The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after May 29, 2018. A hearing was held on March 7, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after May 29, 2018.

Decision

The worker is entitled to wage loss benefits after May 29, 2018.

Background

The worker, through his representative, filed a Worker Incident Report on March 16, 2018 indicating that his right foot was injured in an incident described as:

As [the worker] was driving the stand-up forklift a co-worker who was pushing a recycling bin accidently pushed it into his right foot.

There was instant swelling and bruising. He wasn't able to put any weight on his foot.

He did not finish his shift.

The worker attended at a walk-in clinic on March 15, 2018. The attending physician noted the worker's subjective complaints of "pain and unable to weight bear in wheel chair" and referred the worker for an x-ray. The x-ray conducted on March 15, 2018 noted "Non-displaced transverse fracture through the mid fibular shaft." The worker was seen by his family physician on March 16, 2018 who diagnosed the worker with a right fibula fracture and recommended he be off work.

At a follow-up appointment with the worker's family physician on April 26, 2018, after reviewing an x-ray taken at the appointment, the worker's treating physician referred the worker to an orthopedic surgeon. At a further follow-up appointment on May 24, 2018, the worker's physician noted that the worker was "doing well, pain definitely improving steadily, has been able to PWB (partial weight bear) in boot with crutches, swelling improved as well."

The worker's file was reviewed by a WCB sports medicine advisor on May 28, 2018 at the request of Compensation Services. The WCB sports medicine advisor, in response to queries regarding whether the worker was totally disabled from returning to work and if he wasn't, what his restrictions would be, opined:

Recent medical information from the treating MD indicates that the fibular fracture is now healing clinically and radiographically. The objective findings are not supportive of total disability. Sedentary activities with the opportunity to change positions from standing/walking to sitting as needed, wear a fracture boot as needed, limit floor to waist lifting, limit pushing/pulling, and limit crouching/kneeling is recommended for the next 4-6 weeks.

On May 29, 2018, the worker and the employer were advised of the WCB sports medicine advisor's recommended restrictions. In a letter dated May 30, 2018, the WCB advised the worker that his entitlement to wage loss benefits ended as of May 29, 2018 as he had been offered modified duties within his restrictions by his employer but his representative had refused the duties on his behalf.

The worker's representative requested reconsideration of the WCB's decision to Review Office on June 12, 2018. The worker's representative advised that the worker was not able to weight bear on his leg, was taking medication for pain that had the side effect of making him drowsy and that his treating physician had provided a sick note indicating he should not return to work until his next appointment on June 21, 2018.

Review Office determined on June 21, 2018 that the worker was not entitled to wage loss benefits after May 29, 2018. Review Office placed weight on the WCB sports medicine advisor's May 28, 2018 opinion that the worker was not totally disabled from work, taking into account the length of time that had passed and the medical information on the worker's file. Review Office further determined that the modified duties offered by the employer were suitable and within the recommended restrictions for the worker. Accordingly, Review Office found that the worker's loss of earning capacity after May 29, 2018 was due to his refusal to participate in the employer's offered modified duties and not due to his workplace injury.

The worker's representative filed an appeal with the Appeal Commission on September 7, 2018. An oral hearing 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.

Compensation payable out of accident fund 

4(1) 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.

Payment on day of accident 

4(1.1) Where a worker is injured in an accident and is unable to work during any part of the day of the accident, the employer shall pay to the worker the wages and benefits for the day of the accident as if the accident had not occurred.

Payment of wage loss benefits 

4.2 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.

Worker to co-operate and mitigate 

22(1) Every worker must 

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Board may reduce or suspend compensation 

22(2) If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

Compensation payable 

37 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.

Duration of wage loss benefits 

39(2) 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.

Policy 44.10.30.60 Co-operation and Mitigation in Recovery 

This policy contains a description of the consequence of a worker's failure to mitigate.

1. If the WCB determines that the worker has not complied with section 22 of the Act and the requirements of this policy, it may reduce or suspend the worker's compensation. Before taking this step, the WCB will consider whether the worker has a reasonable explanation for noncompliance. If the WCB considers the worker's explanation for non-compliance to be reasonable, it will not suspend or reduce the worker's compensation.

2. Before reducing or suspending compensation, the WCB will provide the injured worker with a reasonable opportunity to comply with his or her obligations under the Act and this policy.

3. The WCB will communicate with the worker within a reasonable period of time following a reduction or suspension of benefits, to provide a further opportunity to comply with his or her obligations under the Act and this policy.

Policy 43.20.25 Return to Work with the accident employer 

This policy states in part: "When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer." Suitable Modified or Alternate Work

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.

Unable to Work

Injured and ill workers are considered unable to work if, on the next scheduled shift following the day of accident, they are unable to perform the essential duties of their pre-accident job, or they require an accommodation to perform the essential duties of the pre-accident job.”

Worker's Position

The worker was assisted by a family member advocate. An interpreter was utilized to ensure full and clear communication between the parties and the panel, who asked questions regarding job duties, the incident that caused the injury and the subsequent recovery from this injury.

The gist of the worker's appeal related to their doctor and a specialist providing opinions that the worker was not ready to go back to work as of May 29, 2018.

The worker also stated that the company has a policy requiring that a doctor's clearance to return to work be provided.

The worker clarified his improvement and described the levels of pain associated with weight bearing on the injured foot/leg. The worker's physician originally advised that he could fully weight bear, and then subsequently changed that suggestion to partially weight bear based on pain response and inconclusive x-ray results.

The worker felt that both the physician and surgeon/specialist opinions of "no return to work" took precedence over WCB's medical consultant's opinion.

Employer's Position

The employer did not participate in the hearing. The employer provided written objection to the acceptance of wage loss associated with the claim. Citing WCB Policy 44.10.30.30: "…any worker determined to be guilty of serious and wilful misconduct will be ineligible for wage loss benefits…" The company felt that the circumstances of this incident demonstrated a reckless disregard for the worker's own safety. In the opinion of the employer, the incident meets the definition of wilful misconduct and, as such, the employer does not support acceptance of wage loss benefits.

In addition, the employer has provided the worker with an offer of immediate modified duties described via phone call to a worker's family member the day after the injury.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after May 29, 2018. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker was not ready to return to work on May 29, 2018 and/or that the worker's refusal to return to work was reasonable. The panel finds that the worker was cleared to return to work on modified duties on June 21, 2018 by his treating physician and is entitled to wage loss benefits to that date.

In general terms, the panel finds that the worker was not totally disabled as of May 29, 2018 but there were a number of timing and communication issues, as well as medical issues, that lead the panel to conclude that the worker's absence from work until June 21, 2018 was reasonable in the circumstances of this case.

In coming to this decision, the panel places weight on the following:

• The worker's attending sports medicine specialist and orthopedic surgeon both acknowledge that the worker had a complicated fracture that was taking some time to heal. By May 17, 2018, the worker was still struggling to partially weight bear in a boot, with concerns expressed regarding a possible non-union with a referral made to an orthopedic surgeon. The worker's evidence similarly discloses a significant loss of function at home at that time. 

• On May 24, 2018, the worker was again examined by his attending sports medicine specialist who noted in her report: 

Finally showing signs of healing on x-ray, will not require ortho consult given progression 

May PWB in boot and o/c crutches 

Continue off work 

f/u 4 weeks with repeat x-ray 

• Soon after, on May 28, 2018, a WCB sports medicine advisor opined that the worker was not totally disabled and that the worker could take on sedentary duties. This information was forwarded to the attending physician on May 29, 2018 for comment. No response was received and the worker's benefits were terminated on that date. However, file information revealed that the physician only worked one day a week, and would not have seen the information until May 31, 2018. As such, there was no opportunity provided to qualify the opinion of the WCB sports medicine advisor prior to wage loss being suspended. When the worker was next examined by the orthopedic surgeon (who worked out of the same office) on June 5, 2018, the surgeon confirmed both the diagnosis and the continuation of the previous restrictions (no work) imposed by the attending physician and the worker would likely be able to progress to work later in June. The panel places greater weight on these opinions regarding the worker's functional capacity at that time.

As for the actual modified duties, the panel also notes that there were a number of confounding factors at or around May 29, 2018 regarding the return to work offer. As noted by the worker's advocate, the employer required a completed FAF (Functional Abilities Form) that would have cleared the worker to return to work, with specific restrictions, against which a modified duty program could be established. However, the attending physician was not prepared to have the worker return to work at that time and no FAF was available.

As to the specific job duties offered, the panel notes a May 1, 2018 offer for job duties sorting gloves, and a second, different and possibly more challenging offer was next made on May 29, 2018, on the tray pack line or laundry room. Regardless of the offers, the panel places greater weight on the worker's medical status, and our earlier finding that the worker's refusal was medically supported by his physicians. The panel does note that the worker had been discussing earlier modified duties offers with his physician, who was making informed decisions in this regard.

The panel notes that the employer's position was that the worker had engaged in serious and willful misconduct, and should not be entitled to WCB benefits. While this issue was considered by Compensation Services, it was not considered by Review Office. The panel, therefore, does not have jurisdiction to deal with that matter.

The panel therefore finds, on a balance of probabilities, that the worker is entitled to wage loss benefits after May 29, 2018 until his return to work on June 21, 2018.

The worker's appeal is accepted.

Panel Members

B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of April, 2019