The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that he did not have a loss of earning capacity related to his compensable accident of May 5, 2012. A hearing was held by teleconference on May 14, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits in relation to his May 5, 2012 compensable injury.

Decision

That the worker is entitled to three days of wage loss benefits in relation to his May 5, 2012 compensable injury.

Decision: Unanimous

Background

On May 30, 2012, the worker filed a claim with the WCB for an injury he suffered at work on May 5, 2012 when a pressure hose broke and struck him in the groin region.

Information submitted by the employer was a First Aid Record dated May 5, 2012, a Functional Abilities Form ("FAF") dated May 11, 2012 and two letters, one from the company's health and safety coordinator and the other from the mine captain. The information suggested that there was no workplace injury as the worker had pre-existing groin problems, he was uncooperative when asked to file an investigation report and he "packed his things and quit." The information also indicated that a light duty position was available for the worker that involving driving. The health and safety coordinator noted that the FAF indicated that the worker was not able to stand, walk or sit but yet the worker did not seem to have any difficulty moving around when he came to say he was leaving the camp.

On June 4, 2012, the worker advised a WCB case management representative ("CMR") that he was struck in the testicle by a pressure hose. He said he went to a health clinic for treatment and to hospital facility the next day. He was given a prescription for the pain but he had no money to pay for the prescription. He then went back to the camp on May 6, 2012 and packed up his belongings to go home. He said his employer asked him to complete an accident investigation report but he did not do so because of the pain. With respect to a pre-existing condition, the worker indicated that he had some problems with his left testicle but not the right. The worker indicated that he did not quit his employment. He said his doctor advised him that he could return to work on June 7, 2012 and he was currently looking for other employment.

Medical information showed that the worker attended a health clinic on May 5, 2012 and was reported to have swelling in the right testicle. He was then sent to a hospital facility and had a sonogram done on May 6, 2012. The results indicated bilateral epididymal cysts.

In a doctor's first report dated May 6, 2012, the treating physician diagnosed the worker with a contusion of the right testis. The report indicated that the worker could return to work on May 10, 2012.

On June 8, 2012, the worker was advised that his claim for compensation related to the May 5, 2012 accident was accepted, however, payment of wage loss benefits for the period May 7 to 10, 2012 was not warranted as there was no loss of earning capacity. The worker disagreed with the decision and an appeal was filed with Review Office.

After a preliminary review of the worker's claim on July 10, 2012, Review Office referred the file back to primary adjudication to conduct a further investigation related to the issue of "loss of earning capacity" and to revisit its previous decision.

Information was obtained from the employer indicating that they would have been able to provide the worker with modified duties which included underground administrative duties (e-mail message dated July 17, 2012).

On August 22, 2012, the worker was informed by the WCB that he was entitled to wage loss benefits for the period May 6 to 10, 2012 but not beyond. The decision was based on the worker's failure to mitigate the effects of his injury by not participating in available and suitable modified duties as of May 11, 2012. The adjudicator referred to medical and other information submitted by the employer as a basis for her decision. On October 23, 2012, the worker appealed the decision to Review Office.

In a letter to Review Office dated October 24, 2012, the employer disagreed with the WCB that the worker was entitled to wage loss benefits for the period May 6 to 10, 2012. The employer's position was that the worker failed to follow procedures that were clearly explained to him during the orientation process (reporting and modified duties) and that the worker was not considered an employee of the company during the approved period of wage loss. "A Record of Employment (attached) was issued to him, with reason being E- Quit."

On December 5, 2012 Review Office determined that the worker was not entitled to wage loss benefits from May 6 to 10, 2012 or to wage loss benefits after May 10, 2012. Review Office referred to file information to support that the worker was able to continue working in some capacity following the compensable injury and there was no medical information to show that he was objectively disabled. The worker's loss of earning capacity was related to him severing his employment and was not due to his compensable injury. On January 21, 2013, the worker appealed Review Office's decision to the Appeal Commission and a 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.

The worker has an accepted claim for a workplace injury. He is seeking wage benefits arising from the injury. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

Worker's Position

The worker participated in the hearing by teleconference.

The worker advised that he is a certified miner with 25 years of experience. He advised that he had worked for the employer on a prior occasion and had planned on working for the employer again. While working for the employer, the worker lived in a camp operated by the employer.

The worker described the accident that resulted in his injury. He said that a high pressure hose blew up, hitting him in the right testicle. He said the accident was caused by improper equipment.

The worker said that an employer representative drove him to the hospital the next day. He had to wait approximately 5 hours to be seen by a physician. After being seen at the hospital by a physician, the worker asked the employer representative to take him to a pharmacy to pick up a prescription but the representative refused. Because he had no medication and was in pain, he decided to return to his home. The worker said that when he got back to the camp, he packed his gear and drove to his home which was approximately 10 hours from the camp. The worker said that he "probably" would have remained if he had medication.

The worker noted that he had only 3 days remaining in his contract when he left. He denied that he quit work. He said that he told the employer that he was leaving but did not say that he quit.

The worker said that he has not been able to work since the injury.

In addition to his request for wage loss benefits, the worker identified other concerns regarding his dealings with the employer. The worker expressed concern about the quality of the equipment he was provided with, which he believes caused his injury. He also expressed concern about the treatment he received from the employer's representatives after the injury. He claimed the employer representative was racist, noting that he had refused to take the worker to a pharmacy to pick up a prescription.

Employer's Position

The employer was represented by its HR Superintendent who participated by teleconference. The employer representative said that the worker is no longer an employee, having severed the employment relationship on May 6, when he left the employer's facility and was no longer available to work. She also noted that his contract with the employer ended on May 10, 2012.

The employer representative said that the worker had no reason for leaving the employer's facility. She said that had he remained he would have been provided necessary care. She also said that the employer had modified duties for the worker but never had an opportunity to offer the duties because the worker left.

With respect to the worker's concern about racist conduct, she advised that the employer has not received reports of this type of conduct. She noted that 60 to 70% of the staff are aboriginal.

In response to questions from the panel, the employer representative clarified the final date of work was May 9, 2012 and May 10, 2012 would have been an unpaid travel date.

Analysis

The WCB has accepted that the worker was injured on May 5, 2012. The worker is appealing the WCB decision that he is not entitled to wage loss benefits arising from his May 5, 2012 workplace injury. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity due to the injury. In other words, the panel must find that the worker was unable to work as a result of the injury.

The panel finds the worker was unable to work as a result of the injury. The panel notes that the worker's contract with the employer concluded on May 9, 2012. The panel finds that the worker is entitled to benefits up to and including May 9, 2012, the date on which the worker's contract with the employer ended.

As to the period of wage loss benefits, the panel relies upon the opinion of the physician who examined the worker on May 6, 2012. The physician completed a FAF which indicated that the worker was restricted from all activities except for the ability to drive a car for the purpose of travel to work. The FAF indicates that the restrictions were in place from May 6, 2012 to May 10, 2012 and that the worker can return to regular duties on May 11, 2012. However, the panel notes that the worker's employment contract ended on May 9, 2012, and therefore his entitlement to wage loss benefits ended on May 9, 2012. As the worker's contract ended on May 9, 2012 and as it did not include paid travel time, the worker is not entitled to benefits for May 10, 2012.

In respect to the modified duty position put forward by the employer, the panel notes the FAF provided restrictions on all duties except the ability to drive a car to work. The panel notes that driving a car to work is not comparable to driving a truck underground over rough terrain for a full 12 hour shift, more so with intense groin pain. As such, the panel finds the modified duties offered by the employer would not be suitable within the restrictions outlined by the physician.

There was no medical information on file indicating that the worker was unable to work after May 10, 2012. The panel further notes that the WCB has not addressed the issue of the relationship between the worker's current condition and his workplace injury, and accordingly the panel is not able to address this issue.

Finally, the panel notes that the worker expressed concerns regarding the equipment supplied by the employer and the treatment received from the employer after he was injured. The panel advised the worker at the hearing that it was limited to dealing with the issue of wage loss benefits for the workplace injury and could not address these other concerns.

The worker's appeal is accepted in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 18th day of June, 2013