The Appeal CommissionThe Workers Compensation Act of Manitoba

Legislation and Policy

In addressing this appeal, the Appeal Commission is bound by The Workers Compensation Act (the “Act”), its regulations, and the policies of the WCB Board of Directors.

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)(a) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends.

The worker’s wage loss benefits had initially been suspended by the WCB effective May 4, 2011. Such a suspension is contemplated by both the Act and the WCB's policies.

Section 22 of the Act provides:

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.

22(2) If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

The issue of suspension of wage loss benefits is also addressed in Board Policy 44.10.30.60 – Practices Delaying Worker’s Recovery. It states in part:

Injurious Practices

2. In order to maintain eligibility for compensation benefits a worker is required to:

…

b) Demonstrate an ongoing effort towards successful completion of the rehabilitation plan and cooperate with the WCB in carrying out the rehabilitation plan.

c) Regularly attend appointments that are part of the plan for physical, medical, psychological, or vocational rehabilitation …

Consequences of a Worker’s Failure to Mitigate

…

3. If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to co-operate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.

Employer's

With their appeal of August 5, 2011 the employer stated:

"[The worker] has been off work with absolutely no contact with his employer whatsoever.

He was already told to attend physiotherapy and then strongly encouraged by Workers Compensation once it was made known that he was not attending.

He has not given any indication in spite of these warnings that he is interested in doing what it takes to get healthy and thus back to work. Furthermore he did not prove himself to be a reliable employee that is worthy of being given another chance as his tenure at [employer's name] was less than 8 hours. If he really wanted to work he has had ample opportunity to go to physiotherapy the first time."

A subsequent submission by the employer, dated November 16, 2011, focused on discussions that led to the worker’s hire and reiterated the employer’s view that the worker had not availed himself of the opportunity to pursue physiotherapy (prior to the earlier suspension of benefits), and, consequently, was not interested in returning to work.

Worker's Position

The worker did not participate in the appeal.

Analysis

The employer is appealing the reinstatement of the worker’s wage loss benefits effective August 2, 2011. For the employer's appeal to be successful, we must find that the worker no longer suffered a loss of earning capacity due to the workplace injury or that the worker's benefits should continue to be suspended due to a failure to mitigate. We were not able to make either finding.

The worker appealed the decision to suspend his wage loss benefits to Review Office. The Review Office heard that appeal and determined, in its decision of July 28, 2011, that it was proper that the worker’s wage loss benefits “be suspended until he demonstrates a willingness to participate fully in the program.” It also determined that “there is entitlement to wage loss benefits should the worker demonstrate a willingness to participate fully in [the] physiotherapy/reconditioning program.” That decision was communicated to the parties by letter dated July 29, 2011.

The worker subsequently indicated his willingness to participate in the required program, and his benefits were reinstated by the WCB effective August 2, 2011. In the result, the worker’s benefits were suspended for the period from May 4, 2011 until they were subsequently reinstated on August 2, 2011.

The employer's position dealt with the circumstances of the worker's hiring, non-compensable external matters and to non-compliance with earlier medical treatment.