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 is entitled to wage loss benefits for March 3, 2017. A hearing was held on December 13, 2017 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for March 3, 2017.

Decision

The worker is entitled to wage loss benefits for March 3, 2017.

Background

The worker twisted his left ankle while at work on March 2, 2017, stepping off a ladder, while working the night shift. He notified his employer at the time the incident occurred. He remained at work until the end of his shift that evening then went home.

At his doctor's appointment the following day, March 3, 2017, the worker was diagnosed with a left ankle sprain. The doctor's report noted that the worker was capable of modified duties and could return to his regular duties on March 10, 2017. The doctor also completed a Health Assessment Form ("HAF") that set out specifics of the modified duties that could be performed by the worker and indicated that these restrictions were applied from March 4, 2017 to March 11, 2017.

On March 6, 2017, the worker returned to the doctor who re-examined the worker and stated that the worker could return to his regular duties.

The employer advised that they called the worker on March 3, 2017 at 9:30 am and left a voicemail message asking him to have the HAF completed and returned and offering the following:

• Sedentary 5S duties 

• Taxi cab slips to transport employee to and from work. 

• Red scooter to commute around the plant

The employer further advised that the worker returned the HAF and acknowledged on March 6, 2017 that he received their voicemail message with the offer of modified duties.

During his initial discussion with the WCB on March 13, 2017, the worker advised that he went home after his shift on March 2, 2017, rather than going to the emergency room as advised by his employer, as his infant daughter was sick and he didn't want to "…wait for 6 hours at emergency room." He attended at his doctor's office for an appointment at 1:00 pm on March 3, 2017 where he was diagnosed with a left ankle sprain and his doctor completed the HAF. The worker further acknowledged that he received a phone call from the employer but did not answer as his phone was on silent. He did return the call but not until 4:00 or 5:00 pm and there was no one in the office when he called. The worker did leave a voicemail message for his supervisor, who was on vacation and he could not speak to him.

On March 13, 2017, the WCB advised the worker that his wage loss benefits had been denied for March 3, 2017 as he did not mitigate the effects of his injury and had not participated in the return to work process with modified duties as set out by his employer. The worker requested reconsideration of the decision by the Review Office on March 25, 2017.

In its decision of May 19, 2017, Review Office determined that the worker was entitled to wage loss benefits for March 3, 2017. Review Office found that it was reasonable that the worker did not go to the emergency room after his shift on March 2, 2017 as his injury did not require that level of attention. Review Office also found the worker's injury was still painful on March 3, 2017 and that the worker may have required additional rest on that day. Review Office also placed "significant weight" on the HAF provided to the employer by the worker's doctor that indicated the modified duties and restrictions applied from "04/3/2017 to 11/3/2017" clearly showing the date of the modified duties starting on March 4, 2017.

On May 24, 2017, the employer filed an appeal with the Appeal Commission. An oral hearing was held December 13, 2017.

Reasons

Applicable Legislation and Policy

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 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.

Section 22 of the Act provides that the worker must take reasonable steps to reduce or eliminate any impairment or loss of earnings. It provides that the WCB may reduce or suspend compensation payable to the worker.

This is an employer appeal. The worker has an accepted claim for an injury at work and has received wage loss benefits for his one day absence from the workplace. The employer has appealed the WCB decision to pay the worker wage loss benefits.

Employer's Position

The employer was represented by its People Services Specialist. She made a submission on behalf of the employer and answered questions from the panel.

The employer representative submitted that the worker's claim for wage loss should not have been approved by the Review Office. She outlined four reasons in support of the employer's appeal.

She indicated that the first reason that wage loss benefits should not be paid is because the employer had offered the worker reasonable modified duties. She noted that on March 2, the day of the accident, a HAF, which is a functional ability form, was provided to the worker by his supervisor. He was to take the form to a healthcare provider for completion. She advised that on March 3 she called the worker and left a message on his phone offering sedentary "5S" duties, taxicab slips to transport him to and from work and the use of a scooter to commute around the worksite.

The employer's representative advised that the worker did not return the March 3 phone message, and did not speak to her. When the worker returned to work on Monday March 6, he acknowledged receiving the phone message.

She submitted that section 22 of the Act is applicable in that the worker failed to mitigate the consequence of his compensable injury. She said that:

Based on a balance of probabilities, we argue that the employee was capable of performing the proposed modified duties on March 3rd, and that these duties would not have aggravated or enhanced the employee's injury.

The employer representative noted that the worker reported to the WCB adjudicator, that he was unable to bring the HAF back on March 3 because he could not drive; however he later confirmed that he drove himself to and from work on the day of the accident, March 2, and he drove himself to and from the doctor's office on March 3. This contradicted his position that he could not drive.

The employer representative advised that the worker did not return the employer's phone call on March 3. When he returned to work on March 6, he acknowledged receiving the employer's voice mail message offering modified duties on March 3.

The employer representative submitted that the worker was capable of performing the proposed modified duties on March 3, and that these duties would not have aggravated or enhanced the worker's injury.

The employer representative's second point was that the offer of modified duties on March 3 was consistent with information provided by the WCB. She advised that the worker's notice of injury stated that he sustained a left ankle injury. She said that the offer of modified duties provided on March 3rd was aligned with the guidelines for modified work provided in the WCB return to work basics booklet for an ankle injury.

The employer representative's third point to consider was that the worker did not participate in the employer's return to work program and mitigate his time loss, as required by Section 22 of the Act.

Again we offered modified duties to the employee at 9:30 a.m. on March 3rd. On March 6th, HR left a voice mail message offering the same modified duties. The employee called HR back, advised that he couldn't come to work because he was too sore on March 3rd. He stated that he saw his family doctor on March 3rd at 1:00 p.m. and the doctor completed the health assessment form at that time.

She noted that the worker had been told by his supervisor to get a health assessment form completed and returned to HR by the start of his next shift, which was on March 3 at 3:30. She also noted that he stated in his Review Office appeal letter, dated March 25, 2017, that had he had the chance to speak to the employer's HR office, he would have still declined the offer of modified duties.

The employer representative noted that the worker had a prior workplace injury where he was accommodated in modified duties. She said this demonstrates that he is familiar with the employer's return to work processes and procedures.

The fourth point was that the worker's injury was not a significant or a traumatic injury. She said this is evidenced by the fact that the worker delayed receiving medical attention for the injury. The file information confirms that the employer suggested that the employee go to an emergency unit after his shift, and the employee declined.

The employer representative submitted that:

1. There were non-compensable, non-WCB related issues in play on the date of injury. She noted that in the worker incident report, the worker stated that he did not seek immediate medical attention on March 2 because his daughter was sick. She noted that the worker told the WCB adjudicator that his wife was with his daughter and he didn't want to wait six hours in an emergency room. The employer representative submitted that there was no sense of urgency for the employee to receive immediate medical attention for his workplace injury.

2. The employee returned to regular duties on Monday, March 6 and there was no medical requirement for restrictions, nor were there any concerns or issues raised performing his regular duties.

3. The employee reported to the adjudicator that he was unable to bring the HAF back to work on March 3 because he could not work, but drove himself home after the accident and drove himself to and from the doctor's office on March 3.

Regarding the worker's failure to attend at work on March 3, the employer representative noted that the worker saw the physician at 1:00 pm and would have sufficient time to attend the worksite and hand in the HAF. She said that the worker should have returned her call and should have brought the HAF to the workplace on March 3.

The employer representative indicated that the employer would have been able to accommodate the worker with the restrictions noted by the physician on the evening shift. She advised:

As a worse case scenario, we could have even put him potentially in bench assembly, which is a completely different department. We could have had him doing work there, which is sedentary in nature as well. So we had other alternatives we absolutely could have offered as well, if there was any dispute or any concern with respect to the 5S duties that we had available that evening.

She indicated further:

It's not that we have this one thing for you and that's it. That's never the case. We're a very large employer. We can look at many different opportunities, especially when it comes to sedentary. We could have done sedentary 5S and, as a last resort, we could have done bench assembly, which is a completely different department and it's sedentary work in nature.

In reply to a question about following the physician's medical note, the employer representative advised:

Yes, if we absolutely feel that we can offer modified duties to the employee, it's absolutely in his right to accept or decline them. However, our case manager has advised us to inform the employee in the event that they decline that they might not be entitled to wage loss benefits, because the Board takes into account not only the medical, but also the modified duties that were offered and whether or not those would have been deemed to have been reasonable and fit what would be for, in this case, an ankle injury.

Worker's Position

The worker was self- represented. He read a letter that he had provided to the Review Office and answered questions from the panel.

The worker submitted that:

I would like to say, ask the Commission of Appeal to uphold the decision for me to be granted employee's benefits by the WCB, for the reason being that I refuse to believe that I made the barrier for myself to prevent myself from working on the March, on March 3rd, after the day of my accident 

The worker advised that:

• it was not until about 4:00 pm March 3 that he listened to the voice mail left by the employer representative offering him accommodations to work evening. 

• the worker's physician gave him a week off work, but he went in on Monday March 6 because he is the sole income earner. 

• the HAF provided that the worker could walk and stand only for 30 minutes. 

• the worker understood that 30 minutes per eight-hour shift includes everything and that if he had attended on March 3, he would surpass the time allowed by his physician. 

• he works evenings and there is no office work on the evening shift as was suggested by the employer; he does not feel he could sweep floors without getting off the scooter. 

• returning to work early would not help with a fast recovery. 

• he feared that he might aggravate his injury if he pushed himself to work. 

• he was instructed by his supervisor (cell leader on duty when he was injured) to go to the nearest emergency ward to get checked. 

• he refused because his infant daughter was sick and he needed to get home rather than spend hours in emergency, at the end of his evening shift. 

• his supervisor also instructed him to phone the plant superintendent, the following day, if he was not coming into work. 

• he was also instructed to report his absence to the supervisor in his department but the supervisor was on vacation. 

• he phoned the plant superintendent and left a message that he would not be coming in on that day. 

• he did what he was instructed to do.

In answer to questions from the panel, the worker advised:

• that he had experience in attending at the emergency unit and that the nature of his injury was not life threatening. He also advised that he needed to get home at the end of his shift to assist his wife with his infant daughter who was ill. 

• on March 3 in the morning, he made an appointment with the medical clinic and attended an appointment at 1:00 pm. 

• He checked his messages at 4:00 pm, heard the message from the employer representative, and left a message on the plant superintendent's phone.

In reply to a question about the medical treatment, the worker advised that the physician applied a pain reliever and gave him a prescription for an ankle tensor bandage. The worker advised that he did not think he could perform his duties on March 3.

Analysis

The question before the panel in this appeal is whether the worker is entitled to wage loss benefits for March 3, 2017.

In addressing this appeal, the panel considered whether it was reasonable in the circumstances of this claim for the worker to decline to attend work on March 3, 2017, the day following his workplace accident. After considering all the evidence, the position of the employer and the worker, the panel finds that in the circumstance of this claim, it was reasonable for the worker to decline to return to work on March 3, 2017.

The panel accepts that the employer has a well-defined return to work program and attaches significant importance to returning workers to meaningful employment subsequent to a workplace injury. The panel also accepts that the worker is, at least in general terms, familiar with the employer's return to work program.

As noted above, the worker attended a physician on March 3, 2017 who completed a HAF which indicated, in part:

On the basis of my examination dated 3/3/2017, this patient may: Return to work with modified duties based on the limitations listed below: Restrictions are to apply from: 04/3/2017 to 11/3/2017 Will be reassessed at (next scheduled appointment date): 10/3/2017 Estimated date of return to regular duties: about a week

In arriving at our decision, the panel attaches weight to the following facts:

• the worker was working a 3:30 pm to 12:00 pm shift on Thursday March 2, 2017. 

• the worker sustained an injury at approximately 10:30 pm on Thursday March 2, 2017. 

• the worker's next scheduled shift was 3:30 pm on Friday March 3, 2017. 

• the worker attended a medical clinic at approximately 1:00 pm on Friday March 3, 2017. 

• the worker left a message at the phone number (that his supervisor advised him to call) at approximately 4:00 pm on March 3, 2017, indicating that he would not be attending work on March 3. 

• the worker attended the physician on March 6, 2017 and obtained clearance to return to his regular duties. 

• the worker attended work on March 6, 2017 and performed his regular duties.

The panel notes there was a very tight timeframe between the injury, the receipt of medical advice/treatment and the worker's March 3, 2017 shift. The panel finds that the worker attended a physician within a reasonable period of time from when the injury occurred, approximately 15 hours after the injury. The physician recommended that the worker take the day off (Friday, March 3rd) and return to work the following day (March 4th) on modified duties. However, the worker was not scheduled to work on March 4 or 5. The panel finds that it was reasonable for the worker to follow the advice of the physician and to take the day off. Subsequently, on March 6, 2017, the worker attended the physician to obtain clearance to return to work on regular duties.

At the hearing the employer submitted that the worker's actions contravened subsection 22(1) of the Act. The panel does not agree with this assessment. The panel finds that the evidence demonstrates that the worker took reasonable steps to reduce or eliminate his impairment and loss of earnings from his injury. He obtained medical attention promptly and returned to work on the first date authorized by his physician.

Given the above information, the panel finds that the worker's actions were reasonable in the circumstances of this case. The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of February, 2018