The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 6, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 6, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits for the period May 29, 2000 to June 7, 2000, inclusive.

Decision

That the claimant is entitled to wage loss benefits for the period May 29, 2000 to June 7, 2000 inclusive.

Decision: Unanimous

Background

During the course of his employment as a meat trimmer on March 6, 2000, the claimant injured his lower back when he slipped on a piece of jellied fat.

In a Doctor's First Report dated March 8, 2000, the attending physician diagnosed the claimant's back condition as an acute lumbar sprain. The claimant was considered to be capable of sedentary work and was to avoid lifting, bending, crouching and carrying. The claim was accepted as Workers Compensation Board (WCB) responsibility and payment of benefits commenced on March 7, 2000.

On March 29, 2000, the employer contacted a WCB adjudicator indicating that a light duty job was available for the claimant counting inventory (i.e. small screws, nuts). The employer advised that the claimant could sit or stand as needed and there were no production/performance expectations. If the claimant needed help with bending or picking things up, it would be available.

In a memo dated April 6, 2000, a WCB adjudicator documented that he spoke to the claimant who advised that he had seen his physician on March 31, 2000, and was told he had a compressed disc and to stay off work for another month. The adjudicator advised the claimant that light duties were available through his employer that were within his restrictions and capabilities. The claimant was advised that wage loss benefits would be covered to date and that it was expected he would participate in the light duties immediately.

A WCB medical advisor contacted the claimant's physician by phone on April 13, 2000. Both the attending physician and medical advisor agreed that the modified duties offered to the claimant were appropriate. On April 14, 2000, the claimant returned to light duties and wage loss benefits were paid up to and including April 12, 2000.

The claimant worked one full shift on April 14, 2000, but experienced pain throughout. On April 27, 2000, the claimant told a WCB adjudicator that he worked the full shift on April 14, 2000 but there was no one to help him with the light duty job. He was given a list and was told to make sure certain items were in place. The claimant was asked whether he advised anyone that he was having difficulties and he indicated there was no one to ask.

On May 9, 2000, the claimant clarified that the lady who showed him the modified duties was not aware of his restrictions. He told her that he was not supposed to do any bending or lifting and she advised him to take his time doing things. The claimant was asked "if he knew his restrictions why then would he choose to work outside of them." The claimant replied that that was the job they gave him to do. He said he could do it and in fact did do the duties. Screws and nuts were in boxes and he pulled them out to count them. The adjudicator documented the employer's position on the matter, i.e. that the claimant made no complaints to anyone about the difficulties he had with his light duties.

In a decision dated May 15, 2000, the claimant was advised that wage loss benefits would be paid up to and including April 13, 2000. It was the opinion of the WCB that "suitable modified duties on a full time basis were available effective April 13, 2000. Evidence on file indicates that you are aware of your compensable restrictions and that had you informed your employer of any difficulties with the modified duties, you could have been accommodated".

On May 16, 2000, a facsimile was sent to the employer outlining the following restrictions: lifting up to 10 lbs., no repetitive bending at the waist, no prolonged standing, sitting, walking kneeling or crawling. The restrictions were authorized for a two week period. On May 30, 2000, the claimant called the WCB indicating that his employer sent him to work in the plant and that the duties given to him were not within his restrictions.

In a letter to the WCB dated June 5, 2000, the employer advised that the claimant was assigned modified duties in the curing department of the plant on May 29, 2000. The duties were consistent with the restrictions that were faxed by the WCB adjudicator. The claimant was asked to push empty trees from tree wash area to the main hallway. The trees were suspended from overhead rail systems. The second part of the job involved activation of a switch in order that the tree would be able to change direction on the overhead rail. The employer indicated that the claimant refused to perform the second aspect of the job and alluded to the fact that he was sore that morning from attending chiropractic treatments from the week before. The employer concluded that the job was within the claimant's restrictions.

On June 19, 2000, a union representative submitted an appeal submission to Review Office raising the issue of whether or not the claimant was entitled to wage loss benefits beyond April 13, 2000. Subsequent to the appeal, a WCB Services Quality Director spoke with the claimant to gather additional information about his case. The claimant indicated he was currently working and that he was looking for reimbursement for the time period from April 13 to May 12, 2000. He said that he lost time from work during this time after he attempted light duty work offered to him and then contended that he could not do the work as it was beyond his physical abilities. The claimant said he told his adjudicator that he had support from his physician on this issue and that the adjudicator simply told him at that time that he would not be extended benefits if he did not continue in the light duty employment.

In a telephone conversation with the claimant on August 31, 2000, Review Office documented that the claimant returned to work in mid May 2000, working in the office (he did not return to work until then because it took the employer that long to find suitable work). After working in the office for 2 weeks, the claimant was transferred to the plant to push trees. He said that he did not consider he was capable of doing so and left work. He returned to work on June 7th pushing trees. In a further conversation on September 6, 2000, the Review Officer asked the claimant why he returned to work pushing trees on June 7 2000 when he had indicated that he could not do that job only 7 shifts earlier. The claimant said that he felt compelled to return to work. While healthcare professionals were advising him to remain off work the WCB was pushing for him to return. He was concerned he would lose his job if he did not do so and he did not have a source of income as the WCB had indicated that wage loss benefits would not be reinstated. The claimant said he had to provide for his family.

On September 8, 2000, Review Office determined that the claimant was entitled to wage loss benefits from the shifts he was absent from work between mid April to mid May 2000. When reaching this decision, Review Office accepted the opinion of a doctor specializing in orthopaedic and rehabilitative medicine on April 17, 2000 when he stated, "I do not see any hope of him gaining any improvement while attempting to work."

Review Office also determined that the claimant was not entitled to wage loss benefits from late May to early June 2000. Review Office noted that the claimant returned to work pushing trees approximately a week after indicating he could not do it. The claimant stated previously to the Review Office that he felt compelled to do so by circumstance. Review Office was of the view that if the claimant was capable of pushing trees albeit with difficulty on June 7, 2000, he was capable of doing so on May 29, 2000. It followed that the claimant was entitled to benefits during this period.

On November 18, 2000, the claimant appealed Review Office's decision denying his entitlement to wage loss benefits between May 29, 2000 to June 7, 2000. An Appeal Panel hearing was arranged.

Reasons

The worker in this case injured his lower back in a workplace accident on March 6, 2000. This was accepted as a compensable injury and he received wage loss benefits until late May. However, benefits for a two week period in April came only after an earlier successful appeal to the Appeal Commission.

On May 29, 2000, he attended at his workplace to resume working at modified duties. When these duties were shown and described to him, he felt they were beyond the fairly strict restrictions put in place by his attending physicians. He refused to perform these tasks, left the workplace and phoned both his family doctor and the Workers Compensation Board.

On June 8, 2000, the claimant returned to work to carry out the tasks he had refused a week earlier. The Board ruled that, since he was able to do this work on June 8, he must have been able to do it on May 29 and, accordingly, denied him wage loss benefits for this period. Review Office upheld that decision, which the claimant has now appealed to this Commission.

For him to succeed in this appeal, the panel must determine, on a balance of probabilities, that the modified duties presented to him were beyond the restrictions placed on his ability to return to work or alternatively that we are satisfied that it was not unreasonable for him to refuse the modified duties on May 29th.

We have come to the conclusion that it was reasonable for the claimant to refuse the modified duties offered to him on May 29. In coming to this decision, we have the benefit of hindsight not available to the primary adjudicator and, to a good extent, to the Review Officer. When the medical progress of the claimant is viewed from the time of the compensable injury to the present, it is quite obvious that he has had ongoing problems arising from this accident throughout the period. He continues to suffer from it.

Prior to May 29, all of the medical practitioners treating him - including his family physician, chiropractor and an orthopaedic consultant - had recommended restrictions and a graduated return to work. Indeed, in mid-April, after an abbreviated return to work, the orthopaedic specialist wrote that he did not "see any hope of him gaining any improvement while attempting to work "

Some of the medical advice was that he remain off work totally for up to three months from the time of the original accident; other advice was that he could return to work on a part-time basis. He did return, for a short time in April, to a "made-up" job, which proved to be beyond his restrictions.

On May 29, he was expected to return - on a full-time basis - to a job which involved pulling and pushing "trees", of considerable weight, along an overhead rail system. We note that the claimant had performed these duties with the employer at earlier periods in his employment, and that he was very familiar with the equipment and job duties that were assigned to him. The claimant, in his testimony before the panel, described to us that a majority of these trees was on an old wheel system, which made them very difficult to pull/push. In addition, the oiling system, designed to ease the movement of the trees along the rail was very often turned off. The employer's representative agreed with these comments about the wheels and oiling system. We accepted the claimant's evidence in this regard.

We note that workplace inspections were done by the Board and by the Workplace Safety and Health branch. The full report of these was not on file. A memo describing the results of the inspection was found to be unsatisfactory by the members of the panel. The claimant described to us the inspections, as he saw them conducted. Based on his evidence, one test was done from a viewing point quite some distance away; the other tested a new, light tree running for a short distance on the rail and not through any of the switches. We found his testimony, in this regard, to be credible.

The claimant testified before the panel that he had called the WCB on May 29, when he refused the offered modified duties, but that he did not hear back from the Board for seven days. (This corresponds to the period under appeal.) While this is not documented in the file, there are memos, during this period, indicating some discussion between the Board and the employer in respect of the duties offered and the nature of the restrictions. When the claimant did hear from the Board, he was told he must return to work or receive no income, as further wage loss benefits would not be paid. The claimant felt he had no choice but to return to work as he has a family to support.

Over the next few weeks and months, there were a number of occasions when he had to book off work due to pain. On June 21, 2000, a tree fell off the overhead rail, hitting him and aggravating his earlier injury, necessitating another period off work. He was off work again in November and December 2000. And, since January 2, 2001, he has not worked, again due to the effects of the March 6, 2000 injury.

Since his return to work in early June 2000, there are a number of reports by his attending physician and chiropractor, which note, among other things: his ongoing workplace restrictions; the necessity of only part-time work at certain periods; the risk of further injury; and that he was doing work in excess of the restrictions.

We attach little, if any, blame on the employer. The employer adopted a literal view of the restrictions which were presented to them. These did not specifically prohibit pushing and pulling. The employer viewed the tasks offered as being the easiest job in the plant. It is only in retrospect that it is clear that there should have been stated restrictions regarding pushing and pulling, which would have impacted on the decisions made to offer the "tree" job as light duties, to the claimant.

Given the claimant's understanding of the nature of the tasks involved, we have concluded that it was not unreasonable for him to have refused the job on May 29 and that, accordingly, he is entitled to the payment of wage loss benefits for the period May 29, 2000 to June 7, 2000.

Therefore, we allow the appeal.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of February, 2001