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 is entitled to wage loss benefits in relation to the January 26, 2024 accident. A hearing was held on September 12, 2024 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits in relation to the January 26, 2024 accident.

Decision

The worker is entitled to wage loss benefits in relation to the January 26, 2024 accident.

Background

The worker submitted a Worker Incident Report to the WCB on January 31, 2024 reporting an injury to their right shoulder that occurred at work on January 26, 2024 and was reported to the employer on the same date. The worker described repetitive motion in the course of their job duties that caused pain beginning on January 24, 2024 and worsened on January 26, 2024, and that there was no specific incident that occurred. The worker reported they sought medical treatment on January 30, 2024 but did not get a diagnosis and were referred to physiotherapy and given a note for one week off work.

The Employer’s Accident Report of January 31, 2024 noted the worker reported their shoulder hurt on Friday and worsened over the weekend. The employer outlined concerns with the claim as the worker did not follow the employer’s policies regarding getting hurt at work or returning to work. The employer advised they requested the worker have their physician complete a Functional Abilities Form (FAF) and return it, and the worker did so, but while the physician listed many activities the worker could perform, they placed the worker off work for one week. The employer noted they could have accommodated the worker with modified or alternate duties.

The WCB received the Doctor First Report on January 31, 2024. The treating physician recorded the worker’s report of pain in their trapezius muscle, radiating into their right arm and forearm. The physician noted their clinical findings and diagnosed muscle strain/pinched nerve, recommending rest, physiotherapy and over the counter pain medications. The physician provided the worker should remain off work until February 5, 2024 and would be reassessed at that time. The FAF completed by the physician noted the worker could perform duties with their left hand but could not grip/grasp, reach overhead/forward or perform repetitive motion duties with their right hand.

The worker attended a physiotherapy assessment on February 5, 2024 reporting constant burning pain in their right shoulder and neck, which increased when they lifted their right arm over their head. The physiotherapist noted pain on lateral flexion and rotation and tenderness on palpitating the right trapezius and diagnosed right trapezius strain. The physiotherapist outlined restrictions of avoiding right arm repetitive motion, no right arm lifting greater than ten pounds, and no overhead lifting.

At follow-up with the worker on February 5, 2024, the treating physician noted some improvement but ongoing discomfort, and recommended restrictions of no heavy lifting, no repetitive lifting, and no overhead work.

On February 6, 2024, the worker advised the WCB they returned to work. The next day, the employer provided the WCB with information regarding the worker's position and job duties, noting the worker had varied duties and provided copies of email exchanges between the worker and the employer confirming the employer had modified duties available for the worker. In further discussion with the WCB, the worker confirmed they returned to work at modified duties on February 6, 2024 and to full regular duties on February 12, 2024. The worker acknowledged the employer offered modified duties but stated their physician recommended they remain off work for one week and return when cleared to do so, and they followed that advice.

On February 29, 2024, the WCB advised the employer the worker's claim was accepted.

On April 2, 2024, the employer requested Review Office reconsider the WCB's decision to pay wage loss benefits to the worker, submitting that the evidence did not support total disability, and the worker was capable of modified duties. Review Office determined on April 11, 2024 that the worker was entitled to wage loss benefits.

The employer filed an appeal with the Appeal Commission on May 7, 2024 and a hearing 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 a worker has such a loss of earning capacity, 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 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 its general manager, who made an oral submission in support of the employer’s appeal and provided testimony through answers to questions posed by the members of the appeal panel.

The employer’s position is that the evidence does not support a finding that the worker is entitled to wage loss benefits. The employer’s representative noted that the worker’s injury was not totally disabling such that the worker could not have participated in the light, sedentary duties that the employer had available and offered to the worker. The representative submitted that the employer has developed a return to work program that allows workers to continue working while they heal from injury and that the worker knew about that program but did not accept the employer’s offer of modified duties.

The representative noted that the employer requested the WCB assist with getting the worker back to work in a modified duties role after the injury but that by the time a response was provided, the worker was already back at work.

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 in relation to the January 26, 2024 accident. For the employer’s appeal to succeed, the panel would have to find that the worker did not have any loss of earning capacity arising from the injury sustained in that compensable workplace accident. The panel was unable to make such a finding and therefore, the appeal is denied.

The panel reviewed the evidence as to the nature and extent of the worker’s injury, noting that the employer does not dispute that the worker sustained injury arising out of and in the course of their employment. The medical reporting indicates the worker sustained a strain type of injury in their right shoulder region and that they sought medical treatment, and began physiotherapy as recommended by their physician. The physician recommended rest and provided a medical note for the worker to remain off work until reassessed one week later. The panel noted the physician also completed the functional abilities form as requested by the employer, which confirms that modified duties are available, but the physician nonetheless recommended the worker remain off work. The panel noted the treating physiotherapist and treating physician both assessed the worker on February 5, 2024 and provided restrictions for the return to work, and the worker returned to work the next day.

While the employer argues that the worker should not be entitled to wage loss benefits because they failed to participate in the offered modified duties, the panel finds that the worker appropriately followed the instructions of their treatment provider in remaining off work until cleared to return to work, with restrictions one week later. The panel noted the worker completed an injury report, sought medical treatment, and requested their physician complete and return the FAF form, as required by the employer’s injury policy. Although the employer indicated the availability of appropriate modified duties to the worker and, through the FAF, to the physician, the physician recommended otherwise, and the worker followed their direction. Further, when the worker was cleared to return to work, they immediately did so.

On the evidence before the panel, we are satisfied that the worker sustained a loss of earning capacity as a result of a compensable workplace injury, and therefore the worker is entitled to wage loss benefits. The employer’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of September, 2024