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 was entitled to wage loss benefits from May 28, 2018 to May 30, 2018. A file review was held on January 8, 2019 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period May 28, 2018 to May 30, 2018.

Decision

That the worker is entitled to wage loss benefits for the period May 28, 2018 to May 30, 2018.

Background

On May 29, 2018, the worker reported to the WCB that he injured his left ankle in an incident on May 27, 2018, which he described as follows:

As a shipper I have to grab pallets and put them in the truck. I had 2 pallets of [items], one is tall, so I had to remove the top one. As I pulled the cases and I had to step down on my machine, I stepped down and rolled my left ankle. 

I heard a pop. 

My ankle was ok prior to the incident. 

I felt pain about 2 hours after the incident.

The worker attended for his shift on May 28, 2018, but left one hour early as his ankle was sore. He saw a physician on May 29, 2018, who diagnosed a left ankle sprain and queried whether there was an underlying fracture. The physician referred the worker for an x-ray and recommended he remain off work until the x-ray results were received and he was reassessed on May 31, 2018.

On May 29, 2018, the employer advised the worker that there were modified duties available which he could do while sitting the entire time and would keep him off his feet. On May 30, 2018, the worker advised the WCB that he had not returned to work as his physician had given him three days off work and he was awaiting her advice before returning to work. He said he was scheduled to see his physician again on May 31, 2018.

The May 30, 2018 report of the worker's left ankle x-ray indicated "No acute or chronic bone, joint or soft tissue abnormality." On May 31, 2018, the treating physician recommended that the worker return to work on June 3, 2018, with restrictions, and to his full duties on June 9, 2018.

On May 31, 2018, the WCB adjudicator advised the worker that based on his review of the information with respect to his current restrictions and limitations, the worker was fit to return to work on modified duties as offered by his employer. The worker said he understood and would return to modified duties that afternoon. On June 4, 2018, the worker attended a follow-up appointment with his treating physician, who advised that he could return to his full, regular duties as of that date.

On June 4, 2018, Compensation Services advised the employer and the worker that the worker's claim was accepted and wage loss benefits would be paid for May 28 to May 30, 2018 inclusive.

On June 5, 2018, the employer requested that Review Office reconsider Compensation Services' decision. The employer's representative advised that they had no issue with the worker's claim being accepted, but were appealing the 17 hours of lost time. It was submitted that the employer had gone above and beyond by having the WCB's return to work team come in and train their staff, and that the worker should have been very aware of how the return to work process worked. As a result, and given that this was simply an ankle sprain, that modified duties were offered which involved sitting, and that the worker was cleared to work his full duties on June 4 and able to perform his regular duties for more than 12 hours following the original injury, the worker should have been able to work modified duties, thereby mitigating his lost time. The representative stated that the WCB adjudicator had given the worker a "warning" that the WCB would not cover the lost time if this were to happen again, and submitted this indicated that what they were seeking was reasonable, especially since the worker had already been "warned" during the training sessions.

On June 12, 2018, Review Office determined that the worker's loss of earning capacity from May 28 to May 30, 2018 was related to the workplace accident and the worker was entitled to wage loss benefits during that period of time. Review Office noted that the worker's symptoms of pain and swelling would likely have prevented him from performing the modified duties, and accepted the medical opinion that the worker was not able to work on May 29 and May 30, 2018.

Review Office acknowledged that the employer had a return to work program in place and that the worker was aware modified duties were available. Review Office noted, however, that the worker was following his healthcare provider's recommendation to remain off work. Review Office found that the one hour time loss on May 28 was related to the May 27 workplace accident, and the medical evidence did not support the worker returning to work on modified duties from May 29 to May 30. Review Office noted the worker returned to work on modified duties on May 31, 2018, following his physician's recommendation.

On July 6, 2018, the employer appealed the Review Office decision to the Appeal Commission and a file review was arranged.

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'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.

Subsection 4(2) provides that an injured worker is entitled to wage loss benefits for his 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.

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

The WCB's Board of Directors has established WCB Policy 43.20.25, Return to Work with the Accident Employer, which describes suitable modified or alternate work 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 WCB's Board of Directors has also established WCB Policy 44.40.10, Evidence of Disability, which provides that "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition." Employer's Position

The employer was represented by its Safety and Training Coordinator. In their Appeal of Claims form dated July 6, 2018, the employer's representative submitted that the Review Office decision should be overturned for the following reasons:

• We had the RTW [return to work] team from WCB here in our facility from [dates]. [The presenter] went over extensive training with ALL of our staff - [the worker] attended such a session… 

• On June 4, [the WCB adjudicator] informed me that after consulting with his Supervisor they were going to allow the 17 hours of lost time, and give [the worker] a "warning" that if this were to happen again, WCB would not cover the lost time. 

• We had modified duties that would easily accommodate a sprained ankle. [The worker] chose to not participate in those duties and attempt to mitigate his lost time. 

• He was able to perform his regular duties for 12+ hours after the original injury (2 shifts).

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period May 28, 2018 to May 30, 2018. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity from May 28 to May 30, 2018 as a result of his May 27, 2018 injury. The panel is unable to make that finding.

Based on our review of the information which is before us, the panel is satisfied that the worker is entitled to wage loss benefits from May 28 to May 30, 2018 inclusive.

Information on file shows that the worker injured his left ankle around midnight on May 27, 2018 and reported his injury to his employer immediately after it occurred.

The worker continued to work through to approximately 5:00 a.m. on May 28, 2018 when his shift, including overtime, ended. He returned to work for his evening shift on May 28, thinking his ankle was better and that he could perform his regular duties, but was unable to complete his shift due to increased ankle pain and left work one hour early. The panel is satisfied that this one hour time loss on May 28, 2018 was related to his workplace injury.

The worker attended his physician the morning of May 29, 2018, then contacted the WCB and filed his claim the same day. The panel is satisfied that the worker promptly sought medical attention and reported his injury to the WCB once the condition of his ankle worsened and he was unable to finish his shift.

With respect to the medical information, the treating physician noted on May 29, 2018 that the worker was complaining of left ankle swelling and bruising, and was unable to stand on his ankle. The physician reported findings of left ankle tenderness and bruising, and diagnosed a left ankle sprain. Querying an underlying fracture, the physician ordered an x-ray and completed a Functional Abilities Form, indicating that the worker was unable to work from May 29 to May 31, 2018.

While the employer has argued that modified duties were available at that time which were appropriate for the worker, the panel finds that it was reasonable, in the circumstances, for the worker to follow his physician's advice and remain off work pending the x-ray of his left ankle and reassessment on May 31, 2018.

The panel further finds that the worker's return to work was relatively quick and his time loss was not unreasonably prolonged. The worker attended the appointment with his physician on the morning of May 31, 2018, as scheduled. The physician outlined restrictions and advised that the worker could return to modified duties on June 3, 2018. The worker then spoke to the adjudicator, who told the worker that based on his review of the current restrictions and limitations, he was fit to return to work on modified duties offered by the employer, and the worker agreed to return to work on May 31, 2018. The worker's physician subsequently cleared him for regular duties on June 4, 2018, at which time he returned to his pre-accident work.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity from May 28 to May 30, 2018 as a result of his May 27, 2018 workplace accident and injury.

The panel therefore finds that the worker is entitled to wage loss benefits for the period May 28, 2018 to May 30, 2018.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of March, 2019