The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits for February 10 and 11, 2021. A file review was held on September 29, 2021 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for February 10 and 11, 2021.

Decision

The worker is entitled to wage loss benefits for February 10 and 11, 2021.

Background

On February 10, 2021, the worker reported to the WCB that they injured their left foot at work on February 9, 2021, describing the incident as occurring while using a power jack to move pallets.

The worker attended a virtual medical appointment on February 10, 2021, reporting bruising, swelling and hyperextension of their left first toe, with toe stiffness causing difficulty in walking. The physician noted the worker’s report they were not able to finish their shift at work due to pain and diagnosed a toe/foot injury, with referral for an x-ray. In a follow-up virtual appointment on February 11, 2021 to review the x-ray, the worker reported that their toe was feeling better, and they were ready to return to work on light duties. The physician recorded negative x-ray findings and completed a functional abilities form for the worker indicating a return to work the next day.

In a discussion with the WCB on February 18, 2021, the worker reported that after injuring their foot on February 9, 2021, they continued to work their shift but by the end of their shift, symptoms had increased. The worker stated that on February 10, 2021, they had lots of pain, could not put weight on their toes and had difficulty walking so they sought medical treatment, which included x-rays. The next day, they followed up with the treating physician who advised of the x-ray results and completed the functional abilities form. The worker returned to work performing modified duties and indicated they expected to return to regular duties on February 22, 2021.

The WCB accepted the worker's claim which included payment of wage loss benefits for February 10, 2021 and February 11, 2021. The employer requested reconsideration of the WCB's decision to Review Office on April 15, 2021 on the basis that the worker should have been able to return to work on modified duties on February 10, 2021 as they did not seek immediate medical treatment on the day of the workplace accident, instead waiting until the following day. The employer further advised the worker was aware modified duties were available, including sedentary work where they could be seated to keep weight off their foot.

On June 1, 2021, Review Office found the worker was entitled to wage loss benefits for February 10 and 11, 2021. Review Office determined the worker promptly sought medical treatment the day following the workplace accident, including following up on February 11, 2021 to get the x-ray results and then returned to work to complete their shift. Review Office acknowledged the employer could have accommodated the worker; however, it noted the minimal time loss from work by the worker was reasonable and the worker did their best to minimize that time loss.

The employer filed an appeal with the Appeal Commission on June 3, 2021. A file review was arranged for September 29, 2021.

Reasons

Applicable Legislation and Policy

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

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. 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.

Employer’s Position

The employer’s position in respect of the issue under appeal is as set out in the Employer Appeal of Claims Decision form submitted to the Appeal Commission on June 3, 2021. The employer stated its belief that the appeal should be granted as the worker was capable of working modified duties on February 10 and 11, 2021 and the employer had such duties available to the worker. Further, the nature of the worker’s injuries would not have prevented them from undertaking the modified duties available.

The employer set out that the worker originally reported the injury as minor and was able to complete the balance of their shift on the date of injury. Although the worker states the injury worsened over the course of the day on February 9, 2021, they did not report this to the employer. The employer noted that the Review Office decision stated the employer was aware of the worsening condition of the worker’s injury on that date, but this was not the case as indicated in the employer’s initial accident report to the WCB. In failing to advise of the worsening symptoms and not seeking immediate medical attention, the worker failed to mitigate their time loss resulting from the injury.

In sum, the employer’s position is that because the worker did not immediately seek medical attention, and further, was capable of undertaking modified duties on the dates in question, the worker should not be entitled to wage loss benefits on February 10 and 11, 2021.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The issue for determination on appeal is whether the worker is entitled to wage loss benefits for February 10 and 11, 2021, In order to grant the employer’s appeal, the panel would have to determine that the worker did not sustain a loss of earning capacity as a result of the workplace injury of February 9, 2021. For the reasons set out below, the panel was not able to make such a finding and the employer’s appeal is denied.

The WCB accepted the worker’s claim for injury arising out of an accident that took place in the course of the worker’s employment on February 9, 2021. The claim file evidence indicates that the treating physician reported the injury to the WCB on February 10, 2021 after the worker first sought medical treatment. The medical chart from that assessment indicates the worker sustained injury to their left foot on the previous day, specifically hyperextension of the left first toe and that the worker was advised to rest, ice, apply compression and elevate their foot, use pain medication, obtain an x-ray and work light duties for approximately one week.

The claim file also indicates the worker followed up with their physician the next day when the x-ray results were reviewed. The physician noted negative findings on the x-ray and that the worker reported feeling better that day. The physician recommended the worker return to work on light duties on February 12, 2021 and that the worker in fact returned to work to complete their shift on February 11, 2021.

When the WCB first contacted the worker on February 18, 2021, the worker confirmed time loss of a full day (8 hours) on February 10, 2021 and of 6 hours on February 11, 2021. The file record indicates that on the date of accident the worker completed their shift but noticed worsening pain by the end of the day and on returning home and removing their boots, noted bruising. The worker contacted their physician the next morning to arrange a virtual appointment, which took place later that morning. The next day, after reviewing the x-ray with their physician and having the functional capabilities form completed by the physician, the worker returned to modified duties. This information was confirmed by the employer on February 18, 2021.

We do not find there is any basis for the assertion the worker failed to mitigate their time loss by not seeking medical attention on the date of injury. Based upon the nature of the injury sustained, the panel finds it was reasonable that the worker continued working and completed their shift, although with increasing discomfort as they did so. This supports a conclusion that the worker was not aware of the extent of injury until they returned from work and removed their boot.

The panel further finds that the worker did seek and obtain timely medical treatment upon becoming aware of the extent of their injury. The worker was able to obtain appropriate medical attention the next day and on the basis of the advice given, followed up as required and when medically cleared to return to work on light duties, did so promptly.

We are also satisfied that the employer had available modified duties that were appropriate to the worker’s capabilities and notes that the worker did return to work to undertake those modified duties when authorized to do so by the treating physician.

On the basis of the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that as a result of the compensable workplace injury sustained on February 9, 2021, the worker experienced a loss of earning capacity on February 10 and 11, 2021. The worker is therefore entitled to wage loss benefits for February 10 and 11, 2021. The employer’s appeal is dismissed.

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 2nd day of November, 2021