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 February 22 and 23, 2017. A hearing was held on March 26, 2018 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for February 22 and 23, 2017.

Decision

The worker is entitled to wage loss benefits for February 22 and 23, 2017.

Background

The worker, a labourer, reported injuring his left shoulder on February 14, 2017, describing the incident as:

Around 6:45am, we were heading to [location] with the company truck for me to go home after working 21 days at [location]. The foreman was driving and when we reached [location], he stopped at [location] gas bar. I got out of the truck to use the washroom and I slipped. I grabbed the handle of the truck and I was able to break my fall. When I grabbed the handle, I felt a pull and pop in my left shoulder.

I told the foreman I dislocated my shoulder and he asked if I was okay. When we got to my house, he helped me carry my bags and did not offer to bring me to the hospital.

On February 14, 2017, the worker attended at the local hospital where he was diagnosed with a "Left shoulder anterior dislocation." A reduction under sedation was attempted but failed and the worker was sent to a larger regional hospital for further treatment. The worker was provided with a note from the attending physician indicating that he was to be off work from February 14, 2017 to February 17, 2017. An x-ray taken on February 14, 2017, at the regional hospital prior to the reduction attempted noted:

SHOULDER, LEFT:

There is an anterior glenohumeral joint dislocation. A Hill-Sachs deformity is noted. No glenoid fracture seen.

The report from the emergency department of the regional hospital notes "Easily reduced with traction" and an x-ray taken after the reduction was performed on the same day showed that "The glenohumeral joint appears congruent. There is a large Hills-Sachs deformity. No glenoid fracture is seen."

The worker was seen for a follow-up appointment with his family doctor on February 15, 2017, who diagnosed him with a left shoulder dislocation and recommended that he not return to work in any capacity but did not specify a duration. A further follow-up appointment date was set for March 3, 2017.

In a discussion with the WCB on February 23, 2017, the worker advised that his scheduled time off was February 15 to February 21, 2017. The WCB advised the worker that as he was right handed and his injury was to his left shoulder, he was not considered totally disabled and that his employer had advised they had modified duties available for him. The WCB spoke to the employer on February 23, 2017 and confirmed that they had modified duties available for the worker as of February 24, 2017. On February 27, 2017, the employer was advised by the WCB that they have accepted the worker's claim and would pay wage loss benefits for February 21 to 23, 2017. The WCB later confirmed with the worker that since February 21, 2017 was a scheduled day off, he would only be entitled to wage loss benefits for February 22 and 23, 2017.

The employer requested reconsideration of the WCB's decision to pay wage loss benefits to the Review Office on March 10, 2017. The employer submitted a copy of their Return to Work Package information, signed by the worker, along with a timeline of the events from the date of the accident to support their claim.

Review Office upheld the WCB's decision on August 15, 2017 finding that the worker had a loss of earning capacity on February 22 and 23, 2017. Review Office determined that the worker spoke to the WCB on February 23, 2017 and was advised that he was fit for one-handed duties.

Review Office agreed and confirmed that the restriction of right-handed duties was acceptable. Review Office also accepted the employer's advice that they could accommodate the worker's restrictions effective February 24, 2017. As the worker was scheduled to be off work from February 15 to February 21, 2017 and was considered fit for modified duties as of February 24, 2017, Review Office concluded that the worker was entitled to wage loss benefits for February 22 and 23, 2017.

The employer filed an application with the Appeal Commission on October 5, 2017. An oral hearing was arranged for March 26, 2018.

Reasons

The Worker’s Position:

The worker did not appear at the hearing.

The Employer's Position:

The employer is appealing Review Office’s decision to provide wage loss benefits for February 22 and 23, 2017.

Stripped to its core, the employer’s position is that it does not dispute that the worker was injured with a compensable injury. However, since the worker purportedly refused to return to modified work duties for the days at issue, he is not entitled to wage loss benefits on those days.

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 Board of Directors.

In this regard, subsection 4(1) of the Act states, in part:

Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Section 4(2) states as follows:

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of 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.

Section 37 outlines the basic forms of compensation that can be provided and states:

Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2) of the Act states:

Subject to subsection (3), wage loss benefits are payable until 

(a) the loss of earning capacity ends, as determined by the board; or 

(b) the worker attains the age of 65 years.

WCB Policy 43.20.25, Return to Work with the Accident Employer provides oversight on adjudication of the return to work process and states in part as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

The issue before the panel is whether or not the worker is entitled to wage loss benefits for February 22 and 23, 2017. In the present circumstances, the panel finds that while the employer’s proposed return to work program for February 22 and 23, 2017 was well-intentioned, it far from certain that this was properly understood by the worker.

What is far more certain is the fact that on February 15, 2017 the worker’s doctor advised him that he was to be off work until the worker’s next visit set for March 3, 2017. Therefore, despite the employer’s offer to return to work on modified duties, the panel finds that it was reasonable for the worker to rely on his doctor’s recommendation.

The panel finds that it was equally significant that when the worker spoke with a WCB adjudicator on February 23, 2017 and was advised that she considered him fit for return to work on modified duties, he did so right away, returning to work on February 24, 2017.

The panel therefore finds, on a balance of probabilities, that the worker was entitled to wage loss benefits for the two days at issue. The employer's appeal is dismissed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of May, 2018