Decision #81/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They are not entitled to full wage loss benefits for August 29, 2022;
2. They are not entitled to full wage loss benefits from August 31, 2022 to November 3, 2022; and
3. They are not entitled to wage loss benefits after November 3, 2022.
A hearing was held on June 12, 2023 to consider the worker's appeal.
1. Whether or not the worker is entitled to full wage loss benefits for August 29, 2022;
2. Whether or not the worker is entitled to full wage loss benefits from August 31, 2022 to November 3, 2022; and
3. Whether or not the worker is entitled to wage loss benefits after November 3, 2022.
1. The worker is entitled to partial wage loss benefits for August 29, 2022;
2. The worker is entitled to partial wage loss benefits from August 31, 2022 to November 3, 2022; and
3. The worker is not entitled to wage loss benefits after November 3, 2022.
The worker provided a Worker Incident Report to the WCB on August 8, 2022 reporting their involvement in a motor vehicle accident on August 4, 2022, which resulted in injuries to multiple areas of their body. The worker reported being pinned in the vehicle for approximately 5 hours before being cut free and taken by ambulance to the hospital. The hospital Discharge Summary noted the diagnosis of traumatic rhabdomyolysis. On August 8, 2022, the worker followed up with a walk-in clinic physician, who provided diagnosis of myalgia and muscle strain and referred the worker for physiotherapy.
On initial physiotherapy assessment on August 11, 2022, the worker reported pain in their left hip with weight bearing, right shoulder, arm and wrist pain, numbness in their right obliques and further numbness in their legs and feet. The physiotherapist noted findings of decreased right elbow range of motion, decreased motor control of the right shoulder and a contusion/abrasion to the right iliac crest area, and diagnosed whiplash associated disorder grade two and bilateral poly neuropathy due to the sustained compression the worker experienced in the workplace accident, which was affecting sensation, reflexes and the L4 myotome. The physiotherapist recommended further treatment and that the worker remain off work for one week.
When the WCB contacted the worker on August 15, 2022, the worker confirmed the mechanism of injury, noting that when the vehicle they were driving rolled, their legs were pinned, and they had difficulty breathing. The worker confirmed that it took five hours for ambulance and fire services to free them from the vehicle, following which they were flown to hospital for treatment. The worker described that they could walk very slowly, with pain in both shoulders, as well as numbness in both feet, their abdomen and face. The WCB advised the worker that the claim was accepted.
The employer advised the WCB on August 16, 2022 that they were waiting for the worker's walking to improve before offering modified duties as those duties would require mobility for stairs. On August 25, 2022, the employer advised the WCB they had modified duties available for the worker, including paperwork and driving to pick up parts, not over 10 pounds. The WCB wrote to the worker on August 25, 2022 indicating the return to work program was scheduled to start on August 29, 2022 and run until September 12, 2022, with the worker to work full hours at modified duties.
At follow-up on August 26, 2022, the treating physiotherapist noted the worker could return to work at sedentary duties.
The employer contacted the WCB on August 30, 2022 to advise the worker reported being “…very sore last night from driving for parts yesterday” and that the worker was off work on August 30, 2022. When the WCB spoke with the worker the same date, the worker advised they had done “…a lot more driving than anticipated” and reported neck, shoulder and arm pain and a headache. The worker noted they would prefer to do more office work rather than delivering parts. In an update to the WCB on September 6, 2022, the worker advised they were doing office work and on September 7, 2022, the employer advised that beginning September 12, 2022, they would have the worker driving a small truck around their job site for approximately 30 minutes.
On September 27, 2022, the employer advised the WCB the worker had not been working full hours and that beginning the next day, they would have the worker driving between job sites. A further update from the employer on October 5, 2022, indicated the worker was driving for 1-3 hours daily and they were starting to increase the worker’s exposure to driving. On October 17, 2022, the employer again contacted the WCB to advise of their concerns with the worker’s attendance. The employer noted the worker had missed two days the previous week and was late or left early regularly. In updates to the WCB provided on October 25, 2022 and November 4, 2022, the employer advised the worker was improving and would soon be leaving for a 2-3 day run.
In a report to the WCB relating to the worker’s appointment on October 27, 2022, the treating physiotherapist recommended that if the worker was to drive for longer than 6 hours on any day, they would require a 1 day break from driving, with either the next day off or light duties, before the next driving day. This restriction was to remain in place for two weeks to November 3, 2022.
On November 10, 2022, the worker contacted the WCB to discuss their wage loss benefits. The worker noted they had not received wage loss benefits from the WCB since August 2022 but also indicated they had not always worked full hours. The WCB advised they would obtain further information from the employer and requested the worker’s payroll information from the employer. The employer provided the information on the same date.
The worker attended an initial chiropractic assessment on November 14, 2022, reporting neck pain, pain in their right arm to their hand with tingly numbness and was diagnosed with cervical radiculopathy. The chiropractor noted the worker was back to driving.
On November 18, 2022, the employer again contacted the WCB to note concerns with the worker’s claim, noting the worker had not been consistently working 40 hours per week and, further, that the worker had reported difficulties with their shoulders prior to the August 4, 2022 workplace accident and had required help with some of their job duties due to those difficulties.
On November 21, 2022, the employer advised the WCB the worker was suspended for one week due to employment-related issues. The employer confirmed to the WCB on December 7, 2022 that the worker would come in to work late, not show up for work or leave work early while performing modified duties of sedentary work to start, with picking up light parts added in. On the same date, the employer also advised the WCB that the worker quit their employment.
On December 7, 2022, the WCB advised the worker they were not entitled to wage loss benefits after August 30, 2022 as the medical evidence supported the worker was able to work full hours on modified duties, which the employer had available. Further, the WCB noted the treating healthcare providers indicated the worker could work full hours.
The worker requested reconsideration of the WCB’s decision to Review Office on February 16, 2023. In their submission, the worker noted the WCB only accepted an injury to their shoulders as a result of the August 4, 2022 workplace accident but did not include the difficulties the worker had with their bilateral bicep and tricep area, forearms and hands with pain and tingling. Further, the worker noted they also suffered injuries to their abdominal area, chest, back, hips, legs and feet and indicated they still experienced difficulties in those areas. The worker also submitted a letter from their treating physiotherapist.
Review Office determined on February 24, 2023 that the worker was entitled to partial wage loss benefits for August 29, 2022 and from August 31, 2022 to November 3, 2022, but was not entitled to wage loss benefits after November 3, 2022. Review Office found that on August 29, 2022, the worker was not capable of working a full shift of light duties and as such, was entitled to partial wage loss benefits for the balance of the day. Review Office further found it was reasonable for the worker to miss work on August 30, 2022 due to their reported symptoms on that day. Review Office also found the worker’s treating physiotherapist provided restrictions for the worker until November 3, 2022 and as such, the worker was entitled to partial wage loss benefits from August 31, 2022 to November 3, 2022. Lastly, Review Office found the worker did not require further workplace restrictions after November 3, 2022 and therefore was not entitled to wage loss benefits after that date.
The worker filed an appeal with the Appeal Commission on March 27, 2023 and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid 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 27 of the Act provides that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.
Section 22 of the Act outlines the nature of a worker’s duty to mitigate and permits the WCB to reduce or discontinue benefits if it determines a worker has not met their obligations to:
(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 Policy 126.96.36.199, Co-operation and Mitigation in Recovery (the “Mitigation Policy”) to elaborate upon the responsibilities of both workers and the WCB in ensuring compliance with s 22 of the Act. The Mitigation Policy outlines the responsibilities of workers to participate reasonably in their return to work by:
a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker’s recovery;
b) Reasonably co-operating with the WCB in developing and carrying out a rehabilitation program designed to promote the worker’s return to work;
c) Demonstrating to the WCB an ongoing reasonable effort towards the successful completion of a rehabilitation program;
d) Reasonably avoiding any activity which would result in a slower recovery from the worker’s injuries or negatively impact the worker’s medical ability to return to work;
e) Reasonably participating in all programs that the WCB believes will encourage a timely and sustainable return to health and work.
The Mitigation Policy also sets out the WCB’s responsibilities in relation to s 22, including:
1. The WCB must advise an injured worker of his or her responsibilities under section 22 of the Act and this policy and explain what those responsibilities mean in the individual circumstances of the worker's claim.
2. The WCB must assist the injured worker in mitigating the effects of a workplace injury by helping to identify and address impediments to the worker's safe return to health and work.
3. The WCB must advise the worker of the possible consequences of a failure to comply with section 22 and his or her responsibilities under this policy, including the reduction or suspension of compensation….
The worker appeared in the hearing on their own behalf and provided an oral submission in support of their appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel.
The worker’s position with respect to the questions on appeal is that they should be entitled to wage loss on August 29, 2022, from August 31-November 3, 2022 and after November 3, 2022 until the date of their resignation in late November 2022, as they made efforts to participate in the return to work process which were not fully supported by the WCB and by the employer, and further as they were not fully recovered and physically capable of their full duties even at the time they left their job in late November 2022.
The worker noted in their submission that they did not initially realize that they were not receiving wage loss benefits after the return to work. The worker stated that although they were capable of modified duties after August 2022, they remained injured because of the accident and continued to experience symptoms of numbness in their legs and feet until December 2022, and their breathing did not return to normal until January 2023. The worker acknowledged that they missed some physiotherapy treatments, noting that they were charged for the missed appointments which were the result of being away due to work. The worker noted they also sought care from a kinesiologist and chiropractor after the injury.
The worker stated that they did not understand the expectations in relation to their return to work on modified duties. Neither the employer nor the WCB provided information as to their specific work hours or schedule. The worker stated that they felt blindsided when they learned what the employer had said to the WCB about their hours, noting that this was not communicated to them directly. The worker testified that prior to the injury they would typically work 10-13 hour days on an irregular schedule. During the return to work at modified duties, the worker would attend work “when ready”, confirming that they would arrive and leave at various times, working according to their perceived functional ability. The worker stated that their work hours are recorded and monitored via an app on their phone but noted that they did not always remember to enter the times of arrival and departure, or of breaks taken. The worker stated that the employer would make jokes about the hours the worker was keeping but did not confirm or outline any specific expectations. The worker noted that prior to the accident they did not work a regular schedule but worked hours as needed and required to complete the jobs they were assigned. The worker pointed out that when they returned to driving duties after the injury, they would sometimes work through the week at their modified duties plus drive on the weekend, so that their hours would exceed 40 hours per week.
The worker also pointed to the recommendation from the treating physiotherapist that they take a day to recover from a full day of driving, noting that this was not always possible when they were on the road. The worker also noted the difference between their pre-accident earnings and the actual earnings during the modified duties period and confirmed their understanding that the WCB benefits were to top up their earnings to the pre-accident level until the worker could return to their regular job duties.
The employer did not participate in the appeal.
The worker’s appeal raises three issues for the panel to consider and determine, addressed in series below.
Is the worker entitled to full wage loss benefits for August 29, 2022?
For the worker’s appeal on this question to succeed the panel would have to determine that the worker was disabled from all work on August 29, 2022 as a result of the compensable injury, and therefore sustained a complete loss of earning capacity on that day. As detailed below, the panel was unable to make such a finding; however, we do find that the worker is entitled to partial wage loss benefits for August 29, 2022 calculated based upon the actual hours worked rather than the daily deemed earning capacity amount.
The file evidence indicates that the WCB determined, with support of the treating medical providers, that the worker was capable of a return to modified work as of August 29, 2022. The evidence further indicates that the worker attended work on August 29, 2022 as required, but that the worker’s duties involved more driving than anticipated and caused the worker some arm and shoulder soreness as well as headache. The file evidence further confirms that the worker did not work on August 30, 2022 as they sought medical treatment that day related to the compensable injuries.
The panel noted as well that the file evidence indicates the worker attended work from 11:10 a.m. to 5:39 p.m. on August 29, 2022 and was paid by the employer for 5 hours and 23 minutes, but that the WCB, in implementing the Review Office decision of February 24, 2023, provided partial wage loss benefits based on a deemed earning capacity rather than the worker’s actual earnings.
The evidence indicates that the WCB did not clearly communicate to this “youthful” worker what the expectations were for their return to work. The worker’s hours of employment were not specified by either the employer or the WCB, and the worker’s evidence is that they did not understand that they were expected to work a consistent 8-hour day, Monday to Friday, during the period of modified duties. The panel noted that when this was first put to the worker in clearer terms in late November, the worker responded to the case manager in an email dated November 25, 2022:
“The way I thought it worked was that I would work what I could for hours and then whatever I couldn’t do time wise would get topped up to a certain amount by wcb? But I think I only was getting paid for hours worked. Not sure if that’s right? Please let me know, I have no idea.”
The worker confirmed in their testimony that this was their understanding and stated that the employer did not explicitly set out for them their expectations of the worker in advance of that date.
Given the vagueness and lack of specificity of instructions to the worker in the communication of August 25, 2022 and the fact that the worker did not appear to understand that their interpretation was incorrect until it was pointed out several months later, and further, that August 29, 2022 was the first day of the worker’s return to modified duties with the next day taken as a recovery and medical treatment day with full wage loss benefits paid, the panel accepts the worker’s explanation that they did not know they were expected to work for 8 hours on August 29, 2022. Further the panel accepts that the worker left early on August 29, 2022 due to an increase in their symptoms related to the compensable injury.
On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to partial wage loss benefits for August 29, 2022 to be calculated as outlined below.
Is the worker entitled to full wage loss benefits from August 31, 2022 to November 3, 2022?
For the worker’s appeal on this question to succeed the panel would have to determine that the worker was disabled from all work from August 31, 2022 to November 3, 2022 because of the compensable workplace injury, and therefore that the worker sustained a complete loss of earning capacity during that period. As detailed below, the panel was unable to make such a finding; however, we find that the worker is entitled to partial wage loss benefits for this period, based on their actual hours worked, rather than the deemed earning capacity established by the WCB.
As noted above, the medical reporting confirms that the worker was fit to return to modified duties as of August 29, 2022 and the file evidence confirms that the employer had appropriate modified duties available to the worker. The worker participated in the modified duties, but as noted in the file on several occasions through September – December 2022, the worker did not consistently attend work for 40 hours per week as anticipated by the WCB. The claim file evidence also indicates that the WCB did not clearly communicate these expectations to the worker at the outset of the return to work, nor during the worker’s return to work as outlined above.
The panel noted the evidence that the worker did not consistently work 40 hours per week between August 31 and November 3, 2022. The worker testified that they did not always enter their time records as required and that they were uncertain whether the records provided by the employer were completely accurate as a result; however, the worker also testified that they did not understand that they were expected to attend work during specific hours and for 40 hours per week, as that was not the case prior to the accident. The panel accepts that the worker’s pre-accident job duties were less regular in terms of hours, with the worker undertaking specific job tasks when available and working until those tasks were completed. In this regard we also note that by late October 2022 when the worker was beginning to resume their regular job duties, they sometimes worked more than 40 hours per week.
The panel considered that the WCB case manager outlined in their letter of August 25, 2022 to the worker that they were to return to work “at full hours modified duties” as of August 29, 2022 with a review to take place the week of September 5, 2022. There is no record of a related conversation in the claim file and no evidence that the case manager provided any more specific information to the worker as to what “full hours” meant in this context at any time before late November 2022. Given that this is a youthful worker whose pre-accident duties were quite different and did not necessarily fall within typical office hours, the panel would have expected that more information ought to have been relayed to the worker by the WCB in terms of what the day to day job expectations in the modified duties entailed. Furthermore, the panel would have expected the WCB case manager to follow up with the worker when the employer indicated, within weeks of the return to work, and multiple times afterward, that the worker was not attending during the hours expected.
The panel noted that it was only when, on November 10, 2022, another WCB case manager contacted the worker about an invoice received for ambulance, that the worker raised questions about their wage loss entitlement, noting they had not received any benefits since August and further, that they had not always worked full hours and with the modified duties, their earnings were reduced. In fact, the panel noted that the file records few contacts between the worker and their assigned case manager over the period in question, such that the worker ultimately sent an email to their case manager on December 9, 2022, suggesting: “Maybe I’m Adele because I must’ve called a thousand times to an answering machine saying you’d be back to the office in a day, call back then and you’d still be gone! Must’ve been a good two weeks sometimes before I could get in touch with you in the past.” The panel also noted that while the file documents more frequent contacts with the employer, the case manager does not appear to have acted upon the employer’s comments with respect to the worker’s attendance at work during the period of modified duties, which the employer first raised on September 27, 2022. On October 17, 2022 the employer again advised that the worker was missing time including two days in the previous week and was regularly late or leaving early for various reasons, stating they were looking into disciplinary action as the worker “…appears to be taking advantage and treats this like it’s a [come] and go”. While there is a claim note dated October 18, 2022 indicating the case manager’s intent to call the worker about their return to work, there is no evidence that they did so although there are multiple further communications with the employer. It was the alternate case manager who contacted the employer for information on the worker’s gross earnings during the modified duties period from August 29, 2022, which the employer provided the same day. On further questioning by the employer, the alternate case manager advised that the worker “…is still owed partial wage loss to get [them] to [their] pre-accident earnings, however we hold [them] to the 40 hours a week.” The employer again noted that the worker would arrive late or leave early and wasn’t consistently working 40 hours per week, and the WCB alternate case manager then requested the employer provide time records for the worker.
The panel does not find fault with the employer in these circumstances, noting the employer responded to the WCB’s requests for information on a timely basis and alerted the WCB on multiple occasions to the worker’s often abbreviated work hours. Further, we note that the employer provided alternative duties to accommodate the worker’s injury and restrictions and cooperated with the WCB to facilitate the worker’s return to their full pre-accident job duties.
While there are certainly responsibilities placed upon an injured worker in these circumstances, as outlined in the Mitigation Policy, the WCB also must meet its responsibilities to the worker, which include advising the injured worker of their responsibilities and what that means in their particular circumstances, assisting the working in mitigation of the effects of their injury by helping to identify and address any impediments, and advising the worker of the consequences of failing to mitigate by fully participating in and cooperating with a return to work program. There is no evidence here that the WCB took any such steps, neither in response to the information provided by the employer nor by the worker until late November when further information was requested of and provided by the employer. By that point, it was too late, as the worker had sufficiently recovered such that they were able to return to their full regular job duties.
In these circumstances, we are further satisfied that the worker should be entitled to partial wage loss benefits calculated based on their actual earnings paid during the time periods at issue in this appeal, including August 29, 2022 and August 31-November 3, 2022, rather than the deemed earning capacity as determined by the WCB. The panel is satisfied by the explanations provided by the worker for the reasons they did not always work at least 40 hours per week during the modified duties period. Further, we are satisfied that the worker was not clearly informed by the WCB of the impact of their failure to work 40 hours per week during this period and, as such, should not be penalized for their failure to do so.
On the basis of the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to partial wage loss benefits for the period of August 31 to November 3, 2022, based upon the worker’s actual earnings as compared to the deemed earnings used in previous calculations.
Is the worker entitled to wage loss benefits after November 3, 2022?
For the worker’s appeal on this question to succeed the panel would have to determine that the worker experienced a loss of earning capacity after November 3, 2022 resulting from and related to the injuries sustained in the compensable workplace accident of August 4, 2022. The panel was unable to make such a determination for the reasons that follow, and therefore the worker’s appeal of this question is denied.
The file evidence confirms that the worker was to resume their regular duties on November 4, 2022 and time records provided by the employer support that the worker resumed their usual hours as of November 4, 2022, working some 30 plus hours over the course of November 4-6, 2022. The employer also confirmed to the WCB on November 21, 2022 that the worker “is working [their] full job”.
The medical reporting on file indicates the worker discontinued physiotherapy as of October 21, 2022, with the restrictions remaining in place at that time for a further two weeks. The worker subsequently sought chiropractic treatment on November 14, 2022 in relation to pain in the neck and arm, diagnosed as cervical radiculopathy, but the WCB chiropractic advisor concluded, after their file review on December 22, 2022, that the cervical radiculopathy first reported on November 15, 2022 would not relate to the compensable workplace accident. The panel accepts and relies upon this opinion and finds that the medical evidence confirms the worker was capable of a full return to regular duties after the restriction period ended on November 3, 2022.
On the basis of the evidence before us, and on the standard of a balance of probabilities, the panel determines that the worker is not entitled to wage loss benefits after November 3, 2022 as the evidence does not support that the worker sustained a loss of earning capacity beyond that date as a result of the accident.
The worker’s appeal is therefore granted in part.
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 14th day of July, 2023