Decision #34/21 - 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 for the period March 11, 2020 to March 20, 2020. A teleconference hearing was held on March 2, 2021 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits for the period March 11, 2020 to March 20, 2020.
The worker is entitled to wage loss benefits for the period March 11, 2020 to March 20, 2020.
The employer filed an Employer’s Accident Report with the WCB on March 11, 2020 reporting the worker injured their left knee in an incident at work on March 10, 2020 when they exited a vehicle, slipped on a patch of ice and landed on the left knee, with immediate pain. The worker sought medical treatment at a local emergency department the same day.
The treating physician ordered a left knee x-ray which did not identify any fracture, malalignment or joint effusion, and after examining the worker, diagnosed a ligament injury. The physician completed a Functional Abilities Form (FAF), recommending the worker could work at modified duties with restrictions for the next ten days.
On March 16, 2020, the WCB contacted the worker to discuss their claim. The worker confirmed obtaining medical treatment following the accident on March 10, 2020 and that the attending physician completed a FAF, which the worker provided to the employer later that evening. Further, the worker confirmed they had not returned to work as they had not heard from the employer but expected to return to their full duties on March 23, 2020 unless they heard from their employer before that date.
The employer contacted the WCB on March 19, 2020 with concerns regarding the worker’s claim. The employer advised the worker had not contacted them, despite numerous attempts by the employer to reach the worker, as modified duties were available.
The worker contacted the WCB on March 23, 2020 to advise they would be returning to their full duties that evening and that their knee was feeling better. The WCB spoke again with the worker on March 27, 2020. At that time, the worker advised they did not hear anything from the employer until they spoke with their manager on March 19, 2020 at which time the manager advised the worker that their form said they could return to work on March 23, 2020 and that is when they should return. The worker further advised when they had returned to work on March 23, 2020, they noticed they had received two phone calls from their human resources department but as they do not have cellular phone coverage where they reside, the worker was not aware of the calls until returning to work.
On March 30, 2020, the worker contacted the WCB to advise they had received a call from the employer on March 17, 2020, who left a voicemail message. They further advised they asked the employer on March 30, 2020 why they were contacted on their cell phone and not their landline and the employer advised they were not aware why. The employer confirmed this information with the WCB on April 3, 2020, outlining in a letter of that date the attempts made to contact the worker prior to the contact made on March 19, 2020.
On April 16, 2020, the WCB advised the worker the claim was acceptable and wage loss benefits were paid from March 11, 2020 to March 22, 2020.
The employer requested reconsideration of the WCB’s decision to Review Office on April 22, 2020. The employer argued the worker was not entitled to wage loss benefits as the worker failed in their responsibility to contact the employer to discuss the availability of modified duties.
Review Office found on May 29, 2020 the worker was entitled to wage loss benefits from March 11, 2020 to March 20, 2020. Review Office acknowledged the employer had an established return to work program and that the worker was aware that modified duties were available; however, while the employer advised they had modified duties available for the worker, Review Office found the offer of those duties were not formally offered to the worker. Further, Review Office found the FAF completed by the emergency department physician indicated the worker was not able to perform their regular job duties as a result of the left knee injury for ten days, which were the days that wage loss benefits were paid and as such, the worker was entitled to wage loss benefits for that time period.
The employer filed an appeal with the Appeal Commission on September 9, 2020. A teleconference hearing was arranged and held on March 2, 2021.
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.
Section 22(1) of the Act requires that the worker mitigate the effects of the compensable injury by taking reasonable steps to reduce or eliminate any loss of earnings resulting from an injury and co-operating 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. If a worker fails to comply with these obligations, the board may reduce or suspend the compensation payable to the worker pursuant to s 22(2).
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.
The employer was represented in the hearing by its human resources generalist and its human resources director, who jointly made an oral submission on behalf of the employer and provided answers to questions posed by members of the appeal panel.
The employer’s position as outlined by its representatives, is that the worker should not be entitled to wage loss benefits for the period from March 11, 2020 through March 20, 2020 as it cannot be established that the worker met their obligation under the Act to mitigate the effects of the compensable injury by accepting and participating in the employer’s offered modified work program.
The employer’s representatives acknowledged that the worker was injured in an accident on March 10, 2020 and on the same day sought appropriate medical treatment, including having a functional abilities form (“FAF”) completed by the treating physician. The worker provided the completed FAF the same day and it was received by the human resources department on March 11, 2020. On March 11, 2020, the worker spoke with the employer and was advised that the human resources department would contact the worker about modified duties.
The employer’s representatives noted that the employer, including both the worker’s department representative and human resources department members, made numerous attempts to contact the worker by telephone between March 11 and 18, with voice mail messages left on more than one occasion, but the worker did not return the calls. The employer’s representative noted that the worker’s cellular phone number was used, as this was the number the worker had provided to the employer as their contact number.
The employer’s representative noted that the employer had appropriate modified duties available within the worker’s restrictions and that the employer met their responsibilities in this regard, but that the worker failed to do his part in that he did not follow up on phone messages or contact the employer when he failed to hear from them. Further, the employer’s representative stated that the WCB also failed to inform the worker of their rights and obligations as an injured worker making a claim.
The employer’s position is that the worker failed to mitigate the loss of earnings resulting from the compensable workplace injury by not communicating with the employer about modified duties, when the worker knew the employer had modified duties available and indicated they would be in contact. This failure to communicate with the employer should disentitle the worker to receipt of any compensation benefits in the circumstances.
The worker did not participate in the appeal.
The question on appeal is whether or not the worker is entitled to wage loss benefits from March 11, 2020 through March 20, 2020. In order to grant the employer’s appeal, the panel would have to determine either that the worker did not have any loss of earning capacity during this period or that the worker failed to mitigate the effects of the compensable injury by not taking reasonable steps to reduce or eliminate their loss of income.
The medical reporting and FAF completed by the treating physician indicate that the worker was not to return to their regular duties for at least 10 days and should be reassessed at that time. The FAF provided to the employer, completed on the date of the accident noted the worker was restricted from a number of activities, although able to participate fully in sedentary activities involving their upper limbs.
The panel is satisfied, on a balance of probabilities, that the medical reporting supports a finding that the worker was not fit to return to their regular employment duties during the period of March 11 through 20, 2020. In the absence of modified duties available through the employer, then, the worker would have a loss of earning capacity during this period.
The employer suggested that the worker failed to mitigate this loss of earning capacity by not communicating with the employer about the possibility of working modified duties. There is no dispute that the employer advised the worker on March 11, 2020 that the employer’s human resources department would contact the worker about modified duties. The information provided by the worker to the WCB suggests that the worker was not contacted by the employer. The employer’s evidence is that numerous attempts were made to contact the worker, but those attempts were not successful.
The worker advised the WCB that they tried to call their manager on March 16, 2020 but did not reach the manager, as he was on vacation. The worker spoke with the manager on March 19, 2020 at which time the manager asked if the worker was engaged in modified duties. The worker’s response was that no duties had been offered but that the treating physician had authorized a return to regular duties as of March 23, 2020. The manager agreed that a return to work on March 23, 2020 was appropriate.
The panel noted that both the worker’s accident report to the WCB and the employer’s report list the telephone number that the worker stated the employer should have called. Further, the panel noted this same number is also handwritten on the FAF submitted by the worker to the employer on the date of injury, although it is unknown who made this notation. The panel noted as well that the WCB claim file indicates the WCB had more than one telephone conversation with the worker during the period in question and does not reveal any communication difficulties between the WCB and the worker.
The evidence suggests that the employer’s attempts to communicate with the worker did not succeed either because the employer called the incorrect telephone number or the worker did not or was not able to access the voicemail messages that the employer left. Regardless, the outcome was a lack of successful communication.
While the evidence supports that there were communication difficulties between the worker and employer, the panel does not agree with the employer’s position that any communication issues were attributable only to the worker and that this would amount to a failure to mitigate as would justify a determination that the worker was not entitled to benefits for the period in question.
Further, the panel heard that although appropriate modified duties were available to the worker and attempts were made to communicate with the worker about those duties, the employer was never able to communicate its offer of modified duties to the worker. There is no question that the employer did advise the worker that someone would follow up with him about such duties, but in the absence of an explicit offer of modified duties, the panel cannot find that the worker unreasonably refused to participate in such duties.
The panel is satisfied, on a balance of probabilities that there is no evidence to support a finding that the worker failed to mitigate their loss of income by refusing to participate in modified duties.
Therefore, the panel concludes that the worker is entitled to wage loss benefits from March 11, 2020 through March 20, 2020. The employer’s appeal is denied.
K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of March, 2021