The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held on October 24, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 22, 2012.

Decision

That the worker is entitled to wage loss benefits from November 23, 2012 to December 3, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to his right eye and forehead which occurred on November 19, 2012 when he struck his face/eye on some equipment. The worker reported that he fell because his vision was blurry and he had a black eye.

Initial medical information showed that the worker attended a hospital emergency facility on the date of the accident and was diagnosed with a subconjunctival hemorrhage.

On November 21, 2012, another physician reported that the worker was seen in a follow-up visit with respect to the subconjunctival hemorrhage that presented two days ago after blunt trauma to his right eye. The worker reported only mild aching pain surrounding the eye. The worker had no flashes, floaters or blurry vision. The physician indicated that the hemorrhage would continue to resolve over the next few weeks and the worker was instructed about the signs and symptoms of retinal detachment.

When speaking with a WCB case manager on November 22, 2012, the worker stated that things were getting better but he was still experiencing blurred vision. The worker indicated that he had seen his treating physician and was authorized time off until November 27, 2012 at which time he had a follow up appointment. The worker noted that his supervisor had offered him modified duties but he was not sure if he would be able to perform them. The worker stated that he did not drive to work and that he carpooled with a co-worker/friend.

A doctor's first report, dated November 22, 2012, indicated that the worker complained of pain with slight blurry vision of his right eye. The worker was prescribed pain medication and was considered capable of alternate or modified duties.

When next seen on November 27, 2012 the treating physician reported that the right subconjunctival hemorrhage had resolved by 75%. A sickness certificate dated November 27, 2012 stated that the worker should be off work from November 27, 2012 to December 2, 2012.

On November 27, 2012, the worker advised his WCB case manager that he saw his doctor and was advised that he could return to work on December 3, 2012. He said his doctor provided him with a sick note. The case manager indicated to the worker that it was documented by his treating physician that he was capable of performing modified duties (report of November 22, 2012). The worker indicated that the doctor must have made a mistake. When asked why he felt completely disabled and unable to work, the worker responded that still had a black eye and his injury was painful. The worker stated that he was following his doctor's advice to stay off work.

In a further conversation with his WCB case manager on December 14, 2012, the worker indicated that he did not ask his doctor for time off but his doctor insisted that he should. The worker indicated that he was capable of eating, walking and basic things but he was incapable of driving. He said his wife did the driving for him.

On January 3, 2013, a WCB medical advisor commented that subconjunctival hemorrhage was generally not a serious condition and was not typically associated with significant symptoms, even allowing for the size of the hemorrhage in the worker's case. He said a degree of mild blurring of vision would be possible in the initial days post onset and that headache was not typical of the condition. The medical advisor indicated that total disability would not be accounted for. He stated that in view of the worker's duties as a painter which required accurate vision, modified duties would likely have been appropriate for approximately 5 to 7 days while any mild visual alteration was resolving.

On January 4, 2013, the WCB accepted the worker's claim for the incident that occurred on November 19, 2012 but determined that wage loss benefits were not payable beyond November 22, 2012. The case manager stated in his decision that the evidence on file supported that the worker would have been capable of performing modified duties as it was felt that the attending physician provided no objective findings to confirm that the worker's injury was disabling. Given that the worker would have been capable of performing modified duties and refused the modified work that his employer offered on November 19, 2012, it was the case manager's opinion that the worker failed to mitigate his loss of earnings.

On January 28, 2013, the worker's union representative outlined the opinion that the decision made by the WCB case manager should be overturned as there was no real offer of modified duties made by the employer.

On February 7, 2013, the WCB case manager advised that he reviewed the union representative's correspondence but the decision to disallow the claim remained the same as there was no new medical information to consider.

On March 5, 2013, the worker's treating physician stated that the worker's "Date of Illness" was November 19, 2012 to December 2, 2012 inclusive. He stated that his prior report to the WCB that the worker could return to modified duties was a mistake.

In a further decision dated March 18, 2013, the WCB case manager determined that no change would be made to his prior decision. He noted that the March 5, 2013 report by the treating physician provided no additional objective findings to support the worker's time missed from work. On April 3, 2013, the worker's union representative appealed the case manager's decision to Review Office.

On May 27, 2013, Review Office determined that the worker was capable of working modified duties from November 23, 2012 onwards and confirmed that he was not entitled to wage loss benefits beyond November 22, 2012. Review Office noted that when the worker was seen by a nurse practitioner on November 21, 2012, he reported a mild achy pain around the right eye and there was no mention of headaches or blurry vision at that time. Review Office stated that it did not accept that the worker was experiencing blurred vision or headaches as he related to his doctor and the case manager on November 22, 2012. Review Office stated that it would not expect one to develop blurred vision that long after the accident given the nature of the injury.

Review Office noted that there were no medical findings in the medical reports on file to support that the worker was incapable of performing modified duties after November 22, 2012. Review Office accepted the January 3, 2013 WCB medical consultant's opinion. On June 19, 2013, the worker's union representative 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.

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 was accompanied by a union representative at the hearing. It was submitted that the worker had a fairly serious incident where he suffered a workplace injury to his eye. He went to the hospital that day then returned to work and advised his supervisor that he would be off work from that point forward. The supervisor at the time advised that they had light duties for him, but gave no explanation or other indication of what the duties were. With respect to the November 22, 2012 date, it was submitted that the worker's doctor made an error in checking off the box on the WCB form which indicated that the worker was fit for light duties. This information was later corrected by the doctor. At that time, the doctor had provided the worker with a sickness certificate which confirmed that the worker was to remain off work until December 3, 2012.

It was submitted that the injury suffered by the worker was a very bad hemorrhage of the eye which prevented the worker from wearing required safety glasses at work. The worker also had blurred vision, which was problematic as there were many hazards in the workplace and one had to be able to see what was going on around them.

The worker did everything he was responsible to do and it was only because of the doctor's error that the WCB felt that he was able to return to work. This error was corrected and it was submitted that the worker should have been paid past November 22, 2012, up to December 3, 2012, which is the date when he did actually return to work.

Employer’s Position

A claims management specialist represented the employer at the hearing. The employer advised that it had a return to work program which required employees to participate in modified duties. How it worked was the cell leader would offer modified duties to an employee upon advisement that they would be off work and then the employer would meet with the union in a formal setting to actually fill out the form and offer the modified duties which met the restrictions set out by the treating doctor. In the worker's case, when he returned from the hospital on the day of the accident, he had a medical note which put him off work for two days. The cell leader offered the worker modified duties but the worker said no as he was told at the hospital to see an eye doctor. The cell leader then gave the worker a Health Assessment Form to be filled out by his doctor.

Subsequently, after the two days passed, the worker never showed up for work. The employer tried to contact the worker, but could not get hold of him. They did not hear from the worker until November 28, 2012 when the worker provided a sickness certificate dated November 22, 2012 and another one dated November 27, 2012 which advised that the worker would be off until December 3, 2012.

The employer submitted that while the worker did provide a note on November 28, 2012, they were not able to contact him prior to that date, nor did the worker ever call in to report. The worker remained off work until December 3, 2012.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond November 22, 2012. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity beyond that date. On a balance of probabilities, the panel finds that the worker did have a loss of earning capacity and he is entitled to further wage loss benefits from November 23, 2012 to December 3, 2012.

The panel places significant weight on the two sickness certificates dated November 22, 2012 and November 27, 2012. With respect to the November 22, 2012 sickness certificate, the evidence at the hearing was unclear as to how and when the sickness certificate was delivered to the employer. The worker's evidence was that he gave the note to a co-worker to take to work on November 22, 2012. The employer advised that their date stamp indicated receipt on November 28, 2012. In any event, however, it was clear that the treating physician authorized time off work from November 22 to November 27, 2012. Although the Doctor's First Report (a WCB form) filled out by the physician indicated the worker was capable of alternate or modified work, the physician later clarified that he had checked the box in error. It is notable that at the time of the November 22, 2012 appointment, the treating physician prescribed pain medication for the worker. This would be consistent with the finding of a symptomatic condition which was sufficient to impair the worker's earning capacity. The worker's evidence at the hearing was that there was significant swelling all around his eye such that he was not able to wear safety glasses. His physician told him that he needed to stay off work because he worked in a dusty environment where sanding, masking and prepping took place and he needed to avoid having anything blow into his eyes. The worker left the employer's Health Assessment Form with his physician, which outlined the alternate job duties which were available to the worker. The physician did not complete the form at that time. Based on the November 22, 2012 sickness certificate and the evidence as to the worker's condition at that time, the panel accepts that the worker was in a loss of earning capacity from November 22 to November 27, 2012 and should be entitled to benefits for that period of time.

With respect to the period from November 27, 2012 to December 3, 2012, the sickness certificate dated November 27, 2012 authorized time off work until December 2, 2012 inclusive. The worker's evidence was that he saw his physician on November 27, 2012, which was a Tuesday. Although the worker reported that his condition was improving, his physician said that he would give him three more days off work. When asked about the physician's reasoning for this time loss, the worker did not know why. He did confirm, however, that the physician had the Health Assessment Form, upon which the physician indicated time off until December 3, 2012. With respect to reasoning for this decision, the physician wrote: "Headache, Sl blurred vision Rt eye." It would appear that based on his November 27, 2012 physical examination and with full knowledge of the available modified duties, the treating physician's professional opinion was that the worker was not yet fit to return to work. The panel accepts this opinion and finds that the worker continued to have a loss of earning capacity from November 27, 2012 to December 3, 2012.

The panel notes that at the hearing, the employer gave evidence regarding its return to work program and the fact that modified duties were offered to the worker. While the panel does not doubt that the employer has a well established return to work program, in the present case, the accommodation process was at a very early stage. As the treating physician had not yet provided any restrictions or authorized any return to the workplace, there was no basis upon which a true offer of modified duties could have been provided to the worker. This is not a case where the worker unreasonably refused the employer's offer of modified work.

The panel therefore finds that the worker is entitled to wage loss benefits beyond November 22, 2012. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of December, 2013