The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits for the period June 1, 2023 to June 30, 2023. A videoconference hearing was held on February 8, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period June 1, 2023 to June 30, 2023.

Decision

The worker is not entitled to wage loss benefits for the period June 1, 2023 to June 30, 2023.

Background

The WCB accepted the worker’s claim for injuries sustained on May 22, 2021when the worker was kicked in the head by a horse while at work. The worker’s injuries included facial fractures, dental alignment issues, post-traumatic headaches, and post-traumatic stress disorder (PTSD). The worker received care from a local emergency department and then ongoing care from their family physician, a concussion clinic physician, dentist, and orthodontist.

On November 1, 2021, the worker's representative advised the WCB the worker returned to work part-time with a different employer. The representative noted the worker was working five days per week, limited to four-hour days with light duties as recommended by the concussion clinic physician. On December 1, 2021, the representative advised the WCB that the worker left their position with the new employer and resumed part-time employment with a previous employer.

On April 22, 2022, the worker's representative advised the WCB that the worker had ongoing symptoms and was attending the concussion clinic regarding those symptoms. The representative also noted the worker resumed part-time work in their pre-accident field of employment but was missing time to attend appointments. On April 29, 2022, the representative advised the worker's last day working was April 28, 2022.

The worker's representative contacted the WCB on July 12, 2022 to advise the worker would begin part-time light duties with a new employer on July 18, 2022. The representative also noted the worker was arranging to meet a new family physician to discuss mental health issues they were experiencing because of the workplace accident and to get a referral to a psychologist. On July 18, 2022, the WCB facilitated a referral to a psychologist on behalf of the worker and the worker attended an initial session on September 6, 2022. In a report dated November 19, 2022, the psychologist recommended the worker consult their family physician for medication for PTSD, anxiety, and depressed mood, continue seeing their counsellor for eye movement desensitization and reprocessing (EMDR) therapy and participate in Cognitive-Behavioural Therapy (CBT) for management of their anxiety. On February 1, 2023, the WCB contacted the treating counsellor to request a status update and learned the counsellor had not seen the worker since September 14, 2022.

On April 11, 2023, the worker's representative contacted the WCB to request approval for the worker to attend equine therapy in another province. The WCB advised the representative on April 24, 2023 that the worker provided details about the therapy, but they needed to confirm if the WCB would approve this kind of therapy. The case manager noted the program was offered out of the province and that as equine therapy is available in Manitoba, the WCB likely would not approve the worker’s request. The worker’s representative noted the treating physician recommended this therapy and the worker would attend for the month of June 2023. On April 26, 2023, the WCB advised the worker's representative that the treating psychologist and treating physician had recommended the worker attend for psychotherapy or evidence-based therapy including CBT, but that equine therapy is not psychotherapy. Further, the WCB noted that as the worker was currently able to work, if they attended the equine therapy in June, they would not be entitled to wage loss benefits.

On April 21, 2023, the WCB received a report from the treating family physician indicating the worker had low mood for approximately one and a half years, occasional headache, was irritable, and tired as their sleep was affected. The physician noted the worker's recovery was not satisfactory due to a mood disorder and recommended the worker speak to a psychotherapist.

On May 18, 2023, the WCB spoke with the treating physician who advised they had provided the worker with a list of mental health resources available and would provide a referral for CBT for the worker. The physician noted they prescribed medication for the worker's PTSD symptoms when they began to treat the worker in July 2022.

On June 12, 2023, the treating family physician provided a sick note to the WCB indicating the worker was to be off work from June 1, 2023 to June 30, 2023. In the progress report from the June 1, 2023 appointment with the worker, the physician indicated the worker’s complaint of headache, feeling tired but their mood had improved. The physician recommended continued medication use for PTSD, a follow-up appointment with the concussion clinic and speaking to their therapist.

On June 22, 2023, the WCB contacted the worker for further information regarding their entitlement to wage loss for the month of June 2023. The worker advised the WCB they began to experience an increase in their headache symptoms in approximately the middle of May 2023 and sought treatment with their neurologist who recommended a new medication to help with the ongoing headaches. The worker advised they had not attended the equine therapy/riding program and had been using the time off to rest and work on their sleep difficulties.

In an interview with the WCB on July 11, 2023, the worker's representative provided a copy of a letter from an out of province equestrian centre stating the worker attended their facility in early June 2023 to board and train two horses as well as themselves and volunteered with their organization to gain additional experience and education. The volunteer duties were noted to involve "…assisting with chores, maintenance, horse care, riding lessons etc." and the worker was noted to have attended for training and mentorship as a client of their program. A copy of the invoice from the facility was also included.

The WCB advised the worker on July 20, 2023 that based on the information received on their file, including the letter from the equestrian centre, the WCB could not relate their wage loss from June 1, 2023 to June 30, 2023 to their workplace injury.

On July 25, 2023, the worker's representative requested Review Office reconsider the WCB's decision, noting the worker required a medical leave from work due to many issues including headaches, mental and physical exhaustion, PTSD, and depression, due to the May 22, 2021 workplace accident. The representative went on to note the worker attended the equestrian facility to attempt to work with animals and help the worker return to her pre-accident activities. The representative noted the worker participated in chores and other volunteer activities at their own leisure and could come and go as they pleased.

Review Office determined on September 19, 2023 that the worker was not entitled to wage loss benefits from June 1, 2023 to June 30, 2023. Review Office noted the evidence that the worker lived and volunteered at the out-of-province equestrian facility in June 2023 and found that the description of the chores and tasks performed while the worker was living at the facility were like the duties the worker performed prior to the workplace accident. As such, Review Office further found that the worker's performance of those duties demonstrated their ability to earn income in their pre-accident job and therefore the worker did not have a loss of earning capacity from June 1, 2023 to June 30, 2023 as a result of the accident.

The worker's representative filed an appeal with the Appeal Commission on September 27, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

In determining the worker’s appeal, the panel is bound to apply the provisions of The Workers Compensation Act (the “Act”) and regulations under that Act as well as the policies established by the Workers Compensation Board. The provisions of the Act in force at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker sustains personal injury by accident arising out of and in the course of employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 37 provides that when a worker is injured as a result of an accident and sustains a loss of earning capacity, an impairment or requires medical aid, compensation is payable to them as medical aid, an impairment award and wage loss benefits.

Section 4(2) sets out that wage loss benefits are payable for an injured worker’s loss of earning capacity resulting from a workplace accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. Section 39 of the Act states that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB, or until the worker reaches 65 years of age.

Worker’s Position

The worker appeared in the hearing with a representative. The representative made an oral submission on behalf of the worker and the worker provided evidence through answering questions posed to them by the members of the appeal panel.

At the outset of the hearing, the worker’s representative stated they intended to address issues relating to the worker’s entitlement to wage loss benefits after August 2021, as well as for June 2023, and in relation to the permanent partial impairment award; however, on the panel confirming that only the question of the worker’s entitlement to wage loss benefits from June 1 to 30, 2023 was considered by Review Office on September 19, 2023 and therefore the appeal panel only has jurisdiction over that question, the representative agreed to proceed on that question alone, indicating they would pursue the other appeals.

The worker’s position as outlined in their representative's submission, is that the worker is entitled to wage loss benefits for June 1 to 30, 2023 because the worker was removed from work due to symptoms arising from the compensable injury, including headache, loss of sleep and their psychological injury, as confirmed by their treating physician. The representative submitted that the fact the worker spent the month at a facility out of province where they trained their horse and learned about training horses should not disentitle the worker to wage loss benefits.

In response to questions posed by members of the appeal panel, the worker’s representative confirmed that the worker stayed at the out of province equine facility through to August 22, 2023, but returned home every few weeks for a few days. The representative noted that the worker had a medication change before leaving, and it took awhile for the medication to “kick in”. The worker’s representative stated they would characterize the worker’s time at the facility as therapy, noting the worker was not working but was comforting themself through time spent with their horses. The representative noted that because the WCB declined to fund the worker’s participation in the formal equine therapy program, the worker attended the facility on their own and had the benefit of spending time with the trainer. For this reason, the representative stated that they told the WCB the worker was not attending equine therapy.

In response to questions posed by members of the appeal panel, the worker stated they did not recall telling the WCB that they were spending time at home, as outlined in the June 22, 2023 memorandum to file, and stated that the WCB knew they were out of province. The worker confirmed that they left their employment before June 1, 2023 when they saw their doctor and received the medical note removing them from work for the month of June. The worker stated that they chose to leave that employment. The worker described their time at the equine facility, noting that the facility provided most of the care for the worker’s horses and that they were there to help the trainer, and to watch and learn. The worker confirmed having lessons with the trainer twice weekly. The worker confirmed leaving the facility in late August 2023 and that they took a full-time job as of mid-November, 2023. The worker testified that they have not seen their family physician since summer 2023 and that they have not had any counselling since that time but are still seeing a dentist regarding braces.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal relates solely to the worker’s entitlement to wage loss benefits for the period of June 1 to 30, 2023. For the worker’s appeal on this question to succeed, the panel would have to determine the worker sustained a loss of earning capacity beginning June 1, 2023 and continuing through to June 30, 2023 as a result of the injury sustained in the compensable workplace accident of May 22, 2021. The panel was not able to make such a finding for the reasons detailed below and therefore the worker’s appeal is denied.

The panel considered whether there is evidence to support the worker’s position that they are entitled to wage loss benefits for this period because they were unable to work due to the compensable workplace injury.

The panel noted that the file evidence includes paystubs in respect of the worker’s employment with another employer, the most recent of which is for the pay period of January 22, 2023 to February 4, 2023. The panel noted from the WCB claim file that while the worker was employed in this position, their earnings were at a level such that there was no loss of earning capacity and therefore no wage loss benefits were paid to the worker.

The worker confirmed that they remained in this job until the spring of 2023 but could not recall the specific date they left that employment. The worker testified that they left that employment voluntarily, stating that the job “…was a lot of standing around. And standing around, just, I don't know, I'd get bored of it and I -- my mind just kind of travels when I just sit and kind of do nothing. So, I wasn't doing much. So, I was just worrying about everything and trying to get my life back together, and it wasn't what I wanted to do.” The panel noted that although the worker was unable to confirm when they left their employment, the worker did confirm it was before they went to see their family doctor on June 1, 2023. The worker’s representative indicated their recollection was that the worker was away from work for a month to a month and a half before leaving the province in early June 2023.

The panel noted that there is a lack of evidence in the claim file that the worker or their representative advised the WCB that the worker had quit their employment at some point before June 1, 2023 but we are satisfied based on the worker’s testimony and the information provided by their representative that this was the case. While the evidence does not confirm the exact date that the worker left their employment, the panel is satisfied that the worker left their job before seeking medical care and obtaining a note from their treating family physician on June 1, 2023 removing them from work until June 30, 2023. We are further satisfied that the worker did so voluntarily. As such, the panel finds that although the worker had a loss of earnings throughout the month of June 2023, that was the result of the worker’s own choice and not the result of the injuries sustained in the workplace accident of May 22, 2021.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker did not sustain a loss of earning capacity from June 1 to 30, 2023, as a result of the compensable injuries sustained in the workplace accident of May 22, 2021; therefore, the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of March, 2024