Decision #26/22 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. The worker’s claim is acceptable; and
2. The worker is entitled to wage loss benefits for April 14 and 15, 2021.
A videoconference hearing was held on March 3, 2022 to consider the employer's appeal.
1. Whether or not the claim is acceptable; and
2. Whether or not the worker is entitled to wage loss benefits for April 14 and 15, 2021.
1. The claim is acceptable; and
2. The worker is entitled to wage loss benefits for April 14 and 15, 2021.
A Worker Incident Report and an Employer’s Accident Report were both provided to the WCB on April 15, 2021, reporting the worker injured their left chest and ribs in an incident at work on April 13, 2021, when some material in a jig slipped off and struck the worker in the chest and rib area. In a note on the Employer’s Accident Report, the employer noted the worker’s report to the employer that they had been injured in the chest and rib area the previous weekend at home when a heavy item swung into them and struck them. The employer also submitted a note from the worker’s doctor dated April 15, 2021 indicating the worker was capable of performing sedentary work until they could tolerate returning to regular duties.
Also on April 15, 2021, the employer contacted the WCB to discuss the worker’s claim. The WCB advised the employer the note from the doctor would be valid as of April 16, 2021 and the employer confirmed they would contact the worker and offer them modified duties. On April 16, 2021, the employer advised they had left a message for the worker but had not had a response. The WCB contacted the worker on the same date to discuss their claim. The worker confirmed the described mechanism of injury and noted their symptoms of hard to breathe, rib pain, swelling but no bruising. The worker noted their chest and rib area was still tender but they had no breathing issues. The WCB advised the worker the employer had provided a note from their doctor indicating they were able to perform modified sedentary duties and had contacted them to offer those duties. The worker advised they were not at home and had not received the message. Further, the WCB asked the worker about the incident at home the weekend prior to the April 13, 2021 workplace accident and the worker advised the WCB the incident had occurred on the Friday evening and they had no pain when they returned to work on Monday, April 12, 2021. The WCB accepted the worker’s claim and paid wage loss benefits for April 14 and 15, 2021.
On April 20, 2021, the employer requested reconsideration of the WCB’s decision that the worker’s claim was acceptable and to pay the worker wage loss benefits for April 14 and 15, 2021. The employer presented the argument that the worker’s injury occurred from an incident at home, not at work, and the employer noted the worker did not mitigate the claim as they had been offered modified duties but the worker did not respond.
A copy of the emergency department record for the worker’s attendance for medical treatment on April 13, 2021 was received by the WCB on April 21, 2021. The treating physician recorded the worker’s reporting of being struck on the chest wall and diagnosed chest wall pain from a blow to the area.
After a discussion with the worker on April 28, 2021, the WCB advised the worker the following day a workplace accident had been established as occurring on April 13, 2021 and wage loss benefits were paid for April 14 and 15, 2021; however, the worker was only entitled to 4.5 hours of time loss for April 16, 2021 as they had not responded to the employer’s offer of modified duties provided that day.
On May 11, 2021, the employer advised the WCB they would like to proceed with their request for reconsideration. On June 15, 2021, Review Office determined the worker’s claim was acceptable and the worker was entitled to wage loss benefits for April 14 and 15, 2021. Review Office accepted the evidence of the worker that an accident occurred on April 13, 2021 when they were struck in the chest area, arising out of and in the course of their employment. Further, Review Office noted the medical note from the worker’s doctor was received on April 15, 2021 and the medical evidence on file prior to that time indicated the worker was unable to work. The employer did not offer the worker modified duties until April 16, 2021 and as such, the worker was unable to mitigate their loss of earning capacity on April 14 and 15, 2021. Accordingly, the worker was entitled to wage loss benefits for those days.
The employer filed an appeal with the Appeal Commission on October 28, 2021. A videoconference hearing was arranged for March 3, 2022.
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 suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause, and includes
(a) a wilful and intentional act that is not the act of the worker.
(i) event arising out of, and in the course of, employment or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
WCB Policy 188.8.131.52, Pre-existing Conditions (the "Policy") addresses the issues of pre-existing conditions when administering benefits. The Policy states that:
When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
WCB Policy 44.05 addresses Arising out of and in the Course of Employment and states:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment--that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. The Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proved, and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.
WCB Policy 43.20.25, Return to Work with the Accident Employer, outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy describes suitable modified or alternate work as follows:
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 worker or co-workers.
The employer’s representative attended with an observer who did not participate in the hearing. The employer presented evidence from two co-workers, one of whom was working with the worker at the time of the injury and the other was working nearby and attended as a first responder after the injury.
The witnesses provided their evidence as to what transpired on the injury date and answered questions posed by the panel.
The employer’s position was, based on the witnesses' evidence, the worker was not hit by the pipe and his co-worker would have noticed if there was an accident. Further, the worker could not have suffered an injury of the nature suffered by the employee. Rather, the employer’s position was that the worker was hurt outside of the workplace several days prior to the workplace incident. Accordingly, the employer argued that the claim should not be accepted. The employer did not present arguments regarding the worker’s entitlement to wage loss benefits for April 14 and 15, 2021.
The employee did not participate in the hearing.
The employer is appealing whether the worker's claim is acceptable and whether the worker is entitled to wage loss benefits for April 14 and 15, 2021. In order for the employer's appeal to succeed, the panel would have to find that either the worker's claim was not acceptable and/or that the worker was not entitled to benefits on April 14 and 15, 2021. The panel was not able to make those findings for the reasons that follow.
The witnesses called on behalf of the employer described the incident as best they could but neither of them saw whether or not the worker was hit. The first witness, a co-worker who was working with the worker and operating the equipment, described the movement of a pipe weighing about 700 to 800 pounds as having moved in a sling a quarter turn and did not believe the worker was hit. However, the witness confirmed that he was focused on his task and was not watching the worker. The second witness was not present at the time of the incident but was called, as first responder, to assess the worker. Both witnesses signed written statements which were prepared with the assistance of the employer some eleven months after the incident. However, the written statements and the oral descriptions of the incident given by the witnesses were inconsistent and the timelines described by the witnesses deviated from the medical records made at the time the worker attended the hospital for treatment, especially as regards the time of the accident.
The worker had advised the witnesses of an injury suffered outside the workplace on the weekend prior to the workplace incident and it was on the basis of the worker’s description of that occurrence that the witnesses believed that the injuries suffered by the worker occurred on the weekend and not as a result of a workplace accident. However, the worker attended work the following Monday, April 12, 2021 and the workplace incident occurred on Tuesday, April 13, 2021 and no evidence was presented that the worker required accommodation or complained of difficulties performing workplace duties on April 12, 2021 or when he commenced work on April 13, 2021. Immediately following the incident, the worker declined assistance from the first responder other than accepting an ice pack and continued to work for about fifteen minutes but then stopped working and immediately went to the hospital to seek medical care.
Relying on the fact that the worker had been performing workplace duties without accommodation or recorded complaint, that medical attention was sought almost immediately after the incident, and that nobody was observing the worker such that they could state that the worker was not injured as reported by the worker, the panel finds that, on a balance of probabilities, there was a workplace accident on April 13, 2021 which resulted in an injury to the worker.
With respect to the issue of the worker’s entitlement to wage loss benefits for April 14, 2021 and April 15, 2021, the employer, when questioned by the panel, did not present any argument other than to confirm the employer did not believe the claim should be accepted. The Doctor’s First Report dated April 13, 2021 indicated that the worker was disabled from work beyond the date of the incident and was not capable of alternate or modified work but could return to work on April 19, 2021. On April 15, 2021, the employer obtained a doctor’s note, dated that day, which stated that the worker could do sedentary work until regular duties were tolerated, indicating that this was from the date of injury. The employer sent the doctor’s note to the WCB on the afternoon of April 15, 2021 and asked the WCB to instruct the worker to be at work on April 16, 2021, to start modified duties. The WCB file states that the employer left a voice message for the worker on April 15, 2021 offering modified duties but the worker reported that, due to being absent from the home, the message had not been received. The WCB spoke with the worker on the morning of April 16, 2021 and the worker returned to work that day.
Although the doctor’s note indicated the worker could return to sedentary work, it was dated as of April 15, 2021. No evidence was submitted to the panel which indicated that the worker was aware of the offer of modified duties prior to the afternoon of April 15, 2021 and even then this offer came by way of a message left by the employer. The worker was advised of the doctor’s note by the WCB on the morning of April 16, 2021 and returned to work that day. In the absence of evidence to the contrary having been presented to the panel, the panel finds that there was no unreasonable delay in returning to work and the worker is entitled to wage loss benefits for April 14, 2021 and April 15, 2021.
The employer’s appeal on both issues is denied.
K. Gilson, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of March, 2022