this case.

At the end of the hearing, final submissions were made on behalf of both parties. The employer submitted that it did accommodate the worker and that the worker made a conscious choice not to participate in the alternate duties it had offered.

In response, the worker’s representative submitted that the worker made all possible attempts to mitigate her injuries. She attempted to work following her injury. She sought medical treatment as quickly as possible and ultimately she followed her physician’s advice in not working on January 11 and 12, in an attempt to achieve full recovery from her injuries.

After hearing all the evidence, the Panel reached a decision which agrees with the worker’s position.

There is no dispute in the evidence and indeed the employer has conceded that the worker sustained a compensable injury to her right hip and thigh on January 8, 2007. The next day the worker sought medical treatment and was advised by her physician to remain off duty from work for the rest of the week, returning the following Monday, January 15, 2007. After seeing her physician, the worker telephoned the employer and told them of this advice.

In response, the employer asked her to return to her physician and seek specific advice with respect to restrictions that would allow her to return to work on January 10, 2007. Accordingly, the worker went back to her physician and asked him to modify his original advice. The “return to work medical release” document provided by the employer shows that the physician, after being asked by the worker to change his advice, modified the document and added the words “patient will attempt modified duties on 10/01/2007 – no twisting, no standing, no bending, no lifting. Restrictions in place until 15/01/2007.”

The worker then returned to work on January 10, 2007. She provided the medical release form containing the physician’s restrictions to her employer and in exchange was assigned alternate duties – different from her normal duties.

The worker’s evidence was that those duties did involve twisting and bending and the use of her injured leg. She testified that by mid-day she was experiencing increased symptoms of her injury and that her difficulties were witnessed by a co-worker with whom she discussed the fact that she was experiencing pain.

By the end of the day the worker was in even more pain. She therefore sought out the relevant staff at her workplace to advise them of her pain and difficulties.

The next day, January 11, 2007, because she was experiencing more pain, the worker went back to her physician. At that time the physician repeated his original advice to rest her injury for the remainder of the week in order to achieve full recovery. He again said that if she did so she would be able to return to work on January 15, 2007. The worker called her employer to inform it of this advice and of the fact that she would be returning to work on January 15, 2007 but would not be at work on January 11 and 12 in accordance with her physician’s advice.

The employer, in response, repeated the offer of alternate duties, different from the alternate duties it had offered her the day before. The worker, however, in light of the fact that those original alternate duties had increased her symptoms and specifically following the advice of her physician, did not return to work until January 15, 2007. She chose to rest her injury on January 11 and 12, in accordance with her physician’s repeated advice.

Analysis

In making our assessment as to whether the worker has complied with the obligations imposed on her by subsection 22(1) of the Act, we have applied a standard of reasonableness of behaviour. In our view the actions of the worker in this case satisfy that standard.

After her injury, the worker immediately sought medical advice. The medical advice received was to remain off work and rest the leg and hip during the acute phase of the injury. However, at the employer’s request, the worker asked the physician to modify that advice and recommend specifications as to work restrictions which could be performed during the course of alternate duties. Unfortunately, the worker experienced more pain during the course of carrying out those alternate duties and accordingly went back to her physician to seek further treatment. At that point, the physician repeated his original advice to rest during the acute phase of the injury, for two more work days, advising return to full employment the following week.

Although the employer responded by offering to provide different alternate duties, we find that the worker’s decision to rely on her physician’s advice and remain off work on January 11 and 12, 2007, was a reasonable decision and one which was consistent with taking “all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury” as required by the Act.

Indeed, the evidence discloses that in following the physician’s advice, the worker successfully recovered from her injury and was able to return fully to work on January 15, 2007, as predicted by her physician.

In making this finding, we are not in any way being critical of the actions of the employer. We do not find fault either with the employer’s process or actions in offering alternate duties or even in its selection of the particular duties for the worker. We recognize that the employer attempted to accommodate the worker in response to her injury. In this particular case, while the alternate duties offered were generally compliant with the medical restrictions provided to the employer, the panel does note that the worker was still in the acute phase of her injury, and that the duties did involve some use of her right lower extremity, and an aggravation of her symptoms.