The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer appealed the Workers Compensation Board ("WCB") decision that the worker was entitled to wage loss benefits for May 27, 2024. A hearing by teleconference took place on March 18, 2025 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for May 27, 2024.

Decision

The worker is entitled to wage loss benefits for May 27, 2024.

Background

The worker submitted a Worker Incident Report to the WCB on May 27, 2024 describing that on May 22, 2024, they injured their jaw at work when a piece of scaffolding they were disassembling with a coworker fell and struck the right side of their jaw. The worker reported jaw pain to their right ear and some bruising. The Employer's Accident Report confirmed the mechanism of injury and noted the worker continued working the rest of their shift on May 22, 2024. The worker reported that later on the same day, their jaw was making a clicking sound while eating and they could not close their mouth fully, and that they advised the employer they would seek medical treatment the next day.

The May 23, 2024 emergency room report indicated the treating physician found the worker's right temporomandibular joint (TMJ) was palpably not intact, with a slight tenderness noted. The physician diagnosed a unilateral right anterior mandible dislocation and performed a successful external mandible reduction after which the worker was able to open and close their mouth fully. When the worker sought further treatment at a walk-in clinic on May 26, 2024, reporting ongoing difficulties with their jaw, the treating clinic physician noted the worker also had a bruised ear and prescribed pain and anti-inflammatory medication for the worker.

When the WCB spoke with the worker on May 28, 2024. The worker confirmed the described mechanism of injury and noted that when they sought medical care on May 23, 2024, the physician provided a sick note to remain off work until May 27, 2024. The worker stated they sought medical attention again on May 26, 2024 at which time they received a prescription for pain relief and anti-inflammatory medication, and a recommendation to return to light duties, but no medical note was provided, and no restrictions were outlined. On May 28, 2024 the worker sought further medical attention. The worker advised they called in sick on May 24 and 27, 2024 and returned to work on May 28, 2024. The WCB accepted the worker’s claim.

The worker sought treatment from a sports medicine physician on May 28, 2024. The physician reported that the worker was experiencing difficulty with range of motion in their jaw with constant throbbing pain and headaches, diagnosed a jaw contusion and prescribed anti-inflammatory medication, with a recommendation to return to light duties. The worker contacted the WCB on May 29, 2024 for assistance in relation to getting a Functional Abilities Form completed at the employer’s request. At that time, the worker confirmed they returned to work the previous day, working light duties.

On May 30, 2024, the WCB contacted the worker noting the employer had indicated they offered modified duties to the worker for May 27, 2024. The worker advised that they were in a lot of pain, described as 7/10, and had a headache and did not sleep well as a result; therefore, they requested to return to work on May 28 instead.

On June 5, 2024, the WCB advised the worker that they were entitled to wage loss benefits for May 27, 2024 and other medical aid expenses if incurred. In communicating with the WCB the same day, the employer advised that the worker worked a full day on modified duties on May 23, the day they reported the injury, refused modified work on May 27, 2024, and returned to modified duties on May 28. The WCB advised the employer that the worker’s time loss on May 27 was reasonable based on the worker’s increase in symptoms and difficulty sleeping as a result of their injury, which it confirmed in a June 10, 2024 decision letter to the employer.

On October 31, 2024, the employer requested Review Office reconsider the WCB's decision to pay the worker's wage loss on May 27, 2024, noting the worker was to attend work on May 27, 2024 to provide a functional abilities form setting out their restrictions but advised the employer they refused those duties and would not attend work. When the employer contacted the WCB to advise of the worker's refusal of the modified duties, the WCB advised the employer that the worker’s time loss for that day was acceptable due to their symptoms. The employer noted their belief that the WCB did not inquire as to the details of the modified duties to determine if they were suitable. Review Office determined on November 15, 2024 that the worker was entitled to wage loss benefits for May 27, 2024 as the medical evidence from May 26, 2024 did not indicate the worker was capable of returning to work and accepting that the worker’s reported concerns provided a reasonable basis to not attend work on May 27, 2024.

The employer filed an appeal with the Appeal Commission on November 25, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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.

This claim relates to the worker’s entitlement to wage loss benefits after the date of accident. The Act provides that a worker is entitled to benefits under s 4(1) of the Act when it is established that they are injured as a result of an accident at work. Under s 4(2), 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. When the WCB determines that a worker has a loss of earning capacity because of an accident, 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 nature of a worker’s duty to mitigate and permits the WCB to reduce or discontinue benefits if it determines a worker has not met their obligations to:

(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.

Employer’s Position

The employer’s position is that the worker is not entitled to wage loss benefits for May 27, 2024 as the employer had appropriate modified duties available, which the worker refused, and the medical evidence does not indicate any reason why the worker could not perform those duties.

The employer’s representatives noted the worker successfully performed the provided modified duties on May 24, 2024, reviewing safety materials at home and that these same duties were offered to the worker for May 27, 2024 after the worker initially refused to come to the work site to perform sedentary duties; however, the worker refused the at home modified duties offered on May 27, 2024. The employer’s representatives submitted that the worker should not be entitled to wage loss benefits for May 27, 2024 as they failed to participate in the offered modified duties and failed to provide the employer with medical support outlining their workplace restrictions on a timely basis.

Worker’s Position

The worker did not participate in the appeal.

Analysis

This appeal is about whether the worker is entitled to wage loss benefits for May 27, 2024. For the employer’s appeal to succeed, the panel would have to find that the worker did not sustain a loss of earning capacity that day as a result of the injuries sustained in the workplace accident of May 22, 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.

The evidence before the panel confirms that the worker was injured in an accident at work on May 22, 2024 and worked light duties on May 23, 2024, when they reported the injury to the employer. The worker sought emergency medical treatment late on May 23, 2024 and received a medical note to remain off work on May 24, 2024. The following two days were the worker’s regular days off.

The evidence in respect of May 27, 2024 indicates that the employer and worker communicated on May 26, 2024 about the availability of modified work duties the next day, and that on May 27 the worker advised the employer that because of the workplace injury they did not sleep well and were experiencing an increase in symptoms. The panel noted that the worker sought medical attention at a walk-in clinic on May 26, 2024 and requested pain relief medication in relation to their jaw and ear injuries, although it does not appear that any medical note was provided in relation to the worker’s return to work the next day.

The panel accepts the employer’s evidence that they initially offered the worker sedentary duties at the worksite and later offered the worker sedentary duties at home, like the tasks the worker undertook and completed on May 23, 2024, and that they did so without any medical documentation available to confirm the worker’s injury-related limitations. We note, however, the availability of modified duties is but one factor to consider in determining if the worker has a loss of earning capacity as a result of a compensable injury.

The worker’s evidence, which is supported by the medical reporting, is that they had an increase in pain arising from the injury sustained in the workplace accident and as a result, did not sleep well. The worker has stated they advised the employer that as a result, they were not capable of working on May 27, 2024 and the employer confirmed this to be the case.

The panel is satisfied that while the employer offered the worker sedentary modified duties for May 27, the worker believed that they were not able to work on that day due to their symptoms arising out of the workplace accident. There is evidence that the worker sought medical attention on May 26, but the walk-in clinic physician did not outline any specific instruction as to the worker’s return to work or further follow-up in their report. The sport medicine physician’s report of May 28, 2024 confirms the worker continued to experience significant pain and decreased range of motion, with swelling in their jaw and could return to work on light duties for two weeks. We note that the worker followed this recommendation and did return to work at light duties.

The panel is satisfied that the worker took appropriate steps to mitigate the effects of the compensable injury upon their earning capacity by seeking medical treatment as needed and following up with further treatment as required, and by participating in modified duties and communicating with the employer when they experienced an increase in symptoms. The panel accepts that although the worker did not participate in the available modified duties on May 27, 2024, they did so because of the ongoing effects of the compensable injury.

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 injuries sustained in the accident of May 22, 2024, the worker experienced a loss of earning capacity on May 27, 2024 and is therefore entitled to wage loss benefits for that day. 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 20th day of March, 2025