The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer appealed the Workers Compensation Board ("WCB") decision that the worker is entitled to wage loss benefits after June 4, 2024. A hearing took place on February 5, 2025 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 4, 2024.

Decision

The worker is entitled to wage loss benefits after June 4, 2024.

Background

On June 18, 2024, the worker submitted a Worker Incident Report to the WCB reporting they injured their left upper leg at work on May 31, 2024, when they slipped while exiting a vehicle, hitting the ground with impact to their left leg. The worker reported they contacted the employer’s safety officer, who took the worker to their vehicle and then the worker sought medical attention.

The employer submitted their Employer’s Accident Report to the WCB on June 19, 2024, noting a similar mechanism of injury and that the worker sought medical treatment on May 31, 2024 and on June 3, 2024 and was cleared by their physician to return to their regular duties on June 4, 2024. The employer further noted they terminated the worker’s employment for cause on June 4, 2024.

The Doctor First Report, relating to the May 31, 2024 assessment, noted the worker’s description of the incident and their complaint of left hip pain. The treating family physician provided a diagnosis of left hip pain, recommending the worker use non-prescription pain relief medication and take time off work. At follow-up on June 3, 2024, the physician noted the worker’s report of ongoing left hip pain and recommended further time off, but also provided a medical note indicating the worker could return to work on June 4, 2024 without restrictions. The worker saw the physician again on June 5, 2024 reporting ongoing left lateral hip pain and the physician continued to recommend time off work. A left hip x-ray of that date indicated normal findings.

On June 28, 2024, the WCB accepted the worker’s claim and issued wage loss benefits for June 1, 2024 to June 3, 2024. On July 5, 2024, the WCB advised the worker by letter that the worker was not entitled to wage loss benefits after June 3, 2024 as they were cleared to return to regular duties on June 4, 2024, and were terminated from their employment on the same day.

On July 14, 2024, the WCB received a June 14, 2024 report from the treating physician noting the worker continued to have left hip pain, with tenderness at the left hip and reduced range of motion and was referred for an MRI study. The physician also noted the worker was not capable of returning to work. On July 23, 2024, the WCB received a note from the treating physician outlining that on June 3, 2024 they indicated the worker could return to work based on the worker’s request; however, the physician indicated the worker continued to have left hip symptoms at that time. The WCB contacted the worker who confirmed they asked the treating physician to complete the note so they could continue working but they continued to experience left hip pain and had to constantly shift between sitting and standing. The worker noted the employer sent them home when they were unable to complete the job duties offered on June 4, 2024, and later advised they were terminated. When the WCB contacted the treating physician on August 1, 2024, the physician advised that when they saw the worker on June 3, 2024, the worker reported left hip pain but was adamant they wanted to return to work. The physician confirmed that in such circumstances, they would normally clear the return, and noted they advised the worker to return for treatment if they continued to experience difficulties. The physician noted the worker returned on June 5, 2024, still complaining of left hip pain and x-rays were taken at that time, and returned again on June 14, 2024, at which time, the physician referred the worker for an MRI study to rule out a labral tear. The physician stated they last saw the worker on July 23, 2024. In the report for that visit, the treating physician noted the worker’s ongoing report of left hip pain and recorded tenderness at the left hip, and stated the worker was unable to return to work.

When the worker contacted the WCB on August 1, 2024, they advised that on returning to work on June 4, 2024 after requesting that the treating physician clear them to do so, they advised another worker that their hip was still sore. Because the vehicle the worker normally used to perform their job was in repair, the employer asked the worker to drive a different vehicle. The worker stated they felt this was a job duty they could not perform as their hip remained sore and advised their supervisor, who told the worker that there was no other work available for them and sent the worker home. The worker advised the WCB that the employer contacted them later that day and terminated their employment. The worker stated they continued to experience nagging pain in their hip and needed to frequently shift positions from sitting to standing.

The WCB authorized wage loss benefits from June 5, 2024 to August 2, 2024 and confirmed this decision by letter to the employer on August 28, 2024.

On September 11, 2024, the employer requested Review Office reconsider the WCB’s decision, providing a chronology of the events from the hiring of the worker earlier in May 2024 through the accident of May 31, 2024 until June 4, 2024. The employer noted that on June 4, 2024, although the worker was cleared to return to work without restrictions, the worker refused the duties assigned to them and was sent home. The employer confirmed they decided to end the worker’s employment for cause based on the worker’s performance to date.

Review Office determined on September 19, 2024 that the worker was entitled to wage loss benefits after June 4, 2024. The employer filed an appeal with the Appeal Commission on October 8, 2024 and a hearing took place.

Reasons

Applicable Legislation

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

Section 4(1) of the Act provides that the WCB will pay compensation when a worker has sustained personal injury by accident arising out of and in the course of employment, and s 4(2) outlines that a worker injured in such an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39 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 responsibilities of an injured worker to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, to seek out, co-operate in and receive medical aid that promotes their recovery, and to co-operate with the WCB 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.

Employer’s Position

The employer was represented in the hearing by a human resources manager who made oral submissions and provided information in response to questions from the appeal panel.

The employer’s position is that the worker is not entitled to wage loss benefits after June 4, 2024 as the evidence confirms that the worker had no restrictions in relation to the injuries sustained in the accident of May 31, 2024, when the worker returned to work on June 4, 2024, but that the worker refused to undertake the job duties the employer provided to them on that date. As such, the employer’s position is that the worker’s loss of earning capacity after that date is the result of the worker’s refusal of work and amounts to the worker failing to take all reasonable steps to reduce or eliminate their loss of earnings resulting from their injury.

The employer’s representative highlighted that despite the worker’s return to work with a medical note clearing them to return to their regular duties, the employer offered the worker different job duties on June 4, 2024, which the representative stated were less physically demanding. The representative confirmed that the worker did not attempt those duties but indicated that they had continuing pain from the injuries sustained in the accident, and that as a result the employer sent the worker home for the day but paid the worker’s wages on that day. The representative confirmed that at the time of the accident the worker was on probationary status, having only started their job a few weeks earlier. The representative stated that the employer decided to terminate the worker’s employment, and that there was cause to do so.

The employer’s representative also submitted the medical findings and reports do not support a finding that the worker was entitled to wage loss benefits in relation to the compensable injury until December 2024, noting the WCB case manager’s November 26, 2024 comment that a normal recovery for an injury such as the worker sustained would occur in 4 - 6 weeks. 

Worker’s Position

The worker did not participate in the appeal.

Analysis

The question in this appeal is whether the worker is entitled to wage loss benefits after June 4, 2024. For the employer’s appeal to succeed, the panel would have to determine that the worker did not sustain a loss of earning capacity after June 4, 2024 as a result of the injuries sustained in the workplace accident of May 31, 2024. As detailed in the reasons that follow, based on the evidence before the panel, we were unable to make such a finding and therefore, the employer’s appeal is denied.

In reviewing the evidence to determine if the worker had a loss of earning capacity after June 4, 2024 arising out of the workplace accident, the panel noted that after the accident, the worker sought medical treatment on May 31 and June 3, 2024. In each case, the treating family physician noted in their report to the WCB that the worker was not capable of modified or alternate work and did not outline any restrictions. The physician provided a medical note on June 3, 2024 indicating the worker could return to work on June 4, 2024, without any restrictions, and the panel noted that the worker did attend work on June 4, 2024 but indicated to the employer at that time that they could not undertake the work available as a result of their injury. On June 5, 2024, the treating physician noted the worker’s ongoing symptoms and ordered an x-ray to investigate further. At that time, they again indicated the worker was not capable of alternate or modified work but did not outline any restrictions.

The panel also considered that the worker continued to seek treatment for their left hip symptoms after the appointments noted above, and that on July 23, 2024, the treating family physician provided a note outlining a query as to a left labrum tear and noting that an MRI was upcoming. The panel noted that the treating physician, in conversation with the WCB on August 1, 2024 explained that when the worker was treated on June 3, 2024, the worker was frustrated and wanted to return to work, although they still reported left hip pain. As a result, the physician provided a note clearing the worker to return to work but indicated the worker should return for treatment if the problem persisted. As outlined above, the worker did so the next day. The panel acknowledges the employer’s frustration with these circumstances where the medical note provided does not align with the later medical reporting, but we are satisfied based on the treating physician’s explanation and the medical reporting that the worker was not capable of a return to work on June 4, 2024 and continued to require treatment in relation to the injury sustained in the accident.

The panel further acknowledges that the employer offered appropriate duties to the worker on June 4, 2024 based on the information available to them at that time, and when the worker refused those duties based on their ongoing symptoms, the employer, with no other duties available on that day, sent the worker home but provided wages for the day.

The panel finds that the evidence indicates the worker mitigated the effects of their injury, in that they appropriately sought medical attention on the date of injury, followed up a few days later, and attempted to return to work despite their physician’s reluctance to support that return. We are satisfied that in doing so, the worker met their responsibilities under s 22 of the Act.

In respect of the employer’s further submission that the worker should not be entitled to wage loss benefits until December 2024, the panel notes that this appeal is in relation only to the Review Office decision confirming that the worker is entitled to benefits as of June 4, 2024. Review Office did not make any decision in relation to the termination of those benefits at a later date and therefore the panel does not have jurisdiction to determine that question.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that as a result of the injury arising out of the accident of May 31, 2024, the worker

sustained a loss of earning capacity beyond June 4, 2024 and therefore is entitled to wage loss benefits beyond that date. The employer’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
M. Kernaghan, Commissioner
J. Peterson, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of February, 2025