The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (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.

WCB Policy 44.40.10 (the “Policy”) deals with administration of wage loss benefits. The Policy provides that: “Compensation benefits are payable only where there is medical, or similar, evidence of a disability arising from a compensable incident or condition.” The Policy further provides that: “Wage loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker’s treating healthcare professional.”

Worker’s Position

The worker was self represented in his appeal. In the Appeal of Claims Decision form, the grounds for appeal are stated to be: “Right foot and ankle (right knee); From August 16/04 I could hardly work in August; Late August I could not work anymore till (sic) peresent (sic) time because (of) my injuries.”

At the hearing, the worker testified that following the accident on August 16 where he injured his right knee and ankle, he continued to work for a short period of time. His recollections were unclear as to the length of time he was able to continue working. At first he estimated that he worked approximately a couple of weeks, then at another point indicated it was only for a few days. He later stated that he believed that he continued to work until late September. The worker did recall that he did not take any sick days. He simply continued to work his full time hours until he could not do so anymore. Full time hours for the worker at the time were 14-16 hour days on average and a 60 hour work week. The worker’s evidence was that his foot got worse and worse until he couldn’t crawl up onto his machine anymore. Eventually, he realized that he could no longer go to work. The worker acknowledged that his work crew got laid off during the relevant time, but he could not recall the exact date. The worker’s position generally was that after the injury, although he worked a little bit, his foot got worse and his back was sore such that he was unable to continue working.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits from August 2004 to November 16, 2004. In order for the worker’s appeal to be successful, the panel must find that during the relevant time period, there was medical or similar evidence of a disability arising from a compensable incident or condition.

Given that the events in question occurred almost four years ago, it is not surprising that the worker’s recollections about the exact dates he was or was not able to work are unclear. The panel therefore prefers to rely on information which was recorded at the relevant time in the medical reports and WCB files.

On review of the information, it would appear that the worker continued to work for approximately 2 months after the incident. This is reflected in the following documents:

• The Doctor’s First Report from the treating physician dated August 17, 2004 indicates that the diagnosis was a right knee strain with pain and mild swelling. Range of motion was noted to be normal and the treating physician indicated that the patient was capable of continuing regular work;
• On August 27, 2004, the adjudicator’s claim notes indicate that during a telephone conversation with the worker, he indicated that he was continuing to work, but was noticing a significant increase in pain and swelling of the knee and ankle area;
• At the call-in examination on October 4, 2004, the worker reported that at that time, he had continued working his regular work duties operating a CAT and scraper and hauling mud, working 11 ½ hours per day, five days per week;
• The first indication that the worker was off work was in a memo to file by the case manager dated October 20, 2004. During a telephone conversation, the worker advised that he was off work as of October 18, due to his knee. The memo also notes, however, that the worker also indicated that he had been in his basement, trying to clean up water which had got in there.
• In a memo to file by the case manager dated October 21, 2004, the employer was called and she advised that the only time missed by the worker was 6 hours on October 4 for the call-in examination. She also indicated that the worker’s entire crew was not working that week due to wet weather and that they would likely be recalled on October 25, so long as there was no more rain over the weekend. If it dried up, the crew could potentially work until freeze up;
• There are no further medical reports on this claim file until 2005. On the 1995 claim file, however, there is a medical report from an orthopedic surgeon dated November 16, 2004, which indicates that at that time, the worker’s right knee would swell at times, could give out and bothered him with bending, squatting or strain climbing activities. Arthroscopic surgery was recommended to rule out degenerative tear versus chrondromalacia.

On the basis of the foregoing information, the panel finds that the worker continued to work full-time until October 18, 2004.

Although the worker’s evidence was that the reason he ceased working was the pain in his foot, it appears that this coincided with the lay-off of his work crew. There is no indication on file as to whether or when the work crew resumed work before winter set in. On a balance of probabilities, the panel is not satisfied that in the period following October 18, 2004, the worker’s compensable injury was the cause of his loss of earnings. Between the call-in examination of October 4, 2004 and the orthopedic report of November 16, 2004, there is no medical evidence which would support a finding of inability to work. We therefore find that there was no reduction in hours worked by the worker due to his knee in this period, and thus there was no loss of earning capacity. Accordingly, the worker is not entitled to wage loss benefits between August 2004 and November 16, 2004. The worker’s appeal is denied.