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 incapable of performing modified duties on April 3 and 4, 2013 andtherefore was entitled to wage loss benefits during this time period.  A hearing was held via teleconference on March 11, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefitsfor April 3, 2013 and April 4, 2013.

Decision

That the worker is entitled to wage loss benefits for April3, 2013 and April 4, 2013.

Decision: Unanimous

Background

On April 1, 2013, the worker injured both eyes when he was sprayed with chemicals while turning on an airline to his production station. The compensable diagnosis was conjunctivitis.

On April 4, 2013, the employer advised the WCB that the worker returned to modified duties on April 3, 2013 and had completed his shift. The worker indicated that he was fine performing the duties with his injury. The worker later requested vacation time as he did not want to complete his modified duties. The employer's view was that the worker was physically able to perform the modified duties.

On April 12, 2013, the worker advised that after the incident on April 1, 2013, he stopped work and had his eyes flushed out. He then sought medical attention and was advised to stay off work for 3 days. On April 2, 2013, he returned to paperwork duties and found that his eyes were sore, irritated and watering. After four hours of work, he told his supervisor and a co-worker that he was experiencing difficulties. The supervisor indicated that they had no further light duties available on April 2 and that he should come back to work on April 3 to perform photocopying. On April 3, 2013, the worker said he left a message on his employer's answering machine to say that he was not coming in as his eyes were sore and watering. He returned to his regular duties on April 5, 2013.

The worker further indicated that his supervisor wanted him to use vacation or banked time for his absence from work on April 3 and 4, 2013 and that he refused to do so based on advice he received from his union representative.

On April 15, 2013, the worker's supervisor confirmed that the worker worked 4 hours on April 2 performing paper work and that the worker advised him that his eyes were still itchy, scratchy and stinging. The supervisor advised the worker that there were no further light duties available after the 4 hours on April 2. The worker then missed work and returned to work on April 5 at regular duties.

On May 1, 2013, the employer disagreed with the WCB's decision of April 15, 2013 to pay the worker wage loss benefits for April 3 and 4, 2013 as the worker was physically able to complete the modified duties that were offered to him. The employer noted that the worker requested vacation time as he did not want to do the modified duties. In a further submission dated August 23, 2013, the employer stated:

"The FAF (dated April 9, 2013) based on the examination August (sic) 1, 2013 indicates that no further treatment is required; the worker is able to return to regular duties with no restrictions provided.

After performing modified duties on April 2, 2013 the worker indicated to his supervisor that he was 'doing fine completing the modified duties with the injury'. The worker then requested to take vacation time, as he did not want to complete his modified duties.

We request reconsideration of your previous ruling on the allowance of wage loss benefits as this worker simply did not want to complete modified duties, he was physically able do."

In a decision dated October 25, 2013, Review Office determined that the worker was entitled to payment of wage loss benefits for April 3 and 4, 2013. Review Office referred to discrepancy in the file information and relied on the evidence given by the worker's specialist and that of the worker and his supervisor as these people were directly involved with the injury.

Review Office disagreed with the employer's argument that there was no treatment after April 1, 2013. Review Office accepted that the worker had difficulties with his vision while performing alternate work duties on April 2, 2013 and that the worker had medical authorization to remain off work for 3 days. Review Office believed that the specialist did not include restrictions in his report as he felt that the worker should not be at work until he had the appropriate treatment for his eye condition. Review Office concluded that the worker had a loss of earning capacity on April 3 and 4, 2013. On November 12, 2014, the employer 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 employer is appealing the WCB decision to pay wage loss benefits to the worker for time away from work on April 3 and 4, 2013.

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..." Subsection 27 (1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Employer Position

The employer was represented by an employer advocate. The representative outlined the employer's position and answered questions from the panel.

The representative submitted that the worker should not be paid wage loss benefits for April 3 and 4, 2013 because modified duties were available but the worker refused to perform the duties. The representative noted that the worker was injured on April 1, 2013 and was able to perform modified duties on April 2, 2013. He said there is no medical information to indicate that the worker could not perform modified duties on April 3rd and 4th. The representative submitted that the worker's attendance and performance of duties on April 2nd negated the medical report that indicated the worker could not work. In other words, the worker showed that regardless of the medical, he was capable of modified duties. The representative noted that the worker drove himself to work on April 2nd.

In answer to a question, the representative advised that there is no documentation of the worker requesting vacation time other than a note on file.

The representative advised that the employer had a note from the treating specialist dated April 1, 2013. The note indicated that the worker was to take 3 days off work for medical reasons.

Worker Position

The worker did not participate in the appeal.

Analysis

The employer is appealing the decision to pay wage loss benefits to the worker for April 3 and 4, 2013. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity on these dates. The panel was not able to make this finding.

The panel finds that the worker was not able to work on these dates. The panel relies upon the following:

• on April 1, 2013, chemical spray splashed into the worker's eyes at work
• the worker was taken by ambulance to a hospital and seen by an emergency physician who diagnosed "alkali burn bilateral eyes." The worker was then sent directly to an on-call ophthalmologist.
• the ophthalmologist diagnosed the worker with conjunctivitis from a bi-lateral chemical burn and advised the worker to remain off work for 3 days and to use a lubricant four times daily
• on April 2, 2013, at the request of the employer, the worker attempted modified duties. File information indicates that the worker wore dark glasses and that his eyes were watery, itchy and stinging so he stopped work.
• the worker did not attend work on April 3 and 4, 2013 and left a message on the employer's answering machine stating he would not be at work due to watering and sore eyes.
• on April 5, 2013 the worker returned to work and was able to perform his regular duties.

The panel finds that the worker is entitled to be paid for the 2 days that he missed as a result of the workplace accident. The worker had medical authorization from a specialist to take time off work. Notwithstanding the specialist's authorization, the worker attempted modified duties but found the work bothered his eyes so he did not return to work until April 5, 2013. The panel finds that the worker's actions were reasonable given the nature of his injury.

In conclusion, the panel finds that the worker sustained at loss of earning capacity on April 3 and 4, 2013 and is entitled to wage loss benefits.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of April, 2015