The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeals deals with the worker's entitlement to benefits after a workplace injury. There are two issues under appeal. The employer appealed the WCB decision that the worker is entitled to benefits after February 3, 2011. The worker appealed the WCB decision that he is not entitled to benefits between February 19, 2011 and May 12, 2011.

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 No. 43.20.25, Return to Work with the Accident Employer, applies to cases where injured workers are unable to return to their regular duties. WCB policy No. 44.10.30.60, Practices Delaying Recovery, can also apply to cases involving an injured worker's return to work.

Employer's Position

The employer was represented by its Human Resource Manager (HR manager) and its President. The representatives answered questions posed by the panel.

The President outlined the employer's position. He said that the rig manager on site at the time of the incident had discussed the incident with the worker and that the worker told the manager that he wanted to kind of sleep on it and see how his knee felt in the morning. The President stated that the rig manager was adamant that if it was something that didn’t go away right away, he wanted to take him into the hospital and get it checked out as soon as possible.

The President said that from there on, basically, there was no communication with the worker even though there were several attempts to try to get him into a modified work program and to get him into a doctor to see what his status was for work. The President said there was just "complete no cooperation."

Regarding the second issue, the HR Manager stated that, basically, the employer has the modified duties for him and had he complied with all of the employer's policies and procedures, the employer definitely would have had the work available for him to do.

The President noted that all employees sign a paper when they sign up, where they acknowledge the modified work program and the process, if they’re hurt, what they have to go through, informing the rig manager and going to the hospital and getting tests, and filling out the proper WCB forms so that the employer can properly manage their claim.

The President submitted that "In this case, we just felt that we were left in the dark and we didn’t have the proper cooperation or verification properly."

The President stated:

"So, basically, the worker has forfeited his employment to accept that employment of modified work. That’s part of hiring on with us, is that if there is an injury, we will manage it. I mean that was breached; there was no willingness to come in for the modified work, to come see our doctors. He was supposed to see the rig manager the next morning, but in the middle of the night, I guess he had checked out and went home, so… And then we are left with trying to track him down and find out where he is, and that’s just not how it should have worked."

In answer to questions from the panel, the HR Manager indicated that the employer had attempted to contact the worker after the accident. She said she finally heard from him on January 28. At this time she spoke with him about modified duties and that she needed medical information. She said the worker told her that he had no paperwork. She then explained that she cannot bring him into work until she knows that he is able to work. She advised that she asked him to send in a doctor's note stating what he was and wasn't capable of doing in terms of modified duties.

The HR Manager said that she told the worker the employer had modified duties available, that the modified duties should have started immediately after the injury if he was all right to do so. She said that "At that time I explained to him that he could do them at the rig or he could do them in the regular office. He was very hesitant and had questions, like, let me call you back kind of deal."

The HR manager said that "I told him I needed to know as soon as possible. I said not one or two days down the road. I said I need to know right away what is going on."

The HR Manager stated that "[the worker] was not terminated until the 31st and I had talked to him on the 28th, so he did have a couple of days in there to get back to me stating whether or not he was going to be available for modified duties."

The HR Manager responded affirmatively to a question about whether she told the worker that if he did not provide the medical information, it could result in his termination.

Regarding the Physician's Modified Work Information Form, the HR manager said that she did not know whether the worker had a copy of the form when she spoke with him on January 28. She said that she faxed a copy to the worker on January 28 but had no record of the fax being sent. The President said that the worker would not have the form beforehand because he left the site without notice.

The HR Manager said that the form "…is very important because it sets out on the same basis of knowing what their limitations are and how long they are on modified duties, so that we can get them back and get them insured (ph) if they need it." She said that she will use a doctor's note where it provides information on restrictions. The President indicated that "We need - we should have had the modified duty form, but he failed to go to the rig to get it."

Worker's Position

The worker was represented by a worker advisor who made a submission on his behalf. The worker answered questions posed by his representative and the panel.

In answer to questions, the worker advised that he had worked with the employer for nine days. He said that he was required to work as a roughneck. He acknowledged receiving and signing documents. He said he did this in the first five minutes and advised that no one explained the details of the documents to him.

Regarding the accident, the worker said that he injured his left knee. He described the accident. He said his knee was painful and felt like it was hit with a bolt. He said the knee was popping.

The worker said that they did not examine his knee until he was finished his shift. At that time his knee was swollen and bruised, and was hard to bend.

After the injury he said he "went to the tool push and I let him know that I was hurt and he said, you know, you gotta, you gotta kind of just see how you feel and go back to work, right? And I did that."

The worker said that after his shift he saw the tool push and was given two incident forms, one to be completed by the driller and other by him. He said they both completed the forms. He then saw the tool push who reviewed the forms and told him that they would use the driller's form and that he could discard his form. He said that the tool push examined his leg at this time. When asked if he was offered first aid the worker indicated that he was not offered first aid. The worker said that he was told to sleep on it and if it still bothered him in the morning he would be taken for medical attention.

The worker said that he spoke to a friend about the injury. He was concerned about the injury and whether he would get treatment. He was not comfortable with the employer's approach. He and his friend decided to leave and head home to British Columbia. He did not seek medical attention in Manitoba because he did not know where there was a hospital in Manitoba and did not know if his medical would cover him in Manitoba.

He said others at the site knew he was leaving because they saw him pack up. He told co-workers that his friend was taking him to see a doctor. He also said that his friend told the tool push that he was taking the worker to the doctor.

The worker said that he and his friend left on January 22 and travelled straight to his home in Kelowna, British Columbia where he saw a doctor in the emergency ward at the hospital on the 24th. The worker said he was given pain killers, an x-ray was taken, and he was given an appointment to see a specialist on February 2.

The worker denied that he received any calls or messages from the employer but said that a friend contacted him and advised that the employer wanted him to contact them. He said he called the employer on January 28 and spoke to the HR Manager. He said that he had left a message with the employer on January 26 advising he was injured and no longer able to work. He also had a friend send a fax note on this date with information regarding his bank for direct deposit.

He said that when he spoke with the HR manager she told him that he needed to be in Red Deer, Alberta and had to make a decision about modified duties. He said it was late Friday afternoon and he was expected to provide an answer right away. He said he was not given any information on the modified duties. He said she asked him to get a note from his doctor about his restrictions. He denied receiving a form from the employer for his doctor to complete. Regarding the HR Manager's statement that she faxed him a report form, he advised that he did not have a fax machine and received no form.

The worker said that after seeing the specialist on February 2, he sent a report to the HR Manager and called to ensure it had been received. He spoke with her on the 4th or 5th to confirm she received the report. He said she did not advise him that the employer had already terminated his employment.

The worker advised that he was not able to work between the date he was terminated and the date of the surgery in May. He said he did not know he needed surgery until March.

The worker advisor submitted that the worker's testimony has provided a clear understanding of how the injury was dealt with on the rig. He said there is a contrast between what the policies say the employer is willing to do and what the people on the worksite are willing to do. He submitted that the worker was put in a position where he had to choose between his health and his job. He chose his health and sought medical attention the best way he thought that he could. He said that when he got that medical attention, he was told not to work until the injury was fully investigated. The worker was told that the first doctor did not know what was wrong with his knee and he needed to be assessed by a specialist. He also needed to have an MRI done. He said the specialist said the worker cannot work until they knew what was wrong with his knee.

The worker advisor said that the worker had certainly not contacted the employer as quickly as perhaps he ought to have. This was due to having some frustrating experiences at the workplace. He disagreed that the employer did not know where the worker was. He noted the worker's evidence was that he had contacted the company, and the person that was driving him had communications with his direct supervisor while en route.

The worker advisor said the worker followed his doctor’s advice, and he was in fact following his employer’s direction to clarify what can he do but that his doctors were saying at this point, wait and see.

The worker advisor noted that unknown to the worker, his employment had been terminated. He noted that the employer said modified duties were available to employees. However, the worker was terminated before being medically cleared to do modified duties. He submitted that time loss certainly could have been avoided, but only if his injury had been taken seriously at the work site, instead of the suggestion to sleep on it and see how it was the next day. He said the employer should have sought medical attention immediately for the worker, as the worker was concerned for his health and wellbeing.

Regarding the termination, the worker advisor said that the termination is directly related to the injury. He said that had it not been for this injury, the worker would have continued to work and continued to be employed on the rig. He said it is the worker's position that the termination caused the loss of earning capacity and it also caused the modified duties to be taken off the table. He disagreed with the employer's assertion that the worker forfeited his right to the employment. He said the worker's actions were reasonable. The worker sought reasonable medical attention, did not refuse medical attention, asked for forms and asked his doctor what restrictions might be appropriate.

The worker advisor also disagreed with the employer's assertion that its staff tried numerous times to contact the worker. He said the worker was unaware of their attempts to contact him, and only found out that they were trying to contact him through a friend who was in the process of being hired for the company.

With respect to the worker's refusal to perform modified duties, the worker advisor said that the worker refused to do modified duties on the basis of his doctor’s advice, pending the outcome of the medical assessment. He said that the employer’s decision to terminate the worker prior to a proper and full assessment removed the opportunity for the worker to actually participate in the modified duty program and earn his proper wages.

Analysis

There are two issues before the panel. Both issues deal with the worker's entitlement to wage loss benefits, although during different periods. The submissions of both parties address the issue of the worker's conduct and its impact on his employment.

In making our decisions on these issues we rely upon the following findings of fact:

• The worker promptly reported the accident to the employer's representative at the worksite.
• The worker left the worksite after reporting the accident and did not return.
• The worker was not provided with a Physician's Modified Work Form at the time of reporting the accident to the employer.
• The Physician's Modified Work Form was not received by the worker on January 28, 2011. We accept the worker's evidence that he did not have a fax machine. We also note that the HR Manager could not provide confirmation that the form was sent and received.
• The worker's employment was terminated on January 31, 2011, before the worker was medically cleared to participate in modified duties.
• The worker was cleared to perform modified duties by an orthopedic specialist on February 18, 2011.
• Modified duties were not available to the worker due to the termination of his employment by the employer.

We note that the worker was from British Columbia, the employer was from Alberta and the accident occurred in rural Manitoba. We recognize that these facts complicated the claims process.

Employer Issue: Whether the worker is entitled to wage loss benefits beyond February 3, 2011.

For the employer's appeal to be successful, the panel must find that the worker had been offered an appropriate and available modified or alternate position with the employer that would have recouped his pre-accident wages after February 3, 2011, and that his non-participation or non-attendance at work was unreasonable. After considering all the evidence, the panel is unable to make these findings. We found, on a balance of probabilities, that the worker's loss of earning capacity after February 3, 2011 was directly due to his workplace injury.

The employer submitted that the worker was not entitled to benefits because his loss of earning capacity was due to the termination of his employment. The termination letter from the HR Manager advises that the worker's position with the employer is terminated effective immediately. The letter also states:

"[The employer] offers a modified duty program that requires you to be in the office from 8:00am - 5:00pm Monday to Friday. You were contacted regarding this matter and I have yet to hear back from you. As an employee with [employer's name] you signed a form in your employee package that you agreed to our modified duties program and that if you did not comply with the requirements your employee (sic) with us would be terminated."

At the hearing the employer said that the worker failed to keep in contact with the employer and failed to cooperate. The President stated that the worker forfeited his employment and his right to modified duties.

The worker advisor, on the other hand, submitted that the worker reported the injury to the employer, was concerned that the employer was not going to take care of him so decided he must look after himself, sought reasonable medical attention, talked to the employer about modified duties, and provided the employer with medical information about his injury. The worker advisor noted that the worker was terminated before he was cleared to return to modified duties.

The panel notes that while it may be available for the employer to terminate the worker for the reasons outlined by the employer, we do not find these reasons provide sufficient ground to deny the worker's entitlement to wage loss beyond February 3, 2011.

We specifically find that the worker's conduct including his decision to leave the worksite and seek medical attention in his home town and his decision to rely on his physician's advice prior to returning to any work, was not unreasonable and therefore does not disentitle the worker's right to receive wage loss benefits during the noted period. While the worker's decision to leave the worksite and return to his hometown for treatment complicated the process, it did not amount to a forfeiture of his entitlement to benefits.

The evidence on file is that the worker immediately informed the employer of the injury, sought medical attention within a reasonable period of time; injured on January 22 and attended a hospital on January 24; contacted the employer on January 28 and advised that he had sought medical attention, then obtained the available information from the treating hospital and forwarded it to the employer on January 29. We also note the worker continued to receive medical treatment. Given this evidence, we find that the worker did not fail to mitigate the consequences of the accident and we find that the worker did not fail to cooperate. We find that the worker took reasonable steps to assist in his recovery as provided in WCB Policy 44.10.30.60, Practices Delaying Worker's Recovery.

Regarding the employer's concern that the worker did not accept the offer of modified duties made in the telephone conversation of January 28, 2011 and did not attend at its office in Alberta on January 31, 2011, we find that it was reasonable for the worker to defer acceptance of modified duties at that time. The evidence is that on Friday, January 28, 2011, neither the worker nor the employer were aware of whether the worker could participate in modified duties. This is not because the worker had not sought medical attention; rather, the evidence is that he had attended an emergency ward on January 24 and had been referred to a specialist who he was scheduled to see on February 2. It was reasonable for the worker to await the outcome of this examination before considering a return to work. As to the phone conversation that took place on January 28, 2011, we also find it unreasonable for the employer to have insisted on the immediate provision by the worker of detailed medical information. The panel notes that the worker did obtain medical information the following day, which was later deemed insufficient by the employer.

Regarding the offer of modified duties, we note no specific duties were offered by the employer at any time. We also find that it was not reasonable to expect the worker to travel to the employer's office, an eight hour drive, while he was awaiting the medical appointment scheduled for February 2, 2011.

There was discussion at the hearing regarding the completion of the Physician's Modified Work Information Form. We have found that the worker was not provided with the form when he reported the accident nor did he receive a copy of the form from the employer by fax. However, we note the HR Manager indicated that the form was not necessary and that modified duties could be arranged based upon a doctor's note. The panel notes however, that even the provision of a note on Saturday, January 29 was not in fact sufficient for the employer's purposes, and that rather than seek clarification, the employer chose termination on the following Monday.

It is the panel's view that the evidence does not demonstrate a genuine attempt by the employer to return the worker to work. The worker's employment was terminated on January 31, before the worker had an opportunity to see the specialist and receive a medical note. The employer's decision eliminated the worker's ability to return to work.

The employer's appeal of this matter is dismissed.

Worker Appeal : Whether the worker is entitled to wage loss benefits from February 19, 2011 to May 12, 2011.

For the worker's appeal to be successful, the panel must find that the worker continued to have a loss of earning capacity related to the January 22, 2011 accident during the period February 19, 2011 to May 12, 2011. The panel is able to make this finding. The panel found that the worker's loss of earning capacity was directly due to his workplace injury.

Based on our previous findings, the worker did not have a substantive alternate duties offer in hand at the time of his termination that would have been within the known medical restrictions and, that would have complied with the employer's own disability management program and allow him to recoup his pre-accident wages.