The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that he was capable of performing his work duties from December 20, 2008 to December 24, 2008 and that he was not entitled to wage loss benefits during this period. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on January 7, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to temporary total disability benefits from December 20, 2008 to December 24, 2008.

Decision

That the worker is not entitled to temporary total disability benefits from December 20, 2008 to December 24, 2008.

Decision: Unanimous

Background

The worker suffered a burn injury to his face and body in a work related accident on November 15, 1973. His claim for compensation was accepted and various benefits have been paid to the worker.

On January 19, 2009, the worker called the WCB to advise that he missed time from work on December 20, 21, 22, 23 and 24, 2008 for a “flare up on his face” which he related to his compensable injury. The worker explained that these dates were his “banked time off” and that he used his sick time for the days he missed because of his flare up. The worker stated that in 1986, the WCB paid him for his vacation time and banked time due to these flare-ups.

An employer representative advised the WCB on March 5, 2009, that the worker took banked time on December 21, 22, 23, and 24. The request for banked time was signed by a supervisor on December 18, 2008. The employer indicated that December 20 was marked sick and there was no other explanation given.

A doctor’s progress report dated December 15, 2008 indicated that the worker had redness and burning on his face. The diagnosis rendered was contact irritant dermatitis of the face. The physician noted that the worker was being referred to a consultant. The physician also indicated that the worker was capable of permanent modified duties.

A second doctor’s progress report dated January 5, 2009 confirmed the diagnosis of contact irritant dermatitis of the face. It was indicated that the worker was off work from December 20, 2008 to December 24, 2008. The report also stated that the worker could return to his regular duties on December 26, 2008.

In a letter dated March 11, 2009, the worker was advised that the WCB was not accepting responsibility for the time he missed from work in December 2008. The letter stated, in part:

“The time loss incurred in December, 2008 was reviewed with your current employer. We questioned when banked time was requested and was informed the banked time was requested December 18, 2008. December 20, 2008 according to employer was recorded as sick.

Medical treatment was sought January 5, 2009 noting you were off for the above dates however the doctor never provided authorization for time loss.”

The worker appealed the above decision to Review Office on March 31, 2009. The worker indicated that the date of December 18 was incorrect. He requested banked time on December 15 and he also saw his doctor on the same day. His doctor told him to stay out of the cold but he did not stipulate how long. The worker claimed that he worked on December 18 and 19, 2008 and called in sick to his employer on December 20. He took his banked hours from December 21 to 24, 2009 to cover the time missed from work because of his facial condition. He used his banked hours because his employer had reprimanded him in the past that he was taking too much sick time. The worker indicated that his doctor was away on holidays from December 19, 2008 to January 5, 2009 so it would have been impossible to see him to report his facial symptoms, but he did see the doctor on December 15, 2009. The worker indicated that the medical reports on his file confirm that he had significant physical problems dealing with extreme cold and was advised by his doctor to stay out of inclement weather.

On April 22, 2009, Review Office confirmed that the worker was not entitled to wage loss benefits from December 20, 2008 to December 24, 2008 inclusive. Review Office noted that the worker attended his doctor on December 15, 2008. The report noted findings of redness and burning of the face but also indicated that the worker was capable of working his current work duties. The progress report of January 5, 2009 provided the same findings as December 15, 2008. On January 5, 2009 the physician noted that the worker was off work on December 20, 2008 to December 24, 2008; however, no rationale was provided as to why the worker was unable to work. Given that there were no significant differences in the clinical findings on December 15, 2008 as compared to January 5, 2009, Review Office found no medical evidence to support that the worker was not capable of performing his work duties from December 20, 2008 to December 24, 2008. On June 22, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

• The last medical report on file prior to the absence from work was the attending physician’s report of December 15, 2008. In it, the attending physician reports “redness and burning face” but nevertheless indicates that the worker was still capable of performing his permanent modified duties;
• The worker’s evidence at the hearing was that his condition was bad on December 15, 2008. He had just finished a 7 day rotation of day shifts and due to painting/construction and excessive heat which was present at his workplace, the skin on his face had been flaring up;
• When experiencing flare-ups, his usual course of action would be to apply prescription topical cream to the affected areas, which would calm the flare-up within a few hours;
• The file material indicated that historically, when experiencing flare-ups, the worker’s time loss from work was normally limited to 3 days at the most;
• The panel cannot identify evidence which would suggest that the flare-up which was reported in the December 15, 2008 medical report was still symptomatic on December 20, 2008 onwards;
• In response to questioning at the hearing, the worker admitted that his main concern in staying away from work from December 20 to 24 was that he already had problems on his face for which he visited his doctor on December 15 and the reason why he took the days off was to stay out of the cold and to avoid becoming re-injured again from exposure.

While the panel empathizes with the worker’s reasoning in avoiding activity which might worsen his condition, the provisions of the Act require that there be evidence of actual disability before benefits are authorized. We do not doubt that the worker has extreme sensitivity and that he is acutely attuned to changes in sensation; unfortunately, there must have been an actual disabling flare-up of the worker’s facial condition of sufficient magnitude that the worker was unable to perform his duties as a security guard before benefits are granted. The Act does not provide for wage loss benefits on a preventative basis. As we are unable to identify sufficient evidence to support a finding that the worker was actually disabled, the appeal must fail.

We therefore find that the worker is not entitled to temporary total disability benefits from December 20, 2008 to December 24, 2008. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 23rd day of February, 2010