Decision #58/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits in relation to his compensation claim. A file review was held on March 14, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits
Decision
That the worker is entitled to wage loss benefits.
Decision: Unanimous
Background
On November 17, 2014, the worker was tightening a mechanical nut when the bar slipped and struck him on his upper lip. The worker reported that the laceration on his lip was one centimeter long.
The employer's accident report confirmed the worker's description of accident that occurred on November 17, 2014. The employer stated that following the accident, the worker was sent to the hospital with a blank FAF and his upper lip was treated with glue and tape. The worker received a prescription and instructions to swish with warm saline. The worker then went home and reported to his supervisor that he had a note to take two days off of work. On November 18, 2014, the worker was offered modified duties by his supervisor but he declined as he was going to follow his doctor's advice. When later contacted by the company nurse, the worker again declined the offer of accommodations citing infection concerns.
The hospital emergency report dated November 17, 2014 indicated that the worker injured his right upper lip and was seen for an assessment regarding sutures. The lip was cleaned and glued and was covered with sterile strips. The diagnosis was a laceration to the lip.
In a memorandum dated November 18, 2014, a WCB adjudicator documented that he spoke with the worker regarding his claim. The worker said his employer offered him modified duties to work in the office for a whole or partial shift and that he discussed these duties with the hospital physician. The hospital physician advised him to take two days off because of dust and concern about infection and a coworker had flesh eating disease. The adjudicator advised the worker that he had been to the employer's offices and did not find the work environment to be dusty and that the WCB did not pay workers to be off for preventative measures.
On November 18, 2014, an employer representative advised the WCB that there was no dust in the office where the worker was offered to perform modified duties.
In a decision dated November 20, 2014, the worker was advised that his claim for upper lip difficulties sustained on November 17, 2014 was accepted but he was not entitled to wage loss benefits. The WCB's position was that the worker would have been capable of performing office work for his employer as the employer indicated that the duties would be in a clean environment.
On January 7, 2015, the above decision was appealed to Review Office by the worker's union representative on the grounds that the attending physician was clear that the worker should remain off work for two days because of his lip laceration and that there had been a proven case of flesh eating disease within the plant.
In a submission to Review Office dated March 10, 2015, the employer's representative outlined the view that refusing work based on the fear of infection was not a valid medical excuse to miss time away from work.
On March 31, 2015, Review Office confirmed that the worker was not entitled to wage loss benefits. Review Office stated in part, that a one centimeter cut to the worker's lip was not disabling and found that the modified duties offered to the worker by his employer were considered suitable. Review Office placed weight to the fact that a typical worker with a lacerated lip that was cleaned, glued shut and was prescribed antibiotics to resist infection would not be advised by a doctor to avoid an office environment. On September 8, 2015, the union representative appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
The worker has an accepted claim for workplace injuries that occurred in 2014. He is seeking wage loss benefits for the days he missed from work as a result of the workplace injury.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB Board of Directors.
Under subsection 4(1) of 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 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. 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's notice of appeal form was filed on September 8, 2015.
The worker's Request for Review form, dated January 8, 2015, indicated that:
Attending Physician clearly states in the [employer] issued functional assessment form, that [worker] is required to take two days off of work for lip laceration. There has been a proven case of flesh eating disease within the plant which makes it difficult to understand the rationale behind the denial of the claim.
Employer's Position
The employer's Facility Nurse provided a written submission for consideration by the appeal panel. The employer representative submitted, in part, that:
The employer offered [worker] accommodations on the same day of the injury (small laceration to upper lip) of modified, sedentary duties, as well as reduced work hours.
[worker] refused stating he did not want to be anywhere near the plant for fear of infections and apparent fear of contracting flesh eating disease.
[worker] was offered computer duties in the [employer] supervisor's office and [worker] refused.
The company feels that refusing work based on fear of infection is not a valid medical excuse to miss work.
The company feels that [worker] should not get paid for time missed on November 20, 2014 for a "preventative measure." Everybody is bound to take the risks of infection, we cannot always keep perfectly clear of disease in the course of our daily lives. We all take the necessary precautions to try to prevent the spread of infections but the mere fact of a fear of infection is not sufficient ground to seek wage loss for the time off work.
While [worker] may have felt the need to preserve perfect immunity from all risk of infection by staying home, the company or WCB should not be held responsible for paying for the time.
Analysis
The worker is appealing the WCB decision that he is not entitled to wage loss benefits in relation to his 2014 workplace accident. The worker was absent for one day as a result of the accident which resulted in a laceration to his lip.
For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity as a result of the workplace injury. The panel found that the worker did sustain a loss of earning capacity as a result of the workplace injury and is entitled to wage loss benefits for the day that he was absent due to the injury.
The relevant timelines are:
worker was injured at work at approximately10:00 PM on November 17, 2014.
worker attended the local hospital at approximately 11:00 PM on November 17, 2014 for treatment of the injury.
employer's representative offered modified duties to the worker on November 17, 2014.
employer's nurse contacted the worker at 8:30 AM on November 18, 2014 to offer modified duties.
worker was contacted by a WCB adjudicator on November 18, 2014 regarding the injury and a return to work.
worker did not return to work on November 18, 2014.
worker on regular days off on November 19 and 20, 2014.
worker attended at second medical practitioner on November 20, 2014.
worker returned to work on November 21, 2014.
The WCB adjudicator's note of his November 18, 2014 conversation with the worker indicates:
employer offered m/duty in the office last night, for whole or partial shift.
clmn't discussed these duties with dr. at the hospital dr. advised off work 2 days because of dust and concerned about infection and a coworker had flesh eating disease.
The medical practitioner completed a Functional Assessment Form which indicated "[Worker] requires 2 days off work for lip laceration return to regular duties Nov 21/14".
The issue in this case is whether it was reasonable for the worker to be absent from work for one day, November 18, 2014, following the injury. The panel finds that in the circumstances of this claim, it was reasonable for the worker to be absent from the worksite for the one day in question.
The panel finds that the medical practitioner, upon treating the worker and discussing the worker's concerns, exercised his/her medical judgment and found it appropriate to authorize the worker's time loss. The panel finds that it was reasonable for the worker, in this case, to rely upon the medical practitioner's advice, and be absent from the worksite for the one day in question.
The panel notes there was a difference of opinion on the cleanliness of the workplace. The employer asserting that it was a clean environment, the WCB adjudicator indicating that "…in the offices I did not find it dusty at all" and the worker disputed this. The panel makes no finding on the environment in the office.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerR. Campbell, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 26th day of April, 2016