The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer disagrees with the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits for the period April 17 to May 28, 2013. The employer's position was that there was no loss of earning capacity for the worker during this time period. A hearing was held on December 19, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits for the period April 17 to May 28, 2013.

Decision

That the worker is entitled to wage loss benefits for the period April 17 to May 1, 2013.

Decision: Unanimous

Background

On November 28, 2012, the worker twisted his right knee while working in an elevator shaft during the course of his employment as a construction labourer. The day after the accident, the worker returned to modified duties with the accident employer. Based on the results of an MRI taken December 17, 2012, the worker was diagnosed with a right ACL (anterior cruciate ligament) tear and possible marginal fracture of the tibia.

In December 2012, the worker advised the WCB that he was laid off from work due to personal issues and that his last day with the accident employer was on December 11, 2012. Based on the worker's decision to leave his employment, it was determined by the WCB case manager that the worker was not entitled to further wage loss benefits given that his employer had been able to accommodate him with modified duties. The worker's WCB benefits were reinstated on April 3, 2013, the date of his right knee surgery, as it was felt that the worker would not have been able to participate in modified duties during the acute post operative recovery period.

By May 15, 2013, the WCB determined that the worker was fit for work with certain physical restrictions. On May 16, 2013, the WCB wrote the accident employer to enquire if they would have been able to accommodate the worker with suitable modified duties to approximately October 2013 (six months post surgery) if he had not requested a lay off on December 11, 2012. A response received from the employer outlined 10 positions of modified duties within the worker's restrictions that they could have provided.

On May 28, 2013, the WCB advised the worker that he did not have a loss of earning capacity beyond May 28, 2013 as his employer would have been able to accommodate him with modified duties that were within his medical restrictions.

On June 11, 2013, the worker appealed the May 28, 2013 decision to Review Office. The worker submitted that his employer had told him to perform tasks that were not appropriate for his condition and there was verbal abuse and discrimination by the employer. The worker indicated that he stopped working for his employer as "they did not live up to the code of conduct that is expected from any safe, fair and just company." The worker said he made the choice to leave employment due to personal reasons and therefore he was entitled to wage loss benefits beyond May 28, 2013.

On June 25, 2013, the employer submitted to Review Office that the worker should not have been paid wage loss benefits for the period April 17 to May 28, 2013. The employer's position was that the worker was fit for modified duties as of April 17, 2013 based on a report from the treating surgeon dated April 18, 2013 which stated;

"He is seen two weeks following ACL reconstruction. He is doing well and feeling well. Wounds are clean and dry. He is off to physio. He understands the goals and restrictions. I have also requested of WCB that he would benefit from having a stationary bike at home or a gym membership for six months to guide him in his rehab."

The employer felt that the worker rendered himself ineligible for WCB wage loss benefits from the first date that he was fit for modified duties which was as early as April 17, 2013 based on the medical evidence.

On August 8, 2013, Review Office indicated that the file evidence did not demonstrate that the worker left his employment due to unsafe work or discrimination and that it was the worker's choice to leave employment due to personal reasons. Review Office concluded that the worker was not entitled to wage loss benefits beyond May 28, 2013 as the accident employer had demonstrated that they were able to provide him with suitable modified duties which would have eliminated any loss of earnings.

With respect to the employer's appeal, Review Office concluded that the worker was entitled to wage loss benefits for the period April 17 to May 28, 2013. Review Office referred to the April 18, 2013 medical report and felt that the comments made by the surgeon did not suggest that the worker was ready to work modified duties as of that date. Review Office noted that the April 18 report was received at the WCB on April 30, 2013 and that a WCB medical advisor outlined his opinion on May 16, 2013 (although the memo had a date of May 21, 2013). On May 28, 2013 the employer confirmed that they could accommodate the worker with modified duties within his restrictions.

Review Office found that the necessary information to determine wage loss entitlement was not available until May 28, 2013 once the employer confirmed their ability to accommodate within the restrictions outlined. Therefore the worker was entitled to wage loss benefits for the period April 17 to May 28, 2013. On August 26, 2013, the employer disagreed with Review Office that the worker was entitled to wage loss from April 17 to May 28, 2013 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.

This is an employer appeal. The worker has an accepted claim for a left knee injury. The employer is appealing the decision to pay the worker wage loss benefits for the period April 17 to May 28, 2013.

Relevant provisions of the Act include:

· ss. 4(1) provides that 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.

· ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

· ss. 39(2) 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.

· ss. 40(1) provides that the loss of earning capacity is the difference that the worker's net average earnings before the injury and the net average amount the WCB determines the worker is capable of earning after the accident.

Employer's Position

The employer was represented by an employer advocate. He provided a written copy of his submission.

The employer representative advised that the employer disagrees with the decision of the Review Office. The employer completely accepts that the worker had a workplace injury and that surgery was required for the injury. The employer's position is, however, that once the worker was fit for sedentary duties, his wage loss benefits should stop because the employer could have provided sedentary duties to the worker, had he not quit his position.

The employer representative noted that:

We realize that WCB's medical advisor reviewed the claim on May 21, 2013 and pronounced him as fit for modified and restricted duties. However, we do note that the claim was referred to the medical advisor on April 30, 2013, and the medical advisor's file information was based upon medical reports from even before then.

However, we believe that [orthopaedic surgeon] report of April 18, 2013, I believe he's the orthopaedic specialist, makes it very clear that he feels that [worker] was fit for modified duties as of that date. He stated that the claimant was, quote, "doing well and feeling well", and, "he understands the goals and restrictions."

In fact, the surgeon actually stated that the claimant was already fit to ride a stationary bike as of that examination and could attend a gym to work out.

It seems very apparent from this report that he was fit for modified duties as of that date. Common sense would then dictate that if someone can go to a gym and ride a stationary bike, then he is plainly fit for at least sedentary work duties and more likely even light duties.

As such, we feel that there should be no eligibility for WCB wage loss benefits from that date forward.

Worker's Position

The worker commented on his injury, treatment and his employer's handling of his claim. He answered questions from the panel.

In answer to questions, the worker advised that the he was bedridden for the first week after the surgery. He said he was able to stop using crutches after the second week of surgery. He said by the end of April he was walking up to many miles per day. He advised that his physician told him to move around. By the first week of May he was able to drive.

The worker said that he tried to become fit. He said that "-- during the whole time that I was in there, I wasn't trying to make it look like I was worse than I actually was."

Regarding a return to work, the worker said he first looked for indoor work. He advised that he first worked one day for his brother doing gardening, such as, planting flowers at his brother's residence. In July he worked as a labourer for a masonry company. He only worked for one week as he was not ready for such physical duties. He said that the treating orthopaedic surgeon cleared him for a return to work to full duties in October 2013. He has worked as a labourer since then.

Regarding his fitness, he said he was at 80% in August and 90% in November. The worker said that his physician told him that it usually takes 6 months to get clearance to return to work. He also advised that he received 19 physiotherapy treatments in total, approximately 7 before surgery and 12 after surgery with his last appointment on June 17, 2013.

Analysis

The employer is appealing the WCB decision to pay the worker wage loss benefits for the period from April 17 to May 28, 2013. For the employer's appeal to be successful, the panel must find that the worker did not sustain a loss of earning capacity due to the workplace injury between April 17 and May 28, 2013. In other words, the panel must find that the worker was fit for modified duties before May 28, 2013. The panel was able to find, on a balance of probabilities, that the worker should have been able to work at modified duties by May 2, 2013, and would limit wage loss benefits to April 17 to May 1, 2013.

In reaching this decision, the panel relies upon the worker's evidence at the hearing. The worker told the panel that by May 1 he was able to walk and drive his vehicle. He indicated that he had walked long distances by that point in time. The panel notes that the worker's first physiotherapy session after the surgery was May 1 and his second session was May 8. The panel notes that the employer had sedentary duties available and that the worker demonstrated a level of fitness as of May 1, 2013 that would have allowed him to attend the workplace and participate in sedentary duties. Accordingly, the worker would not be entitled to wage loss benefits as of May 2, 2013, being the day following his first physiotherapy appointment on May 1, 2013.

The employer's appeal is approved 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 21st day of January, 2014