The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The worker's claim is acceptable; and 

2. The worker is entitled to wage loss benefits from May 9, 2022 to July 3, 2022.

A videoconference hearing was held on April 24, 2023 to consider the employer's appeal.

Issue

1. Whether or not the claim is acceptable; and 

2. Whether or not the worker is entitled to wage loss benefits from May 9, 2022 to July 3, 2022.

Decision

1. The claim is acceptable; and 

2. The worker is entitled to wage loss benefits from May 9, 2022 to June 17, 2022.

Background

On April 8, 2022, the worker provided a Worker Incident Report to the WCB indicating they injured their groin in an incident at work on September 27, 2021. The worker noted they did not recall the exact date the incident occurred but that they completed an incident report. The worker described carrying a heavy item with a coworker and while walking with the item, feeling a burn and a very sharp pain in their groin area. The worker further noted after the incident, they continued to work but on “…very lighter duties” and attended for medical treatment approximately 3 days later. The worker reported they continued to work until approximately three weeks before making the claim when they noticed a lump and experienced mild pain. The worker’s schedule required working four weeks on, followed by two weeks off. The worker noted they returned home on March 31, 2022 and attended at a local hospital twice for treatment, on April 4, 2022 and again on April 7, 2022.

On April 11, 2022, the WCB confirmed that the date of the workplace incident was September 3, 2022 and the worker sought medical treatment on September 9, 2021. At that time, the worker corrected the information they initially provided, and confirmed they were lifting a heavy item by themself and felt an instant pain, which lasted about 5 days and then improved. The worker advised that their supervisor and a coworker witnessed the incident. The worker advised the incident they had earlier described took place in February 2021, but they did not report that incident to their supervisor and there were no witnesses. The worker described symptoms of “Sharp pain in groin area on the right side. A big lump on the left but not on the right and yet the right is more sore.” The worker advised the WCB they were due to return to work on April 13, 2022, but had advised the employer they would not be returning to work as they had a double hernia.

The employer filed an Employer’s Accident Report with the WCB on April 12, 2022, noting the worker had not reported any incident since the September 3, 2021 groin issue, which was reported to the employer on September 5, 2021. The employer contacted the worker who advised their treating physician had suggested they apply for WCB while awaiting surgery for a hernia, which they suggested was a result of the September 2021 incident. The employer advised the WCB they informed the worker of their modified work program and that they could accommodate the worker within restrictions set by their treating healthcare providers.

The WCB received a copy of the September 3, 2021 Doctor’s First Report from the treating physician on April 22, 2022. In that report, the physician noted the worker’s reporting of left groin pain and outlined a diagnosis of left inguinal hernia. The physician recommended the worker follow-up with their family physician. On May 2, 2022, the WCB received the physician’s chart notes for a September 9, 2021 appointment, which recorded the worker was concerned about developing an abdominal hernia and had a history of right inguinal hernia repair approximately 15 years previously. The treating physician indicated the worker reported lifting a heavy item four days prior and felt “…left para umbilical mild pain associated with LBP (lower back pain), few days later he noticed a left inguinal bulge.” The physician diagnosed a small left inguinal hernia and recommended the worker watch for any increase in size, abdominal pain or vomiting and follow-up with their family physician.

On April 28, 2022, the WCB received a copy of the April 4, 2022 physician’s report diagnosing a possible left groin strain or hernia and referring the worker for surgery. In an April 21, 2022 progress report, the physician noted the worker's report of significant pain to the left groin and that it was too painful to walk more than 50 metres. The physician recommended pain relief medication and noted the worker required surgical treatment for the suspected left inguinal hernia. A further progress report dated May 3, 2022 indicated the worker was capable of modified duties and included restrictions of no heavy lifting. A left inguinal hernia repair surgery took place on May 9, 2022.

On reviewing the worker's file on May 26, 2022, a WCB medical advisor opined the current diagnosis was a left inguinal hernia that arose after a September 3, 2021 workplace incident involving the lifting of a heavy object. The medical advisor noted that "The development of abdominal hernias is usually associated with significant increase in intra-abdominal pressures such as with lifting heavy objects, weight lifting, straining during bowel movements, pregnancy, coughing, and if there is a pre-existing weak spot in the abdominal wall."

On May 30, 2022, the WCB accepted the worker’s claim and advised the worker that further information was needed to determine their wage loss benefit entitlement.

At post-surgical follow up on June 16, 2022, the treating surgeon noted a satisfactory recovery and recommended the worker return to regular duties on July 4, 2022 with a restriction of no heavy lifting. On July 18, 2022, the WCB contacted the treating surgeon's office to clarify the duration of the lifting restriction. On July 19, 2022, the WCB advised the employer the worker could return to work with a temporary restriction of no heavy lifting until August 11, 2022.

The employer provided to the WCB a copy of the Modified Work Offer made to the worker. The modified duties would be based on the worker's restrictions and following the worker's previous work schedule of 28 days on and 14 days off, starting on July 27, 2022 to August 3, 2022 and continuing August 18, 2022 to September 15, 2022. The worker advised the WCB on July 28, 2022 after meeting with the employer, they would not be returning to work on July 27, 2022 as they had a further medical appointment on July 29, 2022 and wanted to attend that appointment. On July 29, 2022, the worker's treating family physician provided a note indicating the worker could return to work with no restrictions effective that date. On August 10, 2022, the WCB advised the worker of their entitlement to wage loss benefits from April 1, 2022 to July 3, 2022, which would have been their last day of their 28 day rotation.

On August 17, 2022, the employer requested that Review Office reconsider the WCB's decision to accept the worker's claim and pay the worker wage loss benefits. The employer noted the worker initially reported the workplace injury to them on September 5, 2021 but continued to work until March 30, 2022, without restrictions, and it was not until April 8, 2022, that the worker contacted the employer to request a layoff so they could have surgery, and then filed a WCB claim. The employer further noted that on April 11, 2022, the worker was advised the employer had modified duties available, based on the restrictions provided by their treating physician. The employer also noted the worker refused the modified duties offered on July 26, 2022. The employer provided further information in support of the reconsideration request on August 30, 2022 and on August 31, 2022, the worker provided a submission in response. On September 9, 2022, Review Office determined the worker's claim was acceptable and the worker was entitled to wage loss benefits from May 9, 2022 to July 3, 2022.

The employer filed an appeal with the Appeal Commission on January 16, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and forwarded to the interested parties for comment, the appeal panel met on June 28, 2023 to discuss the case and render a decision on the issues under appeal.

Reasons

Applicable Legislation

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.

Employer’s Position

The employer was represented in the hearing by an advocate and its health and safety manager. The employer’s advocate provided an oral submission in support of the employer’s appeal and provided answers to questions posed by members of the appeal panel. The health and safety manager responded to questions posed to them by members of the appeal panel.

The employer’s advocate stated, with respect to the question of claim acceptability, that although the injury occurred in September 2021 and the worker sought medical attention in relation to the injury at that time, the worker failed to report the injury to the WCB until April 2022. The employer’s advocate noted the worker did not follow the appropriate reporting process in respect of a work related injury. On questioning by members of the appeal panel, the employer’s advocate acknowledged that the evidence supports the WCB’s decision that the worker sustained an injury at work and therefore the claim should be accepted, although the employer remains concerned that the worker failed to immediately report the injury as required.

The employer’s position with respect to the worker’s entitlement to wage loss benefits from May 9, 2022 to July 3, 2022 is that the worker is not entitled to wage loss benefits as the evidence indicates that the worker was fit for modified duties after their surgery, by May 26, 2022 and therefore the worker should be entitled to wage loss benefits only from the date of surgery to May 26, 2022. Further the employer’s advocate noted that the employer had appropriate modified duties available, which the worker failed to take advantage of. The employer’s advocate submitted that the medical evidence supports a finding that the worker was capable of a return to modified work as of May 26, 2022 and therefore the worker should not be entitled to wage loss benefits beyond that date.

Worker’s Position

The worker did not participate in the appeal.

Analysis

There are two questions on appeal by the employer. First, the employer appealed the WCB’s decision that the worker’s claim is acceptable, and second, the employer appealed the WCB’s decision that the worker is entitled to wage loss benefits from May 9, 2022 to July 3, 2022.

In the hearing, the employer’s representative conceded that the evidence establishes that the worker sustained an injury arising out of and in the course of their employment and therefore the claim is acceptable. As such, the panel accepts and confirms the decision of Review Office in this respect.

For the employer’s appeal on the question of wage loss entitlement to succeed, the panel would have to determine that there is evidence the worker did not sustain or should not have sustained a loss of earning capacity from May 9, 2022 to July 3, 2022. As detailed in the reasons below, the panel finds that the worker was fully disabled from all work beginning on May 9, 2022 as a result of the surgical procedure to repair the compensable workplace injury, but was capable of a return to work as of June 16, 2022 and that the employer had appropriate modified duties available as of June 17, 2022; therefore, the worker is entitled to wage loss benefits from May 9, 2022 through June 17, 2022. The employer’s appeal is allowed in part.

The panel reviewed and considered the medical reporting, including the additional information provided at the panel’s request following the hearing. We noted that the worker’s hernia repair surgery took place on May 9, 2022. At that time, the WCB continued to review the worker’s claim, which was not accepted until May 30, 2022. The medical reporting indicates that the surgery proceeded as expected without complications. The WCB medical advisor advised that “In most cases, the duration of total disability, after inguinal hernia surgery, is about 2 weeks” but the panel noted that the worker was not reassessed by the surgeon, post-operatively, until June 16, 2022. At that time, the treating surgeon indicated “Incision is well healed without any signs for strangulation or incarceration and without any signs for hernia recurrence. The patient was reassured and advised that at this point, no further surgical follow-up is needed. Today, we also had discussion about some restrictions regarding heavy lifting.” In their report to the WCB arising from the June 16, 2022 examination, the treating surgeon noted the worker should avoid heavy lifting for the next several weeks and could return to regular duties on July 4, 2022, and the panel understands this to mean that the worker was fit to return to modified duties until July 4, 2022.

On June 24, 2022, the WCB case manager sought an opinion from the WCB medical advisor as to the worker’s capabilities in terms of return to work, but the response was not provided until July 28, 2022, at which time the medical advisor confirmed the worker could return to their regular duties with restrictions as to lifting.

The panel noted that the employer advised the WCB on May 31, 2022 that an offer of modified duties was made to the worker on April 11, 2022, and that the worker refused those duties at that time. The employer’s request for reconsideration of May 31, 2022 indicated that the worker’s spouse advised the employer on May 6, 2022 of the planned surgery on May 9, 2022 and that with a 6 week recovery period, the worker would be ready to return to work June 20, 2022 unless otherwise instructed by their physician.

The panel further noted that the worker confirmed to the WCB case manager on June 17, 2022 that they had refused the employer’s offer of modified duties in April 2022 and that the physician told them not to be doing anything so the worker could not return to work. The case manager advised the worker that if they were offered reasonable light duties and refused, they may not be entitled to wage loss benefits. The same day, the WCB contacted the employer and confirmed that the employer had modified duties available to the worker, as described in an email of that date.

The panel finds that the worker’s recollection of the information provided by the treating physician does not align with the physician’s reporting to the WCB, nor with the information provided to the employer by the worker’s spouse, prior to the surgery, that the worker expected a 6-week recovery period before returning to work. We therefore give greater weight to the evidence of the treating physician.

The panel is satisfied that the evidence confirms that as a result of the compensable inguinal hernia repair surgery on May 9, 2022, the worker was removed from all employment until June 16, 2022 when their treating physician advised they could work with restrictions on heavy lifting. Based on the employer’s confirmation to the WCB on June 17, 2022 that modified duties were available, as before the surgery, and on the worker being advised by the WCB that they were expected to participate in modified duties, the panel is satisfied that the worker’s loss of earning capacity after June 17, 2022 was no longer the result of the compensable injury. Although the file record indicates some delay in terms of the WCB’s follow up with the worker, the evidence is clear that the employer continued to indicate that modified work was available, the worker was aware of their responsibilities and the availability of such work, and that the worker was medically cleared for such work by that time.

On the basis of the evidence before the panel, and on the standard of a balance of probabilities, the panel is satisfied that the worker sustained a loss of earning capacity arising from the compensable injury from May 9, 2022 through June 17, 2022 and therefore is entitled to wage loss benefits during that period.

The employer’s appeal is granted in part.

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 26th day of July, 2023