Decision #41/17 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits for April 14 and 15, 2016. A hearing was held on March 13, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits for April 14 and 15, 2016.
Decision
That the worker is entitled to wage loss benefits for April 14 and 15, 2016.
Background
The worker filed a claim with the WCB on May 13, 2016 for an injury to his left knee that occurred at work on April 11, 2016. The worker advised the WCB that he was moving welding torches and slipped on a wet floor. He said the torches "fell towards me and I fell back and my left leg was at a 90 degree angle and the cart tipped and the tray he (sic) my left knee." The worker reported that he sought medical attention on April 14, 2016 and that he reported the incident to a warehouse supervisor on April 12, 2016. He said there were no witnesses to the accident as he works by himself in the evenings.
The Employer's Incident Report confirmed that the worker slipped on a wet floor and fell backwards and the welding torch unit hit him on the left knee. It was noted that an Offer of Modified duties was signed by the workplace parties on April 13, 2016. In further correspondence dated April 18, 2016, the employer's representative advised that the worker was offered modified duties but advised that due to a chest infection he would not attend. The employer indicated that "the lost time is due to the non-compensable illness."
On June 14, 2016, the employer was advised by Compensation Services that based on medical information on file, the worker was entitled to wage loss benefits for April 14 and 15 with a return to light duties on April 18, 2016.
On July 21, 2016, the employer's representative appealed the WCB decision that the worker was entitled to benefits for April 14 and 15. The employer argued that the worker delayed in reporting the accident until the day after it occurred; the worker signed the offer of modified work on April 13, 2016; he took the offer but would not give it back until after a medical appointment; the offer of modified work consisted of clerical duties with sitting and standing as tolerated, and the medical information supported a non-compensable chest infection and did not give restrictions. The employer concluded that the worker's lost time from work was due to a non-compensable illness and the worker's noncooperation in the return to work process.
On October 21, 2016, Review Office determined that there was entitlement to wage loss benefits for April 14 and 15, 2016.
In making its decision, Review Office noted that the worker attended his doctor on April 14, 2016 in relation to the left knee injury and that the physician recommended that the worker take April 14 and 15 off and to commence light duties on April 18, 2016. Review Office determined that it was reasonable for the worker to follow the advice of his doctor and that the worker had a loss of earning capacity for April 14 and 15, 2016. On December 27, 2016, the employer appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's 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 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.
The worker has an accepted claim for an injury arising from a 2016 workplace accident. The employer is appealing the WCB decision to pay wage loss benefits to the worker.
Worker's Position
The worker did not participate in the appeal.
Employer's Position
The employer was represented by an advocate.
The employer representative advised that the employer does not support payment of wage loss to the worker. He submitted that the adjudication process was not done sufficiently.
The representative noted that after the accident, the worker signed an agreement to perform modified duties. He submitted that the worker could have performed the modified duties which were clerical. He also noted that on June 15 the case manager or adjudicator indicated on the file, that the worker would not be entitled to wage loss because clerical duties were offered. He noted the worker's position that he was authorized to rest at home for two days and to participate in modified duties afterwards.
The employer representative suggested that the worker should have discussed the modified
duties and the clerical duties that would have been offered. He suggested that medical documentation indicates that the worker could have handled the clerical duties offered by the employer.
In reply to a question from the panel, the employer representative commented that:
The employer’s point of view is that the worker was not cooperating fully with the return to work process and should have been able to take on the clerical duties because he was …able to work the day he had a knee injury, and he would be given the opportunity to sit down and move about as he required.
The employer representative confirmed that it is the employer's positon that the worker should have returned to work on modified duties.
With regards to information on the file regarding the worker's absence being related to a chest infection, the employer representative advised that the employer agrees that there was an accident at work. He advised that, there was confusion about a chest infection but that it was confirmed that the worker saw the doctor for his knee injury.
Analysis
The employer is appealing the WCB's decision that the worker is entitled to wage loss benefits for April 14 and 15, 2016. For the worker's appeal to be approved, the panel must find that the worker did not sustain a loss of earning capacity on the noted dates as a result of an injury that arose out of and in the course of his employment.
The panel considered the evidence on file and the argument at the hearing and finds, on a balance of probabilities, that the worker was entitled to wage loss benefits for April 14 and 15, 2016.
The panel notes the following sequence of activities on the file:
- April 11, 2016 worker injured left knee at work
- April 12, 2016 worker reported the incident to the employer
- April 13, 2016 worker and employer signed offer of modified duties
- April 14, 2016 worker attended medical appointment
- April 14, 2016 physician examined worker and provides diagnosis of "contusion/soft tissue injury left knee" and provided restrictions "absent
- April 14 and 15, light duties x 1 week starting April 18" April 14 and April 15, 2016 worker missed work based on medical report
The panel notes that on April 13, 2016 the employer gave the worker:
1. Modified duties form which indicated, in part:
Follow your doctor's or other health professional's treatment plan and attend any follow-up appointments that are scheduled or required.
2. Employer's Functional Abilities Form to be completed by the health care professional. The panel notes that the physician completed the Functional Abilities Form and checked the box which indicated "Has the employee discussed our offer of modified duties with you."
The panel finds that the worker followed the instructions from the employer in seeking medical care, providing the Employer's Functional Abilities Form to the physician and following the physicians treatment plan. The panel finds further that the treating physician discussed with the worker his capabilities for work duties and concluded that the worker was restricted from working any duties on April 14 and 15, 2016.
The panel finds that it was reasonable for the worker to follow the treating physician's advice. The panel finds that the worker sustained a loss of earning capacity on April 14 and 15, 2016 as a result of the workplace accident.
The employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of April, 2017