The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 9, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to wage loss benefits for his time loss from work commencing March 17, 2003.

Decision

That the claimant is entitled to wage loss benefits for his time loss from work commencing March 17, 2003.

Decision: Unanimous

Background

On February 9, 1999, the claimant was pulling a hose during the course of his employment as a labourer when he slipped on a slippery patch on the floor. The claimant was later diagnosed with a right sided disc herniation at the L5-S1 region. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid. File information also revealed that the claimant had a past history of a 1992 discectomy which was not work related.

On March 7, 2000, the claimant underwent surgery to his back which was authorized by the WCB. The post-operative diagnosis was a recurrent right L5-S1 disc prolapse.

In a referral letter to the Pain Clinic dated July 10, 2000, the treating neurosurgeon stated, in part, "…Mr. [the claimant] who is a fairly straight forward failed back after two surgeries on the right side at L5-S1 with no back pain component but simply significant residual sciatica. … He has recently had an MRI scan confirming perineural fibrosis. I have had preliminary discussion with him regarding an epidural implant for pain…". On January 16, 2001, a WCB medical advisor authorized the spinal cord implant as a WCB financial responsibility. File information revealed that the trial of spinal cord stimulation with "Resume lead" was unsuccessful in managing the claimant's pain.

In September 2002, an Individualized Written Rehabilitation Plan (IWRP) was signed by the claimant. It disclosed that the claimant was enrolled in a Business Administration Diploma program specializing in marketing that would run from September 3, 2002 to June 30, 2005. He would then be provided with a one year work experience in marketing.

On October 10, 2002, the claimant was informed that he was entitled to an impairment rating of 15.0% with respect to his back condition which was calculated in accordance with Section 38(2) of The Workers Compensation Act (the Act).

On December 16, 2002, the employer's regional manager advised the WCB that alternate employment was found for the claimant which would meet his physical restrictions. The alternate duties involved feeding french fries into a length classifier. A WCB rehabilitation specialist subsequently reviewed the position and felt that it was appropriate for the claimant. On January 16, 2003, the claimant returned to work with the accident employer at the alternate position starting at 4 hours per day.

In a January 23, 2003 memo, a WCB adjudicator documented several concerns that the claimant had over his modified duty position. The claimant felt that his job was unsuitable for him and that it did not meet his restrictions. In a further memo dated January 27, 2003, the claimant advised his case manager that he was unable to return to work based on the advice that he had been given by his doctor and physiotherapist.

On January 23, 2003, the treating physiotherapist advised the WCB that the claimant had some reduced range of motion and that he appeared stiff. He felt that the claimant's relapse was related to his flexion at the new position.

In a letter dated January 24, 2003, the treating physician noted that the claimant's physical findings of January 24, 2003 were unchanged from his previous findings. The physician commented that the claimant had soft tissue accumulation and scarring in the S1 nerve root and secondary nerve root tethering. A referral to the Mayo Clinic was suggested as he felt that all surgical options had not yet been explored.

In a report to the WCB dated February 13, 2003, an independent occupational therapist documented her findings following an assessment of the claimant's worksite. She concluded that the position of Length Classifier Operator appeared to be within the claimant's restrictions. Additional recommendations were also made to further reduce the physical demands of the position which were later carried out by the employer.

On February 24, 2003, the claimant agreed to return to work at five hours per day. In a memo to file dated March 4, 2003, a WCB adjudicator noted that the claimant worked on February 24, 25, and 26, 2003 but did not report for work on February 27, 2003.

On February 27, 2003, the attending physician noted that the claimant had returned to work but felt that he could not stand for the required two hours at a stretch. He stated that the restrictions of lifting less than 20 pounds and repetitive bending were not a problem, however, the prolonged standing restriction is what was giving the claimant trouble. There were no new objective physical findings, however, based on the claimant's account of symptoms, he was unable to continue with his duties.

On March 11, 2003, a WCB medical advisor reviewed the file information and outlined his opinion. He felt that the claimant's alternate duties and modifications to the work site were within his capabilities and that there was no evidence to support the claimant's continued total disability.

An Employer's Accident Report showed that the claimant complained of a sore back at 1:10 p.m. on March 17, 2003. He said that his back was sore from standing too long while running lengths through the classifier. He said with both production lines running through one classifier it was a steady 4 hours. The claimant tried to relieve his back pain from time to time by taking sitting breaks but that it didn't seem to help.

In a March 27, 2003 letter to the WCB, the attending physician noted that he had reviewed the claimant's work station and his job description and felt that the claimant could return to work for at least short periods. It was suggested that the claimant return to work for four hours a day for 3 to 4 weeks, and to review his tolerance at that time.

On April 2, 2003, a WCB medical advisor reported that he had reviewed the surveillance videotape of the claimant's activities on March 13 and March 14, 2003. Based on his findings, the medical advisor felt that the claimant was fit to return to work doing the modified duties provided by the accident employer on a full time basis as of March 14, 2003. The medical advisor then discussed his findings with the treating physician.

On April 3, 2003, primary adjudication informed the claimant that based on the information on file, there was no evidence, on a balance of probabilities, to explain his total disability from his alternate duty position from March 17, 2003 onwards. In November 2003, a worker advisor, acting on behalf of the claimant, appealed this decision to Review Office.

On February 6, 2004, Review Office determined that the claimant was not entitled to wage loss benefits from his time loss from work commencing March 17, 2003. Review Office commented that the employer had shown willingness to make any job site modifications requested by the independent occupational therapist who assessed the job and agreed to numerous revisions of the graduated return to work plan. Review Office was of the opinion that the modified duty job respected the worker's restrictions in all ways and that it was apparent that the claimant's personal activities did not reflect the level of incapacity that he contended which prevented him from doing the job in question. Review Office believed that the job provided to the claimant was suitable for him and that his appeal must be denied. In March 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

An Appeal Panel hearing was held on May 19, 2004. It was adjourned sine die as new evidence had been placed on file by the WCB prior to the hearing which had not been shared with the claimant or his worker advisor. A copy of the surveillance videotape and the accompanying report dated May 14, 2004 was then forwarded to the claimant and worker advisor for review. On June 1, 2004, the worker advisor contacted the Appeal Commission to state that she was prepared to proceed with the hearing. An oral hearing then took place on June 9, 2004.

Reasons

According to the evidence on file, the claimant was involved in the first year of an Individualized Written Rehabilitation Plan (IWRP), which had been developed on his behalf, when the employer advised that it had reviewed its ability to accommodate the claimant in alternate/modified employment. It was suggested that this alternate employment position would meet the claimant’s physical restrictions.

However, after having thoroughly considered all of the evidence together with the claimant’s oral testimony, we find that return to work program was inappropriate. The claimant testified and we accept his evidence that he can no longer physically do such things that require steady uninterrupted stretches of physical activity. This fact has been demonstrated consistently throughout the file and was incorporated into the claimant’s IWRP where he was permitted to take what was normally a two year course over three years as well as extended rest breaks between classes. This pattern of incapacity continues in the claimant’s current job in which he delivers pizza over split shifts with again extended rest breaks. Over time the claimant has developed intolerance to pain and anti-inflammatory medications, which of course affects his ability to work for longer stretches of time.

There is no question that the claimant was unable to work full time at the alternate/modified employment. In coming to this conclusion, we attached considerable weight to the evidence provided by the claimant’s long-time treating family physician, who was also, interestingly enough, the employer’s medical consultant. The treating physician wrote to the WCB on March 27, 2003 and advised as follows:

“I recently had the opportunity to review Mr. [the claimant’s] work station at [the employer]. We have reviewed his job description and I have had the opportunity to have a telephone interview with Mr. [the claimant] himself.

Obviously, I have no way of knowing if Mr. [the claimant] will be able to tolerate the position as defined at [the employer], but I have no specific reason at this time to think that he would not be able to return to work, at least for short periods.

I wonder if, under the circumstances, Workers Compensation would be willing to allow Mr. [the claimant] to return to work for four hours a day for a period of several weeks, say 3-4, and review his tolerance at that time, with a view to setting up a very gradual increase to full duties.”

The claimant provided the following testimony at the hearing with respect to his modified/alternate employment.

Q. Mr. [the claimant], did you – how many hours did you manage to work at [the employer] before you quit?

A.  We went up to five.

Q.  You went up to five. And you were able to tolerate that or you were not tolerating after five?

A.  No, after four or five days, I don’t remember the exact numbers anymore, but it was too much. I would go see Dr. [treating physician], I would go to physio. They would recommend some time off. And Dr. [treating physician] and Dr. [name] actually both visited the site and Dr. [name] is the one who gives me the cortisone injections. He’s the – they sent that letter [i.e., March 27, 2003]. Compensation said no outright. [The employer] phoned and said I had to be back full-time. I said, “I can’t do it.” So eventually, after venting back and forth, they fired me, is what ended up happening. Dr. [treating physician] is the plant doctor for [the employer] so he has working knowledge of it. And like I said, he toured the site. He recommended to them that I work the three to four weeks at the shorter hours and see how it goes and they said no. And to my knowledge, that’s the first time they’ve ever outright rejected anything he’s ever said. I’ve been under his care the whole time I’ve been hurt and in the past if he said it, it’s happened. So when they said no I was surprised and, you know, I didn’t go back. He told me not to go back for full-time because I wasn’t going to make it anyway. So eventually they just fired me.

Q. Now with respect to you were managing I think you said up to five hours a day and Dr. [treating physician] was recommending, in his March report. March 27^th, that you return to work for four hours a day for three to four weeks, right –

A.  Hmn-hmn.

Q.  – and the employer said they wouldn’t do that –

A.  No

Q.  – what was your discussion with Workers Compensation about that?

A.  About that letter?

Q. Well, about – I’m assuming you felt you could work for a certain number of hours but not full-time, is that right?

A.  Yes.

Q. So did you have some discussions with your case manager?

A. Oh, yes, several. His opinion was curt and to the point. He said, “Their Doctor”, I think it was Dr. [name], “said you can work full-time and that’s our position. If you don’t like it, you can appeal it.”

Q. So you had a discussion and he said no, they wouldn’t change that. The employer said they wouldn’t –

A. They wouldn’t accommodate me, yes.

In light of the evidence as a whole, it was patently obvious that the employer’s modified/alternate employment plan was inappropriate from the very beginning and doomed to failure. It is most unfortunate that the IWRP was not followed to its logical conclusion under the circumstances.

After carefully weighing all of the evidence, we find that the claimant is, on a balance of probabilities, entitled to wage loss benefits for his time loss from work commencing March 17, 2003. Accordingly, the claimant’s appeal is hereby allowed.

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 21st day of July, 2004