The Appeal CommissionThe Workers Compensation Act of Manitoba

Employer’s submission:

The employer’s position, as noted in its notice of appeal and elsewhere on the file in its discussions with WCB staff, is that it offered the worker one-handed modified duties on June 30, 2008, that would have respected the worker’s injury to his non-dominant arm. This is in contrast to the doctor’s note provided by the worker’s doctor on that day, which took the worker off work for two weeks, to July 14, 2008. The employer states that it has a well-recognized return to work program, for work and non-work-related injuries or disabilities. The employer therefore argues that the worker’s refusal to work in modified duties starting on June 30, 2008, amounted to a failure to mitigate the costs of his claim.

Worker’s submission:

The worker was represented by a worker advisor who provided a written submission prior to the review. The worker advisor argues that it was appropriate for the worker to rely on his doctor’s opinion as to his work capability between June 30 and July 9, 2008. The worker advisor notes that a Return to Work form was not provided to the worker on June 30, 2008, and that the job duties were not communicated to the WCB until July 9, 2008, at which time a WCB medical advisor first offered an opinion that the worker was indeed capable of one handed jobs. It was submitted that the decision of Review Office should be upheld.

Applicable Legislation:

Pursuant to subsection 22 of The Workers Compensation Act (the “Act”), a worker is responsible for mitigating the effects of a workplace injury.

The section 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.

Analysis:

For the employer to succeed on its appeal, the panel would have to find on a balance of probabilities that the worker’s decision to rely on his doctor’s note in the earliest days of his claim amounted to a failure to mitigate the costs of his claim under Section 22 of the Act. We were unable to make this finding. Our reasons follow.

The panel notes a comment by the employer in an early memo to a WCB adjudicator on July 8, 2008, who notes that they have a “clear Return to Work program”, and then states “I do understand that he had medical and that makes it a sticky situation.” The panel concurs with this description of the situation, and it is against this context that we must consider the worker’s actions. Simply stated, was it reasonable for the worker to rely on his doctor’s note?

The evidence in this case notes that the worker injured himself on June 23, 2008, and continued to work regular duties for the remainder of the week, with symptoms that worsened. He came to work on June 30, 2008, with a doctor’s note taking him off work for two weeks. When the worker declined to take modified duties at that time, the worker was apparently not provided with the employer’s standard return to work form to give to his doctor to complete.

The panel notes that the attending physician provided a first report to the WCB on June 30, 2008, in which he checked a box stating “No alternate duties.” He prescribed a brace and medications to the worker at that time. The worker’s evidence was that his doctor told him to stay home. The panel further notes that the worker had seen his doctor prior to his attendance at the workplace and there was no information available to the worker to share with his doctor regarding possible modified duties at the time of that visit.

In subsequent days, the file evidence suggests that the employer had not provided the worker at the outset of his claim, with the tool – its standard return to work form – that could have allowed for quick resolution of this issue. This form was provided to the worker in time for his next visit to his physician on July 7. The physician declined to fill out the form on that date and stated he would do so on July 14. From the worker’s evidence, the doctor told the worker not to work, as per his original June 30 note. The worker advised the WCB of this turn of events on July 8, and the WCB doctor offered an opinion on July 9, the next day, stating that the worker could indeed work one-handed duties with the accident employer.