Decision #14/20 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss benefits effective November 20, 2018. A hearing was held on December 16, 2019 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits effective November 20, 2018.
The worker is entitled to wage loss benefits effective November 20, 2018.
The worker filed a Worker Incident Report with the WCB on November 6, 2018 indicating that he injured his right knee in an incident at work on October 29, 2018 when he was working in a muddy and wet area and he twisted his knee.
The worker attended for medical treatment at a local emergency department on October 30, 2018. He reported an acute onset of pain and swelling in his right knee after "Carrying heavy things through mud and uneven surface." The physician noted swelling to superior medial knee beside the patella as well as swelling on the posterior and inferior of the worker's right knee with tenderness noted posteriorly and laterally. An x-ray was taken and the worker was diagnosed with a joint effusion of his right knee. An MRI study and light duties with reduced weight bearing on his right knee were recommended. The MRI study was conducted on November 6, 2018 and identified a complex tear of the lateral meniscus. The worker was referred to an orthopedic surgeon on November 7, 2018.
In a discussion about his claim with the WCB on November 7, 2018, the worker confirmed the mechanism of injury and advised that he was currently working modified duties.
The worker's file was reviewed by a WCB medical advisor on November 12, 2018. The WCB medical advisor opined that the worker's diagnosis was a tear of his right lateral meniscus, which was accounted for by the October 29, 2018 workplace accident. On November 19, 2018, the worker advised the WCB that he had been laid off by his employer. The worker met with his WCB case manager on November 26, 2018 and he was advised at that time that his claim was accepted. On November 27 and 28, 2018 the WCB case manager contacted the worker and requested he provide his earnings information. After the worker provided the WCB with the requested information, wage loss benefits commenced retroactive to November 20, 2018.
On December 4, 2018, the worker attended an initial appointment with an orthopedic surgeon. The orthopedic surgeon reviewed the MRI study and x-ray with the worker and confirmed the diagnosis of a complex tear of the lateral meniscus. Treatment options were discussed with the worker, including surgical repair. However, as the worker's symptoms had "nearly resolved", a trial of increased activity and job simulation exercises with a physiotherapist was recommended. The treating orthopedic surgeon noted that the worker would be fit for sedentary or very light duties only, until he was reassessed.
During a December 10, 2018 discussion with the WCB, the employer advised that on November 19, 2018 the worker had completed a "fit for duties" form and requested to be laid off. The employer noted that if the worker had not been laid off, they would have continued to accommodate the worker with modified duties until their regular seasonal layoff. On December 12, 2018, the WCB case manager discussed the lay off with the worker who advised that he had not requested to be laid off and had signed a RTW (Return to Work) form at the request of the employer.
On December 20, 2018, the employer was advised that the WCB determined the worker had a loss of earning capacity until he was able to either return to his regular duties or the employer could accommodate him with modified duties and would continue to receive full wage loss benefits.
The employer requested reconsideration of the WCB's decision to Review Office initially on December 20, 2018. The employer submitted further documentation and advised Review Office on March 14, 2019 that they wanted to proceed with the reconsideration. The employer noted in their request that the worker had requested to be laid off and had not provided them with any medical information regarding his claim.
Review Office determined on May 2, 2019 that the worker was entitled to wage loss benefits effective November 20, 2018. Review Office found the medical evidence on the file, including the December 4, 2018 report from the orthopedic surgeon which noted the worker was fit for sedentary light duties only, supported that the worker was not capable of returning to his full regular duties after November 19, 2018. Review Office also found that the employer did not have contact with the worker after November 19, 2018 to discuss modified duties or accommodation. Accordingly, Review Office found that the worker continued to have a loss of earning capacity after November 19, 2018 as suitable modified duties were not offered by the employer.
The employer filed an appeal with the Appeal Commission on June 24, 2019. 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 Board of the Directors.
The relevant provisions of the Act are as follows:
1(1) In this Act,
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured;
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.
The employer was represented by their WCB Claims Consultant who made a presentation and answered questions from the panel.
The employer representative stated that on November 19, 2018 the worker requested a lay-off and signed a form affirming he was fit to work his regular duties. The employer representative advised the panel that the reason that the worker had requested a lay-off was so he could travel home to the east coast with a co-worker, who had also been laid-off at the same time, as the worker did not drive. The employer representative stated that the worker was advised that he could not be laid off by the employer at that time as he was on modified duties. The employer representative stated that the employer does not lay-off injured workers. However, once the worker signed a "fit for work" form, he was then laid off.
The worker representative noted that they had received no medical information regarding the worker's injury from either the worker's healthcare providers or the WCB from the date of the accident until he was laid-off. As a result, the employer had no information that the worker was not fit for work contrary to what he had indicated by filling out the "fit for work" form.
The employer representative stated that the employer had modified duties available for the worker and they have an established modified duties program in place for all employees. The employer could have accommodated the worker in modified duties after November 19, 2018 until their seasonal workplace shutdown commenced in mid-December. The employer could have also accommodated the worker on modified duties again once the employer's operation restarted in mid-January, if required. The employer representative referred the panel to other examples where injured workers were accommodated with modified duties by this employer.
In summary, the employer representative stated that the worker should not be entitled to benefits after November 19, 2018 as the worker had confirmed to the employer that he had recovered from his workplace injury when he signed the "fit for work" form. The employer relied on the worker's representation that he was fit to work when it laid him off. Further, even if he had not recovered from his workplace injury, had the employer been advised that the worker was still injured, they could have and would have accommodated his medical restrictions until such time as he had recovered.
The worker did not participate in the appeal hearing.
For the employer's appeal to succeed, the panel must find that the worker is not entitled to wage loss benefits effective November 20, 2018. For the reasons that follow, the panel is unable to make that finding.
The WCB sent a letter to the employer dated November 19, 2018 that the worker's claim had been re-allocated to Case Management for "ongoing claim management". As a result, the panel is satisfied that the employer would have been aware, upon receiving this correspondence, that the WCB considered this matter to continue to be an active claim.
The panel notes that the worker advised the WCB immediately that he had filled out the "fit for work" form but also stated to the WCB that he did not feel that his injury had resolved. However, the WCB's repeated attempts to contact the employer representative and clarify the matter were not responded to until several weeks later due to the employer representative being absent from work for several weeks. The first time that the WCB was able to discuss the matter with the employer was on December 10, 2018.
The panel also notes that the employer did not inform the WCB that the worker had indicated that he was fit to return to his regular duties and therefore subject to a lay-off effective November 20, 2018 until December 10, 2018.
The WCB sent an email to the employer dated December 12, 2016 which states, in part, the following:
As you are aware WCB wage loss benefits have been provided to (the worker) as he continues to have restrictions in place "capable of performing sedentary duties". He has seen the specialist and will follow up again in January /19. Currently he is participating in rehab and the plan presently is to try to avoid surgery.
You mentioned the employer can offer modified duties? It is important (the worker) continues to attend his rehab which is 2-3x/week.
The employer responded on December 18, 2018 as follows:
Modified duties are available until the Friday -December 21st, when we have out (sic) 6 week seasonal shutdown. This happens every December.
Another email from the employer submitted to the WCB on December 20, 2018 stated the following:
Modified work has always been available and is available for him in [City] Manitoba as soon as we start back up after the seasonal Christmas / Winter break.
The panel notes that there is no further information contained in the file that references any further discussions between the WCB and the employer regarding the worker returning to modified duties. Nor is there any information on file that either the employer or the WCB had any further discussions with the worker regarding his return to work on modified duties during the period at issue.
The panel finds the information on file confirms that, effective November 20, 2018 the worker remained injured as a result of a workplace injury and he was unable to perform his regular duties as a result of that injury. In making this determination, the panel relies on the medical information on the file as well as the worker's own reporting.
Since the worker was unable to perform his regular duties due to his workplace injury and he was not offered modified duties within his restrictions after November 19, 2018, the worker experienced a loss of earnings effective November 20, 2018.
While the employer may have been able to continue accommodate the worker after November 19, 2018, those arrangements were not pursued with the worker by either the WCB or the employer.
The panel places no weight on the worker filling out the employer's "fit for work" form on November 19, 2018 as evidence that the worker had recovered from his workplace injury. This document was not signed or authorized by any of the worker's healthcare providers and is inconsistent with the available medical information on file at the time. Further, the circumstances surrounding why the worker signed the form are not clear to the panel as the worker and the employer have provided different accounts regarding the signing of the form.
The employer asserted during the hearing that they acted reasonably in relying on the "fit for work" form as evidence that the worker had recovered from his injury and fit to return to his regular duties. The panel understands why the employer believed what they did. However, based on the totality of information available to the panel, we are satisfied that the worker was not fit to return to his regular duties effective November 20, 2018 and he was entitled to ongoing wage loss benefits effective that date.
For the foregoing reasons, the employer's appeal is denied
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. Kernaghan - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of February, 2020