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 from June 11, 2019 to June 17, 2019. A teleconference hearing was held on October 15, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from June 11, 2019 to June 17, 2019.

Decision

The worker is entitled to wage loss benefits from June 11, 2019 to June 17, 2019.

Background

The employer reported to the WCB on June 11, 2019 that the worker injured his left elbow in an incident at work on June 10, 2019 while pulling a 50-pound item towards himself to pick it up. The worker reported feeling a sharp pain in his elbow and that he attempted to continue working but advised it was too painful.

On June 12, 2019, the employer provided the WCB with documents, including a Modified Duties Offer signed by the worker on June 10, 2019 indicating his acceptance to perform sedentary and light duties starting on June 10, 2019; a Doctor First Report from the worker’s treating family physician for an assessment on June 10, 2019 noting the worker’s complaints of pain in his left elbow with movement and tenderness at the lateral epicondyle and diagnosing the worker with a left elbow strain; a sick note from the treating physician recommending the worker be off work June 10, 2019 to June 17, 2019; and a second Modified Duties Offer, also dated June 10, 2019, declined by the worker indicating his physician’s advice to rest and remain off work.

The worker submitted his Worker Incident Report to the WCB on June 14, 2019. He noted on the Report that his doctor did not want him to do any light duties and would reassess him at his next appointment to determine if he was able to return to light or regular duties. At a June 17, 2019 follow-up appointment, the worker’s treating physician noted the worker’s reporting of lesser pain and advised the worker could return to work with modified duties on June 18, 2019.

The WCB accepted the worker’s claim on June 18, 2019. The employer provided the WCB with a letter on June 21, 2019 noting their objection to the worker being entitled to any wage loss benefits. In the letter, the employer noted the worker initially accepted the offer of modified duties but after seeking medical treatment, returned from his appointment with the physician’s report and sick note, but not a completed Functional Abilities Form. A second modified duties offer was made to the worker, which he declined. The employer noted their belief the worker was not totally disabled and should have been able to return to modified duties at a sedentary level.

On June 21, 2019, the worker’s file was reviewed by a WCB medical advisor, who provided an opinion that the worker’s diagnosed left elbow strain did not render him totally disabled from work and as the employer had offered appropriate modified duties, including ones that could have been performed with one hand, the worker would have been capable of performing those duties.

The WCB discussed the claim with the worker on the same date. The worker confirmed the mechanism of injury and advised he initially agreed to the modified duties offered by the employer but after seeing the physician who advised him if he did not rest, his elbow would take longer to heal, agreed with the physician and declined the employer’s second offer. The worker also confirmed he returned to work on June 18, 2019 on modified duties working his regular hours. At a follow-up appointment on July 2, 2019, the worker’s treating physician noted a full recovery from the workplace injury and cleared the worker to return to his full regular duties.

The WCB advised the worker on July 19, 2019 that his claim was accepted for a left elbow strain that occurred on June 10, 2019; however, he was not entitled to wage loss benefits for the period of June 11, 2019 to June 17, 2019 as the employer had offered suitable modified duties within his capabilities for that time period, which the worker had declined.

The worker requested reconsideration of the WCB’s decision to Review Office on July 30, 2019 noting he was following his physician’s advice to remain off work for one week while resting, performing exercises and applying heat and ice as needed. Review Office determined on September 5, 2019 the worker was not entitled to wage loss benefits from June 11, 2019 to June 17, 2019. Review Office found the modified duties offered by the employer were suitable and would not have involved the worker performing movements greater than he would during activities of daily living. As such, Review Office concluded the worker could have participated in the modified duties offered and would not have suffered a loss of earning capacity from June 11, 2019 to June 17, 2019.

The worker filed an appeal with the Appeal Commission on November 29, 2019. A teleconference hearing was arranged for October 15, 2020.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB Board of Directors.

Section 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 to the worker. Under s 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.

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 s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Worker’s Position

The worker was represented in the hearing by a worker advisor and assisted by a translator. The worker advisor provided the panel with a written submission in advance of the hearing date and made an additional oral submission on behalf of the worker to the panel in the hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the worker acted reasonably in declining the employer’s offer of modified duties as he was following his doctor’s instructions in doing so. The worker obtained medical treatment immediately following the injury, followed his doctor’s instructions to remain off work for one week and then returned to work when his doctor authorized him to do so on light duties.

The worker advisor noted that WCB policies require a worker to comply with medical advice and the worker did so here. Had he continued to work between June 11-17, 2019, the worker would not have been acting in compliance with his doctor’s instructions. The worker should therefore be entitled to wage loss benefits for the week he was off work in compliance with the treating physician’s instructions of the date of injury.

The worker, in answer to questions posed by the worker advisor, described to the panel how the injury occurred and what he did when he realized he was injured. The worker described reporting the injury to his supervisor who provided him with a piece of paper that he signed. He confirmed that he understood he was accepting to do modified duties, but that they did not discuss what kind of work he would do. The worker indicated his memory of these events was limited as he was experiencing a lot of pain at that time.

The worker described leaving work to see a doctor at a nearby clinic. He walked there and saw a doctor he had not previously seen. In the appointment, he explained to the doctor how he had injured himself at work and recalls the doctor telling him that if he did not rest enough it would take a long time to heal. The doctor provided a note indicating the worker should be off work entirely until June 17, 2019.

The worker confirmed he then returned to work and again met with his supervisor, who sent him to see another supervisor. When he provided the sick note, the employer asked if he was not able to do light duties and the worker confirmed his doctor told him to take a rest. The worker signed the second modified duties offer form indicating he declined the offer. He could not recall whether or not the employer described to him the specific duties that were offered.

After seeing the doctor again on June 17, 2019, the worker was cleared to return to work the next day and did so, with a medical note indicating he could work modified duties. The worker confirmed he was provided with light duties and he did those until he could return to his regular work.

In sum, the worker’s position is that he is entitled to wage loss benefits for the period of June 11 – 17, 2019 when he was away from work in compliance with his treating physician’s instructions. Therefore, the appeal should be allowed.

Employer’s Position

The employer was represented in the hearing by its Abilities Specialist, who outlined the employer’s position that the worker was not fully disabled from all employment as a result of the workplace injury of June 10, 2019 but was able to participate in sedentary duties that the employer offered and had available to the worker. Because the worker declined to participate in the offered modified duties that were within his capabilities, the worker should not be entitled to wage loss for the period from June 11, 2019 through June 17, 2019.

The employer’s representative noted that the worker promptly reported his injury when it occurred on June 10, 2019 and was then provided with an offer of modified duties and functional abilities form for his doctor to complete. The worker sought medical attention the same day and returned with a note from the doctor seen indicating he should be off work until June 17, 2019. 

At that time, a new modified duties offer was provided to the worker and the worker declined to accept the offer.

The employer’s representative confirmed the worker returned to work on June 18, 2019 with a doctor’s note dated June 17, 2019 outlining that the worker was capable of modified duties and could return to work on June 18, 2019.

On questioning by members of the appeal panel, the employer’s representative confirmed that the initial modified duties form was completed and signed by the worker before he sought medical attention. This document, along with a blank functional abilities form, was provided to the worker to take with him when he sought medical attention. In this case, the functional abilities form was not returned to the employer. The second offer of modified duties was made after the worker returned from seeking medical attention, and a third offer of modified duties was made upon the worker’s return to work on June 18, 2019.

In sum, the employer’s position is that because the worker injured only one arm, he remained able to work with his other arm and therefore was not completely disabled from all employment. The worker’s loss of earning capacity stems from his refusal to participate in the employer’s return to work program, rather than from his injury. For this reason, the worker should not be entitled to wage loss benefits for the period of June 11-17, 2019 and the appeal should be dismissed.

Analysis

The worker appealed the decision that he is not entitled to wage loss benefits for the period from June 11 – 17, 2019. In order to find in favour of the worker, the panel would have to determine that the worker sustained a loss of earning capacity during that period related to the compensable injury that occurred on June 10, 2019. The panel was able to make such a determination for the reasons that follow.

In considering the issue for determination, the panel considered the medical reporting on file and noted that the worker’s treating physician in the medical note dated June 10, 2019 states that the worker is not fit to return to work from June 10 – June 17, 2019. The Doctor Progress Report dated June 17, 2019 set out that the worker was capable of a return to modified duties as of June 18, 2019. In a narrative report dated September 21, 2019, the physician confirmed that the worker “...was unfit to work from June 10 to June 17, 2019 inclusive because of [the] nature of injury....P[atient] was not able to work at all between above dates. [Patient] can have micro trauma and injury can worse[n] because of his work.”

The panel also considered that the employer offered safe, modified work to the worker and supported his quick return to work. There is no question here as to whether the employer met its obligations to the worker.

The panel noted as well that the claim was reported to the WCB by the employer on June 11, 2019 and by the worker on June 14, 2019 but the WCB did not accept the claim until June 18, 2019 after the worker’s return to work on modified duties.

The panel accepts the worker’s evidence and finds that, in all the circumstances, it was reasonable that the worker would accept and act on the advice of his physician provided on the date of injury. It is evident the worker understood that the employer had modified duties available to him, but he also understood the physician’s advice and the need to follow the prescribed treatment. The medical reporting and the worker’s evidence confirm that the worker’s loss of earning capacity for the period of June 11, 2019 to June 17, 2019 was the direct result of the worker complying with the physician’s treatment advice.

The panel therefore determines, on a balance of probabilities, that the worker is entitled to wage loss benefits from June 11, 2019 to June 17, 2019. The appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of November, 2020