Decision #52/13 - Type: Workers Compensation
Preamble
The worker is appealing two decisions made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to wage loss benefits after July 4, 2012 due to his refusal to partake in alternate duties offered by his employer and that he had recovered from the effects of his bilateral ankle injuries by August 2, 2012. A file review was held on February 14, 2013 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after July 4, 2012; and
Whether or not the worker is considered to have recovered from his compensable injuries as of August 2, 2012.
Decision
That the worker is not entitled to wage loss benefits after July 4, 2012; and
That the worker is considered to have recovered from his compensable injuries as of August 2, 2012.
Decision: Unanimous
Background
The worker filed a claim with the WCB for injury to both ankles that occurred on June 5, 2012 during his employment as a truck driver/helper. The worker reported that he was walking down the ramp of a semi-truck with a dolly in front of him when he felt a pop in his left ankle. The worker noted that he had been doing this type of work for the past few days and that he also had soreness in his right ankle.
The employer's report of injury indicated that they had no details of an injury occurring on June 5, 2012 as nothing was reported.
Medical information dated June 13, 2012 diagnosed the worker's condition as achilles tendonitis, left anterior talofibular ("ATF") ligament strain. On June 15, 2012, a physiotherapist diagnosed the worker with left ATF sprain/right compensatory ankle strain. He noted that the worker was capable of modified duties and should avoid unstable surfaces when carrying weight loads.
The claim for compensation was accepted based on the diagnosis of an ankle sprain. The decision to accept the claim was appealed by the employer to Review Office on the basis that the worker's co-worker on June 5, 2012 was not aware of an injury sustained by the worker.
In a progress report dated June 22, 2012, the treating physician reported that the left foot was feeling better and that the right foot was now sore. He noted that the worker was fit for sedentary office tasks.
On July 3, 2012, a WCB case manager noted to the file that the employer wanted the worker back on alternate duties which involved painting while seated. As the worker refused to participate in performing alternate duties or attend a meeting scheduled for July 5, 2012 to discuss the alternate duties, the worker's compensation benefits were suspended effective July 5, 2012.
On July 12, 2012, Review Office determined that the worker did suffer an injury during the course of his employment and it denied the employer's appeal regarding claim acceptability.
On July 20, 2012, the treating physiotherapist advised the WCB that the worker came for an assessment and was treated on June 29, 2012. His notes reported: "much improvement and full ROM on both ankles." At the initial assessment, there was no pronounced bruising, swelling or blood tracking which would indicate a more serious injury. He noted some instability in the ankle, left greater than right and the worker was given some home exercises for ankle stabilization.
On August 2, 2012, the worker was advised by the WCB case manager that based on the file information, it was considered that he had fully recovered from the effects of his workplace injury and that he was fit for work as of August 9, 2012. The decision was based on the information received from the treating physician and physiotherapist in June 2012 that both his ankles were much improved.
On September 6, 2012, Review Office considered an appeal from the worker regarding the WCB's decision to suspend his wage loss benefits effective July 4, 2012 and that he had recovered from the effects of his compensable injury as of August 2, 2012.
Review Office determined that the worker was not entitled to wage loss benefits after July 4, 2012. Review Office stated that as of July 5, 2012, the worker's loss of earning capacity was no longer resulting from his compensable injury. It was felt that the worker created his own loss of earnings due to his unwillingness to participate in an appropriate accommodation at the workplace.
Review Office determined that the worker had recovered from the effects of his compensable injury as of August 2, 2012 based on the expected recovery times for strain related injuries and the medical findings leading up to the termination of benefits on August 2, 2012. On November 1, 2012, the worker appealed Review Office's decisions to the Appeal Commission and a file review was arranged.
Reasons
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
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 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
Subsection 40(1) sets out how loss of earning capacity is to be calculated and provides as follows:
40(1) The loss of earning capacity of a worker is the difference between
(a) the worker’s net average earnings before the accident; and
(b) the new average amount that the board determines the worker is capable of earning after the accident;
which amount shall not be less than zero.
Subsection 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:
Worker to co-operate and mitigate
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. The worker’s position: The worker was self-represented in the appeal. The worker disagreed with the suspension of his benefits. His submission stated that his job was terminated by the accident employer and that: "as far as I was concerned, I was finished working there." The worker also submitted that he was misinformed by the WCB about having to return to work for the company that fired him. The worker felt he was led to believe that he would be compensated until he was well enough to look for other employment. Analysis: There are two issues before the panel. We will address each one in order. 1. Whether or not the worker is entitled to wage loss benefits after July 4, 2012. The first issue deals with entitlement to wage loss benefits and whether they ought to have been suspended after July 4, 2012. In order for the appeal to be successful, the panel must find that the worker was not 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. We are not able to make that finding. Subsection 22(1) imposes on workers a duty to co-operate with the WCB in developing and implementing programs for returning to work. If the accident employer can provide an injured worker with modified duties within the worker's restrictions which will allow the worker to remain in the workplace and thereby reduce or eliminate the worker's loss of earning capacity, it is incumbent on the worker to reasonably co-operate with such a return to work. A worker who fails to reasonably co-operate is at risk of having his or her wage loss benefits suspended. That is what happened in this case. This case was considered based on a file review. It was suggested to the worker by the Appeal Commission Assistant Registrar that an oral hearing would be preferable as it would provide a better opportunity for the worker to provide information regarding the issues to the panel, but the worker declined. We therefore must proceed with our decision based solely on the information available on the WCB file. The relevant time period is late June and early July 2012. At that time, the restrictions recommended by the worker's medical treatment providers were as follows: The worker insists that he was fired by the employer. He states that when he was given his last pay cheque by the co-worker who recruited him for the position, the co-worker advised him that: "he was done." When the employer was asked, he stated that he did not fire the worker, only that he was upset with the worker. The evidence is contradictory and it is difficult to determine whether or not the worker had actually been fired. Although we cannot discern whether or not the worker was actually fired, it does appear from the file that the employer was prepared to provide the worker with modified duties consisting of painting wheel rims while in a seated position. The panel finds that these duties would be within the physical restrictions outlined above. The employer discussed these duties with the WCB case manager and asked that the case manager communicate this offer of modified duties to the worker. File notes dated July 3, 2012 record a series of telephone conversations where the offer was communicated to the worker. When advised of the offer, the worker insisted that he had been fired. The case manager asked the worker to make a telephone call to the employer to discuss, and then call back. Unfortunately, the call between the worker and the employer did not go well. The case manager then set up a meeting on July 5, 2012 for the parties to meet and sort things out. When advised of the meeting, the worker stated he would not attend. The worker was advised by the case manager that if he did not attend, then his wage loss benefits would be suspended for non-participation. Despite this information, the worker did not attend the meeting. In the panel's view, it was incumbent upon the worker to attend the July 5, 2012 meeting to discuss the modified duties offered by the employer. By refusing to even engage in these preliminary discussions, the worker failed to take reasonable steps to reduce or eliminate his earning capacity. As such, the worker was in breach of his obligation to co-operate and mitigate pursuant to subsection 22(1) of the Act and his wage loss benefits were properly suspended after July 4, 2012. The worker's appeal on this issue is dismissed. 2. Whether or not the worker is considered to have recovered from his compensable injuries as of August 2, 2012. For the worker’s appeal to be successful on this issue, we must find on a balance of probabilities that after August 2, 2012, his left ankle injury had not resolved. We are not able to make that finding. There are not many medical reports on the file. The last report from the treating physician was a progress report dated June 22, 2012. At that time, the physician reported minimal tenderness over the left ATF ligament and achilles. The last report from the treating physiotherapist was a discharge assessment dated August 5, 2012. The last physio treatment had been on June 26, 2012 and at that time, there was a resolution of the initial signs with only some minor lingering joint line swelling. The worker's status at time of discharge was indicated as "Resolved. No further in clinic sessions needed." Based on the foregoing information, it would appear that the worker's compensable injury had essentially resolved. There are no medical reports to suggest that he had any worsening or significant ongoing issues with his left ankle sprain beyond the dates of the latest medical information. We therefore find that the worker is considered to have recovered from his compensable injuries as of August 2, 2012. The worker's appeal on this issue 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 11th day of April, 2013