Decision #125/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") with respect to the calculation of the worker's payment for hours lost to attend medical appointments. A file review was held on June 1, 2021 to consider the worker's appeal.
Whether or not the worker's payment for hours lost to attend medical appointments has been correctly calculated.
That the worker's payment for hours lost to attend medical appointments has not been correctly calculated.
On November 21, 2018, the worker filed a Worker Incident Report with the WCB, reporting that he injured the right side of his face and his right ear in an incident at work on October 22, 2018. The worker described the incident as:
We were loading a trailer and I was spot loading the load that was going on the trailer. When he was putting down the load the track hit me on the right side of my face.
On October 25, 2018, the worker sought treatment at a walk-in clinic, noting he was hit on the right side of his face three days previously and had pain in that area and ringing in his right ear. The treating walk-in physician noted a small laceration on the right side of the worker's face with no bleeding and that the worker's right ear was tender on examination. The physician also noted the worker had undergone surgery on his right ear in the past. Medicated ear drops were prescribed.
The worker was seen by his treating Ear, Nose and Throat (ENT) specialist on November 6, 2018, where it was noted he was hit on the face by a forklift and had difficulties with his hearing and tinnitus, fluid in his ear, and no hearing distortion. At a follow-up appointment on November 29, 2018, the ENT specialist reported a slight change in the worker's hearing and exacerbation of tinnitus since the workplace incident.
On December 11, 2018, the WCB contacted the worker to discuss the claim. The worker confirmed the mechanism of injury, and noted he sustained a right facial laceration, an increase in his tinnitus and discharge from his right ear as a result of the October 22, 2018 workplace accident. He advised the WCB he continued to work his regular duties and had only missed time on November 6, 2018 to see the ENT specialist. The worker was advised his claim was accepted and the payment of benefits started.
The worker continued to receive treatment from his various healthcare providers. Information on file shows that the worker was paid for a total of 39.5 hours of time missed from work to attend medical appointments, as follows:
November 6, 2018 8 hours paid
February 1, 2019 6.5 hours paid
February 7, 2019 5 hours paid
March 11, 2019 4 hours paid
April 10, 2019 8 hours paid
May 23, 2019 8 hours paid
On July 31, 2019, the WCB advised the worker that his file had been reviewed by a WCB medical advisor who opined that the October 22, 2018 injury had no impact on the worker's hearing, and that as such, they were unable to fund treatments or medications in relation to his right ear.
On June 9, 2020, the worker's representative contacted the worker's WCB case manager to request that the payments the worker had received for his time loss for attending medical appointments be recalculated, as he believed the worker had been underpaid. On August 12, 2020, the WCB provided the worker and the worker's representative with a letter detailing how the worker's wage loss benefit payments to attend medical appointments were calculated, and advising that the worker's payment for time loss to attend medical treatments had been correctly calculated.
On December 14, 2020, the worker's representative requested that Review Office reconsider the WCB's decision. The representative submitted the worker's wage loss entitlement should have been calculated on a daily average using his pre-accident period of earnings, as his earnings included overtime hours and the worker did not always work a standard eight-hour day. The representative submitted that an adjustment should be provided to the worker as his payment was not calculated using the formula or methodology which best represented his loss of earnings for each date.
On February 12, 2021, Review Office determined that the worker's payment for hours lost to attend medical appointments was not correct, and granted the worker's appeal in part. Review Office stated that the key consideration was a distinction between a loss of earning capacity and time loss for appointment, noting that a worker's loss of earning capacity was directly linked to wage loss, but time missed from work to attend an appointment was considered an expense and was not paid as a wage loss benefit.
Review Office found that when a worker misses time from work to attend a medical appointment, it is paid as a medical expense. The WCB would use the current rate of pay at the date of the appointment to calculate hours lost. Review Office noted that this is not a wage loss benefit associated with a loss of earning capacity and is not calculated in the same way as a wage loss benefit for loss of earning capacity. If a worker was scheduled to work overtime on the day of an appointment, the WCB would pay the extra hours lost.
Review Office went on to find that the worker should therefore be reimbursed 100%, as opposed to 90%, of his net wages lost to attend medical appointments. Accordingly, Review Office found that the payment for hours lost to attend medical appointments was therefore not correct and returned the file to Compensation Services to make the necessary adjustment. Review Office further added that if the worker provided the WCB with documentation to support mandatory overtime hours, that information could be reviewed.
On March 3, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment, and on September 2, 2012, the worker's representative provided a response to that information. On September 16, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act 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.
Subsection 4(2) provides that 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 39(1) of the Act provides that "…where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits must be paid to the worker calculated in accordance with section 40 and equal to 90% of the loss of earning capacity."
Subsection 39(5) provides, in part, that "Notwithstanding any other provision of this Act…wage loss benefits payable must not exceed 90% of the worker's loss of earning capacity…"
Subsection 40(1) of the Act provides that the loss of earning capacity of a worker is the difference between the worker's net average earnings before the accident, and the net average amount that the board determines the worker is capable of earning after the accident.
Subsection 45(1) of the Act deals with the calculation of average earnings, and states that the WCB "…shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just…"
Various policies were referenced with respect to the issue on appeal, including:
• WCB Policy 184.108.40.206, Average Earnings, (the "Average Earnings Policy");
• WCB Policy 220.127.116.11, Net Average Earnings, (the "Net Average Earnings Policy"); and
• WCB Policy 44.120.10, Medical Aid, (the "Medical Aid Policy").
The worker was represented by a worker advisor. The worker's representative provided a written submission in support of their appeal, noting that they were also relying on the arguments set out in their December 14, 2020 submission to Review Office.
The worker's appeal relates to the calculation and payment of wage loss benefits for time lost to attend six medical appointments between November 6, 2018 and May 23, 2019. The worker's position was that the WCB did not apply the formula or methodology which best represented the worker's wage loss entitlement for time lost to attend those medical appointments and his payments should be adjusted based on his pre-accident earnings.
The worker's representative noted that the Average Earnings and the Net Average Earnings Policies are silent on wage loss benefit calculations with respect to compensable medical appointments. While the Medical Aid Policy indicates the WCB may reimburse expenses with respect to compensable medical treatment, such as wage loss, the Policy is silent on the methodology for calculating wage loss benefits in the event of a loss of earning capacity caused by compensable medical appointments.
The worker's representative submitted that calculations based on the verifiable information with respect to the worker's actual hours and earnings at the time of the first payment to the worker did not add up. The representative submitted that the only explanation for the worker's actual earnings was that he worked varying weekly hours, with associated varying weekly gross earnings. It was submitted that as a result, the worker's benefit rate was most accurately calculated by using his pre-accident gross earnings, encompassing his period of employment to the date of the injury, divided by the number of weeks of employment, to arrive at the worker's average gross weekly earnings. The representative noted that in his experience, this type of methodology is routinely applied by the WCB for the first 12 weeks of a claim.
The representative further submitted that given the fluctuation in the worker's daily hours, the simplest and best way to determine the worker's wage loss entitlement for the identified dates of his appointments was by dividing the gross weekly earnings by five, as the worker did not work weekends, and arriving at an average daily rate of earnings. The representative submitted that this gross daily amount should then be applied to determine the worker's net wage loss payments (accounting for probable deductions and at 90%), particularly for those days where the worker had to miss full days of work.
With respect to partial wage loss payments which were issued to the worker for appointments on three of the six days, the representative further noted that the case manager confirmed the employer could not accommodate partial days due to the nature of the work, as the worker went to the job sites in a company truck. The worker had also advised that while scheduled for eight-hour shifts, they would work longer hours if the job demanded it, and that this was essentially mandatory because they could not leave the job site without the co-workers who travelled with them. The worker therefore submitted that the worker's partial wage loss payments for the three days in question were best determined by subtracting his actual earnings for those dates from his average daily wage.
With respect to the Review Office decision, the worker's representative submitted that in their view, payment for a worker's time loss to attend a compensable medical appointment represents both a medical expense and a wage loss benefit. The representative submitted that the Review Office applied an overly narrow interpretation of a loss of earning capacity, as meaning incapable of earning employment income equivalent to pre-accident levels. The representative referred to several examples of situations where the WCB historically pays wage loss benefits where a worker is capable of earning income, such as when an employer is unable or unwilling to provide suitable accommodation, an occurrence which is outside a worker's control. The representative noted that the worker had advised that his physician's clinic hours conflicted with his normal working hours, such that missing work from time to time was unavoidable. He submitted that just as workplace accommodation is often beyond a worker's control, often resulting in the payment of wage loss benefits when it fails to occur, a physician's clinic hours are also beyond a worker's control, and when a worker must miss work as a consequence, wage loss benefits should be payable.
The worker's representative disagreed with the Review Office's comment that the worker's time loss payment could be reconsidered if the worker supplied documentation to support he missed out on mandatory overtime on the dates in questions. The representative submitted that the responsibility for gathering and weighing evidence lies with the decision-maker and that the WCB did not even inquire of the employer as to how many hours of work other similarly employed workers worked on the dates in question.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker's payment for hours lost to attend medical appointments has been correctly calculated. For the worker's appeal to be successful, the panel must find that the WCB applied an incorrect method or formula to determine the worker's wage loss payments for time lost to attend medical appointments. The panel is able to make that finding, for the reasons that follow.
Based on our careful review and consideration of the evidence and the submissions on behalf of the worker, the panel is satisfied, with the one exception indicated below, that the correct methodology was applied and the worker's payment for hours lost to attend medical appointments was correctly calculated.
The panel is satisfied that there is a difference between the calculation of wage loss benefits due to a loss of earning capacity arising out of a workplace incident and injury and the calculation of wages lost to attend a medical appointment.
The panel notes that loss of earning capacity and wage loss benefits are directly related to the workplace accident and are based on a worker's earnings before the accident and any loss of earning capacity suffered as a result of the accident. In the panel's view, time lost to attend a medical appointment differs, in that it is related to a particular event and point in time, and is intended to compensate the worker for wage loss that occurs as a result of that particular event, i.e. the medical appointment.
The WCB advises workers to arrange their medical appointments outside work hours, where possible, at which point there is no time loss from work. In this instance, it was accepted that attending medical appointments outside work hours was not possible, due to the specialist's clinic only being open during the same work hours. The evidence also shows that the employer was generally not able to accommodate partial days of work.
In the circumstances, the worker was paid wages for time loss from work, not just to attend the medical appointment but also for any related additional time where he was unable to return to his scheduled hours of work. Thus, where the employer was unable to accommodate his appointments, the worker was paid wage loss for the full eight-hour day, and where the worker worked a portion of the day, wage loss was paid for the remainder of the eight hours he did not work. The panel reviewed the hours for which the worker was paid relating to medical appointments and the rate at which he was paid, and was satisfied that they were accurate.
While it was argued that the worker is also entitled to be paid for overtime which he would have worked, but could not, due to his medical appointments, the panel is unable to accept that argument. The panel notes that the evidence does not support that the worker was scheduled to work overtime on any of the days in question. The worker's evidence was that they would work longer hours if the job demanded it, and that this was essentially mandatory because he could not leave the job site without the co-workers who travelled with him. The panel notes that the worker was invited by Review Office to provide evidence with respect to overtime, but failed to provide any information to support that he would have been working any overtime on the dates in question. The panel does not accept the worker's argument that the WCB should have inquired further into, and gathered information with respect to, potential overtime in the circumstances.
The panel notes, however, that we have not identified anything in the Act to say that the worker would be entitled to 100% of his net wages lost, as opposed to the 90% referred to in section 39 of the Act. The panel is of the view that if the worker were receiving 100% of net wages to attend medical appointments, he would potentially be receiving more than a worker who was receiving wage loss benefits (at 90% of net wages) due to some other reason, such as a lack of accommodation. The panel is satisfied that paying the worker more than 90% of his net wage loss to attend medical appointments would be inconsistent with the meaning and intent of the Act and Policies.
Based on the foregoing, the panel finds that the method or formula which the WCB used to determine the worker's wage loss payments for time lost to attend medical appointments based on his regularly scheduled hours of work, was appropriate and correct. The panel finds, however, that the worker's payment for hours lost to attend medical appointments has not been correctly calculated, in that the worker should be reimbursed for 90% of his net wages lost to attend medical appointments, as calculated by the WCB, and not 100%.
The worker's appeal is therefore allowed, in part.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of November, 2021