Public Decisions | The Appeal Commission

Decision #11/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after June 8, 2015 in relation to his June 4, 2015 compensable injury. A hearing was held on April 21, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after June 8, 2015.

Decision

That the worker is not entitled to benefits after June 8, 2015.

Background

On June 10, 2015, the worker filed a claim with the WCB for a head injury that occurred on June 4, 2015. The worker reported that he was up on a roof and "guessed" that he lost consciousness. The worker said he attended a hospital facility and was told he was dehydrated. He said he has high blood pressure and they increased his medications. He was given a note to take to his employer saying he was fit to work. The worker further stated:

I took the note to my employer on June 9, 2015 and was told to rtw (return to work) today June 10/15.

I went to work today June 10/14 (sic) and spoke with…supervisor and he told me I know long (sic) have a job there because of the accident that I had last week.

I have worked for the (employer) since April 2013.

On June 11, 2015, the worker spoke with a WCB adjudicator and answered questions related to his prior and recent medical history and the June 4, 2015 accident. The worker indicated that he felt fine prior to the accident. He said he worked from 8:00 a.m. until noon and did not take his coffee break as they were busy working. It was hot working on the roof. The worker indicated that he must have lost consciousness and his foreman woke him up.

In the Employer's Incident Report filed June 16, 2015, the employer stated that the worker lost consciousness while working on a roof on June 4, 2015, and a crew member drove him home. The worker returned to work on June 5, 2015, but was sent home by the supervisor, as the supervisor wanted a doctor's note saying he was fit for work. The worker returned with a doctor's note late in the morning on June 8, but was sent home due to shortage of work. The worker was laid off June 9, 2015 due to shortage of work.

On July 3, 2015, an employer representative advised the WCB that no one else who was working on the roof on June 4 had experienced any issues due to heat or dehydration. She said the worker had been laid off due to a shortage of work, and not due to his illness. The representative confirmed that the worker provided a note confirming he could return to regular duties.

A WCB medical advisor reviewed the file on June 30, 2015 which contained reports from the treating physician dated June 8 and 19, 2015. The medical advisor noted that the diagnosis was syncope, not yet diagnosed. He indicated that high blood pressure represented a pre-existing condition, but its relevance to the episode of syncope was speculative. The proposed effects of hot weather were also speculative.

In a decision dated July 14, 2015, the worker was advised that his claim for compensation was not acceptable as the WCB was unable to establish, based on the evidence, that an injury arose out of his employment. An appeal was submitted on behalf of the worker, and the decision to deny the claim was overturned by Review Office on September 16, 2015. Review Office determined that the worker's fainting and sustaining an injury at work on June 4, 2015 (a bruise to his face) arose out of the nature, conditions and obligations of his employment.

On October 13, 2015, as additional information to the Employer's Incident Report, the employer advised that the worker was hired March 11, 2013 and laid off November 15, 2014, then rehired April 7, 2015 and laid off June 9, 2015. Claim Notes recorded that the employer confirmed that they have over 25 full-time and part-time workers who they employ year around.

In a further decision dated October 14, 2015, the worker was advised that based on the file information, including a consultation with a WCB medical advisor and the reports from his treating physician, the WCB felt he had recovered from the June 4, 2015 incident and was entitled to time loss benefits from June 5 to June 8, 2015 inclusive and final.

On November 13, 2015, the worker appealed the October 14 decision to Review Office. The worker stated: "I was told not to look for a job and to apply for EI. I wanted to work so I asked my doctor to clear me to go back to work. It is unfair that I was terminated. I have been without income since my injury and believe I am entitled to benefits beyond June 8, 2015."

A WCB review officer spoke with the worker on November 23, 2015. The worker indicated that he was told not to return to work and felt it was unfair that his employment was terminated. The review officer indicated to the worker that if he felt he was physically capable of returning to employment, there did not appear to be a reason he could not obtain a new job. The worker stated he would like to return to work but did not feel he was capable due to symptoms he related to the compensable injury, namely difficulty sleeping and the use of sleeping pills.

On November 24, 2015, Review Office determined that the worker was not entitled to benefits beyond June 8, 2015. Review Office found that the evidence supported that the worker was capable of resuming his regular job duties on June 9, 2015. It was not able to account for the worker's difficulties several months after the accident in relation to the compensable injury which Review Office found was a facial contusion or bruise to the face. Review Office also found that the worker's loss of earning capacity was not the result of his injury but due to economic reasons. On November 26, 2015, the worker appealed the decision to the Appeal Commission and a hearing was held on April 21, 2016.

On April 21 and June 9, 2016, the appeal panel met to discuss the case and requested additional information from Compliance Services at the WCB. The requested information was later received and was forwarded to the worker for comment. On December 14, 2016, the panel met further to discuss the case and render a decision.

Reasons

Chairperson Harrison and Commissioner Koslowsky:

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act 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.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

Section 37 of the Act provides that compensation is payable where a worker sustains a loss of earning capacity or an impairment or requires medical aid as a result of an accident.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that he did not agree with the Review Office decision. He said that he started working for the employer in the spring of 2013 and continued working there through to November 2014, when he returned to his home country for a family emergency. He had told his supervisor why he had to go back. His supervisor had said he should go, as long as he came back, and the worker had said he would be coming back in January. He returned to Canada on January 22, 2015. When he went back to the employer, he was told to wait 3 weeks, and was given a layoff notice so he could apply for EI. After being denied EI, he started back to work right away, on April 7, 2015, and continued working for the employer until June 4, 2015.

The worker said that he returned to work on Friday, June 5, the day after the workplace accident, and the supervisor told him to go home and come back on Monday with a doctor's note. He came back on Monday, June 8, with a doctor's note and gave it to his supervisor, who told him to come back again on Tuesday. When he returned on Tuesday, he noticed that there was somebody else working on the crew. The supervisor sent him home again, saying that he had not yet talked to the safety officer as to whether he was able to work. He told him to come back on Wednesday. On Wednesday, June 10, the other worker was there again, and once everyone had left for the job site, the supervisor called the worker into the office and told him he was no longer working for the employer. He asked the supervisor why, whether it was because of the accident, and the supervisor said yes, that it was too risky because this type of incident had happened twice already.

The worker did not believe that anyone else was laid off at the same time. Rather, the worker's evidence was that the worker who was there on June 9 was hired to his crew. Two other members of the crew had been hired in May 2015 when they were starting this project. A fourth person was hired after the worker had left. He worked on a crew of four. They were working on a commercial project involving a really big roof, and had only just started working on it two weeks earlier. The project had to be done within four to six months, and was eventually completed.

The worker said he had not had problems with his symptoms since the accident. He said that he would have gone back to do that job or another roofing job for the employer.

Employer's Position

The employer did not participate in the appeal. The employer had originally indicated that they intended to attend and participate in the hearing. The hearing was scheduled to commence at 9:00 a.m., and no one having appeared for the employer by 9:15 a.m., the employer representative was contacted to determine their intentions. Following consultation with her manager, the employer representative called back and advised that they were unable to attend and the hearing should proceed without employer representation.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after June 8, 2015. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and/or entitlement to medical aid benefits after June 8, 2015 as a result of his June 4, 2015 workplace injury. For the reasons that follow, we are unable to make that finding.

Information on file and at the hearing indicates that the worker had recovered from the effects of the injury and was able to return to work by June 8, 2015. There is no dispute that the worker provided a doctor's note on June 8 confirming that he could return to regular duties. The worker has not suggested that he could not do so. There was no indication that any restrictions or modified duties were required. The worker attended at the workplace with the intention of returning to work on that date.

A chart note dated June 8, 2015 and a report from the treating physician dated June 19, 2015 confirmed that the physician examined the worker on June 8, 2015 and determined that he was able to go back and resume work at that time.

A WCB medical advisor reviewed the file and opined, on June 30, 2015, that if the injury was due to a combination of medication and environmental effects causing relative dehydration, "return to regular duties would have been appropriate within 24-48 hours when adequately rehydrated."

Based on our review of all of the evidence before us, we find, on a balance of probabilities, that the worker had recovered from the effects of the injury and was able to return to his regular duties on June 8, 2015.

At the hearing, the worker argued, however, that his employment was terminated because of his injury.

Section 49.3 of the Act imposes an obligation upon employers to offer re-employment to qualifying workers who have been unable to work as a result of a workplace accident.

Subsection 49.3(5) provides that when a worker is medically able to perform the essential duties of the worker's pre-accident employment, the employer must offer to re-employ the worker in the position the worker held on the day of the accident or offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the day of the accident.

Information on file indicated that WCB Compliance Services had met with the employer and gathered information with respect to why the worker had not returned to work. Following the hearing, the panel requested information from Compliance Services with respect to their investigation into this matter.

The additional information which was provided in response to our requests included a letter to the employer dated September 7, 2016, advising that Compliance Services had determined that the re-employment obligation did not apply as the worker was not employed with the employer for at least twelve continuous months prior to the date of the workplace accident. The letter also indicated that an investigation into an allegation of discriminatory action remained ongoing.

In a further letter dated November 21, 2016, Compliance Services advised the worker that it had completed its investigation into his concerns that the employer had committed a discriminatory action contrary to subsection 19.1(2) of the Act when it terminated his employment.

Compliance Services found that the employer violated subsection 19.1(2) and were applying an administrative penalty as a result. The findings of their investigation were summarized as follows:

[The employer] terminated a worker's employment within a week of the worker reporting a workplace injury. The employer initially claimed the worker was laid-off due to shortage of work but later claimed that the worker's employment was terminated due to performance issues. Since the employer did not provide evidence to support these claims, it was determined that the employer had terminated the worker because the worker had reported a workplace injury.

It was further noted that the administrative penalty was applied to prevention activities and the outcome of the investigation did not provide the worker with any financial compensation or specific remedy under the Act.

We would note that the issue which was before us on this appeal was whether the worker was entitled to benefits after June 8, 2015 as a result of the worker's workplace accident or symptoms related to his compensable injury.

In considering that issue, we were satisfied that there was nothing new in the information received from Compliance Services to indicate that the worker's injury or symptoms were continuing beyond June 8, 2015. As previously stated, we therefore found that the worker's symptoms had resolved and he was able to return to work by that date.

In conclusion, based on the foregoing and on a balance of probabilities, we find that the worker had recovered from his June 4, 2015 workplace accident and did not sustain a loss of earning capacity or require medical aid benefits beyond June 8, 2015 as a result of his workplace injury.

We therefore find that the worker is not entitled to benefits after June 8, 2015.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Koslowsky, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of January, 2017

Commissioner's Dissent

Commissioner Walker's Dissent:

The issue before the panel is whether or not the worker is entitled to benefits after June 8, 2015. For the reasons that follow, I find the worker suffered a loss of earning capacity and is entitled to wage loss benefits after June 8, 2015 as a result of his June 4, 2015 workplace injury.

Worker's Position:

The worker's position was that following his injury, he sought medical assistance and attempted to return to work (RTW) in the following days but his employer delayed his start and eventually dismissed him from employment. The worker has argued that his employment was terminated because of his injury and provided evidence at the hearing of his discussions with his supervisor when he attempted his return to work.

The worker's evidence was that he returned to work on Friday June 5, 2015 the day after the accident, and the supervisor told him to come back on Monday with a doctor's note. He returned on Monday June 8, with a doctor's note and gave it to his supervisor, who told him to come back again on Tuesday. When he returned on Tuesday June 9, the supervisor sent him home again, saying he had not yet talked to the safety officer as to whether he was able to work. He told him to come back on Wednesday June 10, 2015, which he did and he noticed that there was a new person working on the crew. Once everyone had left for the job site, the supervisor called him into the office and told him he was no longer working for the employer. "I asked the supervisor why, whether it was because of the accident, and the supervisor said yes, that it was too risky because this had happened twice already."

The worker stated that no one else was laid off at the same time as he was. The worker's evidence was that he worked on a crew of four and a different worker who was there on June 9 was hired to his crew. They had only just started working on a commercial project two weeks earlier that involved a very large roof. The project had to be completed within four to six months. Two other members of the crew had been hired in May 2015 when they were starting this project. A fourth person was hired after the worker had been terminated. The worker said that he would have gone back to that project or another roofing job for the employer.

Employer's position:

The employer's intent was to attend and participate in the hearing. The hearing was to commence at 9:00 a.m. however, no one had appeared on behalf of the employer. At 9:15 a.m. the employer representative was contacted to determine their intentions. Following consultation with her manager, the employer representative advised they were unable to attend and the hearing should proceed without employer representation.

In the Employer's Incident Report filed June 16, 2015, the employer stated that the worker lost consciousness while working on a roof on June 4, 2015, and a crew member drove him home. The worker returned to work on June 5, 2015, but was sent home by the supervisor, as he wanted a doctor's note saying he was fit for work. The worker returned with a doctor's note late in the morning on June 8, but was sent home due to shortage of work. The worker was laid off June 9, 2015 due to shortage of work.

Analysis:

The Workers Compensation Act (the Act) is remedial legislation and courts have found that it must be given the fair, large and liberal interpretation that best ensures the attainment of its objects. Findings are made 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.

Subsection 49.3(1) of the Act imposes an obligation upon employers to offer to re-employ workers who have been unable to work as a result of an accident and who, on the day of the accident, have been employed by the employer for at least 12 continuous months on a full-time or regular part-time basis.

Subsection 49.3(2) provides that section 49.3 does not apply to, among other things, an employer who employs fewer than 25 full-time or regular part-time workers, as determined by the WCB.

Under subsection 49.3(9), an employer may refuse to continue to employ or lay-off a worker if the employer satisfies the WCB that the decision to do so was made for a business reason in good faith and was not affected by the worker having been unable to work as a result of the accident.

The worker's evidence at the hearing was that he started working for the employer in the spring of 2013 and continued working there through to November 2014, when he returned to his home country for a family emergency. He had told his supervisor why he had to go back. His supervisor had said he should go, as long as he came back, and the worker had said he would be coming back in January. He returned to Canada on January 22, 2015 when his father passed away. When he went back to the employer, he was told to wait 3 weeks, and was given a layoff notice so he could apply for EI. After being denied EI, he started back to work right away, on April 7, 2015, and continued working for the employer until June 4, 2015.

Subsection 49.3(1) provides that the obligation to re-employ applies where a worker has been employed by the employer for at least 12 continuous months on a full-time or regular part-time basis.

"Continuous Employment" is defined in the Policy as follows:

Workers who are hired one year or more before the date of accident are considered to be continuously employed, unless the year was interrupted by a work cessation intended by the worker or the employer to sever the employment relationship. Thus, continuous employment may include seasonal workers subject to lay-offs not intended by the worker or employer to sever the employment relationship.

The evidence discloses that apart from the period of time between November 2014 and April 2015, when the worker was away for a family emergency and bereavement, the worker worked full time for the employer from the spring of 2013 through to June 4, 2015. While the evidence discloses that the worker's absence from work was treated at least at one point as a lay-off, it also indicates that this was not intended by the worker or the employer to sever the employment relationship. Based on the evidence and on the balance of probabilities, I am satisfied that the worker's absence between November 2014 and April 2015 was condoned by the employer, that there was no intention to sever the employment relationship and that on the day of the accident, the worker had been employed by the employer for at least 12 continuous months as contemplated under subsection 49.3(1) of the Act.

The file evidence shows the employer confirmed that they employ 25 or more workers, as contemplated under subsection 49.3(2) of the Act.

Based on the evidence, I find on a balance of probabilities, that the requirements of subsections 49.3(1) and (2) have been met.

The first issue of my analysis is to determine if the worker had been laid off for shortage of work or was terminated as a result of his injury.

I have given careful consideration to the file's contemporaneous evidence as reported to the WCB adjudicators shortly after his injury. In his Incident Report filed on June 10, 2015 when filing his WCB claim the worker noted that "I took the note to my employer on June 9, 2015 and was told to rtw today June 10/15. I went to work today June 10/14 (sic) and spoke with [Name] supervisor and he told me I know long (sic) have a job there because of the accident that I had last week." At the hearing, the worker confirmed that the supervisor had said that it was because of the accident and it being so risky, given that this was the second incident.

When the employer filed their report, they stated that they had laid the worker off due to shortage of work. This was accepted by the adjudicators and Review Office in their decisions but was then subject to an investigation by Compliance Services of the WCB. On November 21, 2016 Compliance Services completed their investigation and issued a findings letter to the worker which stated:

This investigation has found that your accident employer violated the following section of the Act, and as a result, is applying the following administrative sanction:

Section 19.1(2) No discriminatory Action. [Employer] terminated a worker's employment within a week of the worker reporting a workplace injury. The employer initially claimed the worker was laid-off due to shortage of work but later claimed that the worker's employment was terminated due to performance issues. Since the employer did not provide evidence to support either of these claims, it was determined that the employer had terminated the worker because the worker had reported a workplace injury.

Administrative Penalty - [Amount].

I accept and agree with this finding as it is supported by the file evidence that:

• On June 30, 2015 a memo to file documented a discussion with the WCB adjudicator noting that the worker stated that there was a lot of work yet to be done on the roofing project he had been working on.

• The worker's evidence at the hearing was that the four-man crew he was on had only been working on that project for two weeks when he was injured, and that this was a large project which was going to take four to six months to complete.

• When the worker attended work on June 9, he noted that another person had been hired to work on the crew.

• Two of the other crew members had been hired after him in May, to work on the project.

• A fourth person was hired by the employer after the worker had been terminated.

Based on the evidence, I find that the worker's injury was a factor in the employer's decision to lay him off on June 9 or 10, 2015. There is no evidence on file to contradict what the supervisor had reportedly said. While the employer reported that the worker was laid off due to shortage of work, there is no reference to any details having been provided to support this statement.

The second issue to be considered is in regard to the worker's fitness to resume regular duties and return to work.

On the June 10, 2015 worker's initial report filed with the WCB for a head injury that occurred on June 4, 2015, the worker reported that he was up on a roof and "guessed" that he lost consciousness. The worker said he attended a hospital facility and was told he was dehydrated. He said he has high blood pressure and they increased his medications. "I was told if I felt I could rtw I could. I was given a note to take to my employer saying I was fit to work."

I note the restriction that the supervisor placed on the worker when the worker first attempted to work on Friday, June 5, 2015, by requesting he provide a note from his doctor that he was able to work.

The worker provided a doctor's note on June 8, 2015 confirming that he could attempt a return to regular duties. The worker attended the workplace with the intention of attempting a return to work on that date.

A letter from the treating physician dated June 19, 2015, confirmed that he saw the worker on June 8, 2015 stating:

[Worker] was in today as he had gotten lightheaded while working doing roofing… because he works extremely hard and is out often in hot weather, his blood pressures do tend to drop, so we have taken the diuretic out of his medications and suggested he even try half an [medication] or 8mg for a few days if he is lightheaded.

Based on the evidence, I find that the worker had sufficiently recovered from the effects of his injury after his physician adjusted his medications and provided alternate medication to treat high blood pressure (hypertension) should he suffer a recurrence, and was able to attempt a return to work on Monday June 8, 2015.

It has been my experience that it is common for employers to require medical clearance after a worker suffers a compensable injury. During attempts to return to work, that include provisions for reduced work hours or restrictions on activities, physicians will provide notes for workers to attempt a return but caution them should they suffer recurrence of symptoms. Once a worker has successfully returned to work at full duties they can then be considered "fully recovered" from the compensable injury. (Emphasis mine). I find that as the worker had not shown a functional ability to resume his former position, he was not fully recovered from his compensable injury.

I further find that the employer failed to provide an opportunity for the worker to attempt a return to his job or to alternate work as required under subsection 49.3(5) of the obligation to re-employ workers when medically able to perform the essential duties of the worker's pre-accident employment.

Based on the evidence in totality I find, on a balance of probabilities, that the employer's decision to lay-off or refuse to continue to employ the worker was attributed to the worker being unable to work as a result of the June 4, 2015 accident. I also find, on a balance of probabilities, that the employer's imposition of work restrictions and dismissal related to the worker's hypertension, did cause a loss of earning capacity as a direct consequence of his compensable injury.

Based on my analysis, I find therefore that the worker is entitled to wage loss benefits after June 8, 2015 and would allow the worker's appeal.

P. Walker, Commissioner

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