The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits in relation to the May 2, 2023 accident. A hearing was held on June 25, 2024 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits in relation to the May 2, 2023 accident.

Decision

The worker is entitled to wage loss benefits in relation to the May 2, 2023 accident.

Background

The employer submitted an Employers Accident Report to the WCB on May 2, 2023, reporting the worker injured the left back of their knee and their stomach in an incident at work on the same date. The employer noted the worker reported driving a piece of equipment with items on it, hitting a rut which pushed the items into the back of their leg and them into the controls of the equipment, scraping their stomach. The employer advised on the Report, the worker had only reported injuring their leg and after seeking medical treatment, would return to work the next day as it “wasn’t too sore”. The employer noted they were not aware of the injury to the worker’s stomach until they attended the site to investigate the incident and further, were advised the worker had not followed correct safety protocols when operating the equipment. In addition, the employer noted the worker’s employment had been terminated as a result of a direct violation of the terms of their employment related to safety and health violations.

On May 3, 2023, the worker provided the WCB with their Worker Incident Report. The worker indicated they injured the left back of their knee and their stomach after using a lift and the material being transported, slid back and pinned them, with their knee stuck against other material, with their stomach cut by being pushed into the controls of the lift. The worker noted they attended an urgent care centre, and a CT scan was conducted, along with x-rays and bloodwork. The worker advised their knee was currently in a splint and they were using crutches.

The hospital report received from the urgent care centre on May 3, 2023, noted the worker presented at the centre with left lower quadrant pain and left knee pain with decreased range of motion after being struck by materials and being pinned between a steel plate and a lift. The urgent care physician examined the worker and noted a 3 inch superficial laceration to the worker’s left lower quadrant with tenderness and pain to the worker’s left patella and obvious redness around the tibial tuberosity and surrounding the medial and lateral meniscal area. It was noted the worker was able to flex their leg to 90 degrees but with pain and was unable to perform a straight leg raise test. An x-ray taken of the left knee that day found a “…moderate-sized joint effusion in the knee. No evidence of an acute fracture or dislocation is detected. There is mild narrowing of the medial and lateral femoral tibial joint compartments of the knee which may relate to mild degenerative change…”. An abdominal CT scan was also conducted that date and found minor fat stranding, which was opined to be related to bruising and a soft tissue injury, with no evidence of an intra-abdominal injury. The worker attended the urgent care centre on May 3, 2023 for follow-up and it was recommended they follow-up with a sports medicine clinic for their left knee injury, using crutches and remaining non-weightbearing until that time.

The WCB contacted the worker on May 17, 2023, to gather further information. The worker confirmed the mechanism of injury indicated on their Report and noted in addition to the injury to their stomach and left knee, their eyeglasses flew off their face on impact and they inadvertently stepped on them, breaking them. The worker advised the WCB there were four coworkers who witnessed the incident. The worker described feeling immediate sharp pain in their left knee, shooting down their left leg. Further, the worker noted they attended for medical treatment, after which the employer requested they attend the job site to complete some paper work. After they returned to the job site, the worker advised the WCB that the employer had terminated their employment as they had not used a safety harness while working on the lift; however, the worker advised the WCB there were no safety harnesses available on the job site. The next morning, the worker advised their left knee was swollen and bruising was appearing. As well, their left knee was very stiff and difficult to move and they continued to use crutches to ambulate. The WCB advised the worker their claim was accepted and the payment of various benefits started.

On May 17, 2023, the worker attended for an initial appointment with a sports medicine physician. The worker reported to the physician, heavy pieces of material collapsed sideways into the lateral side of their left knee, pinning them to the ground. Since that time, the worker further reported they have been unable to weight bear on their left knee, with swelling and pain. On examining the worker, the treating physician noted the worker could extend their left knee to about 5 degrees, with flexion to only about 60 degrees, there was a massive effusion, with some mild pain on medial collateral ligament testing. The physician opined the worker had a ligamentous injury but an MRI study would be needed to confirm, which was ordered. A knee brace was prescribed and sedentary duties only were recommended for 3 weeks. On May 24, 2023, the WCB provided the employer with a formal decision letter advising the worker’s claim was acceptable and they were entitled to ongoing benefits.

The worker underwent a left knee MRI on May 31, 2023, which indicated: “1. Definite complete tear anterior cruciate ligament 2. Mild expansion and T2 hyperintensity concerning for partial midsubstance tear posterior cruciate ligament 3. Extensive bone contusions posterior tibia 4. Oblique tear body lateral meniscus with posterior extension”. The worker was seen in follow-up and to review the MRI findings with the treating sports medicine physician on June 2, 2023. The physician recommended continued conversative treatment to see how the worker’s knee was recovering but noted surgery may be needed. On May 9, 2023, further work restrictions were provided until June 28, 2023 and the worker was referred for physiotherapy. The worker attended for an initial physiotherapy assessment on June 14, 2023, with the physiotherapist recommended restrictions of avoid squatting, kneeling, pivoting; avoid ladders and uneven surface walking; avoid lifting, pulling/pushing and carrying more than 20 pounds and walking for up to an hour only. In speaking with the WCB on June 15, 2023, the treating physiotherapist also noted their treatment would likely help with the worker’s swelling, pain and range of motion but indicated their belief the worker would likely require surgery to recover. At a further follow-up appointment with the sports medicine physician on June 28, 2023, the worker was referred to an orthopedic surgeon.

The worker’s file was reviewed by a WCB medical advisor on July 3, 2023. The advisor opined the worker’s diagnoses were a left knee anterior cruciate ligament and lateral meniscus tears, which were found to be medically accounted for in relation to the reported mechanism of injury. The advisor noted some of the findings indicated on the May 31, 2023 MRI and the earlier May 17, 2023 x-ray, were consistent with pre-existing degenerative conditions, being joint space narrowing and chondromalacia, and were not related to the May 2, 2023 workplace accident. The WCB medical advisor went on to provide the worker’s current treatment of physiotherapy and orthopedic consultation was appropriate and noted that some tears may recover without surgical intervention. In addition, the advisor indicated the work restrictions set by the physiotherapist were appropriate and could be reviewed after the worker was seen by the orthopedic surgeon.

The employer requested reconsideration of the WCB’s decision to accept the worker’s entitlement to benefits to Review Office on July 24, 2023. The employer noted the worker would have been accommodated in modified duties if they had not been terminated for just cause. The employer noted inconsistencies with the worker’s reporting of the incident and indicated at the time of the May 2, 2023 accident, they were undergoing a safety audit, and would have had sedentary duties for the worker, had the worker not been terminated. As well, the employer noted the WCB continued to relate the worker’s loss of earning capacity to the compensable workplace injury however, noted their belief the worker remained off work due to issues not related to the incident. Review Office determined on August 16, 2023, the worker was entitled to wage loss benefits. Review Office found the medical evidence supported the worker was totally disabled from work following the May 2, 2023 accident and was entitled to wage loss benefits. Further, Review Office found the worker was terminated by the employer, with the employer advising they would be unlikely to hire the worker back, and as such, the worker was not required to advise the employer of their medical condition for work capabilities and continued to have a loss of earning capacity and entitlement to wage loss benefits.

The employer filed an appeal with the Appeal Commission on March 12, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (“the Act”), regulations made under the Act and policies of the WCB's Board of Directors.

Section 37 of the Act provides that where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(1) of the Act provides that “where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits must be paid to the worker calculated in accordance with section 40 and equal to 90% of the loss of earning capacity.

Subsection 39(2) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the Board, or the worker attains the age of 65 years.

Subsection 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states:

“ 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.”

Subsection 22(2) sets out the consequences of a failure to co-operate and mitigate, stating that if a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

Subsection 19.1(2) of the Act deals with discriminatory action. Subsection 19.1(2)(b) provides, in part, that "No employer or person acting on behalf of an employer shall take any action that prevents or discourages or attempts to prevent or discourage a worker from applying for compensation, pursuing an application that has been made or receiving compensation under this Part.”

Subsection 19.1(3) deals with the matter of onus and provides, in part, that if, in a prosecution or other proceeding under the Act, it is established that discriminatory action was taken against a person after he or she exercised any right or carried out any duty in accordance with the Act or the regulations, the employer is presumed to have taken the discriminatory action contrary to subsection (2). The employer may rebut the presumption by showing that the action taken was not related to such conduct.

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.

WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the “Co-operation and Mitigation Policy”), elaborates on the responsibilities of workers and the WCB in ensuring compliance with section 22 of the Act. The Policy notes that the Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury. The Policy provides that an injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs.

Worker’s Position

The worker was self-represented at the hearing and made submissions on their own behalf. The worker indicated that they were dismissed by the employer almost immediately after the workplace incident. They indicated that prior to the incident on May 2, 2023 they had requested a harness from their employer but were not provided one.

In response to questions from the Panel, the worker indicated that their WCB claim was still active because they had not yet fully recovered and they were waiting on surgery to their left knee. In sum, the worker indicated that they were entitled to wage loss benefits in relation to the May 2, 2023 accident because they suffered a loss of earnings from the accident.

Employer's Position

The employer was represented by their Safety Representative. The employer's representative also provided a written submission in advance of the hearing and made oral presentations at the hearing.

The employer's position was that the worker was not entitled to wage loss benefits beyond May 17, 2023 because the employer could have accommodated the worker’s restrictions of sedentary duties had they not been dismissed from their employment for a violation of a safety protocol. The employer's representative submitted that it had Just Cause to terminate the worker’s employment based on the worker’s safety protocol violation. It indicated that this Just Cause was supported by the findings of Compliance Services, which investigated the allegation that the worker was dismissed in a discriminatory manner contrary to section 19 of the Act. Compliance Services found that the worker was not dismissed contrary to section 19 and the employer’s representative indicated that this finding supports that it had Just Cause to terminate the worker’s employment.

The representative submitted that they were strongly of the view that but for the termination of the employment of the worker, they could have accommodated their work restrictions. They claimed that given they could have accommodated the worker they should not be penalized through a negative claims experience rating with the WCB, which is impacted by a worker’s loss of earning capacity.

Analysis

The issue on appeal is whether the worker is entitled to wage loss benefits in relation to the May 2, 2023 accident. For the employer’s appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a loss of earning capacity after May 2, 2023 as a result of their workplace accident on that date. To make such a finding the panel would be required to find that the worker’s dismissal was an intervening event which broke the causal link between the workplace injury and a subsequent loss of earnings. The employer does not challenge the worker’s entitlement to benefits from May 2, 2023 to May 17, 2023, but rather any loss of earning capacity which occurred after May 17, 2023, due to its ability to accommodate the worker’s restrictions. For the reasons that follow, the panel is unable to find that the worker did not suffer a loss of earning capacity prior to May 17, 2023 or thereafter.

The panel notes that the worker's claim was initially accepted for an injury to their left knee including a complete tear of the anterior cruciate ligament (ACL), a possible tear of the posterior cruciate ligament (PCL), tearing of the meniscus and a bone contusion. The panel is satisfied that the medical evidence supports the worker had not materially recovered from their compensable injury by May 2, 2023, when their employment was terminated and continued to suffer a loss of earning capacity after that date as a result of the workplace injury.

The employer has maintained that the worker's employment was dismissed for violating a policy of the employer, notwithstanding the employer’s policies on safety require multiple disciplinary steps prior to terminating a worker’s employment. The panel notes that it is not the function of this panel to determine whether the termination of the worker's employment was justified or appropriate. The panel is limited to reviewing the facts of the case to determine whether the worker's loss of earning capacity subsequent to the termination of their employment on May 2, 2023 was causally related to their workplace accident on that date.

In this regard, the panel is satisfied that the termination of employment should not be considered an intervening event which breaks the causal link between a subsequent loss of earnings and a worker's compensable injury. It would not be appropriate to treat termination as equivalent to quitting or refusing an offer of suitable work, as this would have the effect of conferring on an employer the power to terminate loss of earnings benefits and/or a return to work process or program. Conferring such a power or effect on an employer would give the employer authority over benefit entitlement which, in the panel's view, is not consistent with the purpose or intent of the Act.

The panel notes that the function and jurisdiction of the WCB and the Appeal Commission is to consider and determine responsibilities and entitlements under the Act. Such responsibilities and entitlements must be viewed from the perspective of the Act. The worker's actions and conduct should therefore be considered in determining whether the intervening event broke the chain of causation between the worker's compensable injury and their subsequent loss of earnings. In a case where the worker was injured but prepared to engage in a return to work process however their employment was terminated prior to the commencement of that return to work process, the panel has an obligation to consider the fact that the worker was prepared to reasonably participate and co-operate in the return to work program when it began, as contemplated under the Act and the Co-operation and Mitigation Policy.

Although the employer frequently referenced the findings of Compliance Services which indicated that the termination of the worker’s employment was not discriminatory, the panel notes that the findings from the Compliance Services investigation were not at issue on this appeal. Section 19.1 has no direct bearing on, nor is it determinative of, whether a worker is entitled to ongoing wage loss benefits following the termination of their employment. In sum, a finding of no discrimination under section 19.1 does not determine if there is wage loss benefit entitlement nor is it equivalent to a finding of Just Cause to terminate the worker’s employment.

A significant amount of evidence was presented at the hearing with respect to the issue of whether Just Cause existed to terminate the worker’s employment. The panel notes that Just Cause to terminate the worker's employment does not create a break in the causal link between a subsequent loss of earnings and a worker's compensable injury. To establish such a break in the causal link would be contrary to the purpose of the Act which includes consideration of the worker’s actions but limits those considerations to whether the worker was prepared to reasonably participate and co-operate in a return to work program.

While it might be argued from an employer's perspective that a worker would have ceased to cooperate when their employment was terminated, the panel is of the view that the Act must be interpreted more broadly. If being terminated as a result of the employer's decision means a worker has not co-operated or fulfilled its duties under the Act, the worker arguably has no ability to demonstrate the opposite. In the panel's view, this would seem to be too narrow an interpretation of the Act for the no-fault workers compensation system which exists in Manitoba.

The panel’s focus therefore must be on the nature of the worker's conduct and actions prior to termination and whether they complied with their obligations under section 22 the Act, to reasonably participate and cooperate in a return to work. There is no doubt that a worker can frustrate the duty to participate and co-operate in a number of ways for example by refusing suitable modified work or absenting themselves from the workplace. However, in the appeal at hand, the panel finds, on a balance of probabilities, that the worker did not fail to co-operate in the return to work process.

There is no dispute that the worker was dismissed prior to being cleared to return to work with restrictions. The employer claims that the dismissal occurred because in its view, it had Just Cause to terminate the worker’s employment due to the worker’s violation of its safety protocols. In this regard, the panel notes that there are inconsistencies in the evidence, including with respect to whether the worker had a harness available to them.

In the circumstances, the panel is unable to find that the worker's actions or conduct frustrated the return to work process or broke the chain of causation between the worker's compensable injury and their loss of earning capacity. The panel is not satisfied, therefore, that the worker contravened or failed to comply with their obligations under the return to work process.

As noted above, the worker had not yet materially recovered from the effects of their workplace accident at the date of their dismissal. With the termination of their employment, the worker was at a disadvantage in terms of being able to seek alternate employment and earn income at their pre-accident earnings or to mitigate the effects of their compensable injury. This is particularly true given that the employer confirmed with WCB that it was highly unlikely that it would ever rehire the worker given their violation of safety protocols.

In conclusion, the panel is satisfied that the chain of causation between the workplace injury and the worker's loss of earnings was not broken, and that the worker's loss of earning capacity following the termination of their employment was causally related to their workplace accident and injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity as of May 2, 2023 as a result of their workplace accident and injury of that date, and that they are entitled to full wage loss benefits for wages lost as of that date.

The employer’s appeal on this issue is dismissed.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of August, 2024