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 for the period August 15, 2019 to August 22, 2019. A teleconference hearing was held on September 22, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period August 15, 2019 to August 22, 2019.

Decision

The worker is entitled to wage loss benefits for the period August 15, 2019 to August 21, 2019.

Background

On August 12, 2019, the WCB received an Employer's Accident Report from the employer indicating the worker had injured his right shoulder at work on July 31, 2019. The employer described the worker's right shoulder being grazed by the corner of a pull cart being moved by another worker. The Worker Incident Report filed by the worker with the WCB on August 13, 2019 noted an injury to his right shoulder and lower back and described "The cart is driven manually, it got away from someone and spun in to me. I saw it coming at my face so I turned left away from it and it hit me on my back right side."

A Doctor's First Report was received by the WCB on July 31, 2019 for an examination of the worker on the same date. The worker described the incident to his treating physician as "a heavy pull cart fell on his back today" and complained of lower back pain on his right side and right sacroiliac, shooting to upper right paravertebral area, and being uncomfortable when walking. The physician noted tenderness on the right iliac crest and a negative straight leg raise test. The treating physician recommended anti-inflammatory medication, muscle relaxants and indicated the worker may require physiotherapy. It was noted the worker was not capable of alternate or modified work but also that the worker would be on vacation for two weeks starting the next day.

The worker was seen for an initial chiropractic treatment on August 8, 2019. The worker reported to the chiropractor that he had pain in his right lateral hip and right sacroiliac joint and was diagnosed with “chronic constant sever (sic) right pelvic dysfunction/bursitis.” It was recommended the worker be off work but it was noted the worker was on holidays for two weeks.

On August 20, 2019, the WCB discussed the worker’s claim with the employer. The employer advised they could possibly accommodate the worker once a completed Functional Abilities Form (FAF) was received. It was noted they had provided the worker with the FAF on July 31, 2019 and requested it be completed and returned. Also on August 20, 2019, the WCB contacted the worker to discuss his claim. The worker confirmed the mechanism of injury and that he had pre-booked vacation time for August 1, 2019 to August 14, 2019. He advised that he had been provided with a FAF by his employer on July 31, 2019 but his family doctor did not complete the FAF at his appointment as he was aware the worker was starting two weeks’ vacation the next day. He requested his chiropractor complete the FAF at his appointment on August 17, 2019 but was advised the chiropractor does not complete forms on the weekend. The worker noted that he was attending for a further appointment with his chiropractor on August 21, 2019 and would ask the FAF be completed then. On August 21, 2019, the worker contacted the WCB to advise his treating chiropractor had completed the FAF and recommended the worker was able to return to work for five hours per day, for the next two weeks. The worker confirmed he would be returning to work on August 23, 2019.

The WCB advised the worker on August 23, 2019 that he was not entitled to benefits for the period August 15, 2019 to August 22, 2019 as the employer had suitable accommodated duties available for him and he chose not to participate in those duties. The worker requested reconsideration of the WCB’s decision to Review Office on September 5, 2019. With his request, the worker provided a detailed chronology of his claim and noted that he had requested his physician complete the FAF but it wasn’t completed until August 21, 2019.

On November 1, 2019, Review Office determined the worker was not entitled to benefits for the period August 15, 2019 to August 22, 2019. Review Office found there was no medical evidence to support the worker was fully disabled and unable to return to light duties on August 15, 2019. Further, Review Office noted the worker received clearance from his treating physician to return to his full regular duties as of August 22, 2019. Accordingly, Review Office found the worker did not have a loss of earning capacity as of August 15, 2019 and was not entitled to benefits from that date to August 22, 2019.

The worker filed an appeal with the Appeal Commission on April 1, 2020. A teleconference hearing was arranged and held on September 22, 2020.

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 is injured in an accident, the worker 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. That section reads as follows:

22(1) Every worker must:

(a) take all reasonable steps to reduce or eliminate any impairment of 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.

A worker’s obligation to cooperate and mitigate is also addressed in WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the “Policy”) which provides 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 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.

Part B of the Policy provides:

An injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs. The worker’s responsibilities include the following:

a) reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker’s recovery…

WCB Policy 43.20.25, Return to Work with the Accident Employer, in turn, sets out the WCB’s policy to the return to work of injured workers through modified or alternate duties with the accident employer. With respect to modified or alternate duties, the Return to Work with the Accident Employer states:

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 workers 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.

Worker’s Position

The worker represented himself at the hearing. He was assisted during the hearing by his spouse.

The worker reported that he was injured on July 31, 2019 when he was struck in the side by a 6 foot tall, 1,000 lb cart being pushed by a coworker. He testified that he sought medical attention that same day at a walk in clinic where he was diagnosed with back strain. He was advised to remain off work until August 15, 2019.

The worker was on a prescheduled vacation August 1 to 14, 2019. During this time, he continued to have pain and was required to cancel his holiday plans with his family. He attended a

chiropractor and physiotherapist. The chiropractor recommended he remain off work until August 22, 2019. Accordingly, the worker called in sick on August 15, 2019 and provided a further note from his chiropractor to his employer that day.

The worker says he was contacted by the employer the next day, on August 16, 2019. After some discussion, he was asked to submit a Functional Abilities Form (“FAF”). Although originally provided with a copy of the FAF form at the time of injury, the worker says his copy was left with the doctor he saw on the day of the accident. The employer therefore emailed him a second copy of the FAF on August 16, 2019 to be completed by a medical practitioner. The worker says that he returned to his chiropractor the next day, August 17, 2019, and asked the chiropractor to complete the form. As a result of technical difficulties, the chiropractor was unable to complete the form until August 21, 2019.

Upon receipt of the completed FAF form on August 21, 2019, the employer immediately contacted the worker and advised that alternate duties were available in housekeeping. The worker felt that the duties were not appropriate for him. He therefore returned to his chiropractor who he says agreed that the worker should not be required to do housekeeping but did not submit an amended FAF or a new FAF. The next day, August 22, 2019, the worker went to his physiotherapist who completed a further FAF which cleared him for a return to regular duties on reduced hours effective August 23, 2019. The worker subsequently began a gradual return to work which proceeded uneventfully.

The worker submits that he remained off work between August 15 and 22, 2019, at the direction of his treating practitioners. Although he was offered alternate duties beginning August 22, 2019, he states that neither he nor his treating practitioners thought the alternate duties were suitable. He therefore seeks wage loss for the period during which he was off work.

Employer’s Position:

The employer did not participate in the hearing.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period August 15, 2019 to August 22, 2019. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity between August 15, 2019 and August 22, 2019 as a result of his workplace accident. The panel finds that the worker is partially successful and is entitled to wage loss benefits for the period August 15, 2019 to August 21, 2019, but not for August 22, 2019 for the reasons that follow.

The panel finds that the worker suffered a workplace accident on July 31, 2019 when he was struck by the cart. The worker sought medical treatment at a walk in clinic the same day complaining of lower back pain on the right side and right-sided sacroiliac pain. He further complained of trouble walking. He was diagnosed with low back strain and referred to physiotherapy. The doctor noted that he was not capable of work.

The worker subsequently attended a chiropractor who provided a report dated August 8, 2019 and a diagnosis of right pelvic dysfunction/bursitis. By note dated August 15, 2019, the chiropractor recommended that the worker remain off work until August 22, 2019.

Although neither the walk-in clinic doctor nor the chiropractor initially completed an FAF, it was eventually completed and submitted on August 21, 2019. Upon receipt of the FAF, the employer made an offer to accommodate the worker with modified duties in housekeeping which offer was declined by the worker. In the worker’s discussions with WCB, the worker expressed concern about being offered modified work cleaning toilets. He took the position that he was a security officer and not a cleaner and, further, his restrictions should prevent him from cleaning toilets. The August 22, 2019 FAF obtained by the worker from his physiotherapist cleared the worker to return to regular duties on reduced hours the next day.

The panel accepts that the worker suffered a workplace injury which required him to remain off work until August 21, 2019. Although the FAF form was not completed until August 21, 2019, the panel does not find that there was delay in having the form completed.

The panel further accepts the evidence that the employer made an offer of acceptable modified duties to the worker on August 21, 2019 to begin August 22, 2019. The worker refused the modified duties on August 22, 2019. In the panel’s view, the evidence does not support the conclusion that the worker was medically unable to perform the modified duties which were offered to him by the employer effective August 22, 2019. The panel finds that the duties offered to the worker were duties which the worker was medically able to perform but which he chose not to perform. The Policy, however, requires that workers reasonably participate in a return to work program. While the modified duties that were offered to the worker may not have been duties that the worker preferred to complete, the panel is nonetheless satisfied that those duties were suitable and that he was capable of performing them. The worker, however, did not attempt to perform those duties on August 22, 2019.

Based on the foregoing, the panel finds, on balance of probabilities that the worker suffered a loss of earning capacity between August 15 and 21, 2019 as a result of his July 31, 2019 workplace accident. The worker was capable of modified duties as of August 22, 2019 which duties were refused by the worker. The panel finds, therefore, that the worker is entitled to wage loss benefits for the period August 15, 2019 to August 21, 2019 inclusive and that the worker is not entitled to wage loss benefits for August 22, 2019.

The worker’s appeal is partially allowed.

Panel Members

K. Wittman, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of November, 2020