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 for the period June 19, 2023 to August 13, 2023. A file review was held on September 10, 2024 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period June 19, 2023 to August 13, 2023.

Decision

The worker is entitled to wage loss benefits for the period June 19, 2023 to August 13, 2023.

Background

The worker filed a Worker Incident Report with the WCB on June 15, 2023, reporting they sustained injury to their head and neck in an altercation with a coworker on June 14, 2023. The worker reported a coworker began arguing with them and then struck them on their head. The Employer’s Accident Report provided of June 15, 2023 indicated the worker claimed they were struck in the head by a jacket that was thrown at them by a coworker. The employer further noted that an internal investigation of the incident indicated the worker was approximately 12 feet away from the coworker who threw the jacket at them and expressed concern that the worker was off work until June 19, 2023 because of the incident.

When the worker sought treatment at a local walk-in clinic after the incident, the treating physician noted the worker reported an argument with a coworker and that they were struck in the back of the head with a piece of clothing, with something "hard and heavy" in the pocket, which caused them a severe headache and dizziness. On examination, the physician found a moderate limit to flexion and extension of the worker's occipital and neck area, limited range of motion and tenderness at the occipital area. The physician diagnosed head trauma, referred the worker for physiotherapy and provided a sick note for three days off work, noting the worker could return to their full duties the following week if their symptoms improved.

On June 15, 2023, the worker attended a physiotherapy assessment, reporting pain, tightness, headaches and blurred vision after being assaulted by a coworker and hit with a piece of protective clothing at work. The physiotherapist found the worker's global cervical range of motion was half of full range with pain reported at the end ranges, and a positive slump test. The physiotherapist diagnosed cervical strain and queried a concussion. The physiotherapist recommended the worker see their treating family physician and remain off work for two weeks.

On June 20, 2023, the treating family physician assessed the worker, diagnosed a minor head injury and recommended ongoing physiotherapy and medication for the worker’s headache.

The worker provided further information to the WCB on June 21, 2023, advising that the coworker removed their protective jacket and slapped the worker on the head with it. The worker noted they remained off work based on the advice of their treating physiotherapist and they continued to have headaches, especially in the mornings. Further, the worker advised the employer offered modified duties on June 14, 2023 involving light cleaning, sorting of small parts and assembling kits of parts, but the worker noted they could not perform those duties because of their dizziness and headache.

The WCB spoke with the employer on June 22, 2023, who advised the WCB they had conflicting information on how the June 14, 2023 incident occurred and investigated the incident. The employer further confirmed they offered the worker modified duties but due to the worker's symptoms, the worker had gone home. The WCB advised the employer that the worker's claim was acceptable.

The WCB received further medical information, including a July 10, 2023 report from the treating sports medicine physician who noted the worker's complaints of headaches, blurred and double vision, photosensitivity and posterior neck pain and referred the worker for an x-ray of their cervical spine, which was noted to be normal with degenerative changes indicated, and requested a CT scan. The physician diagnosed acute cervical strain with post-concussive symptoms and provided a sick note for two weeks. The July 11, 2023 CT scan of the worker's brain found no abnormality. At follow-up on July 28, 2023, the treating sports medicine physician noted the worker's headaches improved but were intermittent and the worker had watery eyes. The physician recommended a gradual return to work beginning with 4 hours per day starting on July 31, 2023, increasing to 6 hours per day on August 8, 2023 and full regular hours by August 15, 2023.

On August 8, 2023, the WCB emailed the employer to request wage information, and the employer advised that the weight of the jacket thrown at the worker was approximately 6-8 pounds.

At follow up with the sports medicine physician on August 25, 2023, the worker reported improvement in headaches but described occasional numbness to their legs. The physician noted an incomplete referral to a neurologist, and that the worker returned to regular duties in the interim.

The WCB confirmed with the employer and the worker that the worker had returned to their regular duties. The employer advised they were appealing the acceptance of the claim and payment of wage loss benefits as the worker had declined modified duties offered by the employer.

A WCB medical advisor reviewed the worker’s claim file on September 27, 2023 and concluded that based on the mechanism of injury, "…it is not likely that any appreciable tissue injury, affecting the brain, the neck or otherwise, occurred in relation to the described incident." The medical advisor further concluded the mechanism of injury as described was not likely to have caused total disability of the worker.

On October 11, 2023, the WCB confirmed the decision to accept the worker's claim and pay wage loss benefits in relation to the June 14, 2023 workplace accident. On October 31, 2023, the WCB advised the worker that it had determined any ongoing difficulties were not related to the workplace accident and their entitlement to benefits would end as of November 7, 2023.

On January 30, 2024, the employer requested Review Office reconsider the WCB's decision as to wage loss benefit entitlement, noting the worker was offered light sedentary duties and that, after learning of the incident with the coworker, the employer took steps to ensure the worker felt safe while at work. The employer also noted that given the reported mechanism of injury, they had concerns regarding the length of time of the worker’s total disability, relying on the WCB medical advisor's opinion that the mechanism of injury was not likely to have caused total disability for 8 weeks.

On March 14, 2024, Review Office determined the worker was entitled to wage loss benefits from June 19, 2023 to August 13, 2023, relying upon the opinions of the treating healthcare providers that the worker was unable to perform their regular job duties, or the modified duties offered by the employer and as such, had a loss of earning capacity and was entitled to wage loss benefits.

The employer filed an appeal with the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

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 compensation under s 4(1) of the Act when it is established that they sustained personal injury because of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, 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 of the Act outlines the responsibility of a worker to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, to seek out, cooperate in and receive medical aid that promotes their recovery and to cooperate with the WCB in developing and implementing programs for returning to work. When a worker fails to comply with those responsibilities, the WCB may reduce or suspend the compensation payable to the worker.

Employer’s Position

The employer’s position is set out in the Appeal of Claims Decision form dated May 2, 2024 and, in their submission, to Review Office dated January 29, 2024.

The employer’s position is that the worker is not entitled to wage loss benefits from June 19, 2023 to August 13, 2023 as the evidence confirms that the employer offered appropriate modified, sedentary duties on June 14, 2023 and the worker declined that offer. The worker therefore failed to mitigate their loss of earning capacity and as such should not be entitled to wage loss benefits.

Further, the employer’s position is that there is evidence that the worker was capable of a return to regular duties as of June 19, 2023 but did not return to work until late July 2023, and as such, the worker should not be entitled to wage loss benefits after June 19, 2023. This is further supported by the September 27, 2023 opinion of the WCB medical advisor which the employer relies upon in support of their appeal.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The question on appeal is whether the worker is entitled to wage loss benefits from June 19, 2023 to August 13, 2023. For the employer’s appeal to succeed, the panel would have to find that the worker did not have a loss of earning capacity in that period arising from the injury sustained in the compensable workplace accident of June 14, 2023. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore, the appeal is denied.

The panel reviewed and considered the evidence as to the worker’s ability to return to work following the injury on June 14, 2023, which the WCB accepted as compensable. We noted that the initial medical assessment was provided by a walk-in clinic physician on the date of accident and that the physician recommended the worker remain off work for three days, unless their symptoms did not improve. On assessment by the physiotherapist on June 15, 2023, the worker was advised to remain off work for two weeks and that they get assessed by their own physician for a possible concussion. The worker saw their own family physician on June 20, 2023, who recommended the worker remain off work and continue with physiotherapy. The treating physiotherapist referred the worker for assessment by a sports medicine physician and recommended on July 7, 2023 that the worker remain off work until that assessment occurred. The sports medicine physician assessed the worker on July 10, 2023 and provided a diagnosis of acute cervical strain, post concussive symptoms and anxiety in relation to the workplace, recommending further investigations by x-ray and CT scan, that the worker remain off work and follow up in two weeks. Following the completion of a cervical spine x-ray and brain CT scan, the treating sports medicine physician stated on July 27, 2023 that the worker was capable of a graduated return to work. The treating physiotherapist agreed and outlined a return to work schedule in their report of July 28, 2023.

The evidence before the panel confirms that the worker returned to work as recommended by the treating physiotherapist and sports medicine physician as of July 31, 2023 on a graduated basis, beginning at 4 hours per day and increasing over two weeks to full days as of August 15, 2023.

The employer submits that the evidence does not demonstrate the worker was totally disabled and noted that it made an offer of sedentary, modified duties to the worker on June 14, 2023. The panel acknowledges that the employer had such duties available, and that the worker was aware of the availability of those duties, as confirmed by the worker in their conversation with the WCB on June 21, 2023. The panel further noted that in a conversation with the employer’s representative on the same date, the employer stated the offer was not in writing and that the worker neither accepted nor rejected the offer. Further, the employer advised the WCB that they gave the worker the option to go home and told the worker to “sleep on it and if you felt (sic) better they had duties.” There is no evidence that the employer made any further offers of modified duties to the worker, nor that the employer sought the assistance of the WCB in returning the worker to the workplace.

The panel finds that medical investigation of the extent of the worker’s injury continued until mid-July, 2023 and that while those investigations were underway, the worker’s treatment providers recommended the worker remain off work. While modified duties were available to the worker, the panel finds that the worker appropriately followed the instruction of their treatment providers, in terms of continuing with treatment, follow up care and diagnostic testing, until such time as those treatment providers recommended the worker return to their job duties, when the worker returned to work in compliance with those recommendations. In these circumstances, we find that the worker did what was expected of them to mitigate their loss of earning capacity. 

Based on the evidence before us, and on the standard of a balance of probabilities, the panel is satisfied that the worker experienced a loss of earning capacity from June 19, 2023 to August 13, 2023 as a consequence of the compensable workplace injury sustained on June 14, 2023. For this reason, the worker is entitled to wage loss benefits during that period and the employer’s appeal is 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 23rd day of September, 2024