The Appeal CommissionThe Workers Compensation Act of Manitoba

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 compensable injury. A hearing was held on June 20, 2016 to consider the worker's appeal.

Issue

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

Decision

That the worker is not entitled to wage loss benefits.

Decision: Unanimous

Background

The worker, employed as a building manager/caretaker, filed a claim with the WCB for an injury to his left lower leg that occurred on March 5, 2014 and reported to the employer on March 10, 2014. The worker reported:

On March 5^th I was rearranging the bikes in the laundry room to make room. I lost my balance and hit my shin on the gears cutting it…By March 7^th I noticed it was very red around the cut and covered a large area of my lower leg. The pain was really bad over the weekend and I could not walk. I went to the doctor March 10 and they said I had a bacterial infection.

The Employer Injury report dated March 20, 2014 stated:

I was told that [worker] hurt himself moving some bicycles in the building and had to go to the doctors. He then told me the doctor advised him not to return to work due to high blood pressure.

A Doctor's First Report showed that the worker sought medical attention on March 10, 2014. The treating physician noted that the worker "did not mention how he cut himself. But a cut turned into an ulcer." The worker was diagnosed with an ulceration and prescribed medicated dressing changes and antibiotics. The physician noted he was not disabled from working beyond the date of accident.

On March 27, 2014, the worker was advised by Compensation Services that his claim for compensation had been denied as the adjudicator was unable to establish a work related accident occurred on March 5, 2014. The decision was based on the findings that the worker continued to perform his regular work duties without complaint until March 12, 2014 prior to seeking medical care and reporting the accident. On May 29, 2014, the Worker Advisor Office appealed the March 27, 2014 decision to Review Office.

In a decision dated July 7, 2014, Review Office determined that the worker's claim was acceptable. Review Office referred to file information to support that the worker had a work-related accident on March 5, 2014 as defined by subsection 1(1) of the Act. Review Office then directed the file back to Compensation Services to determine whether or not there was any entitlement to benefits.

On July 31, 2014, Compensation Services determined that the worker was not entitled to wage loss benefits in relation to his lower leg injury sustained on March 5, 2014. The adjudicator noted the treating physician's report of March 10, 2014 which stated that the worker would not be disabled from work. The adjudicator also noted the employer's report of March 20, 2014 which stated the worker was advised by his doctor that he should not return to work due to having high blood pressure. The adjudicator stated there was no medical evidence provided to either the employer or the WCB stating that the worker would be off work due to the workplace injury. The adjudicator also referred to a letter on file dated March 12, 2014 which confirmed that the worker had resigned his position with his employer over the phone on March 12, 2014.

On September 8, 2014, the worker appealed the adjudicator's decision to Review Office. In his submission he noted that due to his bacterial infection he didn't want to be exposed to additional bacteria which could have caused his injury to become worse, he therefore felt that it was unsafe for him to continue working in a filthy building. The worker wanted to clarify that "I did not resign from my employment and I believe I was dismissed by my employer because of my workplace accident…"

On October 23, 2014, Review Office confirmed that the worker was not entitled to wage loss benefits in relation to his compensable leg injury. Review Office commented that the medical information did not provide evidence from the treating doctors of the need for restrictions or that the worker remain off work. Review Office noted that the first physician specifically notes the "worker is not disabled" on his March 10, 2014 report. Review Office saw no reason why the worker would not have been able to work his regular job while recovering from his left leg injury.

In respect to the worker's assertion that he did not resign from his employment, Review Office pointed to file evidence that it was the employer's understanding that the worker was not resigning his position due to his leg injury but due to other health issues. Review Office noted the worker denied this, however, there was no information on file to suggest otherwise.

Review Office noted that other issues regarding employee/employer and workplace concerns, raised by the worker would not be addressed as they were not related to the accident of March 5, 2014. On November 30, 2015, the worker 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 "… the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends…"

Subsection 39(3) provides where a worker is 61 years of age or older "…the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident."

Worker's position:

The worker was self represented at the hearing with the assistance of an interpreter. It was the worker's evidence that in January 2014 he lived in the building and noted a poster advertising for a caretaker for their building. The prior caretaker had recommended that he apply for the job and he did, being successful and starting January 1, 2014.

The worker submitted that prior to starting the caretaker job, he felt that the building was poorly cleaned, there was excessive clutter in the storage and laundry rooms. Once he was hired as caretaker he felt it was important to have all the clutter removed and believed that some of the bicycles in the rooms did not belong to the tenants. He stated that he put up signs for everyone to pick up their property from the storage area and laundry room by a specific date and after that all unclaimed property would be hauled away.

The worker explained that his duties included being on call 24 hours a day,7 days a week, to respond to tenant inquires or if there was a problem in their apartment. He also assisted tenants when moving in or out, keeping hallways clear and clean. He was paid for this as well as having free rent.

The worker's evidence was that the former caretaker contacted him to report that some of the property in the storage rooms noted on the notice was his, he asked that the worker to hold it until he was able to retrieve his belongings.

He noted the response to the poster was poor as none of the items were removed by his deadline, in particular the laundry room was still full of approximately 45 bicycles and tenants were unable to access the area. He noted that the property management company had cancelled his arrangements to remove the storage and laundry room clutter. He decided on March 5, 2014 that he would begin moving the bikes and cleaning the laundry room himself.

As he was moving the bicycles around, his right leg was wobbly and he stepped with his left leg to protect it and in doing so, his left shin was scratched. The worker showed the area to the panel, noting the scratch was about 2 inches long on the front of his shin bone and there was not much bleeding. His evidence was that he put tape over the bike that scratched him and wrote on it to take the bike away. By March 7 his leg got redness and was spreading up his leg and showing some puss.

The worker stated that on March 10 he went to a walk-in clinic and was diagnosed with infections and given some medication. The bandages needed to be changed every 4 to 5 days for over 2 months. It was much longer before the scar started to heal and not look so ugly.

The worker stated he did not miss any work during this time. During the days following the injury he was being called by the tenants for issues in their apartments including pest control and minor fixing of appliances.

On March 12, 2015 he discussed the issue with his employer [name] who asked him if he was okay as the tenants were calling him that he was not looking after them. His submission was that he told the employer "he would be going back to work as soon as they cleaned it up, he would not work there until it was cleaned up" referring to the laundry room area. He stated that after that, the building manager came and took his log book, his keys and fax machine later in the day, March 12. The worker noted that the former caretaker also returned to the building.

He confirmed that he definitely did not say he was quitting or resigning as the caretaker. He stated he was entitled to wage loss benefits for the work he missed after he was dismissed on March 12, 2014. Also, the worker noted that on April 1, 2014 he was charged $860.00 for March and April rent that his brother had to pay for him. The worker requested the panel accept his appeal and provide wage loss from "the time he was resigned to now."

In response to a question from the panel, the worker noted that even though he would have gone back to work there as soon as it was cleaned up, he is now retired and is not working at all.

Employer's position:

The employer did not participate in the appeal.

Analysis:

This appeal deals with entitlement to wage loss benefits. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity as a result of his compensable workplace injury. For the reasons that follow, the panel was, on a balance of probability, unable to make that finding.

The panel carefully examined the medical reports on the claim file for evidence that the physicians were supporting that he was unable to work due to the risk of infection and/or he was disabled in either the short or long term. The panel notes the type of treatment recommended on the reports was to change the dressings weekly and take his prescription of antibiotics. The panel was unable to find any reference to concern of exposure to infection during his duties as caretaker or an inability to work.

Based on our review of the evidence at the time of the injury and the worker's evidence at the hearing the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits in relation to the workplace accident on March 5, 2014.

The worker expressed concern regarding the termination of his employment. The panel reviewed the worker's evidence at the hearing and file documents in regard to the worker's assertion that he did not quit or resign as the letter from the employer had stated. The panel notes that from the evidence we reviewed it became apparent that there was a communication issue between the parties. The worker's evidence at the hearing was he was very concerned with hygiene issues in keeping his left leg from contacting any source of bacteria. The employer's letter states in part:

You have indicated you sustained an injury which prevents you from continuing as Resident Manager at [address] in Winnipeg for [employer]. You have indicated that you no longer wish to be employed; therefore we accept your wish to resign effective March 12, 2014.

The panel finds no evidence of the worker re-contacting the employer stating that he did not wish to resign at that time as stated in the letter. The panel finds that the alleged resignation stemmed from poor communication between the worker and the property management company - his employer, when he told them he did not want to work in that environment. In any case, the panel finds the worker did not sustain a loss of earning capacity due to the injury.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

P. Walker - Commissioner

Signed at Winnipeg this 12th day of July, 2016