The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits from August 16, 2024 to August 21, 2024. A hearing was held on March 12, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from August 16, 2024 to August 21, 2024.

Decision

The worker is entitled to wage loss benefits from August 16, 2024 to August 21, 2024.

Background

On August 1, 2024, the worker submitted a Worker Incident Report to the WCB, reporting an injury to their left foot that occurred at work on July 31, 2024. The worker described moving a heavy object that slipped and struck their left foot. The worker sought medical treatment from their treating family physician on July 31, 2024, reporting pain to their left foot when walking/sitting/standing, swelling but no tingling or numbness. The physician examined the worker and found swelling, a 0.5 cm laceration with mild bleeding that stopped with external pressure, tenderness at the mid part of the left foot and restricted range of motion. The treating physician diagnosed the worker with a foot sprain and a laceration and recommended 2 days off work then to avoid walking/standing. The worker also attended the following day on August 1, 2024, to review an x-ray taken the previous day which noted soft tissue swelling but no fracture.

The employer provided the WCB with an Employer’s Accident Report on August 1, 2024, noting the same mechanism of injury to the worker's left foot. The employer noted they had offered the worker modified duties of sedentary duties, elevating their left foot and an ice or heat pack as needed, which the worker declined. In an email to the WCB on the same date, the employer noted the worker had advised they would not be returning to work until August 6, 2024 and had declined the offered modified duties.

The worker attended a follow-up appointment with their treating family physician on August 7, 2024, reporting ongoing pain and swelling to their left foot and an inability to wear safety shoes. The treating physician recommended keeping their leg elevated and over-the-counter pain medication and completed a Modified Duties Form for the employer indicating the worker was unable to return to work until a reassessment was conducted on August 14, 2024 as they could not wear safety shoes and were not able to walk or stand.

In a discussion with the WCB on August 8, 2024, the worker confirmed the mechanism of injury and advised they were wearing steel-toed safety boots at the time of the incident and that the object struck their left foot in the toe area and the mid foot area. They noted immediate swelling and a cut on top of their foot. They described their current symptoms of swelling and bruising, an inability to bend their foot or walk properly and stated that the laceration had not yet healed. The worker stated they were diagnosed with a foot sprain and laceration and placed off work as they could not wear safety boots. At a follow-up appointment on August 7, 2024, the physician noted ongoing swelling and provided a sick note to be off work until August 14, 202. The worker advised the WCB that they declined the modified duties offered by the employer as they were unable to wear safety boots. The WCB accepted the worker's claim and various benefits were paid.

On August 14, 2024, the worker attended for a further assessment with their treating family physician. The physician noted the worker continued to experience pain and swelling to their left foot and was unable to wear safety shoes. The restrictions given to the worker were to avoid walking/standing/ladder/stair use, avoid using left foot/leg and, as the worker could not wear safety shoes, the worker was unable to work. The treating physician also completed a Modified Duties Form for the employer, indicating the worker was to avoid walking, standing, sitting, bending, turning, pushing, pulling and climbing and indicated that, as they were unable to wear safety boots, they were not able to work. It was noted the worker was to be reassessed on August 21, 2024.

The employer contacted the WCB on August 15, 2024, to advise that the worker would be returning to work the next day on modified sedentary duties in their office as they were currently wearing a boot due to the injury. The WCB spoke with the worker on the same date who advised the WCB they would be refusing the modified duties offered by the employer as the location of the duties was further than their normal job site and they normally took public transport to work. The WCB contacted the employer who advised they could arrange transportation for the worker and then spoke with the worker to advise of the transportation. The worker advised the WCB they would still refuse the modified duties offer as their treating physician recommended they remain off work. On August 16, 2024, the employer advised the WCB the worker did not return to work.

A follow-up report from the worker's treating family physician was received by the WCB on August 21, 2024 regarding an appointment that day. The report noted that the worker was still experiencing pain to their left foot but it was less than previously, the swelling had resolved, and the worker was able to wear shoes and wanted to gradually return to work. Restrictions were recommended to avoid walking/standing more than 3 hours per day and to avoid sitting for a full day. On the same date, the worker advised the WCB they would return to work on August 22, 2024. The worker's treating physician provided a Modified Duties Form for the employer indicating the worker could work 3 hours per day, 5 days per week standing and walking and could work full hours of sedentary work. On the same date, the employer advised they could accommodate the worker.

The WCB provided the worker with a decision letter on August 22, 2024 initially advising their time loss from August 3, 2024 to August 31, 2024 was not accepted by the WCB, later revised on August 30, 2024 to correctly indicate the worker's time loss from August 16, 2024 to August 21, 2024 was not accepted by the WCB as the employer had suitable and reasonable modified duties available for the worker.

On September 7, 2024, the worker requested reconsideration of the WCB's decision to the Review Office. In their submission, the worker noted they were following the direction of their treating healthcare provider who recommended they were to avoid sitting, which were the sedentary duties offered by the employer. The worker advised the medical information from their physician provided restrictions and also noted to avoid sitting as well. The Review Office determined on October 31, 2024, the worker was not entitled to wage loss benefits from August 16, 2024 to August 21, 2024. The Review Office found the medical information did not support the worker should avoid sitting due to a soft tissue injury to their foot. In addition, the Review Office found the employer was able to accommodate the worker with suitable modified duties as well as providing the worker with transportation to the job site due to a change in the location.

The worker filed an appeal with the Appeal Commission on November 15, 2024 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), the regulations to the Act and the policies established by the WCB Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.

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

Section 4(2) states 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.

Section 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.

Worker’s Position

The worker was self-represented at the hearing and relies on their Worker Appeal of Claims Decision form dated November 14, 2024. The worker made an oral presentation at the hearing and also provided testimony by way of answers to questions posed by members of the panel.

The worker’s position is that they were following their doctor’s recommendations to rest so as to not exacerbate their injury. For this reason, the worker’s position is that they were unable to work and should be entitled to wage loss benefits for the time period in question.

The worker states that they were not refusing the modified duties offered but following their doctor’s orders to avoid any work.

The worker’s evidence is that their doctor’s advice was to rest and not work. The worker states that they were unable to wear safety shoes and they were going to be reassessed by their doctor on August 21, 2024. The worker is asking the panel to rely on their treating physician’s recommendations, as they assessed the worker and had direct knowledge of the condition of the worker’s foot.

The worker is seeking that the decision of the Review Office be overturned.

Employer’s Position

The employer was represented at the hearing by their WCB Manager. The employer made an oral presentation at the hearing and responded to questions posed by members of the panel.

The position of the employer is that they support the decision of the WCB, that the worker is not entitled to wage loss benefits between the dates in question. The employer states that the modified duties that were offered to the worker were safe, suitable and aligned with the worker’s needs.

The employer submits that the Modified Duties Form indicated that the worker was unable to work on the production floor as they are unable to wear appropriate personal protective equipment (namely safety shoes). The employer states that this was addressed by offering an accommodation off the production floor, specifically alternative duties in an office setting. The employer’s evidence is that the worker would not need to wear safety shoes, which was one of the main barriers mentioned in the Modified Duties Form.

The employer also submits that with a soft tissue injury, such as the worker had, the modified duties in the office setting were sufficient to have the worker return to work. The employer argues that while the treating physician indicated to avoid certain activities, the worker was not required to limit all activity and was not bedridden.

The employer is seeking a finding that the worker is not entitled to wage loss benefits between August 16, 2024 and August 21, 2024.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits from August 16, 2024 to August 21, 2024. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports the worker was not capable of returning to work during that time period. The panel is able to make that finding, for the reasons that follow.

The worker’s evidence is that they relied on their physician’s assessment and opinion. The Modified Duties Form dated August 14, 2024 indicated that the worker cannot work. If the WCB had questions regarding whether this included work that did not require safety shoes then these questions ought to have been posed to the physician. The panel is of the view that questions could have been posed regarding the recommendations, and whether the worker could work in an office setting, however, the panel also acknowledges the difficulty of doing so, given the short timeframe in this particular claim.

The panel considered whether the evidence from the treating physician and the evidence from the worker themselves supports a finding that the worker was not recovered from the workplace injury by August 21, 2024. The panel notes the worker’s symptoms of swelling, pain and an inability to bend their foot or put on their safety shoes. There was consistency in the reporting of the injury and symptoms by the worker and the treating physician. Furthermore, the treating physician recommended the worker be off work and the worker had a follow-up appointment for reassessment on August 21, 2024. The worker was following the recommendations of their physician.

The panel finds, on a balance of probabilities, that the worker had a loss of earning capacity or required medical aid from August 16, 2024 to August 21, 2024 as a result of their workplace accident of July 31, 2024. The panel therefore finds that the worker is entitled to wage loss benefits from August 16, 2024 to August 21, 2024.

The worker's appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of May, 2025