Decision #121/22 - Type: Workers Compensation

Preamble

The employer is appealing decisions made by the Workers Compensation Board ("WCB") regarding the worker's entitlement to wage loss benefits.

A hearing was held on October 25, 2022 to consider the employer's appeal.

Issue

1. Whether or not the worker is entitled to full wage loss benefits from May 6, 2021 to June 30, 2021; 

2. Whether or not the worker is entitled to full wage loss benefits from July 1, 2021 to August 22, 2021; 

3. Whether or not the worker is entitled to wage loss benefits effective October 10, 2021; 

4. Whether or not the worker is entitled to wage loss benefits effective December 1, 2021; 

5. Whether or not the worker is entitled to wage loss benefits from January 7, 2022 to January 13, 2022; and 

6. Whether or not the worker is entitled to wage loss benefits after April 14, 2022.

Decision

1. The worker is entitled to full wage loss benefits from May 6, 2021 to June 30, 2021; 

2. The worker is entitled to full wage loss benefits from July 1, 2021 to August 22, 2021; 

3. The worker is entitled to wage loss benefits effective October 10, 2021; 

4. The worker is entitled to wage loss benefits effective December 1, 2021; 

5. The worker is entitled to wage loss benefits from January 7, 2022 to January 13, 2022; and 

6. The worker is entitled to wage loss benefit after April 14, 2022.

Background

On March 24, 2021, the employer submitted an Employer Incident Report reporting the worker injured their right ankle at work on March 23, 2021 after stepping down from a ladder and rolling their ankle as they reached the ground. The employer noted the worker advised the foreman of the incident and then was taken to the hospital for treatment.

The hospital report for the worker's attendance on March 23, 2021 noted the worker's report of an ankle injury that occurred on descending a ladder at work. The hospital report noted an inversion injury to the right ankle, with the worker able to ambulate but with pain indicated over their lateral ankle and leg. The treating physician noted the worker was ambulating with a limp and there was tenderness over the lateral malleolus with some swelling. An x-ray indicated normal findings and the diagnosis provided was an ankle injury, to be treated with rest and ice and the worker to remain off work for one week.

On the same date, the worker was assessed by their family physician who reported the worker's complaints of pain to the lateral ankle/foot, with some decreased mobility and range of motion indicated. Upon examining the worker, the family physician reported tenderness to their lateral malleolus on the worker’s right ankle, and recommended restrictions of limiting prolonged standing or walking, and no climbing/stairs/ladders.

The worker filed their Worker Incident Report with the WCB on March 31, 2021, confirming the mechanism of injury as: "I was going down a ladder and about to go for break. I was on the last rung of the ladder, stepping on the floor when I injured my ankle."

On the same date, the worker followed-up with the treating family physician reporting right ankle pain with ambulation and inability to weight bear. The physician noted swelling of the worker’s right ankle and foot and tender ankle ligaments, and recommended the worker remain off work for one week, rest, use ice and elevate their ankle.

When the WCB contacted the worker to discuss their claim on April 6, 2021, the worker confirmed the mechanism of injury and described the medical treatment obtained, advising of a follow-up appointment on April 7, 2021. The worker further confirmed they had not missed any time, and returned to work on March 24, 2021 on modified duties, as offered by the employer. The worker confirmed the sedentary duties provided were within the restrictions outlined by the treating physician; however, the job site they were working on made it difficult for them to work. The worker noted using crutches and that in order to get to the bathroom, they had to travel over uneven ground. The worker mentioned they had fallen and broken one of the crutches and that they had not worked since March 28, 2021. The worker also advised the WCB they had a pre-arranged leave of absence booked but had requested it to be cancelled due to their injury.

At the follow-up appointment on April 7, 2021, the worker reported ongoing pain, radiating up their leg and that they were unable to weight bear. The physician noted no swelling, full range of motion but with pain, and that the worker was unable to weight bear. The treating physician recommended the worker remain off work for two weeks, prescribed a walking boot and referred the worker for physiotherapy.

At the initial physiotherapy assessment on April 13, 2021, the worker reported wearing a walking boot for support, difficulty with the activities of daily living, sharp pulling pain in their ankle and that they were unable to walk for long without pain. On testing, the physiotherapist diagnosed second degree ankle sprain and recommended sedentary duties.

A second physician assessed the worker on April 14, 2021, noting the worker’s report of ongoing pain and difficulty walking, but no swelling or bruising. The physician recommended continued use of the walking boot and physiotherapy, along with sedentary duties. On April 20, 2021, the worker attended an urgent care facility for a non-compensable medical condition and subsequently advised the WCB they stopped the modified duties. At that time, the WCB suspended the worker's wage loss benefits as they were off work for a non-compensable reason.

At follow-up with the worker on May 3, 2021, the treating family physician noted continued difficulties with the worker's right ankle, including pain with walking and that the worker was continuing to use the walking boot. The physician recommended sedentary work. On May 7, 2021, the treating physiotherapist also recommended sedentary work.

On May 10, 2021, the employer provided to the WCB a copy of their email correspondence with the worker indicating an Offer of Modified Work was made to the worker on May 6, 2021, which the worker refused on the same date, noting concerns with ambulating at the work site as they were still using crutches. The employer confirmed to the WCB that the worker's concerns were noted and advised that modified duties offered were within the worker's current restrictions and arrangements were made for the work site to be suitable for the worker.

On May 12, 2021, the employer provided the WCB with information on transportation for the worker on the job site and a detailed site map, with distances indicated. A WCB medical advisor reviewed the worker's file on May 13, 2021and concluded the worker's diagnosis was a moderate right ankle sprain that was not progressing to recovery, even six weeks post injury.

On May 12, 2021, the worker's treating family physician referred the worker for an MRI which took place on May 27, 2021 and indicated:

1. Remote appearing sprains of the anterior talofibular and calcaneofibular ligaments. 

2. Probable short segment split tear of the peroneus brevis tendon.

At follow-up with the worker on June 9, 2021, the physiotherapist noted the worker was still using crutches along with the brace and continued swelling. The physiotherapist indicated the worker was unable to work due to their ongoing symptoms.

On June 21, 2021, the treating family physician referred the worker to a sports medicine specialist.

On July 8, 2021, a WCB orthopedic specialist reviewed the worker's file, including the May 27, 2021 MRI, and stated that the MRI results indicated the current diagnosis was a "…longitudinal split tear of the right peroneus brevis tendon" with "…pre-existing (chronic) tearing of the right anterior talo-fibular and calcaneal fibular ligaments." The WCB orthopedic specialist noted intermittent bracing may be required but not beyond six months and that a split tear "…is still compatible with normal foot and ankle function in the vast majority of cases." The WCB specialist did not recommend continuing formal physiotherapy and recommended workplace restrictions as follows: climbing or maneuvering on rough or uneven terrain is not appropriate; capable of standing and walking on level surfaces for up to an hour at a time, with short rests as needed; load bearing limited to 20 pounds, carried over a short distance; and use of brace for up to six months from the time of the injury as needed.

On July 9, 2021, the employer advised the WCB that the project in which the worker was employed ended on June 30, 2021 and they no longer had modified duties available for the worker. The WCB provided the updated restrictions to the employer on July 12, 2021.

On July 26, 2021, the worker attended a call-in examination with the WCB orthopedic specialist. On examining the worker, the specialist opined there was no known reason for the worker to be non-weight bearing four months after the accident. Further, the specialist noted pain responses in the lateral aspect of the worker's foot and ankle from unexpected sources and opined the swelling and pain found in the worker's right ankle and foot were "…secondary to dependency and lack of movement."

The employer's representative contacted the worker on August 18, 2021 to offer further modified duties, effective immediately. The representative advised the WCB that the modified duties consisted of online training that the worker could perform at home.

On August 18, 2021, the treating physiotherapist provided a progress report to the WCB indicating the worker continued to experience pain and discomfort in their ankle but could put more weight on it and noted the ankle would swell up after 15 minutes wearing a shoe. The physiotherapist updated the restrictions to sedentary duties only with use of one crutch and ankle brace, breaks and position changes as needed and alternating days to start. The worker returned to modified duties on August 23, 2021.

The worker's representative contacted the WCB on August 25, 2021 to request information regarding the worker's entitlement to wage loss benefits prior to July 1, 2021. On September 23, 2021, the WCB advised the worker's representative they would soon provide a formal decision on wage loss entitlement. On September 28, 2021, the WCB provided a decision letter to the worker confirming the April 20, 2021 decision that the worker was not entitled to benefits from March 28, 2021 to April 4, 2021. Further, the WCB confirmed that the worker returned to work on modified duties on April 5, 2021 but discontinued on April 19, 2021 due to a non-compensable medical condition. The letter indicated that on April 21, 2021, the employer offered the worker modified duties, which the worker refused and made another offer on May 6, 2021, which the worker also refused. The WCB advised they did not accept responsibility for the worker's time loss from April 19, 2021 to June 30, 2021 as the evidence did not support the worker had a loss of earning capacity during that time; however, the WCB noted the worker would have been entitled to partial wage loss benefits for that period as the offered modified duties were for fewer hours than the worker was normally scheduled to work.

On October 1, 2021, the employer again provided the worker with an offer of modified work to begin on October 4, 2021 and the WCB advised the proposed start date did not provide the worker with enough notice to relocate. The employer adjusted the start date to October 12, 2021. On October 4, 2021, the worker advised the WCB they would be willing to participate in the modified work; however, due to a non-compensable health issue, they could not do so at that time. As the worker did not participate in the return-to-work plan, the WCB suspended wage loss benefits on October 12, 2021.

The worker's representative contacted the WCB on October 14, 2021 to note concerns with the employer's modified duties offer, which were addressed by the WCB on October 19, 2021. After further investigation, the worker's wage loss benefits were reinstated effective October 10, 2021.

On October 19, 2021, the employer's representative requested Review Office reconsider the WCB's decision to pay the worker wage loss benefits as the employer had suitable modified duties available for the worker which the worker initially refused based on their belief they could not be accommodated appropriately. Further, the employer's representative noted the worker's healthcare providers recommended the worker remain off work without indicating what had changed medically in terms of the worker's abilities. The representative noted the worker could perform sedentary duties which the employer had available for the worker for the duration of the worker's claim.

On November 16, 2021, after discussion with the WCB, the employer again presented an offer of modified duties to the worker. Photographs of the jobsite were provided with the offer to begin as of December 1, 2021.

The treating physician provided an updated medical report to the WCB on November 17, 2021, noting they saw the worker on that date and indicating the worker had difficulty with ambulation, with it being painful for them to walk or move their ankle. The physician suggested this would preclude the worker from performing any job duties that forced them to ambulate. The physician also noted the worker was referred to an orthopedic surgeon, with an appointment arranged for December 14, 2021.

On November 30, 2021, the worker's representative provided a submission to Review Office in response to the employer's request, noting disagreement with the position that the modified duties offered by the employer were appropriate given the worker's noted concerns and lack of updated medical information setting out the worker's abilities. The representative argued the worker should be entitled to wage loss benefits when they are recovering or until they are medically cleared to resume working. Further, the worker's representative requested reconsideration of the WCB decision that the worker was entitled only to partial wage loss benefits for May 6, 2021 to June 30, 2021, noting the worker was following the advice of the WCB at the time and awaiting results of further medical investigations. The worker’s representative's submission was shared with the employer's representative on November 30, 2021, and the employer's representative provided a response on December 14, 2021.

On December 15, 2021, the worker advised the WCB that the orthopedic surgeon’s office had provided notice of rescheduling to sometime in January, 2022.

The WCB provide a decision letter to the employer on December 15, 2021 outlining the decision to reinstate the worker’s wage loss benefits as of October 10, 2021. On December 21, 2021, the WCB advised the employer the worker’s return to work would be placed on hold until such time as the worker was assessed by the orthopedic surgeon.

On December 23, 2021, Review Office determined that the worker was entitled to full wage loss benefits from May 6, 2021 to June 30, 2021 and that the worker was entitled to further full wage loss benefits. The Review Office found the modified duties offered by the employer during the period from May 6, 2021 to June 30, 2021 were not suitable and were not within the worker's functional abilities. As such, the worker was entitled to full wage loss benefits for that time. The Review Office further found the worker was not offered suitable modified duties until August 23, 2021 and accordingly, the worker was entitled to full wage loss benefits from July 1, 2021 to August 22, 2021.

By letter dated January 6, 2022, the WCB advised the worker that their wage loss benefits were suspended as of January 7, 2022 as they had failed to mitigate the effects of their compensable injury by not attending scheduled physiotherapy appointments. The WCB noted the worker missed an appointment on December 14, 2021 due to being turned away for exhibiting symptoms of illness and again on December 31, 2021, due to arriving late for the appointment. The WCB provided the employer with a further decision letter on January 10, 2022, advising the worker was entitled to full wage loss benefits as of December 1, 2021 as there was a lack of medical evidence to support the worker could perform the offered modified duties.

On January 14, 2022, the worker attended an initial physiotherapy assessment reporting chronic pain and inability to weight bear without a walking boot, intermittent tingling to their lateral leg and calf, lateral ankle tightness and feeling unbalanced or unstable when weight bearing. The physiotherapist noted the worker ambulated with a cane and walking boot and had a poor quality of gait, noting the worker "Places negligible weight thru (sic) Rt (right) leg and uses cane in Rt (right) side instead of opposite side which is recommended. With boot removed no significant swelling or discoloration." The physiotherapist also noted the worker struggled to follow their instructions or use the proper muscles and they were not able to properly assess the strength in the worker's ankle. The physiotherapist provided a diagnosis of "Pain focused, post sprain/avulsion foot/ankle disuse" and recommended the worker was capable of desk work.

On January 20, 2022, the treating physiotherapist contacted the WCB to discuss the worker's treatment, reporting the worker had attended for an appointment on that date but had advised they had a non-compensable health condition for which they were released from the hospital the previous day. The physiotherapist noted the worker was not actively involved in the treatment program that day and provided the worker with home exercises to complete. The physiotherapist noted they had a telephone call into the worker's treating physician for further information on the non-compensable health condition and their ability to continue to treat the worker. The WCB contacted the worker on January 21, 2022 to gather further information.

A Physiotherapy Initial Assessment was received from a second physiotherapist on January 24, 2022 for an appointment on the same date. The physiotherapist recorded the worker's complaints of right ankle pain that increased with weight bearing activities, right ankle swelling and weakness and inability to weight bear without crutches. The physiotherapist noted decreased right ankle range of motion, swelling over right lateral malleolus, unequal weight bearing, antalgic gait, and tenderness on palpitation to the anterior and posterior talofibular ligaments, and the calcaneofibular ligament. The second physiotherapist diagnosed anterior talofibular/calcaneofibular ligament sprain and peroneal strain and recommended the worker remain off work.

On January 25, 2022, the worker's treating physician advised the WCB the worker could not continue with the physiotherapy treatment until cleared by the physician due to the non-compensable health issue. On January 26, 2022, the WCB notified the worker that their wage loss benefits would be reinstated as of January 14, 2022, based on their participation in the treatment plan.

The WCB provided a further decision letter to the worker on January 27, 2022 advising that as their non-compensable health issue was preventing them from participating in the treatment necessary for their recovery, they would continue to receive wage loss benefits but only until the estimated end date for recovery from their workplace accident, being to at least April 3, 2022.

On March 11, 2022, the WCB received a report from the orthopedic surgeon relating to the appointment on January 27, 2022. The surgeon described the worker's report of "…occasional sharp pain around the right lateral malleolus that radiates up to the lateral side…" with occasional swelling and noted the worker had "…great difficulty standing on the right leg" and walked with a crutch, keeping their heel to the floor and knee slightly bent. The surgeon also noted tenderness around the posterior aspect of the lateral malleolus with the ankle otherwise stable and decreased range of motion "…mostly due to apprehension." The surgeon reviewed the MRI findings and recommended the worker discontinue using the crutch and rely on a cane in their left hand for ambulation, encouraging the worker to weight bear as tolerated and to attempt to walk with a normal gait. The surgeon recommended debridement and possible repair of the peroneus brevis split tear.

On March 17, 2022, a WCB orthopedic consultant reviewed the worker's file and tentatively authorized the requested surgery, pending clearance by the worker's treating physician for the non-compensable health issue.

On April 7, 2022, the worker's representative requested Review Office reconsider the WCB's decision not to pay the worker wage loss for the period of January 7, 2022 to January 13, 2022, noting the medical information indicated that as surgery had been recommended, physiotherapy treatment was not going to lead to the worker's recovery and as such, the worker should not have had their wage loss benefits suspended for not participating in that treatment.

On April 8, 2022, the WCB advised the worker they were not entitled to benefits after April 3, 2022. The WCB noted this date represented when the worker would have been participating in physiotherapy treatment to aid in their recovery but for the non-compensable health issue that occurred on January 18, 2022, noting the worker was not yet cleared for the proposed surgery. On April 19, 2022, the WCB advised the worker that seven days' notice was required under the WCB policy and therefore, the entitlement to benefits was revised to end on April 14, 2022.

On April 11, 2022, the employer's representative requested Review Office reconsider the WCB's decisions that the worker was entitled to wage loss benefits effective October 10, 2021 and effective December 1, 2021. The representative submitted that the employer had offered the worker suitable modified duties, which were not accepted by the worker. Further, the representative noted a further suitable offer of modified duties was offered to the worker and delayed by the WCB due to the worker requiring an appointment with a specialist. The employer's representative noted the employer's willingness to offer the worker time off to attend the specialist appointment but noted the WCB never discussed such an arrangement with the employer.

On April 19, 2022, the worker’s representative contacted Review Office to add the issue of the worker's entitlement to wage loss benefits after April 14, 2022 to their request for reconsideration. On May 11, 2022, the worker's representative provided a submission in response to the employer's request for reconsideration.

The employer’s representative responded to the worker's submission on May 24, 2022. Copies of all submissions were provided to the parties.

Review Office rendered a decision on May 31, 2022. With respect to the employer's appeal regarding the worker's entitlement to benefits effective October 10, 2021, Review Office found the WCB case manager required further details regarding the modified duties and accommodation offered by the employer and accordingly, the worker was entitled to wage loss benefits from that date. Review Office also agreed to continue the worker's wage loss benefits after December 1, 2021 and defer the return-to-work planning to allow the worker to attend medical treatment, including seeing a specialist, before making return to work arrangements. Regarding entitlement to wage loss benefits for the period of January 6, 2022 to January 14, 2022, Review Office agreed with the argument of the worker's representative the worker's participation in physiotherapy treatment "…was not going to sufficiently promote the worker's recovery…" and found the worker's suspension of benefits for that period was not appropriate. Lastly, Review Office determined the worker was entitled to wage loss benefits after April 14, 2022 as the medical evidence on file did not support the worker would have been recovered by April 3, 2022 and noted surgery was still recommended as an option for treatment for the worker.

The employer's representative filed an appeal with the Appeal Commission on June 8, 2022 and a hearing was arranged for October 25, 2022.

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 the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

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 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 because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Section 22(1) places an onus upon the worker to mitigate the effect of their injury, as follows:

Every worker must 

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate 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.

The WCB has established Board Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) which provides that 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.” In determining a worker’s ability to perform suitable work, the policy requires that the WCB “…compare the worker’s compensable medical restrictions and capabilities to the demands of the work.”

The WCB has also established Board Policy 44.30.60, Notice of Change in Benefits or Services (the “Notice Policy”) to help WCB clients understand their rights about when and how notice of a loss in benefits, payments or services will be provided. The Notice Policy sets out that for discretionary decisions as defined in the Policy, the WCB must provide notice of at least seven calendar days (excluding statutory holidays) of the change in benefits.

Employer’s Position

The employer was represented in the hearing by an advocate who made submissions 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 be entitled to wage loss benefits for the periods in dispute as there is evidence of the employer’s offer of appropriate alternate duties that aligned with the worker’s accident-related physical restrictions, and as such the worker should not have experienced any loss of earning capacity during these periods of time. Further, and with respect to only to the question of entitlement to benefits after April 14, 2022, the employer’s position is that but for the worker’s non-compensable health condition that arose in January 2022, the worker would have completed their treatment and subsequent recovery in respect of the compensable injury by April 14, 2022 and as such the worker’s loss of earning capacity after that date relates to the delays resulting from the worker’s non-compensable health condition rather than to the compensable workplace injury.

In their submission to the panel, the employer’s advocate provided a chronological overview of the claim, noting that the employer first made an offer of modified duties that was accepted by the worker in April 2021 resulting in the worker completing at-home-based work activities from April 5 – 19, 2021 but that the worker subsequently discontinued the modified duties. When the treating physician and treating physiotherapist determined in early May that the worker was capable of sedentary work, the employer again offered modified duties to begin on May 6, 2021 but the worker declined this offer based on safety and site mobility concerns. The advocate noted that the employer was willing to provide on site transport of the worker to and from the specific work location and to the restroom facilities, all of which were located at distances beyond the ability of the worker to get to on their own, to address the worker’s specific concerns but that the worker did not accept the offered accommodation.

The employer’s advocate noted that although the specific project the worker was employed on ended on June 30, 2021, the employer had other work available that the worker could have been accommodated in. Further, the employer confirmed to the WCB in early July 2021 that there were ongoing modified duties available to the worker. The employer’s advocate submitted there was no objective support for the position that the worker could not undertake modified duties in July and August 2021, noting that the worker was able to undertake modified, sedentary duties working from home in late August 2021, working full-time in that role.

The employer’s advocate stated that the worker should not be entitled to wage loss benefits effective October 10, 2021 as the employer made another appropriate offer of accommodated dues on October 1, 2021 with a planned start date of October 12, 2021. The advocate confirmed the employer’s advice to the WCB that there were no stairs or ladders to manage at this new, out-of-province worksite and that the worker would have time to move around the site at their own pace. Although the worker initially agreed to this position, they subsequently raised several questions as to their living arrangements and specific work duties. There was a delay for a non-compensable health reason. The advocate also noted that the WCB took 7 weeks to investigate the concerns raised by the worker and their advocate, which the employer believes was excessive in the circumstances. For all these reasons, the employer believes that the worker should not be entitled to wage loss benefits effective October 10, 2021.

With respect to wage loss entitlement effective December 1, 2021, the employer’s advocate noted that the treating physician outlined workplace restrictions on November 17, 2021 that included desk work and reduced ambulation for a three-to-four-week period. These were more restrictive than the conditions previously outlined by the WCB, and the case manager therefore made a discretionary decision, considering the pending orthopedic referral, to suspend the return to work until the worker’s medical and functional status was fully assessed. Although the employer advised the case manager on December 30, 2021 that it could accommodate the worker with sedentary duties in another province, this was not shared with the worker, nor was the offer formalized. The employer’s position is that the case manager did not proactively manage this claim such that wage loss could be mitigated, while the employer made reasonable offers to accommodate the work and functional restrictions but were met with roadblocks at every offer.

The employer’s position is that the worker should not be entitled to wage loss benefits from January 7, 2022 to January 13, 2022 as the evidence indicates the worker failed to comply with the WCB’s requirement that they attend physiotherapy during this period. The advocate noted that absence of medical confirmation of the worker’s status from August 2021 to December, 2021 and that on December 14, 2021, the WCB case manager mandated that the worker attend physiotherapy as recommended. The employer’s advocate submitted that the worker should not be entitled to wage loss benefits in this period as there is evidence the worker failed to fully participate in the treatment of their injury and as such, failed to mitigate their wage loss.

With respect to the worker’s entitlement to benefits after April 14, 2022, the employer’s position is that had the worker proceeded with the recommended surgery they would have had a recovery period of 8-12 weeks and then would have been capable of a return to work. The fact that the worker did not proceed with the recommended treatment was due to factors that are not compensable or related to the workplace injury and the employer should not be penalized for the non-compensable delays in treatment. Further, the employer’s advocate noted the worker did not follow the instructions of the physiotherapist and did not attend consistently for treatment. The worker was unable to participate in any medical treatment for the compensable injury since the non-compensable health event in January 2022 and as a result, the claim has been further extended through no fault of the employer or the WCB.

In sum, the employer’s position is that the evidence does not support a determination that the worker is entitled to wage loss benefits in respect of the periods at issue as the worker could engage in modified, alternate work and the employer had appropriate modified duties available to the worker through all the periods of time in question. Further, the worker would have recovered following completion of the treatment required for the compensable injury by April 14, 2022 had they not experienced a further, non-compensable health condition early in 2022 and as such the worker’s loss of earning capacity beyond that date is not causally related to the compensable workplace injury. Throughout the claim, the employer has demonstrated its willingness to offer and provide accommodation to permit the worker to continue working.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who made oral submissions on behalf of the worker and relied as well upon their prior written submissions to the Review Office. The worker provided testimony in the hearing through answers to questions posed by the members of the appeal panel.

The worker’s position as outlined by the worker advisor is that the evidence does not establish that suitable work was available to the worker or that it was offered to the worker, such that the worker is disentitled to wage loss benefits as they did not participate in such work. Further, the worker advisor outlined the worker’s position that there should be no expectation that the worker will participate in alternate work offered by the employer while the WCB continues to investigate the appropriateness of such work. Further, the worker’s position is that when it became apparent that a surgical procedure was likely required, any delay in receiving physiotherapy treatment resulting from the worker’s non-compensable medical condition became irrelevant as it was apparent that such treatment alone would not have enabled an earlier return to work.

The worker advisor referred to the requirements for a safe return to work as outlined in the WCB’s Return to Work Policy and noted that the definition of suitable work within that policy is work that a worker is medically able to do, that does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Determining whether a worker can perform suitable work under the Policy requires that the WCB compare the compensable medical restrictions and capabilities to the demands of the work. This requires examination of more than just the actual duties of the alternate work but also the context and environment in which the work is proposed to be performed.

The worker advisor submitted that the WCB cannot both determine that the proposed alternate work is appropriate such that the worker is required to participate in the modified duties, and at the same time continue to investigate whether in fact the duties are appropriate and suitable for the worker. While such an investigation is ongoing and until a final determination is made by the WCB, the worker should not be expected to participate in the return to work and should be entitled to wage loss benefits.

The worker advisor noted that after May 6, 2021, the WCB case manager received information from the treating physiotherapist, the worker's family physician and from a WCB medical advisor, each of whom expressed that the worker was unable to walk on uneven surfaces or ambulate using crutches. While the proposed alternate work in a trailer performing sedentary work might itself comply with the worker’s restrictions, in getting to and from work and accessing the washroom or any other facility on the work site, the worker would require assistance and those details were not sorted out as of May 6, 2021. The worker’s mobility-related concerns are not trivial, as the worker may have been at risk of falling had they just returned to work without appropriate arrangements in place. Furthermore, the worker advisor noted the May 20, 2021 file memorandum from the WCB case manager indicating that the worker was advised that "Additional medical has now come in on the file and we are holding off on a [return to work] as we would like additional medical to review in order to determine [the worker’s] current diagnosis and treatment plan." The worker’s position is that they should be entitled to full wage loss benefits from May 6, 2021 to June 30, 2021 on the basis that they did not return to work on the instructions of the WCB.

In respect of the period from July 1 to August 22, 2021, the worker’s position, as outlined by the worker advisor, is that the employer did not offer to the worker any kind of modified work until August 18, when the employer emailed an offer of modified duties to the worker. Whatever the communications between the employer and the WCB in that period, the worker was not informed of any further offer of modified work and the employer did not make an offer of modified work to the worker until August 18, 2021 and the worker began working again on August 23, 2021. In this period, the worker remained injured and required work restrictions related to the workplace injury. As such, the worker was entitled to full wage loss benefits from July 1 to August 22, 2021.

For the period beginning October 10, 2021, the worker’s position is that the employer’s proposal that the worker relocate out of province to perform modified work does not constitute suitable work for several reasons. First, the worker had not previously worked in that province, for this employer or any other employer, and did not know anyone there, as opposed to Manitoba, where the worker knew some coworkers and was residing with people they know. The worker felt safe in Manitoba. Second, the details of the proposed modified work were not known at that time. The worker advisor noted they raised questions regarding the surfaces in the yard where the employer said the worker would be engaging in modified duties and what those duties entailed, given the vague description of “basic yard duties”. These basic job-related questions needed to be addressed to comply with the provisions of the Return to Work Policy requiring a comparison of the worker’s compensable restrictions and capabilities to the demands of the modified work. The worker advisor noted that the WCB subsequently inquired further of the employer as to the specific conditions and duties associated with the modified duties offered as of October 10, 2021 and reiterated the worker’s position that when the WCB continues to investigate such suitability, the worker's wage loss benefits should continue, and the worker should not be expected to go back to work that has not yet been determined to be suitable.

For the period beginning December 1, 2021, the worker’s position as outlined by the worker advisor is that the worker is entitled to wage loss benefits as they remained off work, acting on the decision of the WCB that the return-to-work plan for the out-of-province accommodation offer be put on hold pending the outcome of the planned consult with an orthopedic surgeon. While this appointment was rescheduled to late January 2022, the worker was not involved in that decision and should not be penalized for the delay. Further, there were no further return to work offers made by the employer beyond this time.

The worker advisor outlined the worker’s position with respect to entitlement to wage loss benefits from January 7 – 13, 2022 submitting that the worker is entitled to wage loss benefits for that week as the WCB failed to provide the worker with seven days calendar notice of the discretionary decision to suspend the worker’s benefits for failing to participate in the recommended physiotherapy. Although the WCB made that decision on January 6, 2022, the notification to the worker was sent by mail and the worker did not receive it until the following week so that the notice was not sufficient. Furthermore, and with the benefit of hindsight, the decision to suspend the worker’s benefits based on a failure to attend physiotherapy was not appropriate given that following the January 27, 2022 orthopedic surgical consult, it was clear that while physiotherapy could assist with the worker’s gait, a surgical procedure was recommended and approved by the WCB to address the worker’s ankle injuries. In other words, there would not have been any benefit in terms of the worker’s recovery in attending for further physiotherapy and as such it is unfair to decline the worker wage loss benefits for not participating in such treatment.

With respect to wage loss after April 14, 2022, the worker advisor noted there were no further offers of accommodation made by the employer once the surgery was proposed and approved by the WCB. Furthermore, the worker advisor submitted that terminating the worker’s entitlement to wage loss benefits at the conclusion of the 10-week period of the physiotherapy proposed, which the WCB determined not to fund, is not appropriate as there was no reasonable possibility that the worker would have recovered had they participated in that therapy, given the recommendations of the orthopedic surgeon. This would have been the case even if the worker did not experience the January 18, 2022 non-compensable health event and as such, the worker should be entitled to wage loss benefits beyond that date.

Analysis

The issues for determination on this appeal each relate to the worker’s entitlement to wage loss benefits during specified time periods. The panel considered each of the issues under appeal in turn as outlined in the reasons that follow.

Is the worker entitled to full wage loss benefits from May 6, 2021 to June 30, 2021?

For the employer’s appeal on this question to succeed the panel would have to determine that the worker did not sustain a loss of earning capacity from May 6, 2021 to June 30, 2021 arising out of the compensable workplace injury. The panel was unable to make such a finding for the reasons that follow.

In considering this question, the panel first considered the offer of modified work made by the employer on May 6, 2021. The panel noted that the employer made multiple offers of modified duties to the worker following the workplace accident and made efforts to provide additional information and clarifications to the worker and the WCB upon request. On May 6, 2021, the employer made an offer of modified duties at the site where the worker had been working at the time of injury to consist of 40 hours per week of sedentary tasks only, including administrative tasks, continuing education programs, cleaning and inspecting equipment with “Transportation provided if necessary (pick up at home).” After the worker declined the offer based on their belief that using crutches at that worksite would “constitute a danger” to their safety and health, the WCB case manager became involved in the discussion and sought clarification from the employer as to the details of the transportation to be provided and the distances that the worker might be expected to walk to get to places on site, including the office where the work was to take place and the bathroom. These discussions took place over the week following May 6, 2021, and culminated on May 20, 2021, when the WCB case manager advised the worker that although the medical information on file supported a return to work when first discussed, more recent information had come to light that needed to be reviewed. As a result, the WCB was “holding off on a RTW” at that time.

The panel also considered the evidence as to the worker’s medical and functional status to determine whether the modified duties offered were appropriate. The medical reporting confirms that as of May 6, 2021, approximately 6 weeks post-accident, the worker continued with their physiotherapy and continued to report pain with walking. At that time, the worker was ambulating with a walking boot and crutches and relying upon pain relief medication. The physiotherapist’s report to the WCB of May 6, 2021 indicates the worker had recently fallen when they attempted to walk without crutches or the boot. The physiotherapist noted reduced active range of motion and recommended the worker could return to sedentary duties only, with a brace needed for the ankle. On May 12, 2021, the treating family physician requested a right ankle MRI to rule out a ligament injury and wrote a note indicating that the worker was capable of sedentary work. The treating physiotherapist provided further information to the case manager on May 12, 2021 confirming the worker’s difficulty in ambulating with crutches, noting the worker would be unable to walk on uneven surfaces or stairs safely and could not drive. On May 13, 2021, the WCB physiotherapy advisor noted the diagnosis of a moderate right ankle sprain, and that the worker was not progressing as anticipated at that point. On May 17, 2021 another treating physician recorded slight lateral edema and pain with palpation and movement in all aspects, and requested an X-ray to rule out a fracture, indicating the worker should remain off work. The right ankle MRI of May 27, 2021 revealed “Remote appearing sprains of the anterior talofibular and calcaneofibular ligaments” and “Probably short segment split tear of the peroneus brevis tendon”.

The panel noted as well the July 6, 2021 opinion of the WCB orthopedic advisor, provided in response to the case manager’s June 2, 2021 request for confirmation of the treatment plan and current restrictions and work capabilities. Based upon the diagnosis of longitudinal split tear of the right peroneus brevis tendon as identified in the MRI study, the orthopedic advisor concluded the worker would appear capable “of a variety of workplace activities” noting that climbing or maneuvering on rough or uneven terrain was not appropriate, but that the worker should be capable of standing and walking on level surfaces for up to an hour at a time with short rests as needed, and loadbearing limited to 20 pounds.

The panel finds that the evidence supports that the worker was capable of sedentary job duties during this period, provided that the duties did not require the worker to climb or maneuver over rough or uneven terrain or remain on their feet for more than an hour at a time. The file evidence indicates that the modified duties proposed by the employer were to take place on a construction site with the worker situated in a construction trailer that would require steps to access and exit from and bathroom facilities located at some distance in another trailer with steps to access and exit. While the employer indicated the worker could be transported onsite to avoid having to ambulate across distances to and from these trailers as required, the available transport was in pickup trucks that the worker would have to climb into.

The panel is not satisfied that the modified work offered by the employer from May 6, 2021 to June 30, 2021 was “suitable” in respect of the location and environment in which the work was to be performed. While the proposed duties were within the capabilities of the worker at that time and were unlikely to aggravate or enhance the injury, comparing the worker’s restrictions and capabilities to the demands of the work requires looking beyond the specific job duties to the context in which those duties are to take place. Here, the work was to be performed on a job site that was a construction site that required the worker to use stairs and ambulate across unlevel surfaces to get to and from the work location and to use the onsite facilities. The employer was willing to make efforts to accommodate the worker’s restrictions, but even the transportation offered was not suitable in that it likely would have been awkward and challenging for the worker to use.

We are therefore satisfied on the basis of the evidence before us and on the standard of a balance of probabilities, that although the worker was capable of sedentary duties from May 6, 2021 to June 30, 2021, the modified duties offered by the employer were not suitable and as such, the worker continued to sustain a loss of earning capacity during that period such that they are entitled to full wage loss benefits.

Is the worker entitled to full wage loss benefits from July 1, 2021 to August 22, 2021?

For the employer’s appeal on this question to succeed the panel would have to determine that the worker did not sustain a loss of earning capacity from July 1, 2021 to August 22, 2021 arising out of the compensable workplace injury. The panel was unable to make such a finding for the reasons that follow.

The evidence with respect to the period of July 1, 2021 to August 22, 2021 is that the worker remained capable of sedentary duties, as outlined in the WCB orthopedic advisor’s opinion of July 6, 2021 and confirmed in the subsequent opinion of July 30, 2021 following the call-in examination of July 26, 2021. The orthopedic advisor concluded that:

“Sedentary work…is not proscribed, but would have to be practical and reasonable. As related to me, and certainly in the claimant’s mind, the existing workplace environment physically and support wise does not appear to be amenable for [the worker] to perform sedentary duties.”

On July 9, 2021, the employer’s site supervisor advised the WCB Case Manager modified duties would have been available on the site until June 30, 2021 and that all tasks from July 1-8, 2021 related to demobilization of the equipment onsite. This information was provided after the employer initially indicated to the case manager that the worker would have been laid off as of May 29, 2021 had the injury not occurred as the project was nearing completion and the employer would be offsite as of July 9, 2021. But, in the hearing, the employer’s representative stated that it was not the case that modified duties were no longer available for the worker after June 30, 2021 and that the employer had made a further offer of modified duties to the worker in July 2021, as confirmed in an email to the Review Office dated December 16, 2021 enclosing copies of further communications between the WCB case manager and the employer’s regional safety manager. The panel noted that those communications do confirm that the employer advised the WCB, as of July 9, 2021 that it could continue to accommodate the worker and that an offer of modified duties is set out in an email to the WCB case manager dated July 14, 2021 for administrative duties at the same work site with the employer to drive the worker directly to the work trailer and to and from the bathroom facilities as needed, to begin immediately.

There is no evidence within the WCB claim file that this offer was presented to the worker or their representative at any time. The panel is satisfied that these communications between the WCB and the employer were not discussed or shared with the worker, leaving the worker with the understanding that the offer of accommodation ended upon the project’s conclusion as initially indicated.

The panel noted however that the working conditions of this offer of modified duties were essentially the same as those offered on May 6, 2021. As set out above in respect of that offer, and as confirmed by the July 2021 opinions of the WCB orthopedic advisor, those working conditions were neither suitable nor aligned with the worker’s restrictions and as such the panel is satisfied that the worker continued to sustain a loss of earning capacity from July 1 to August 22, 2021. The evidence supports a finding that although the worker was capable of sedentary duties from July 1, 2021 to August 22, 2021, the employer’s offer of modified duties was not communicated to the worker and the duties on offer by the employer were not suitable. As such, we are satisfied on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker continued to sustain a loss of earning capacity during that period and is entitled to full wage loss benefits.

Is the worker entitled to wage loss benefits effective October 10, 2021?

For the employer’s appeal on this question to succeed the panel would have to determine that the worker did not sustain a loss of earning capacity effective October 10, 2021 arising out of the compensable workplace injury. The panel was unable to make such a finding for the reasons that follow.

The evidence before the panel indicates that the worker’s compensable restrictions did not change between July and October 2021 and as such the panel considered that the worker remained capable of sedentary work that would not require the worker to climb or maneuver on rough or uneven terrain, to stand and walk on level surfaces for more than an hour at a time or loadbearing more than 20 pounds. This is confirmed by the WCB case manager’s November 17 2021 correspondence with the worker.

In this context, the employer made a further offer of accommodated work on October 1, 2021 to be performed at its location in a city in another province. The offer set out that the work included “basic yard duties, inventories, light material handling, laundering of coveralls and light cleaning tasks.” The employer confirmed that the worksite was on level ground and that the worker would not be required to use stairs or ladders unless able. The work initially was to begin on October 4, 2021 but after discussion with the WCB case manager, the offer was amended to begin on October 12, 2021.

The file evidence confirms this offer was communicated to the worker directly by the employer and by the WCB case manager and that on October 4, 2021 the worker indicated a willingness to participate but noted a current health limitation unrelated to the workplace injury as well as some concerns about finding a place to live in the new location. On October 12, 2021 the worker advised the case manager that they continued to be limited in their ability to go to work due to their health condition. On October 14, 2021 the worker’s representative contacted the WCB case manager with questions and concerns related to the offer of modified duties in another province. Over the following weeks, discussion ensued surrounding the details of the offer of modified duties and the worker’s expressed safety concerns and on November 3, 2021, the WCB case manager noted that while the worker’s “valid concerns” were being investigated the worker was entitled to continuing benefits. The employer provided a further offer of modified duties to the worker on November 16, 2021 with additional details provided and the work to commence on December 1, 2021.

The worker’s representative submitted that the proposed accommodations were inadequate in that all the worker’s concerns and details surrounding the accommodation were not addressed before the worker was expected to begin the work on October 12, 2021. While the panel does not agree that every detail of a proposed accommodation needs to be ascertained and confirmed in advance of the accommodation, we are in agreement that basic information needs to be provided and that matters such as the worker’s concerns over lodging, accessibility and personal safety need to be addressed prior to relocation where the proposed work requires such relocation. Even workers accustomed to relocating to different work sites such as the worker is, require such information before agreeing to travel to the job site.

The employer takes the position that the worker’s loss of earning capacity after October 10, 2021 is related to their non-compensable health condition rather than to the question of the suitability of the proposed modified duties. We do not agree. While we find that the employer was sincere in attempting to offer accommodations, it was neither realistic nor reasonable considering this worker’s restrictions and limitations to expect that the worker would pick up and move without first having their relocation concerns and questions addressed. By early November 2021, when those questions were addressed, the file evidence indicates that the worker’s non-compensable health issue had also resolved such that it did not contribute to the worker’s loss of earning capacity after October 10, 2021.

We find that the employer’s October 1, 2021, offer did not address concerns regarding the onsite safety of the worker and the worker’s proposed living arrangements in the context of the worker’s known mobility restrictions arising from the compensable injury. While those details were being investigated and ascertained through discussions with the employer, the worker and the WCB, the panel finds it reasonable that the worker should not have been required to uproot themselves to move to another province to begin the modified duties.

When the worker’s concerns related to the October 1, 2021 offer of modified duties were adequately addressed, the employer and the WCB raised an additional question relating to the worker’s functional capabilities and whether the restrictions from July 2021 remained appropriate. On November 16, 2021 the WCB case manager requested a report from the treating physician, which was provided to the WCB on November 22, 2021 indicating no change in the worker’s status and that an orthopedic referral was pending.

On the basis of the evidence before us and on the standard of a balance of probabilities, we are satisfied that the worker continued to sustain a loss of earning capacity after October 10, 2021 arising out of the compensable injury and that although the worker remained capable of sedentary duties, it was reasonable for the worker to request further information and clarification as to the employer’s offer of modified duties and to remain off work until such time as the investigation was concluded. As such, the panel finds that the worker continued to sustain a loss of earning capacity after October 10, 2021 and is entitled to wage loss benefits.

Is the worker entitled to wage loss benefits effective December 1, 2021?

For the employer’s appeal on this question to succeed the panel would have to determine that the worker did not sustain a loss of earning capacity after December 1, 2021 arising out of the compensable workplace injury. The panel was unable to make such a finding for the reasons that follow.

The panel considered whether the evidence supports a finding that the worker sustained a loss of earning capacity effective December 1, 2021 as a result of the compensable workplace injury. As noted above, the employer made another offer of modified duties to the worker on November 16, 2021. This offer was confirmed by the WCB case manager in a letter dated November 17, 2021 that noted the work was to begin on December 1, 2021. While there were some additional details to be sorted out after November 17, 2021, the file evidence indicates that this occurred before the end of November. The panel further noted that the employer confirmed to the WCB on December 21, 2021 and again on December 30, 2021 that it remained able to accommodate the worker with modified duties at its out of province location as proposed in October 2021.

On November 24, 2021 the worker advised the WCB of an appointment with the orthopedic consultant scheduled for December 14, 2021. This is confirmed by the report from the treating family physician to the WCB dated December 3, 2021. At that time the physician also confirmed the worker’s ability to do “Desk work, reduce ambulation” based upon their November 17, 2021 examination of the worker.

The panel further noted that although the employer’s November 16, 2021 offer of modified duties was based on a December 1, 2021 start date, the worker did not accept that offer, having indicated some additional concerns to the employer in an email dated November 26, 2021. We acknowledge the employer’s frustration with this process, as outlined in the submission to the panel and in the memorandum to file dated December 2, 2021 which indicates that the return to work was further delayed by the worker’s upcoming medical appointment with the orthopedic specialist. In that memo, the WCB indicates that because it does not have ability to expedite appointments outside Manitoba and because there is no guarantee the worker will be able to find a new orthopedic specialist in another province on a timely basis, it is reasonable to put the return to work on hold until after the December 14, 2021 appointment.

In a report dated December 20, 2021, the WCB orthopedic advisor outlined their opinion in that at nearly nine months post-injury, “there is no identifiable probable cause for continuing disablement from work” and that the “presently related ankles complaints are best categorized as non-specific and do not preclude modified work.” The orthopedic advisor noted that the orthopedic consult had been rescheduled to January 22, 2022 and that in the interim, the worker’s functional status could be addressed generally as the worker should walk on smooth level surfaces, should be capable of standing and walking for up to one hour and should be capable of walking short distances carrying weights of up to 20 pounds, infrequently.

The panel further noted that after the appointment with the orthopedic specialist was rescheduled to January 2022 the WCB case manager confirmed to the employer that “it would be unreasonable to send the worker back to an accommodation without reviewing the most up to date medical.” In further communications on December 21, 2021, the WCB advised the employer that the worker could do sedentary work, if available in Manitoba but reiterated that it would be “unreasonable” to ask the worker to move provinces and then come back for medical treatment in Manitoba.

The panel is sympathetic to the employer’s position that while the employer was making every effort to accommodate the worker’s concerns and provide information, the delay in the worker’s return to modified work was impacted by challenges in respect of communication with the worker and the worker’s failure to follow up on medical appointments as well as by apparent claim management issues within the WCB. Nonetheless, we agree that once the appointment with the orthopedic specialist was obtained in Manitoba for December 14, 2021, it was not reasonable to require the worker to move out of province for modified duties beginning December 1, 2021 and then return for that appointment and potentially, any follow-up required. The file information confirms that this appointment was rescheduled by the orthopedic specialist’s office to January 22, 2022, which unfortunately resulted in further delay of the proposed return to work, but we are satisfied that this further delay was not due to any action or inaction on behalf of the worker.

As such, the panel determines, on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker continued to sustain a loss of earning capacity effective December 1, 2021 arising from the compensable workplace injury, and further, that the worker did not unreasonably refuse the employer’s offer of modified duties at a location outside of Manitoba. Therefore, the worker is entitled to wage loss benefits effective December 1, 2021.

Is the worker entitled to wage loss benefits from January 7, 2022 to January 13, 2022?

For the employer’s appeal on this question to succeed the panel would have to determine that the worker’s wage loss benefits should be suspended during this period. For the reasons that follow, the panel was unable to make such a finding.

Initially, the WCB terminated the worker’s wage loss benefits as of January 7, 2022 through to January 13, 2022 based upon the worker’s failure to mitigate the effects of their injury by participating in physiotherapy as required by the WCB, leading up to this time. The WCB claim file records various discussions between the WCB case manager, staff from the treating physiotherapist’s office and the worker through December 2021, culminating in an email to the worker on December 30, 2021 from the case manager that stated, in part:

…it is necessary that you make every effort to attend treatment with your treatment providers. I understand that your specialist appointment was rescheduled which remains out of your control however, as per my previous email, it is important that you take the first available appointment with your physiotherapist.

…As there has been a lack of medical correspondence since August 2021, the expectation is that you take the next available appointment with your providers. Should you choose not to take the treatment dates offered by your provider, your benefits will be temporarily suspended until it has been confirmed that you are actively participating in treatment.

On January 6, 2022, the WCB case manager provided a formal letter to the worker outlining that their wage loss benefits were suspended as the worker had not been attending physiotherapy as required. The worker attended physiotherapy on January 14, 2022 and the WCB reinstated the worker’s wage loss benefits as of that date.

There is evidence of concern as to whether the worker was actively participating in their physiotherapy treatment in the period leading up to the suspension of benefits. The file evidence indicates that the worker attended a physiotherapy appointment on December 14, 2021 but the therapist did not provide treatment as the worker appeared to be unwell. The WCB case manager recorded the worker declined an appointment offered for December 21, 2021 and facilitated an appointment for December 31, 2021 which the worker was not able to attend. The worker advised the WCB on January 4, 2022 of an upcoming appointment on January 7, 2022, and their representative offered cell phone records that they submit confirm the worker attempted to contact the physiotherapy clinic to arrange an appointment on January 3, 4 and 6, 2022, but on January 6, 2022, the physiotherapy clinic advised the case manager there was no appointment scheduled with the worker on January 7, 2022. The file evidence further indicates that when the worker learned on January 6, 2022 that there was no appointment set for January 7, 2022, an appointment was arranged for January 14, 2022 which the worker did attend.

The worker’s representative also argued that, with the benefit of hindsight, there would have been no benefit to that treatment in any case given that just a few weeks later the orthopedic surgeon determined that the worker was a candidate for surgical repair of their ankle injury. The panel also noted the employer’s concerns about whether the worker demonstrated commitment to participation in their treatment, noting the evidence indicates the worker only attended one treatment from September through December 2021, which does not indicate that any ongoing therapy was being provided even though the WCB had agreed to fund such treatment and provided reminders to the worker of the need to participate in their treatment.

Based on the evidence before us, the panel has concerns as to whether the worker was actively participating in their treatment during this period despite the periodic reminders from the WCB case manager of the requirement to do so. However, we also note the worker’s position that the WCB’s decision to terminate benefits was not appropriate given it is not in compliance with the Notice Policy, which requires that for discretionary decisions as defined in the Notice Policy, the WCB must provide advance notice of at least 7 calendar days of the change in benefits. The Notice Policy also provides that when notice is given by letter, the period of notice will begin from the date of the letter and the change in benefits will come into effect after the period of notice is over.

Here, the panel finds the WCB’s January 6, 2022, letter to the worker provides notice to the worker of the suspension of their benefits due to a failure to participate in their treatment, but that letter sets out that the WCB was suspending the worker’s wage loss benefits as of the date of the letter. While same day notice is sufficient under the provisions of the Notice Policy where a change in benefits is required under the Act, it is not sufficient where the change in benefits is discretionary as is the case under the provisions of s 22(1) of the Act. When the WCB determines to suspend benefits based on a failure to mitigate, this is a discretionary decision, and as such, advance notice of seven days is required under the Notice Policy. In this case, there was no notice provided at all. The WCB ought to have provided no less than seven days advance notice of the decision to suspend benefits, which notice period would have begun on the date of the letter, January 6, 2022, and concluded on the 7th day following, being January 12, 2022, such that the earliest effective date of the suspension of benefits would have been January 13, 2022.

On the basis of the evidence before us, including the fact that the worker had arranged an appointment with the treating physiotherapist for January 14, 2022, which they attended, and considering the failure to provide appropriate notice of the discretionary decision to terminate the worker’s wage loss benefits, the panel is satisfied, on the standard of a balance of probabilities, that the worker is entitled to wage loss benefits from January 7, 2022 to January 13, 2022.

Is the worker entitled to wage loss benefits after April 14, 2022?

For the employer’s appeal on this question to succeed the panel would have to determine that the worker did not sustain a loss of earning capacity after April 14, 2022 arising out of the compensable workplace injury. The panel was unable to make such a finding for the reasons that follow.

As noted above, the WCB reinstated the worker’s wage loss benefits as of January 14, 2022 upon the worker’s attendance for physiotherapy. At that time, the physiotherapist recommended further treatment, but the WCB did not approve such treatment. A few days later, on January 18, 2022, the worker experienced a non-compensable but significant health event as a result of which the worker was not able, initially to continue with physiotherapy. On January 24, 2022, the worker was assessed by an athletic therapist who recommended further treatment, but the WCB did not approve coverage for that treatment.

A January 27, 2022 report to the WCB from the orthopedic surgeon recommended surgery to address the worker’s ongoing right ankle injury and suggested that physiotherapy would be appropriate to assist with the worker’s “gait issues”.

In an opinion provided March 17, 2022, the WCB orthopedic consultant noted that the proposed surgery was appropriate but that the worker would require medical clearance to proceed given the ongoing treatment arising from the non-compensable health event of January 18, 2022. On April 5, 2022, the WCB orthopedic consultant also noted that “A course of physiotherapy is not inappropriate given the fact surgery is presently on hold for medical reasons” and stated that “Following surgery, it is anticipated that the claimant would be able to carry out sedentary work by 6-8 weeks or modified work by 3-4 months.”

The panel noted that there is no record in the WCB claim file of any further offers of accommodated duties from the employer after December 30, 2021.

The worker’s representative submitted that once surgery was under consideration, the worker’s participation or non-participation in physiotherapy became a moot point as it was clear that physiotherapy alone would not result in the worker’s recovery. While the worker indicated they were willing to participate in physiotherapy, the WCB did not authorize coverage for such therapy and the worker was therefore not able to continue with it.

The employer takes the position that the worker’s non-compensable health condition caused the delay in the worker’s surgery beyond April 14, 2022 and that the worker’s benefits should therefore be discontinued for the period of the delay, until the surgery could take place. The panel noted however that there is no evidence before us that the surgery would have taken place prior to April 14, 2022 but for the worker’s non-compensable health event. We note that this event occurred prior to the surgical referral and that the orthopedic surgeon was aware of this condition but did not make any comment in their reporting as to a resulting delay in the surgical procedure taking place, although the surgeon did indicate a wish to assess the worker again in 8-12 weeks. When that follow up appointment with the orthopedic surgeon occurred on April 28, 2022, the surgeon indicated that the worker should be referred to a foot surgeon for further consultation.

The panel did note the comment in the WCB orthopedic consultant’s opinion of March 17, 2022 that based on the worker’s treatment at that time, “any surgery short of that of a life or limb threatening nature is contraindicated” and also noted that the treating family physician, in their March 31, 2022 report commented that the worker’s treatment for the non-compensable health condition may be a consideration in the timing of a surgery although deferring to the orthopedic surgeon on this point. The panel finds it speculative to state that these considerations resulted in delay of the surgery, as of April 14, 2022 when the surgery was not yet scheduled at that time.

We are therefore satisfied that the evidence before us supports a finding that the worker continued to sustain a loss of earning capacity after April 14, 2022 arising from the compensable workplace injury and therefore, on the standard of a balance of probabilities, the worker is entitled to wage loss benefits after that date. This is a point in time decision and as such, the panel makes no findings in respect of the worker’s ongoing entitlement to wage loss benefits.

The employer’s appeal on each question before the panel is therefore denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of December, 2022

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