Decision #64/10 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker was entitled to wage loss benefits for February 10 and 11, 2008 due to the effects of his compensable injury. The employer disagreed on the basis that there were no physical findings to support an inability to work on the dates in question. A hearing was held on May 19, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits February 10 and 11, 2008.Decision
That the worker is entitled to wage loss benefits February 10 and 11, 2008.Decision: Unanimous
Background
On January 18, 2008, the worker sustained a compensable injury when he fell forward while driving a truck and a bolt struck his right eye. Following the accident, the worker was seen at a hospital emergency facility and his right eye was sutured. On January 24, 2008, the worker underwent surgery to repair a canalicular laceration with insertion of a canalicular stent.
When speaking with a WCB adjudicator on January 28, 2008, the worker indicated that his right eye vision was doing well and he should be able to return to work on February 6, 2008.
On February 15, 2008, the worker advised the WCB that he missed time from work on February 13 and 14, 2008 because of a specialist’s appointment and also had time loss on February 10 and 11, 2008 due to an infection in his eye for which he attended his family physician for treatment.
In a memo to file dated February 28, 2008, a WCB adjudicator noted that she spoke with the employer to enquire about the worker’s time loss. The employer confirmed that the worker was paid time loss for the days he missed from work on February 13 and 14, 2008 to attend his medical appointment. He noted that the worker called on February 10 at 5:00 a.m. to say that his eye was crusted over and he would not be in at work and would see his doctor. The worker went to his doctor on February 11, 2008 just to get a note for him to be off work on February 10 and 11, 2008. The employer indicated that the worker was seen out on the evening of February 9, 2008 but this was hearsay.
On February 28, 2008, correspondence was received from the employer which included a “Sickness Certificate” signed by the family physician dated February 10, 2008. Under “Duration of Absence, According to the Patient”, it read “Feb. 10 to Feb. 11/08 inclusive. Back to work Feb. 12/08”.
On March 5, 2008, a WCB case management representative advised the employer that the WCB was awaiting a medical report from the worker’s doctor before a decision would be made regarding time loss on February 10 and 11, 2008.
A Doctor’s First Report dated July 16, 2008, indicated that the worker was seen for treatment on February 11, 2008. The diagnosis outlined was “mild conjunctivitis right”. He stated “The patient was first seen on Feb11/08. He stated missing one day from work. Requested return to work slip. Slip given to him.” Medication was prescribed for mild irritation of right eye.
In a report dated March 19, 2008, the treating specialist reported that the worker was examined on February 13, 2008 complaining of an ocular itching and mild tearing from the right eye. The examination on February 13 demonstrated adequate healing of the right lower eyelid with the canalicular stent in good position. The physician noted that the worker was instructed to make an return appointment in one year for removal of the canalicular stent.
In a letter to the employer dated August 13, 2008, the WCB case manager stated that the WCB was paying the worker for time loss from work on February 10 & 11, 2008 as a WCB Medical Advisor opined that the time loss was related to the worker’s compensable right eye injury.
In a letter to the WCB dated May 21, 2009, an employer representative objected to the payment of time loss benefits to the worker for February 10 and 11, 2008. The employer noted that the worker worked full shifts on February 8 and 9, 2008. On February 10, 2008, the worker called to say that his injured eye was closed and crusted over and therefore he would not be into work. During the evening of February 9, 2008, another employee saw the worker at a hockey game and he did not notice that the eye was closed. The employer outlined the view that the worker was absent from work on February 10 and 11, 2008 without medical authorization. The employer asked the WCB to contact the family physician to determine when the worker was actually seen for his eye condition and why he could not work on February 10 and 11.
On June 5, 2009, the employer was advised that no change would be made to the decision to cover wage loss for February 10 and 11, 2008. The case manager outlined the position that the worker reported his problems in a timely fashion, followed up with his physician within 48 hours of the flare up and as a result missed two shifts of work on February 10 and 11. The case manager noted that the WCB had difficulty in obtaining medical information in a timely fashion from the attending physician; however, what was received was consistent with the worker’s version of events. The physician’s report showed minor objective findings and a prescription to address same was provided along with a note authorizing time loss. The case manager also indicated that the event /sighting on February 9 had little relevance to the matter at hand as the worker worked his full modified duty shift on this date.
The case manager noted that a contributing factor to the time loss incurred was the employer’s return to work protocol that required a medical authorization (per letter of May 21, 2009). She stated that considerable weight was given to the fact that timely access to medical care is a recurring theme for northern Manitoba claims.
On July 23, 2009, the employer appealed the above decision to Review Office. The employer stated that there was no indication on the Doctor’s First Report of July 16, 2008 that the worker could not return to work on February 11, 2008 nor was there any medical documentation that he was unable to work on February 10, 2008. In the employer’s opinion, the worker was absent from work on February 10, 2008 without medical authorization and without medical to support his inability to perform his work assignment. On February 11, 2008, the worker chose not to return to work until February 12 by his own choice as there were no physical findings to support an inability to work.
In a decision dated August 25, 2009, Review Office upheld the decision by primary adjudication that the worker was entitled to wage loss benefits for February 10 and 11, 2008. Review Office noted that although the worker attended his physician on February 11, 2008, the physician included February 10 and 11, 2008 as the period of time the worker was unable to work. Based on this finding, Review Office was of the opinion that the worker was entitled to benefits on February 10 and 11, 2008 as the physician stated he was unable to work. On September 29, 2009, the employer appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
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.
Pursuant to section 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.
Employer’s submission:
The employer was represented at the hearing by its senior safety administrator and its corporate director of health and safety. The position of the employer was that the worker was fit for work and could have attended on February 10 and 11, 2008. Prior to February 10, 2008, the worker was already being accommodated by the employer in modified duties, and so he knew that the employer had a return to work program in place. When the worker called and left a message on February 10, he advised the employer that he was going to see a doctor. It was the employer’s expectation that the worker would, in fact, have gone to see a doctor on that date, and then report to work that same day with a doctor’s note either authorizing him to return to modified duties or indicating that there were some new restrictions that needed to be accommodated. Instead, what occurred was that the worker showed up for work on February 11, expecting to be able to resume his modified duties. Contrary to company policy, he did not have a doctor’s note regarding his previous day’s absence and was therefore not allowed to work. The worker was then requested by the employer to go to see a physician to obtain a medical note indicating if there were any new restrictions of which the employer needed to be aware, so they could accommodate and devise a proper return to work plan.
Although the worker did obtain a medical note on February 11, 2008 which authorized two days of time loss, the employer questioned the reliability of the medical note given that the worker did not see the doctor on February 10 and then was ready to work on February 11. The employer representatives doubted the seriousness of the worker’s condition on February 10 and submitted that the worker should at least have made an attempt to come in to work on that date. The employer felt that it should have been given an opportunity to review any new restrictions and come up with a new return to work plan.
The employer also noted that the worker had been accommodated in modified duties on February 6, 7, 8 and 9, 2008 without any difficulty. Further, he had been seen on Saturday night, February 9, at a hockey game, and everything appeared to be going well with the worker. The employer acknowledged, however, that between the hockey game on Saturday evening and waking up Sunday morning at 5:00 am, the worker’s eye could have crusted over.
Overall, the employer’s position was that the worker had been on modified duties, had been accommodated, was aware of the company’s return to work policy and program, and had left a message that he would be seeing a doctor and coming back with a note. What actually happened was the worker did not see a doctor on February 10, yet he did show up for work on February 11, fully ready and prepared to resume his duties. In the circumstances, the employer felt that the worker was not entitled to the two days lost wages for February 10 and 11, 2008.
The worker did not participate in the employer’s appeal.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits February 10 and 11, 2008. For the employer’s appeal to be successful, we must find on a balance of probabilities that on February 10 and/or 11, 2008, the worker either had no 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. For the reasons outlined below, we are not able to make those findings and therefore the appeal must fail.
With respect to Sunday, February 10, 2008, the panel accepts that the worker had a medical condition on that day which disabled him from working. There was no dispute that three weeks earlier the worker had suffered a laceration to his right eye area and on January 24, 2008, the laceration was surgically repaired. Although the medical note which the worker obtained on February 11, 2008 provides no details as to why the physician concluded that the worker was ill and unable to work on February 10 and 11, 2008, the subsequent report dated July 16, 2008 confirmed physical findings on February 11 of mild irritation of the right eye and an anti-inflammatory medication was prescribed. In the panel’s opinion, it is plausible that when the worker woke up on the morning of February 10, 2008, he was suffering from a complication with his eye which prevented him from working that day. The fact that the worker called in to work at 5:00 am to report that his eye was crusted over lends support to this fact scenario.
At the hearing, the employer argued that the worker ought to have gone to see a physician on February 10, as he had indicated he was going to do, and then reported for work with a doctor’s note outlining any new restrictions. Given that February 10, 2008 was a Sunday and access to medical care on a weekend in a northern community is limited, the panel finds that it was not unreasonable for the worker to have remained at home on February 10, 2008 to allow his eye inflammation to settle.
In view of the above findings, the panel accepts the February 11, 2008 medical note as authorization that the worker’s medical condition prevented him from working on February 10, 2008, and it therefore follows that the worker is entitled to wage loss benefits for February 10, 2008.
With respect to Monday, February 11, 2008, the panel finds that the worker is also entitled to wage loss benefits for this day. The worker reported for his shift, prepared to work his modified duties, but was directed by the employer to go see a physician to obtain a medical note to explain the previous day’s absence, as required by company policy. While the panel recognizes the employer’s workplace policies as being laudable, in this particular case, we feel that the strict application of the policy resulted in a barrier to the worker’s return to work which was internally generated by the employer. The panel finds that worker’s inability to earn income on February 11, 2008 was in part due to the fact that he went to seek out the medical documentation required by the employer. There is no evidence as to what time on February 11 the worker was ultimately able to access medical attention. Ultimately, the worker did obtain a medical note which authorized his absence on both February 10 and 11, 2008. In the circumstances, the panel is not prepared to suspend the worker’s wage loss benefits for February 11, 2008 pursuant to subsection 22(1) for failing to mitigate. Further, the medical note provides authorization for the worker’s absence on February 11, 2008. We therefore find that the worker is entitled to wage loss benefits for February 11, 2008.
For the foregoing reasons, the employer’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 14th day of July, 2010