Decision #49/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits in relation to his April 3, 2017 accident. A hearing was held on February 21, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits in relation to his April 3, 2017 accident.
The worker is entitled to wage loss benefits from April 24, 2017 to August 18, 2017 in relation to his April 3, 2017 accident.
The worker filed a Worker Incident Report with the WCB on April 4, 2017, indicating that on April 2, 2017, he hurt his right thumb and low back as follows:
I exited my truck with a couple of boxes in hand, stepped in a hole and fell on my back. Tried to brace myself with my hands injuring my right thumb.
The worker attended a medical clinic on April 3, 2017, where it was noted that he:
…complains of pain to right thumb with any motion, had previous surgery to that thumb years ago, complains of pain to right lower back with movement very aggravated by rough roads.
The attending physician diagnosed the worker with "right low back strain/contusion, right thumb sprain" and indicated that the worker was capable of alternate or modified work, with the following restrictions:
Limit weight bearing on left hand to minimal for 14 days, avoid sitting greater than 30 min for 7 days than can increase to 1 hr for 7 days then as tolerated, avoid rough roads for 7 days.
The results of an x-ray of the worker's right thumb on April 5, 2017 indicated that no acute fracture or dislocation was identified.
On April 25, 2017, the WCB advised the worker that his claim had been accepted for a lower back and right thumb injury sustained at work, but no wage loss benefits had been issued. The WCB noted that the worker had ended his full-time employment with the employer effective April 6, 2017, and that modified duties would have been available for him had he elected not to quit. As he had elected to end his full-time employment with the employer, there was no loss of earning capacity and no entitlement to wage loss benefits.
On May 3, 2017, the worker advised the WCB that he had started a new job on April 24, 2017. On his first day of work, however, his new boss saw he was in pain, and advised that he would hold the job for him for when he was fit to work.
On May 3, 2017, the worker also attended a doctor's appointment, where the doctor noted "R (right) thoracic paraspinal tenderness + tense muscle" and recommended modified duties for the worker including no climbing or sitting and limited "Bending, driving (0.30 hrs), Kneeling/squatting, Pushing/Pulling, Standing (0.15 hrs), Twisting, Walking (0.15 hrs)." The doctor further stated that the worker:
…needs to stay home from today May 03 till May 13; after that will do another assessment for modified duties when goes back to work.
On May 16, 2017, the WCB advised the worker that it would accept ongoing responsibility for his medical treatment, but not wage loss benefits. On May 18, 2017, physiotherapy treatments were authorized.
On May 25, 2017, the worker requested that the WCB reconsider its decision to disallow wage loss benefits. The worker advised that he had not been offered modified duties by his employer or performed such duties after his workplace accident, he had felt pressured by his employer to provide them with his resignation letter effective April 6, 2017, and the method of transportation which the employer provided him with for returning home went against the restrictions recommended by his doctor. On June 7, 2017, the WCB advised the worker that its April 25, 2017 decision remained unchanged.
On June 21, 2017, the worker requested reconsideration of the WCB's April 25 and June 7, 2017 decisions by Review Office. On August 8, 2017, the worker provided Review Office with further information. On August 17, 2017, Review Office determined that there was no entitlement to wage loss benefits. Review Office found that the circumstances which led to the worker providing his employer with a written resignation and the method the employer chose to transport the worker home when his employment ended were labour relations issues between the worker and his employer which did not impact the entitlement to wage loss benefits.
Review Office found that there was no loss of earning capacity prior to the worker ceasing employment. Review Office determined that the evidence did not support that the employer was unable to provide modified or light duties, and the described duties were within the worker's outlined restrictions.
Review Office noted that the worker had stated he would have left his employment regardless of getting injured as he had plans for other work, and found it was the worker's intention to end his employment with the employer whether he sustained an injury or not. Review Office was therefore unable to account for the worker's loss of earning capacity in relation to the compensable injury, and found that there was no entitlement to wage loss benefits.
On August 30, 2017, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
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.
Under subsection 4(2), 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 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.
The worker was self-represented. The worker made a presentation at the hearing and responded to questions from the panel.
The worker's position was that he was injured at work, and was entitled to wage loss benefits for the time he lost from work as a result of his injury.
The worker stated that he was never offered modified duties by the employer after he was injured, and never performed any such duties for them. The job he was working on was ending that week, and everyone was going to be off work on April 4. His job was extended for a couple of days and he was paid to April 6, 2017, following which he returned to his home province to start another job on April 24, 2017. The worker said that he was pressured into providing a letter of resignation, and pointed out that he expressly indicated in that letter that he was resigning effective April 6, 2017, and that he had advised his manager that he would be leaving around the end of his rotation to start another job at the end of the month.
The worker's evidence at the hearing was that he was hired by the employer in or around February 2017 to do some seasonal work, and was told from the beginning that he was only going to be there for a couple of months, until late March or early April. While he was working for the employer, he had arranged a job with a different employer which was to start at the end of April. This would give him a three or four week break between the two jobs, during which he did not anticipate working.
The worker said that he started the new job on April 24, 2017, as planned, but when he was filling out the paperwork on the first day, his new boss came up to him and asked what was wrong with his back. When he told his boss about his back, his boss said that he needed to get cleared by his doctor or do whatever else was necessary, but that he could not come back to work injured. His boss said to take care of himself and then come back, but he was never able to go back.
The worker said that he saw a doctor every couple of weeks from April to September 2017, who would assess him and keep pushing back his return to work another two weeks. He also saw a physiotherapist for treatment throughout that same period of time, with his last attendance at physiotherapy being August 18 or 28, 2017. The worker said that by September 2017, when he was discharged from physiotherapy, his condition had perhaps not resolved, but he was "good to go" and "able to work for sure."
The employer was represented by its HSE Manager, who participated in the appeal by teleconference.
The employer's representative stated that there was no question that the worker was hurt at work. She indicated that she had asked for a resignation letter from the worker at that time because the project he was working on was ending for the season. Workers were leaving, and the employer required documentation as to whether a worker was leaving by choice or was being laid off.
With respect to a modified duty or return to work program, the employer's representative stated that she had heard that the worker was injured and was seeing a doctor. She said that before writing a letter offering modified duties, she needed x-rays which would enable her to properly outline the restrictions and limitations as well as estimated timelines. As x-rays had not been done, she had not written such a letter. When the worker returned from the doctor, she spoke to him and his manager by telephone at which time he was saying that he just wanted to go home. The representative indicated that during their telephone conversation, she had indicated that modified duties would be available, but that as she was explaining the types of duties which would be offered once the x-rays were completed, the worker kept cutting her off and saying he just wanted to go home.
In response to questions from the panel, the employer's representative agreed that the employer had applied in mid-March 2017 for further work in another location. The employer was subsequently successful, but this was not confirmed until after the worker had left and he could not have been offered work under that contract prior to its being confirmed. The employer's representative indicated that some employees from the earlier project subsequently went to work for the employer at another location under a new contract, but the employer did not and could not offer jobs to those workers until after the end of June 2017.
The issue before the panel is whether or not the worker is entitled to wage loss benefits in relation to his April 3, 2017 accident. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity as a result of his April 3, 2017 workplace accident. The panel is able to make that finding.
Based on our review of the evidence, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and is entitled to wage loss benefits from April 24 to August 18, 2017 as a result of his workplace accident, for the reasons that follow.
The evidence shows that the worker was hired by the employer on a seasonal basis for a contract which was intended to end after approximately two months. The evidence indicates that the worker is a skilled worker, who goes from contract to contract, managing his life and income proactively. While working at one job, he will be looking ahead for the next opportunity. In this case, where the contract was to come to an end at the end of March or the beginning of April 2017, the worker had arranged to work at another job for a different employer starting at the end of April, which would have given him a three to four week break between jobs.
The worker's job was to end on April 4, 2017, which was just after he had been injured. The worker acknowledged at the hearing that he was paid by the employer for an extra two days, up to and including April 6, 2017.
The panel notes that while it has been argued that the worker was offered modified duties by the employer after he was injured, the employer's evidence at the hearing was that she had attempted to indicate to the worker what modified duties might be available, but was not able to provide a written offer of modified duties until she received medical information which would enable her to outline what those duties might be.
Based on the foregoing, the panel finds that the worker is not entitled to wage loss benefits from April 7 to April 23, 2017. The worker left the workplace and returned to his home province on or about April 6, 2017, as previously anticipated. His evidence at the hearing was that he did "a whole lot of nothing" from April 7 to April 23. The evidence shows that the period of April 7 to 23 was a planned period of no employment between jobs. The worker therefore did not suffer a loss of earning capacity during this period of time.
On April 24, 2017, the worker attended at his new job, but was sent home because he was not fit to work due to his back injury. The panel finds that this was the first date on which the worker was unable to work as a result of his back injury and therefore the first date on which he started to suffer a loss of earning capacity as a result of his compensable injury.
The evidence shows that the worker sought medical care and ongoing treatment for his compensable back injury over the next few months, during which time he continued to be unable to work and suffered a continuing loss of income as a result of his injury. The discharge report from the treating physiotherapist, on file, indicates that the worker advised the physiotherapist by phone on September 8, 2017 that his symptoms had resolved and he was at work, full duties. The report also indicates that the worker last attended the physiotherapist for treatment on August 18, 2017 and contained his exam findings on that date. In the circumstances, the panel finds that the worker's loss of earning capacity ended on the last day he attended for treatment, being August 18, 2017.
Based on the foregoing, the panel finds that the worker sustained a loss of earning capacity from April 24, 2017 to August 18, 2017 as a result of his April 3, 2017 workplace accident. The worker is therefore entitled to wage loss benefits from April 24, 2017 to August 18, 2017, both inclusive.
The worker's appeal is allowed in part.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of April, 2018