Decision #101/20 - 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 after January 6, 2020. A teleconference hearing was held on September 23, 2020 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits after January 6, 2020.
The worker is entitled to wage loss benefits for January 7, 2020.
The worker filed a Worker Incident Report with the WCB on November 26, 2019 noting she injured her left knee in an incident at work on November 22, 2019. She indicated on the Report that she could not recall a specific incident, although made note of moving a resident during her shift, that may have caused the injury but did mention her knee pain to coworkers. The worker further noted the pain in her knee “got progressively worse” and attended for medical treatment on November 25, 2019.
A Doctor’s First Report for the worker’s appointment at a walk-in clinic on November 25, 2019 noted painful extension of the worker’s left knee, swelling and pain in the lateral joint line. The physician queried a diagnosis of a torn lateral meniscus. The worker attended for a follow-up appointment with her family physician on December 4, 2019 at which time an x-ray of her left knee was taken. As noted by the treating physician, the x-ray indicated possible arthritis of the worker’s patellofemoral joint. The physician recommended the worker remain off work for her next four shifts, until December 9, 2019.
On December 5, 2019, the WCB contacted the worker to discuss her claim. The worker confirmed that on the date of the accident, she was helping to move a resident and while doing so, her weight shifted from her right to her left and after sitting to rest, she felt a sudden pain in her left knee upon rising. She noted that it felt better after walking, but she “…could still feel something going on and heard a clicking sound…” which led her to seek medical treatment on December 2, 2019 at the walk-in clinic. The physician felt it was a ligament injury and the worker continued working until she saw her family physician on December 4, 2019 who placed her off work. The worker noted she had requested a leave for personal reasons from December 9, 2019 to December 16, 2019. At a further follow-up appointment on December 16, 2019, the treating family physician noted the worker’s left knee was still painful and recommended rest, anti-inflammatories and physiotherapy and for the worker to remain off work until January 6, 2020.
At the worker’s initial physiotherapy assessment on December 23, 2019, the physiotherapist noted mild swelling on the lateral side of the worker’s left knee with pressure and discomfort on extension. The physiotherapist diagnosed the worker with a left lateral collateral ligament strain and recommended restrictions of avoiding repetitive squatting/knee bending, limiting stairs, lift and carry from floor to waist – 10 pounds maximum, walking – 20 minutes before a seated break. A follow-up Doctor’s Progress Report from the worker’s treating family physician on December 30, 2019 noted the worker’s knee was improving and noted the worker could return to her regular duties on January 6, 2020.
On January 3, 2020, the worker was advised by the WCB that her claim was accepted for a left knee sprain. The WCB advised the employer on January 6, 2020 of the worker’s restrictions and on January 7, 2020, the employer advised the WCB they could accommodate the worker. Also on January 7, 2020, the employer provided the WCB with a copy of communication from the worker advising she could not attend a return to work meeting that date as she was out of the country until January 30, 2020. On January 21, 2020, the WCB advised the worker she was not entitled to wage loss benefits after December 23, 2019 as it had been determined based on the physiotherapist’s report she was capable of modified duties as of that date.
A Physiotherapy Discharge Report dated January 30, 2020 indicated the worker was capable of returning to her full regular duties with no complaints reported.
The worker requested reconsideration of the WCB’s decision she was not entitled to wage loss benefits after December 23, 2019 to Review Office on February 4, 2020 noting her treating physician had placed her off work until January 10, 2020. Review Office returned the worker’s file to the WCB’s Compensation Services on February 7, 2020 for further investigation. On February 24, 2020, the WCB advised the worker a review of her file indicated her treating family physician had recommended a return to her pre-accident duties on January 6, 2020 and as such, she was entitled benefits to that date.
On March 10, 2020, the worker again requested reconsideration of the WCB’s decision to Review Office. The worker noted in her request that she believed she was owed further wage loss benefits to January 10, 2020 and provided a copy of the sick note completed by her treating family physician from her December 30, 2019 appointment, placing her off work from December 16, 2019 to January 10, 2020. The worker provided a further submission in support of her request on April 2, 2020, a copy of which was provided to the employer.
Review Office determined on April 16, 2020 the worker was entitled to full wage loss benefits for January 7, 2020. Review Office found the medical evidence supported the worker was to remain off work until January 10, 2020, as noted by her treating family physician. However, Review Office further noted the worker’s treating physiotherapist provided restrictions, which could have been accommodated by the employer had the worker been in the country, as of January 7, 2020. Accordingly, Review Office found the worker was entitled to full wage loss benefits for January 7, 2020, being the date the employer advised the WCB they could accommodate the worker. Review Office returned the worker’s file to the WCB’s Compensation Services to determine whether or not the worker would have been entitled to partial wage loss benefits for the period January 8, 2020 to January 10, 2020, noting the worker normally worked a .6 EFT position and would not have been expected to pick up extra shifts while in an accommodated position.
The employer’s representative filed an appeal with the Appeal Commission on April 20, 2020. A teleconference hearing was arranged and held on September 23, 2020.
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.
Under section 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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states:
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.
Subsection 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under section 37 of the Act.
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.
WCB Policy 43.20.25, Return to Work with the Accident Employer, outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy 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.
WCB Policy 220.127.116.11, Co-operation and Mitigation in Recovery, elaborates on the responsibility of both workers and the WCB in ensuring compliance with section 22 of the Act, and states that:
The Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury. This is also known as a duty to mitigate the negative effects of a workplace injury. A worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work.
The worker did not participate in the hearing. The worker provided an email that provided a response to the question of eligibility for benefits beyond January 6, 2020.
The worker’s position was that her physician provided advice that she be off work to January 10, 2020. Therefore, the worker believes that WCB benefits should be extended beyond January 6, 2020 through January 10, 2020.
The employer was represented by an advocate, who made an oral presentation and responded to questions from the panel.
The employer representative's position was that the worker was not entitled to wage loss benefits beyond January 6, 2020 and that the modified duties which the worker was offered were suitable and reasonable and within her restrictions and limitations. The worker did not participate in the available modified duties because she was out of the country. The employer representative provided the following written summary.
“It is the responsibility of the an injured worker, under the WCA, to mitigate the effects of his/her injury and one of the main ways to do that is by fully participating in modified duties where they are made available by the employer. Since the employer made these available during the period in question, the worker failed in this required duty.”
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond January 6, 2020. For the employer’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a loss of earning capacity beyond January 6, 2020 as a result of her November 22, 2019 workplace incident. The panel is unable to make that finding.
The panel finds that the worker is entitled to wage loss benefits for January 7, 2020.
No wage loss benefits were requested beyond January 10, 2020. This was acknowledged by the worker in her correspondence to the WCB on April 2, 2020. The WCB Review Office decision on April 16, 2020 specifically reviewed whether there was entitlement to wage loss benefits from January 7 to 10, 2020.
The panel accepts that WCB provided the employer with the worker’s restrictions on January 6, 2020, and that the employer attempted to present modified duties that were within the worker's restrictions to the worker on January 7, 2020. The panel believes that it would be reasonable for the worker to attend work on January 8, 2020 to perform her role under the modified duties identified. However, it was not reasonable to expect the worker to perform work on January 7, 2020 when the modified work accommodation was planned to be presented. As such, the panel finds that the worker is entitled to regular wage loss benefits on January 7, 2020.
The worker was not available to return to work during the stipulated time frame of January 8-10, 2020 as she was out of the country.
As stated in the Review Office decision, the panel also confirms that the worker is entitled to partial wage loss benefits based upon her average earnings exceeding her regular .6 EFT wage. This is attributable to the worker’s consistent practice of picking up shifts, and the expectation that this would not be available to the worker during the accommodation of modified duties through January 10, 2020.
The panel finds, on the balance of probabilities, that the worker is entitled to wage loss benefits beyond January 6, 2020 and that the benefit entitlement does not extend beyond January 10, 2020.
B. Hartley, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of October, 2020