Decision #95/08 - Type: Workers Compensation

Preamble

The worker suffered a twist injury to his left ankle in a work related incident that occurred on July 24, 2006. The Workers Compensation Board (“WCB”) accepted the claim for compensation but denied the worker wage loss benefits on the grounds that he failed to make himself available for suitable modified duties that were available soon after the accident. The worker disagreed and filed an application to appeal with the Appeal Commission. A hearing was held on June 12, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is not entitled to wage loss benefits.

Decision: Unanimous

Background

On July 31, 2006, the worker filed a claim with the WCB for a twisted left ankle that occurred at work on July 24, 2006. The worker indicated that he got off work at 3:00 a.m. on July 25, 2006 and that he attended a hospital facility for treatment. He stated that x-rays were taken but nothing was broken. He was given crutches and was advised to stay off work for at least one week.

On July 31, 2006, a WCB staff person spoke with the worker by phone. The worker indicated that he received an off work note from the hospital for one week and that he had to follow up again either that day or the next day at the hospital. The WCB staff representative advised the worker that she was requesting information from the hospital prior to rendering a decision on his claim. The worker indicated that he would probably be returning to work the next day.

The Employer’s Accident Report dated August 3, 2006 confirmed that the worker twisted his ankle on July 24, 2006 and that he continued working the rest of his shift. The employer indicated that the cell leader and safety manager were unable to contact the worker by phone to advise him that modified duties were available. It stated that the worker returned to his regular full duties on August 2, 2006.

Medical information revealed that the worker attended a hospital emergency room on July 25, 2006 at 7:12 a.m. He reported that he twisted over on his ankle and heard a “snap”. The examination revealed pain to the mid foot zone and the worker was unable to weight bear. There was moderate swelling. There was full range of motion in the knee with no discomfort and pedal pulses were palpable. The diagnosis rendered was a left ankle strain and the worker was instructed to use crutches for one week.

Between August 1 and September 13, 2006, a number of conversations took place between WCB staff and the employer/worker concerning the events that took place on the day of accident, the offer of modified duties and why the worker did not avail himself for the modified duties. In brief, it was the employer’s position that starting July 25, they attempted to contact the worker several times a day with the offer of modified duties but they were unable to reach the worker by phone. The employer indicated that the worker had been provided with a Company Rules manual which clearly stated that if injured at work, modified duties would be available and that a person must speak with a supervisor directly if they were going to be absent from work. It was the worker’s position that he advised his employer that he was going to be off work for a week because of his injury and being on crutches and that he provided them with a doctor’s note which stated this. At the time, his cell phone had run out of minutes and that was why he could not be contacted by telephone.

In a decision dated September 18, 2006, the worker was advised that his claim for compensation had been accepted but his claim for wage loss benefits had been denied. The adjudicator determined that since the employer had suitable modified duties available which accommodated the worker’s restrictions, the workplace injury did not require any time loss.

On September 19, 2006, the worker appealed the above decision to Review Office. In a letter attached with his request for reconsideration, the worker indicated that he received a doctor’s note stating that he had non-weight bearing on his left foot for one week. He said he phoned his employer and left a message that he would not be in to work because of his doctor’s note. He said his employer knew that he had a “pay as you go phone” and that he did not have the money to put time on it.

In a September 26, 2006 decision, Review Office confirmed that the worker was not entitled to wage loss benefits. Review Office noted that the worker had a cell phone that was not turned on and/or answered which made it difficult for the employer to contact the worker. It noted that the worker did not contact the employer as he was required to do by the employer’s Plant Rules of Conduct, which the worker had in his possession. Based on Section 22 of The Workers Compensation Act (the “Act”), Review Office was of the opinion that the worker failed to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury. If he had made himself available to the designated person at his employer, he would have been provided with work appropriate to his injury.

On June 4, 2007, the worker asked Review Office to reconsider its decision of September 26, 2006. The worker’s position was that his employer would not have been able to provide him with alternate work as his injury precluded him from wearing steel toed boots and that this was a condition of employment.

In a second decision dated June 13, 2007, Review Office advised the worker that no change would be made to its previous decision. Review Office noted that it contacted the worker’s supervisor who advised that the worker would have been provided with office work in the plant office and he would not have been required to wear steel toed boots while working there. On February 22, 2008, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Worker’s Position

The worker was self represented at the hearing. The worker’s position was that he was told that he could not work if he was on crutches. He went to the hospital and was diagnosed with a badly sprained ankle. He was given a medical note and called his employer on the way home. As no one answered, he left a message. After he got home, he remained there for the whole week. He never went out of the house as he lives on the third floor and it was hard getting up and down the stairs. He had a cell phone, but it was out of minutes and he had no money to buy more time. His daughter came by his house, and he asked her to drop off the medical note with his employer. This was done, but the front desk staff failed to forward the note to his supervisor. After being off for one week, he was still limping but he reported for work and performed his duties as normal. The next day, when he reported for work, he was called in to the office and was told they would be letting him go.

Employer’s Position

The employer was represented by an advocate and the employer’s corporate safety manager. The position taken by the employer was that there is a specific process for when workers are injured and it is clearly delineated both on employee swipe cards and in the employee handbook information. The essence of the issue was that the worker did not make himself available to perform modified duties within his capabilities and his restrictions. It was his responsibility to make himself available and to communicate all information regarding his capabilities and availability, and then management would make the decision as to where the employee would work so that they are safely working and that valuable work was being done. The steps taken by the worker in this case were unacceptable. Had he communicated as required under the Act and the company’s policy, he would not have been in a loss of earning capacity situation and there would be no lost wages.

Applicable Legislation

The Appeal Commission and its panels are bound by 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(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.

Subsection 22(1) of the Act imposes an obligation on workers to co-operate and mitigate. It states: “Every worker must … take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury.”

Subsection 22(2) provides: “If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.”

Analysis

The issue before the panel is whether it was appropriate to suspend the worker’s wage loss benefits on the grounds that the worker failed to take all reasonable steps to reduce or eliminate his loss of earnings due to injury. In order to determine the issue, the panel must consider the reasons why the worker was not available to discuss the full time alternate duties offered by the employer and decide whether or not these were sufficient. If the panel finds that the steps taken by the worker were not sufficient, then pursuant to the Act, it would be appropriate to suspend the wage loss benefits.

To the worker’s credit, the panel acknowledges that he did take the responsible steps of leaving a voicemail for his supervisor, making arrangements for the doctor’s note to be delivered to the employer, and returning to regular duties as soon as he was cleared to do so by a physician. It was not the panel’s impression that the worker was actively trying to avoid work or malinger.

In the panel’s opinion, however, by failing to make direct contact with his supervisor, the worker failed to take all reasonable steps to reduce or eliminate loss of earnings. The panel’s reasoning is based on the following:

  • The employer’s policy is that if a worker is injured, phone contact must be made with a cell leader to inquire about modified duties and that leaving a message is not equivalent to phone contact. Although there was some dispute as to whether the worker had a swipe card with this information recorded on the back, the worker admitted that he had an employee handbook, which also contained this information. Thus, it was possible for the worker to access the company policy on injuries and modified work.
  • The worker was, or ought to have been, aware that his employer had modified duties available to injured workers. On the day of the accident, the worker hurt himself over the noon hour and he actually performed modified duties for the rest of his shift. At the hearing, the worker also acknowledged that he had seen many other employees performing duties while sitting down.
  • The worker’s evidence was that his cell phone had no minutes, he had no other telephone at his residence, and he was unable to walk to a payphone. The worker, however, lives with his wife and has a 23 year old daughter who came by his house that week. Direct telephone contact could have been made with the employer by either of these two people on the worker’s behalf.
  • The medical note provided by the physician gives a diagnosis of “ankle strain” and as a suggestion/remark in respect to the patient’s condition, it states: “non weight bearing x1 week.” The note does not indicate that the worker is totally disabled from working.

For the reasons noted, it is our opinion that the worker failed to take all reasonable steps to reduce or eliminate the loss of earnings from his injury. Pursuant to subsection 22(2), the WCB may therefore suspend the compensation payable to the worker. We find that the worker is not entitled to wage loss benefits. The worker’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of August, 2008

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