The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB")that the worker's claim was acceptable for a workplace injury occurring on May31, 2014 and that the worker was entitled to wage loss benefits.  A hearing was held on June 3, 2015 toconsider the matter.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries to his chest/ribs when he fell backwards landing on his back and a knuckle weighing approximately 50 pounds landed on his chest. The date of accident was on May 31, 2014 and the worker reported the incident to his employer on June 20, 2014. The reason for his delay in reporting the accident to his employer was because he felt he would get better and he went away on holidays. His last day at work was June 7, 2014.

The Employer's Accident Report dated June 25, 2014, stated that the worker's claim should be disallowed as he did not report the incident until June 20, 2014 and he did not seek medical treatment until June 27, 2014.

In a memo to file dated June 27, 2014, a WCB adjudicator documented information she obtained from the worker regarding the May 31, 2014 incident. The worker noted that he continued to work in pain after the incident and did not really complain. He went on holidays from June 8 until June 29. He did not seek treatment right away as he knew that a doctor could do nothing for a chest/rib injury. He said he called his general practitioner but could not get in right away and was told to go to a hospital. On June 9, he attended a hospital emergency facility and was advised to stay off work. The worker provided the name of a co-worker who was aware of the incident.

After speaking with the co-worker identified by the worker and review of medical information, the WCB accepted that the worker's injury arose out of and in the course of his employment and wage loss benefits were paid. On August 18, 2014, the employer appealed the decision to Review Office stating that the worker was late in reporting the incident. The employer also contended that the worker was not entitled to wage loss benefits given that he worked after the alleged incident.

On October 8, 2014, Review Office confirmed that the worker's claim was acceptable and that he was entitled to wage loss benefits. Review Office indicated that the medical information confirmed the diagnosis of a rib fracture and that it was consistent with the accident description provided by the worker. Review Office accepted the co-worker's evidence that the worker was winded on the night of the incident and that he was favoring his right side. Review Office noted that the worker reported the injury to his employer within the timeframe provided by subsection 17(1) of the Act.

Review Office stated that it did not place any weight to the employer's position that the worker did not have a loss of earning capacity as he demonstrated he could work immediately following the accident. This would be against the medical opinions on file. Review Office also noted that a co-worker reported that the worker experienced difficulties at the workplace following the accident. Review Office indicated that it considered the pain medications that were prescribed to the worker and the worker stating that he was unable to take the medication while at work. Review Office found that this likely contributed to his loss of earning capacity. On October 21, 2014, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The employer has appealed the WCB's decision that accepted the worker's claim that his chest/rib injury was caused by a fall at work on May 31, 2014. The employer is also appealing the worker's entitlement to wage loss benefits.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an accident that arose out of and in the course of his employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

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.

The Employer's Position

The employer was represented by their WCB Specialist, who participated in the hearing via teleconference. The employer's return to work specialist was present at the hearing as a resource.

As to the issue of claim acceptability, the employer's position was that the worker would have rarely performed the work of carrying a 70-80 lb knuckle. She indicated that she did have a training orientation video available at the hearing if the panel wished to see the knuckle, and that it was on the laptop of the employer representative who was at the hearing. The panel noted that the evidence that was being offered could have been provided earlier and was not in compliance with the five day rule for disclosure of evidence to be used at a hearing, as stipulated in the Regulation. The panel declined to accept the video and encouraged the employer to describe the equipment and the job as best they could, and indicated that it was open to the panel after the hearing to obtain and share the video if it was needed to assist the panel in its deliberations.

The employer noted that there were no witnesses to the incident, and that the worker responded to a co-worker that he was "okay." The worker did not seek help afterwards to perform his job duties. He worked six more shifts after his May 31/June 1 shift without rest and did not file a claim or formally advise his employer of an injury in that time period. It was only when he was on vacation that he sought medical treatment and later informed his employer on June 20. Her position was that all these considerations suggest that the claim is not acceptable.

As to the second issue regarding entitlement to wage loss benefits, the employer's position was that this issue flowed from the first issue; if the worker's claim was not accepted, this would mean there was also no entitlement to wage loss benefits.

In the event that the panel did find that the claim was acceptable, the employer's position, in response to questions from the panel was:

· they could have accommodated the worker in sedentary positions, but were constrained from doing so because of the worker's delay in getting medical treatment

· the worker failed to mitigate and,

· the worker should not receive full wage loss benefits (up to July14), when he returned to modified duties at a lower rate of pay and received partial wage loss benefits.

The employer was also questioned by the panel about the documentation required by them to establish a safe return to work plan for injured workers, and acknowledged that a formal Functional Abilities Form would have been required from the treating physician given the nature of the worker's injury.

The Worker's Position

The worker was represented by a union advocate. Their position was that they agreed with the decisions made by the WCB case manager and Review Office. Regarding the issue of claim acceptability, the worker described his job duties in detail, indicating that the incident took place in the middle of the night outside of a rural community. He had taken a misstep while trying to load a knuckle onto a hanger, and had fallen backward with the knuckle being held in his hands, causing the knuckle to hit his chest. He noted that a co-worker had seen him soon after and had asked him whether he was okay. In the days following, the worker did continue in his job duties, believing that medical care would not help him in any event if it was a rib fracture.

Through questions from the panel, the worker elaborated on how he performed his job duties after May 31 until he started his vacation on June 8. He indicated (and the employer agreed) that the heavy job task of handling knuckles is rare and only happens randomly when a knuckle breaks. He did not need to handle another knuckle after the May 31 incident. He noted that his co-worker, who was aware of his difficulties on May 31, helped in the days following to throw some switches, especially the ones that were poorly maintained and were tight. He could climb ladders when required but doing so would cause a "wincing" feeling. With those modifications, he was able to make it through the six shifts until his vacation started. He finally went for medical treatment on the second day of his vacation because of increased pain, and cancelled travel plans to visit his home town as well as family in another province because of his medical problems.

In response to questions from the panel, the union representative provided information as to the payment processes when a worker called in sick or gets hurt while on a scheduled vacation. He indicated that under their collective agreement with the employer, a worker can cancel their vacation and be paid via sick leave provisions instead. It requires paperwork to be filled out. In this case, the worker did not apply for sick pay and he received vacation pay instead. His position was that the worker should be paid as well by WCB for those vacation days (June 8 - 27, 2014).

Analysis

Issue 1: Claim acceptability

The employer is appealing the WCB's decision to accept the worker's claim for an injury that he suffered on May 31, 2014. In order for the employer's appeal to be successful, the panel would have to find that the worker's chest/rib injury was not causally related to his employment. We have carefully reviewed the evidence available in the file and presented at the hearing, and have concluded on a balance of probabilities that the worker’s claim is acceptable.

The test for the panel in determining the issue before us is on a "balance of probabilities" -- considering which version is more likely than not to have occurred, after looking at all the evidence and taking into account all the evidence and uncertainties that go with each position.

The panel acknowledges the employer's concerns the worker continued to work for a number of days following his claimed May 31, 2014 injury, and delayed getting medical treatment, suggesting that the worker did not in fact suffer the injury in the manner or to the degree of severity or at the time he had described. While the worker had been noted to be in difficulty by a co-worker on May 31, he responded that he was "okay" and had continued with his job duties.

In this case, the panel placed greater weight on other evidence in making its findings:

· On June 9, 2014, nine days after his asserted work injury, the worker attended a hospital emergency department and was diagnosed as having a rib fracture. The panel notes that the worker's diagnosis is suggestive of an acute or traumatic injury. We therefore turned our attention to a potential work-related cause.

· In this regard, the panel notes that the diagnosis of a rib injury is consistent with the worker's description of accident on his Report of Injury, in which he reported falling and landing on his back and the heavy knuckle coming down on his chest. A similar history was provided to the hospital on June 9 and to his supervisor on June 20. It is also consistent with the worker's description at the hearing of being "crushed" by the knuckle when he fell on his back and being completely winded at that time. There was general agreement between the employer and the worker that the knuckle was large, cumbersome and heavy, and that it was capable of causing significant injury by mischance or if handled incorrectly.

· Noting the later dates of all these reports, the panel turned its attention to contemporaneous evidence. The panel finds that significant elements of the worker's history (that his injury had occurred at work) are corroborated by a co-worker. While the incident was not witnessed, a co-worker was interviewed by the WCB on July 22, 2014. The co-worker advised that "he remembers it was pitch black outside and [the worker] got back on the [vehicle] and was winded. [The co-worker] could tell something was wrong and asked if he was OK. [The worker] told him he was fine. [He] said [the worker] is not one to complain. [He] said for the rest of the trip and the next 2 trips he did with [the worker] he could tell he was favoring one side. [The co-worker] said at times he had to help him. [The worker] was working slower. " In the panel's view, while the co-worker could not speak to the specific nature of the worker's injury, his observations as to the worker's changed condition in the middle of the shift indicate firstly that an injury did occur, and secondly the specifics of observing that the worker was winded and favouring one side do accord with the later diagnosis of a chest/rib injury.

· While the employer focused on the worker describing himself to the co-worker as being okay, and having completed another six shifts, the worker's evidence at the hearing was that he in fact adjusted his job duties in the next few days. His regular job was comprised mostly of walking, mechanical inspections and smaller maintenance and repair tasks, and a few physical tasks (leveraging heavy switches, working with hoses and some climbing). He did not have to lift or manipulate another knuckle in the days following and he relied on his co-worker to help him with difficult tasks that required significant force to complete. The panel notes that the worker's evidence as to his ongoing discomfort at work and self-modifying his job duties was corroborated by his co-worker who noted the worker's ongoing discomfort over the following shifts as well as the help he provided to the worker. In the panel's view, the evidence supports a finding that the worker suffered a significant injury on his May 31/June 1 shift and that there was continuity of symptoms from that date until his first medical treatment on June 9, 2014.

· The panel does not place significant weight on the worker's delay in seeking medical treatment, based on his perception that if indeed there was a rib fracture, little could be done for it. He had been able to work his shifts and he only went for treatment at an emergency facility when his discomfort and pain became unmanageable.

Based on the totality of the evidence, the panel finds that the worker's chest/rib injury, eventually diagnosed as a rib fracture, was consistent with the mechanism of injury described, of a crush injury caused by a heavy object landing on the worker's chest as he fell back. The panel also finds that the injury took place while the worker was performing his job duties. The panel therefore finds that the worker has an acceptable claim for an injury by accident arising out of and in the course of employment. The employer's appeal on this issue is dismissed.

Issue 2: Entitlement to wage loss benefits:

For the employer to succeed on this issue and based on the arguments presented, the panel would have to find that the claim was not acceptable. Alternatively, in the event that we did find the claim to be acceptable, we would have to find that the employer had modified or alternative job duties available for the worker that the worker, because of his conduct, had not accessed (a failure to mitigate). As noted in our analysis of Issue 1 above, the panel has found that the claim is acceptable, making the first argument moot, and this analysis therefore focuses on the second theme.

After consideration of the evidence on file and the submissions and evidence heard at the hearing, the panel was unable to make the findings requested by the employer and in fact has extended the entitlement of wage loss benefits to the worker.

There are two windows of benefits that were discussed during the hearing. The first deals with the worker's entitlement to benefits during his vacation from June 8 - 27, 2014. It should be noted that the WCB has not paid wage loss benefits for this period, but it was discussed by both parties at the hearing, and it was felt by the panel as well as both parties at the hearing that the wording of the issue under appeal was wide enough to include consideration of wage loss benefits for this period within this appeal hearing.

Dealing with the payment of wage loss benefits during the worker's vacation, the medical evidence discloses that the worker saw a sports medicine physician on June 27, 2014 and his report indicates that the worker was to be off work at that time, based on the status of his rib fracture on that date. The panel notes that the worker had the same diagnosis on June 9, 2014, his second day of vacation, and finds that given the nature of that type of acute injury, his functional status would have been at least the same as, if not worse on June 9 than, it was on June 27. The panel notes that the severity of the worker's condition on June 9 is also confirmed by the worker having been prescribed with morphine medication to manage his pain. The panel also notes the worker had to cancel his vacation travel plans to see family in other provinces and spent his time at home with friends attending to his grocery needs. As such, the panel finds that the worker was unable to return to work as of June 8, 2014 when he started his vacation, and that he is entitled to full wage loss benefits for the period of his vacation.

The second window of benefits deals with the payment of full wage loss benefits from June 27 until (but not including) July 14, 2014 when the worker returned to modified duties with the employer. In assessing the worker's entitlements after June 27, the panel relies firstly on the sports medicine physician's medical report of June 27, 2014 as a starting point in continuing full wage loss benefits. Simply stated, the physician had taken the worker off his pre-accident work, without specific knowledge of any modified duty alternatives on that date. He indicated that the worker "would be capable of sedentary duties only if available based on comfort" and prescribed T3 medications to be used as needed.

Following that date, the panel notes that the employer initiated its standard processes for returning workers to a safe return to work. The employer required Functional Ability Forms outlining restrictions to be completed, submitted, assessed, and a plan then to be developed and implemented. This process resulted in the worker being successfully returned to a modified position at a lower wage rate, as of July 14, 2014 with WCB providing partial wage loss benefits to top up his wages until he was able to return to his pre-accident wage levels.

In the panel's view of the evidence, the return to work process worked efficiently and methodically over a period of about 2.5 weeks, and there were no untoward delays in that process that could be attributed to the worker. It was therefore appropriate for the worker to receive full wage loss benefits from June 27 to July 13, 2014, following which he returned to modified duties with the employer.

The panel therefore finds that the worker should receive wage loss benefits as set out above. The employer's appeal on this issue is dismissed.

Given the findings noted, the panel finds the worker's claim is acceptable and he is entitled to wage loss benefits. The employer's appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of August, 2015