The Appeal CommissionThe Workers Compensation Act of Manitoba

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.

Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the 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 and provides as follows:

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.

Policy 44.10.30.60 Practices Delaying Worker’s Recovery (the “Policy”) explains the obligations of the worker, the obligations of the WCB and notes the potential consequences to a worker of non-compliance with subsection 22(1) of the Act. The Policy provides that if a worker fails to mitigate the consequences of the accident, then the WCB may reduce the compensation paid to the worker to the level, if any, that would likely have been payable otherwise.

The panel considered whether WCB Policy 43.20.25, Return to Work with the Accident Employer, was applicable. It determined it was not applicable. The policy contemplates that “most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements.” It goes on to provide that:

“The WCB will only become involved in two situations. The first is when either the worker or the employer requires financial or technical support to help the worker return to work. The second is when the worker and the employer disagree about whether the modified work placement is appropriate.”

The panel finds that neither of these situations are present.

Employer’s submission:

The employer was represented at the hearing by legal counsel and its plant manager. The position of the employer was that the evidence as a whole paints a picture of an employee who is careless with his health and irresponsible with respect to his duties to the employer and to the WCB. He failed to disclose his recent previous injury during the hiring process, failed to follow treatment directives from his physician, failed to follow up with his physicians as directed, failed to keep in communication with his employer and failed to keep within his restrictions in his new employment. Through his imprudent and ill-considered behaviour, the worker exacerbated his condition and prolonged his recovery. The employer submitted that it should not be held responsible for the worker’s reckless conduct.

The panel notes that one of the arguments raised by the employer was that the worker’s condition should be considered a recurrence of his January 2008 injury. As this matter has not been previously adjudicated by the WCB, the panel has no jurisdiction to give consideration to it. It was confirmed to the employer at the hearing that the within decision will proceed on the assumption that there is an acceptable claim for the February 29, 2008 incident, and as the adjudication decision that the claim is acceptable has not yet been reconsidered by Review Office, the employer retains the ability to appeal this issue, should it wish to do so.

Analysis:

There are two issues before the panel. We will address each one in order.

1. Whether or not the worker is entitled to full wage loss benefits after April 7, 2008.

For the employer’s appeal to be successful on this issue, we must find on a balance of probabilities that after April 7, 2008, the worker either no longer suffered a loss of earning capacity as a result of his compensable injury, or that the worker was in breach of his obligation to co-operate and mitigate pursuant to subsection 22(1) of the Act, thereby disentitling himself to wage loss benefits.

The panel separated the period starting April 7, 2008 into four distinct segments:

• April 7 to April 16, 2008;
• April 17 to April 27, 2008;
• April 28 and April 29, 2008
• April 30 to June 20, 2008.

With respect to the first period, the panel queried the employer as to why April 7, 2008 was identified as the date when wage loss benefits should have ended. The employer advised that April 7, 2008 was the last date of contact with the worker. After that date, it was submitted that the worker failed to co-operate by being unavailable and therefore he should not be eligible for benefits. The employer had modified duties available and was willing to accommodate the worker. The wage loss benefits should be suspended under subsection 22(1) of the Act due to the worker’s failure to make himself available for work.

The difficulty with this argument is that the medical evidence does not support the position that the worker was able to return to work on April 7, 2008. As of the worker’s last visit to his general practitioner on March 26, 2008, it was indicated that the worker was not capable of alternate or modified work. The worker had been regularly attending physiotherapy since March 18, 2008 and it wasn’t until April 16, 2008 that the physiotherapist reported that the worker had progressed to the point where he could return to work. The physiotherapist’s April 16, 2008 progress report indicated that at that time, the worker was capable of alternate or modified work and the outlined restrictions were: “Pt (patient) advised to start work 4 hrs daily to be progressed to 6 hrs and 8 hrs.” It is the panel’s understanding that when a graduated return to work is recommended, the time is typically increased in weekly intervals, and we assume this to be the case here.

Based on the medical clearance for return to work contained in the physiotherapist’s report, the panel finds that from April 7 to April 16, 2008, the worker remained entitled to full wage loss benefits as he was fully disabled from working during this period of time.

On April 16, 2008, when the worker was advised by his physiotherapist that he was able to start a graduated return to work, the worker at that point was obligated to contact his employer and report for half time duties. It would appear that he did not do so. Therefore, for the period April 17 to April 27, 2008, the panel finds that the worker is only entitled to partial wage loss benefits, based on the graduated return to work schedule recommended by the physiotherapist. The worker still had some residual disability at that time, and remains entitled to wage loss benefits representing that limited loss of earning capacity. However, the worker also possessed the ability to do some work, and his failure to report to the employer for work means that he is not entitled to wage loss benefits to the extent that he could have been earning income.

To be clear, the panel outlines the worker’s entitlement to partial wage loss benefits for the period April 17 to April 27, 2008 as follows:

• April 17, 18, 21, 22, 23 – wage loss benefits equivalent to four hours per day;
• April 24, 25 –wage loss benefits equivalent to two hours per day.

There was some dispute on the file as to whether or not the employer attempted to contact the worker, and whether or not the worker remained in contact with the employer. It is not necessary for the panel to make a finding in this regard as we have found that the worker was not ready to return to work until April 17, 2008 and at that point, the onus was on the worker to contact the employer. It does not matter whether or not the employer had called, or tried to call, the worker.

There was also some uncertainty on the file as to when the worker’s employment was terminated. The formal notice was not received by the worker until at least April 28, 2008. There is indication on the file that the employer advised the case manager of the termination on April 23, 2008 and that this information was relayed to the worker by the case manager on April 24, 2008. On that same date, the worker advised the case manager that he had already secured a job with a new employer. Although the exact date of termination is unclear, what is clear is that neither the worker nor the employer was interested in continuing the employment relationship. In cases where the employment relationship with the accident employer is at an end, there is a duty imposed on the worker to mitigate the loss of employment by seeking new employment. This new employment must be within the worker’s restrictions.

On April 28, 2008, the worker commenced working for the new employer. The panel is of the view that in finding new employment, the worker satisfied his obligation to mitigate or reduce his loss of earnings. He was able to work two full days for this employer. The panel finds that the worker is not entitled to wage loss benefits for those two days (ie. April 28 and 29, 2008) as his earning capacity was not impaired during those days.

When the worker started with the new employer on April 28, 2008, there were no current restrictions on the type of work in which he could engage. While the worker’s general practitioner had previously imposed restrictions in March, 2008 for the worker to alternate frequently between sitting and standing, these restrictions were not carried forward in the physiotherapist’s report in April, 2008. As there were no restrictions on the type of work which the worker could perform, we cannot accept the employer’s submission that the worker was engaged in an injurious practice. He was not under instruction from his physiotherapist to avoid lifting duties. It was unfortunate that the performance of the new job duties resulted in a recurrence of the February 29, 2008 compensable injury, but we find that the worker should not be penalized for engaging in the duties, when he had not received any advice to avoid these actions. The lifting did not exceed any restriction which may have been imposed on the worker by a medical practitioner.

After working for two days, the worker reported that his back had become swollen. On May 1, 2008, he attended a sports medicine physician who documented objective findings of tenderness in S1, L4, L5 and in right gluteus. The diagnosis was lower back contusions/gluteal contusions. The worker was then referred for a reconditioning program, following which he was able to successfully return to the workplace. The panel finds that the worker suffered a recurrence of his right gluteal region contusion and lumbar back strain when working on April 28 and 29, 2008 and is therefore entitled to full wage loss benefits commencing April 30, 2008. He then successfully participated in a reconditioning program, which eventually allowed him to re-enter the workforce by June 20, 2008, and the panel finds that the worker is entitled to benefits to that date.

The employer’s appeal on this issue is allowed in part.

2. Whether or not responsibility should be accepted for the costs associated with the physical reconditioning program

It was not disputed by the employer that the physical reconditioning program was medically required by the worker to enable a successful re-entry into the workforce. The employer’s position, however, is that the worker engaged in injurious practices and therefore caused his condition to worsen.

The employer relies on the policy to allege that the worker’s entitlement to compensation should be reduced. As noted earlier, the policy explains the obligations of the worker, the obligations of the WCB and notes the potential consequences to a worker of non-compliance with section 22 of the Act. The policy provides that if a worker fails to mitigate the consequences of the accident, then the WCB may reduce the compensation paid to the worker to the level, if any, that would likely have been payable otherwise. The policy, however, also imposes certain responsibilities on the WCB, and specifically, responsibilities with respect to the provision of medical care. The policy provides:

BOARD RESPONSIBILITIES

1. The WCB will supervise the care proposed and provided to the worker and will ensure that the worker is aware of the WCB position in any instance that is different than the opinion of the attending professional. The worker will be informed of the consequence of submitting to treatment that is not approved by the WCB, or of failing to submit to treatment that the WCB believes to be reasonably essential and advantageous to the worker’s recovery.

In the present case, the worker was not advised by either his medical practitioners or the WCB to avoid engaging in the job duties which he performed for the new employer. While in hindsight, these duties may not have been appropriate for him, the panel is not prepared to penalize the worker for attempting to work. He could not be said to have been demonstrating a lack of cooperation or refusal to participate in a medically recommended program. He cannot said to have been working outside of his restrictions, as there were no restrictions on the type of activity he could perform at that time. While it could be argued that the graduated return to work program was still in place, this was within days of being completed and only represented a reduction of 2 hours in his recommended workday. The panel does not consider the fact that the worker engaged in two additional hours as contributing much towards the development of his recurrence. It may well be that in hindsight, physical restrictions against heavy lifting ought to have been in place, but the treating physiotherapist did not impose such restrictions and the worker cannot be deemed uncooperative for failing to comply with restrictions which did not exist.

The panel therefore finds that responsibility for the costs associated with the physical reconditioning program were properly accepted by the WCB. The employer’s appeal on this issue is denied.