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 is entitled to wage loss benefits on October 7, 2021. A hearing was held on March 10, 2022 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits on October 7, 2021.

Decision

The worker is entitled to wage loss benefits on October 7, 2021.

Background

On October 13, 2021, the WCB received a Worker Incident Report from the worker reporting an injury to their left shoulder that occurred on October 6, 2021, after they lifted a patio stone and felt their shoulder pop out. The worker advised they felt immediate pain but finished their shift as it was near the end of the day. The worker further advised that the following day, they sought medical treatment and reported it to the employer. The worker reported they returned to work on light duties on October 13, 2021.

The Employer’s Accident Report provided to the WCB on October 13, 2021 noted the worker advised the employer they had a sore left shoulder on October 7, 2021 after not attending to work that day. The employer indicated the worker had not reported the incident to their supervisor or completed an incident report related to an injury to their left shoulder, although the worker was aware of the procedures for reporting an injury and returning to work. The employer reported they instructed the worker to attend the employer’s office to pick up documentation to be completed by their treating physician.

The WCB received a Doctor First Report on October 18, 2021 relating to the worker’s examination on October 7, 2021. The physician reported tenderness on the supraspinatus muscle with abduction and flexion of the worker’s shoulder and positive testing for a left rotator cuff injury, and offered a diagnosis of left rotator cuff sprain, noting the worker’s report of left shoulder pain after lifting heavy stone. The physician recommended the worker could undertake modified duties, with restrictions on lifting weight of more than 5 pounds or repeated movement with the left shoulder, for a period of 4 weeks.

The WCB accepted the worker’s claim on October 20, 2021 and provided wage loss benefits to the worker for October 7, 2021. In discussion with the WCB on October 20, 2021, the employer advised there was no work available on October 8, 2021 due to rain, and that modified duties were available as of October 12, 2021, but the worker did not return to modified work until October 13, 2021. The employer further advised that none of the worker’s co-workers were aware of the workplace accident and there were no witnesses. On October 20, 2021, the WCB provided the employer with a letter indicating it had determined the worker sustained an injury to their left shoulder arising out of and in the course of their employment.

On October 25, 2021, the employer requested Review Office reconsider the WCB’s decision to pay wage loss benefits for October 7, 2021, noting the worker had not advised their supervisor of the incident and did not report the incident to the employer until they had missed work the following day and were contacted by the employer’s safety officer. Further, the employer advised the worker did not seek medical treatment until after their regular business hours the day following the workplace accident and was aware of the employer’s procedures for reporting accidents and returning to work. The employer noted their belief the worker should not be entitled to wage loss benefits for October 7, 2021 as they did not seek medical treatment or report their injury on a timely basis and noted that had the worker reported their injury and sought medical treatment sooner, the employer could have accommodated the worker with modified duties on October 7, 2021.

Review Office determined on November 3, 2021 that the worker was entitled to wage loss benefits for October 7, 2021. Review Office considered that as the workplace accident occurred close to the end of the working day, it was reasonable for the worker to seek medical treatment and have any documentation required by the employer completed on October 7, 2021. Further, Review Office noted the worker did not refuse the employer’s offer of modified duties and returned to those duties on October 13, 2021.

The employer filed an appeal with the Appeal Commission on November 5, 2021 and a hearing was arranged for March 10, 2022.

Reasons

Applicable Legislation and Policy

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.

Employer’s Position

The employer was represented in the hearing by its health and safety officer, who 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 is that the worker should not have sustained any loss of earnings as a result of the injury sustained in the workplace accident of October 6, 2021 as the employer had available appropriate modified duties. The employer’s position is that the worker failed to mitigate the effects of their injury by promptly reporting it to the employer and seeking appropriate medical attention on the date of the accident rather than waiting until the next day to do so.

The employer’s representative confirmed that the worker, who was hired on September 23, 2021 had been instructed in the workplace safety and injury reporting procedures on their first day of work and had also participated in a workplace meeting on October 4, 2021 in which these procedures were reviewed. The employer’s representative confirmed that the employer has in place an appropriate program of light duties to accommodate injured workers and that it could have accommodated the worker on October 7, 2021.

The employer’s representative stated that on October 7, 2021, they learned from a site supervisor at 7:00 a.m. that the worker had not attended work as required at 6:00 a.m. and began trying to contact the worker. The representative stated that the worker contacted the employer at 11:00 a.m. and was told at that time to come to the employer’s office. The employer’s representative indicated to the panel that the worker attended at approximately noon and met with the representative for 15 minutes before leaving. The employer’s representative noted that the worker did not see a doctor until 4:00 p.m. that day and the worker did not return to work until October 13, 2021.

The employer’s representative confirmed to the panel that there was no work available on October 8, 2021 and that the employer did not typically operate over the weekend at that time of year. The next working day was Tuesday, October 12, 2021, when the worker called in to indicate they would not be in that day. The worker did attend work on October 13, 2021 to participate in the light duties offered.

In sum, the employer’s position is that the worker should not be entitled to wage loss benefits on October 7, 2021 as the worker failed to report their injury on a timely basis and did not seek medical attention for their injury until late in the day on October 7, 2021 so that the worker’s loss of earnings on October 7, 2021 was the result of the worker’s own actions. The employer would have been able to accommodate the worker with modified duties on October 7, 2021 had the worker reported their injury and sought medical attention more promptly, thus eliminating any potential loss of earnings of the worker.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The question on appeal is whether the worker is entitled to wage loss benefits on October 7, 2021 in relation to the accident of October 6, 2021. For the panel to grant the employer’s appeal, it would have to find that the worker did not have a loss of earning capacity on October 7, 2021 resulting from the compensable workplace accident or that the worker should not be entitled to such benefits because they failed to mitigate the effects of the compensable injury by taking reasonable steps to reduce or eliminate any loss of earnings resulting from an injury. The panel was not able to make such findings and therefore the employer’s appeal is denied.

The panel considered the timeline of events as outlined by the employer’s evidence and the information that the worker provided to the WCB as set out in the claim file. The worker sustained injury to their shoulder in the course of their employment late in the workday on October 6, 2021 but completed their shift without reporting the injury to the employer and went home. The worker stated that they called in sick the next day. The employer stated that they did not hear from the worker until 11:00 a.m. on October 7, 2021 although the worker was expected at work for 6:00 a.m. Between 7:00 and 11:00 a.m. the employer tried to contact the worker. 

When the worker contacted the employer to advise they were not coming in to work due to their injury, the employer directed the worker to come into work to report and obtain forms for completion by a physician. The employer’s representative noted that the worker attended the workplace at 12:00 p.m. and remained there until approximately 12:15 p.m. The worker sought medical attention at a local clinic seeing a physician at approximately 4:00 p.m. according to the employer’s representative. The physician assessed the worker and recommended the worker could return to work with restrictions. The medical reporting confirms that the worker sustained injury to their shoulder arising out of their work duties. The WCB accepted the worker’s claim on this basis.

The employer submits that the worker ought to have reported the injury earlier, either when it occurred or immediately the next working day. The employer further submits that the worker ought to have sought medical attention in the evening of October 6, 2021 so that the worker could have attended work to participate in modified duties on October 7, 2021.

There is no information before the panel to indicate whether the worker considered or attempted to seek medical attention on October 6, 2021 nor as to whether the worker ultimately sought medical attention from their own treating physician or another physician, by appointment or by walk-in attendance on October 7, 2021.

The evidence before the panel supports a finding that as a result of the workplace accident of October 6, 2021, the worker sustained injury to their shoulder and that the worker was therefore unable to return to their usual job duties on October 7, 2021 resulting in a loss of earning capacity.

The Act requires that a worker must mitigate the effects of the compensable injury by taking reasonable steps to reduce or eliminate any loss of earnings resulting from a compensable workplace injury in order to be eligible for compensation. The panel considered whether the evidence here supports that the worker did take reasonable steps to reduce or eliminate any loss of earnings arising from the injury. While we agree that the worker could potentially have reported the injury to the employer earlier than they did, we note that the injury was reported within 24 hours of when it occurred and do not find that this was an unreasonable delay in reporting. Further, the panel considered that the worker was able to obtain appropriate medical care approximately 24 hours after the injury occurred. Given the evidence that the worker was able to complete their shift after sustaining injury on October 6, 2021 we do not find it unreasonable that the worker might take a “wait and see” approach to seeking medical care for the injury. While it is clear from the file reporting that the worker did not feel able to work the next morning, it is not clear that the worker knew of the nature and extent of their injury on the date of injury, or at any time before they obtained medical attention.

The panel therefore is satisfied on the basis of the evidence before us that the worker’s delay of less than one day in reporting the injury and in obtaining medical care for their injury does not amount to a failure to mitigate the effects of the compensable injury and does not disentitle the worker to compensation for the loss of earnings on October 7, 2021 resulting from that injury.

On the standard of a balance of probabilities we are satisfied that the evidence supports a determination that the worker is entitled to wage loss benefits on October 7, 2021. The employer’s appeal is therefore denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of March, 2022