The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 9, 2001, at the employer's request.

Issue

Whether or not the worker is entitled to wage loss benefits for the period November 20 to December 13, 2000.

Decision

That the worker was entitled to wage loss benefits for the period November 20 to December 13, 2000.

Background

In October 2000, the claimant filed an application for compensation benefits indicating that he had injured his lower back on October 10, 2000 while lifting a 70 pound garbage can during the course of his employment as a refuse helper.

File information revealed that the claimant initially attended a chiropractor for treatment and on October 10, 2000 was diagnosed with a lumbar facet injury. The claimant was considered to be totally disabled effective October 10, 2000.

On November 10, 2000, the chiropractor completed a Return to Work Form indicating that the claimant was able to resume modified regular duties or alternate duties as of November 16, 2000 with the following restrictions: to avoid bending, lifting, twisting and to avoid long periods of sitting and standing.

On November 16, 2000, the employer offered the claimant a light duty position which involved driving a refuse packer. The claimant refused the position. In a telephone conversation with a Workers Compensation Board (WCB) adjudicator on November 16, 2000, the claimant indicated that he refused the job as he could not sit for too long a time and that he would have a hard time getting in and out of the truck. The claimant also indicated that he would have difficulty turning his neck to check the mirrors.

In a November 17, 2000 memo, a WCB chiropractic consultant stated that he had spoken with the treating chiropractor and confirmed that the claimant was capable of performing light duties as per his most recent report. The WCB chiropractic consultant documented his opinion that the duties of driving a refuse truck, which included the opportunity to occasionally get in and out of the truck to check the mirrors, would be within the claimant's capabilities.

On December 7, 2000, a second WCB chiropractic consultant reviewed the case and provided the following commentary: "In my opinion, since claimant is able to change position and get out of his truck frequently, he should be able to meet the requirements of the job of driving a refuse truck."

In a decision letter dated January 17, 2001, the claimant was informed by primary adjudication that a WCB chiropractic advisor had reviewed all of the medical information and was of the opinion that the claimant was capable of performing the modified duties offered by his employer effective November 20, 2000. Wage loss benefits have been paid to November 17, 2000 and there was no entitlement to wage loss benefits beyond this date.

In a submission to Review Office dated May 22, 2001, a union representative made reference to a March 26, 2001 report prepared by the treating chiropractor. This report was written in response to a January 30, 2001 letter received from the claimant's union representative. The following portion of the March 26th letter was quoted by the union representative:

"Mr. [the claimant] underwent a lowback treatment program with his response to treatment satisfactory. On November 16, 2000 Mr. [the claimant] was advised that he could return to work on a restricted duty basis.

Mr. [the claimant] advised me that his normal work activity is driving a garbage truck. At that time, it was my position that Mr. [the claimant] refrain from an activity that requires prolonged periods of sitting, twisting or lifting. Mr. [the claimant] has suffered in the past with repeated lowback injuries and it was my opinion that the activity taking place while driving around in a truck (bouncing, sitting for long periods, and twisting around) would not be conducive to a successful recovery."

The union representative contended that the WCB had erred in its decision that the claimant would have been fit to drive a refuse packer as a modified duty job in light of the reasons outlined by the treating chiropractor. Review Office was requested to overturn the previous decision of primary adjudication and award wage loss benefits to December 12, 2000 inclusive and final. As the March 26, 2001 letter from the treating chiropractor had not been previously considered by primary adjudication, Review Office returned the case back to primary adjudication for further determination.

In a letter dated June 7, 2001, primary adjudication wrote to the union representative indicating that the newly submitted information had recently been reviewed in consultation with a WCB chiropractic advisor. After careful consideration, it remained the opinion of Rehabilitation and Compensation Services that the modified duties offered by the employer were appropriate and fell within the claimant's work capabilities. As a result, there was no basis to extend wage loss benefits beyond November 17, 2000, as the modified duty position was available November 20, 2000. On June 12, 2001, the union representative appealed the decision to Review Office.

On July 27, 2001, the employer's representative wrote to Review Office indicating that the employer opposed any amendment to the adjudicative decision of June 7, 2001. The employer believed that the objective findings reported by the treating chiropractor on November 17, 2000 and the delineated physical restrictions would clearly not prevent the claimant from having performed the light duties offered to him. The light duty position that was offered to the claimant required no lifting or twisting and offered the opportunity for the claimant to get up and move around at will, therefore prolonged sitting was also not an issue. The employer also noted a statement made in the union representative's submission of May 22, 2001, that the claimant "would have difficulty turning his neck left and right to check mirrors". The employer's representative had difficulty understanding this statement given that the claimant's injuries were to his low back.

The employer concluded that the weight of evidence, which included the physical restrictions, the objective physical findings and the light duty accommodation, clearly established that the claimant was quite capable of undertaking the duties offered.

On August 24, 2001, Review Office determined that the claimant was entitled to wage loss benefits from November 20, 2000 up until the time he returned to his regular work duties on December 13, 2000. Review Office noted that the employer had attempted to provide suitable duties for the claimant to assist in his recovery and to enable an expeditious return to regular employment. Review Office believed, however, that the position offered to the claimant where sitting and driving were primary job functions, was inappropriate given the concerns regarding prolonged sitting expressed by the treating chiropractor. Review Office was of the opinion that the claimant's refusal to perform the alternate duties was justifiable. On September 5, 2001, the employer's representative appealed Review Office's decision and a non-oral file review was held. The Appeal Panel considered written submissions received from the employer dated October 22, 2001 and November 1, 2001, and from the union representative dated October 30, 2001.

Reasons

The evidence clearly establishes that the treating chiropractor was well aware of the claimant's job duties when he imposed the restrictions of no prolonged bending, sitting or twisting. The treating chiropractor was very adamant that he did not want his patient driving a truck during the period in question. In this regard, we refer to certain comments contained in a letter dated March 26th, 2001 from the treating chiropractor to the claimant's union representative:

"Mr. [the claimant] advised me that his normal work activity is driving a garbage truck. At that time, it was my opinion that Mr. [the claimant] refrain from an activity that requires prolonged periods of sitting, twisting or lifting. Mr. [the claimant] has suffered in the past with repeated lowback injuries and it was my opinion that the activity taking place while driving around in a truck (bouncing, sitting for long periods, and twisting around) would not be conducive to a successful recovery."

We find based on the overwhelming weight of evidence that the claimant is entitled to wage loss benefits for the period of November 20th to December 13th, 2000. Accordingly, the employer's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of December, 2001