Decision #105/24 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss benefits for May 12, 2023. A file review was held on October 2, 2024 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for May 12, 2023.

Decision

The worker is entitled to wage loss benefits for May 12, 2023.

Background

The worker has an accepted WCB claim for an injury to their left eye that occurred at work on May 11, 2023. On that date, a particle went into the worker’s left eye while grinding an object. The Employer Accident Report indicated the worker thought they had “blinked” the particle out but experienced irritation the following morning. The Report noted the worker had attended a local hospital and after being told the wait time to be seen would be over 7 hours, the worker attended a walk-in clinic down the street. The worker then waited a few more hours to be seen only to be told by the physician they could not be treated and to go to the hospital. The worker then went to a second walk-in clinic where they were seen and treated.

The WCB spoke with the worker on May 31, 2023. The worker confirmed the information on the Report, noting the physician at the second walk-in clinic would not fill out the paperwork required by the employer. The worker further confirmed they were having no difficulties with their eye and was not seeking any further treatment. The WCB advised the worker they were accepting their claim and would pay them wage loss benefits for May 12, 2023. On the same date, the WCB provided a letter to the worker advising them of the acceptance of their claim and the payment of wage loss benefits.

On March 14, 2024, the employer requested reconsideration of the WCB’s decision to pay the worker wage loss benefits for May 12, 2023. The employer noted it was not within their control how or when the worker obtained medical treatment but noted the length of time it took for the worker to finally be seen by a physician and receive treatment was not acceptable. Further, the employer noted on previous WCB claims, their workers have had medical appointments covered with no time loss.

The Review Office found on May 13, 2024, the worker was entitled to wage loss benefits for May 12, 2023. Review Office determined the worker did not work on May 12, 2023 as they were seeking and attending for medical treatment for the workplace accident that occurred the previous day. The Review Office acknowledged and agreed there were delays in the worker receiving that treatment however, noted that was not the fault of the worker. As such, the worker had a loss of earning capacity on May 12, 2023 due to their compensable injury and was entitled to wage loss benefits.

The employer filed an appeal with the Appeal Commission on June 7, 2024 and a file review 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 established by the WCB's Board of Directors. The applicable sections of the Act are set out below. Subsection 1(1) of the Act defines “Medical aid” as follows:

"medical aid" includes 

(a) transportation to a hospital or other place where medical care can be given, 

(b) services provided by a hospital or other health care facility, 

(c) treatment or services provided by a health care provider, 

(d) diagnostic services, (e) drugs, medical supplies, orthotics and prosthetics, 

(e.1) academic or vocational training and rehabilitative assistance, and 

(f) any other goods and services authorized by the board.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is 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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident." The WCB has established Policy 44.120.10, Medical Aid, (the “Policy”) to set out general principles regarding a worker’s entitlement to medical aid. The Schedules to the Policy provide additional detail concerning funding, for example, Schedule D relates to travel and emergency expenditures.

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

Employer’s Position

The employer’s Health Safety and Environmental Officer provided a written submission in advance of the file review.

The employer stated that they were not disputing that the worker was entitled to wage loss benefits.

The employer states that medical appointments have been covered with no lost time days/claims issued in the past. The employer's position is that the time the worker was away from work ought to fall under medical aid and be categorized as lost time seeking medical care.

Worker’s Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits for May 12, 2023. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity and/or require medical aid as a result of their May 11, 2023 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The panel is satisfied that the medical information on file supports that the worker was seeking medical treatment on May 12, 2023 as a result of the workplace injury on May 11, 2023.

The panel understands that the employer is seeking that the worker’s time loss on the day following the workplace injury be considered a medical aid expense that should be reimbursed under the Policy. Schedule D to the Policy sets out the general principles related to reimbursement of expenses incurred to attend compensable medical treatment. Schedule D states that “the WCB may reimburse an injured worker's reasonable expenses related to receiving compensable medical treatment such as wage loss, travel, accommodations, meals, child care and reasonable telephone charges.” However, the panel finds that Schedule D is intended to address travel and emergency situations for workers who already have an accepted claim and are attending for treatment in relation to the injury resulting from that accepted claim. In this instance, the worker did not have an accepted claim and was attending for initial medical treatment before any determination had been made whether their injury was work related. The panel finds that Schedule D is not applicable to the circumstances of this claim and therefore, the time loss to attend the medical appointment cannot be reimbursed under the Policy with no lost time days/claims issued, as is sought by the employer.

Furthermore, the panel notes that the definition for “medical aid” under the Act is detailed and does not include time loss.

The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity as a result of their May 11, 2023 workplace incident and is entitled to wage loss benefits for May 12, 2023.

The employer's appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of November, 2024

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