The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on May 18, 2004 at the employer's request. At that time, the Appeal Panel decided that the appeal should be heard by way of an oral hearing. At the Appeal Panel's request, an oral hearing took place on June 28, 2004. Following discussion of the case, the Panel requested and received additional information from the claimant's treating physician. On July 28, 2004, the Panel met further to discuss the case and to render its decision.

Issue

Whether or not the claimant is entitled to wage loss benefits.

Decision

That the claimant was not entitled to wage loss benefits.

Decision: Unanimous

Background

The worker injured his lower back on July 2, 2003, when he slipped and fell on some stairs during the course of his employment as a "stuffer". The worker reported the injury to his supervisor on July 2, 2003.

The Employer's Accident Report confirmed that the worker's boot got caught on the edge of a stair on July 2, 2003, causing him to slip and fall.

In a Doctor's First Report dated July 4, 2003, the attending physician diagnosed the worker with a low back strain. Treatment included rest, heat and medication. The worker was considered capable of alternate or modified duties with restrictions of no lifting and bending.

On September 26, 2003, the worker was informed by the WCB that he was not entitled to receive wage loss benefits as he continued working full time duties until July 15, 2003 when he was terminated for reasons unrelated to his injury.

The claimant attended physiotherapy treatments and was assessed by a WCB medical advisor on October 8, 2003. A CT scan of the lumbar spine dated October 21, 2003, revealed bulky right facet degenerative change at the L4-5 region.

On October 25, 2003 and October 28, 2003, the worker was advised by primary adjudication that it was the WCB's position that his workplace injury aggravated a pre-existing condition and that the aggravation had ceased to play a role in his present condition. It was the WCB's position that the worker had recovered from the effects of his workplace injury which was diagnosed as a lumbar strain.

On November 27, 2003, the claimant appealed the above decision to Review Office.

In a report to the WCB dated December 1, 2003, the treating physician stated that the worker had no prior episodes of back pain or injury and that his back pain began at work with a specific work related injury. The degenerative disc disease and spinal stenosis demonstrated on the CT scan definitely had been longstanding, however, it was not symptomatic until the work injury. The treating physician concluded that the worker's present symptoms were due to his work related injury.

On January 23, 2004, the Review Office determined that the worker had not recovered from the effects of his compensable injury based on the opinion expressed by the attending physician on December 1, 2003.

With respect to the worker's entitlement to wage loss benefits, Review Office was unable to determine from the file evidence whether or not the employer offered modified duties to the worker. It was noted that immediately prior to his termination of employment, the worker had not been accommodated in light or modified duties despite the employer's ability to "always accommodate". The WCB had the responsibility in ensuring that any light or modified duties are safely within the worker's physical capabilities and this had never been explored. Review Office granted payment of wage loss benefits to the worker to the date of the CT scan (October 21, 2003) with further benefits to be determined by the case manager upon review of updated information.

In March 2004, the employer appealed Review Office's decision to extend wage loss benefits and a non-oral file review was arranged. Following discussion of the case on May 18, 2004, the Appeal Panel felt that the appeal should be heard by way of an oral hearing. An oral hearing was then arranged and took place on June 28, 2004.

Following the hearing the Panel met to discuss the case and requested additional information from the claimant's treating physician. This information was received and was forwarded to the interested parties for comment. On July 28, 2004, the Panel met further to discuss the case and to render its final decision.

Reasons

As noted in the background, an oral hearing was convened to deal with the employer's appeal. The employer was represented by two staff persons. In addition the supervisor who was on duty when the worker was hurt was called as a witness. The worker attended the hearing and represented himself.

The issue to be addressed was whether or not the claimant is entitled to wage loss benefits. The employer disagreed with the Review Office decision of January 23, 2004 which found that the worker was entitled to wage loss benefits to October 21, 2003. In its written submission to the Appeal Commission of March 8, 2004 the employer advanced the position that the worker's injury was "…minor in nature as not only did [the worker] neglect to inform his supervisor that he required any medical attention but that he also continued to work a considerable amount of overtime."

The employer also advanced the position that the worker failed to mitigate the consequence of the injury. The employer noted that the worker was terminated on July 15, 2003 for reasons unrelated to the injury.

The worker maintained that he was seriously injured at work and should be entitled to full benefits. He acknowledged that a CT scan has found evidence of a pre-existing condition but notes that he had no symptoms prior to his work injury and was able to work full time without problems. He believes his current difficulties are related to his work injury. The worker asserts that while he did not miss any work prior to his termination of employment on July 15, 2003, his medical condition had been deteriorating, and that he would not have been able to work after July 15.

For the employer's appeal to be successful, we must find that the worker's loss of earning capacity after July 15, 2003 was not due to the worker's work injury or alternatively, that the worker failed to mitigate the consequences of the injury. We did find that the worker's loss of earning capacity was not due to his work injury. We find that the worker's loss of earning capacity was due to his loss of employment for reasons not related to the accident.

We therefore agree with the employer that this claim should not have been accepted as a time loss claim. We came to this conclusion for the following reasons:

The accident occurred on July 2, 2003. The worker completed his shift. He continued to work his regular shifts from July 3 to July 10 and also worked more than 20 hours of overtime. Steps were taken at the time of the injury to modify the duties. These steps enabled the worker to continue to work. The worker last worked on July 10, 2004 after which he went on vacation. In days following, the employer investigated certain matters and terminated the worker's employment on July 15, 2003.

The worker attended his family physician on July 4, 2003. The diagnosis provided at that time was low back strain. The physician noted that the worker was capable of modified or alternate work with no heavy lifting and bending. The evidence of both the worker and his supervisor is that modifications were made to the job to permit him to work and as noted above he did continue to work. In particular, a co-worker was available to perform some of the heavy lifting normally done by the worker. This arrangement had been working out well.

The family physician provided the following information on the worker's visits to his office between July and October 2003, in a letter dated July 9, 2004:

"Over the period of time between July and October 2003, Mr. [the worker] had four separate visits to our office regarding his back injury. The first visit was on the 04th of July, 2003. He stated that he had hurt his back when he slipped on the floor at work and fell down some stairs. He complained that the pain radiated upwards from his lower back. It did not radiate to his legs and he did not experience any paraesthesia. On examination, he was tender over his entire mid-back area from L1 to S1. He showed bilateral Para spinal muscle spasms. There was significant decreased flexion however, lateral bending and rotation were fairly normal. He was given a prescription for Vioxx and Tylenol #3. He was advised to return to work on light duties for one week. These light duties would involve neither bending nor heavy lifting. Apparently, he did return to work but was fired on the 15th of July, 2003 for unrelated reasons.

The patient was next seen on the 08th of August, 2003, complaining that his back was still sore. At that time, there was still no radiation nor paraesthesia. Flexion was considerably limited and the tender areas of his mid to lower back were unchanged. At this point, it was suggested that he attend physiotherapy.

Subsequent visit was on September 09th, at which point his entire back, upper back, low back and neck were sore. He described it as a burning pain. Apparently, at this point Workers Compensation Board was paying for his physiotherapy but not wage replacement. He was tender all up and down his spine especially from C2 to C7 and L1 to S1. He exhibited deceased flexion and extension in his cervical spine as well as decreased flexion in his lumbar spine. He was advised to continue physiotherapy and Tylenol #3."

We find it significant that the worker's condition and symptoms were consistent for the first 2 months following the injury. However, we note that when examined on September 9, 2003, the physician noted a significant increase in his symptoms. By this time the worker had been off work for nearly 2 months for reasons not related to his injury. We find that this change in symptoms in September 2003 is not related to the July 2, 2003 accident. We agree with the employer that the worker's work injury was minor and find that, on a balance of probabilities, it did not result in lost time from work.

While the worker was off work during his vacation period after July 10, 2003, his employment with the employer was terminated for reasons that are not related to the injury. Had his employment not been terminated, the evidence confirms that a modified return to work program would be available for the worker if needed.

At the hearing both the employer and worker described the employer's modified return to work program. The employer reported that it was available for both work and non work injuries. The worker acknowledged the program in this exchange at the hearing:

Q "Would you describe it, is the company good about the modified duty program?

A Yes, everything is there for everybody.

Q So they do accommodate pretty well?

A Yes. I seen it, yes, lots there."

We are satisfied that had the worker required modified duties on his return to work after July 10, 2003, such duties would have been provided by the employer.

We disagree with Review Office's focus on the availability of modified duties for the worker. We find that the worker's duties were modified on the shop floor immediately after the accident and that the worker demonstrated that the modifications were effective by working the balance of the work week including more than 20 hours of overtime. In any case, the intervening termination of employment for reasons unrelated to the accident concluded the employer's responsibility to accommodate the worker. The worker's loss of earning capacity was not due to the injury but due to his loss of employment.

During the hearing there was some discussion regarding whether an Occupational Fitness Evaluation form (OFE) was completed by the worker's family physician. The employer representatives maintained that such a report was not provided to the employer by the worker. The worker maintained that he obtained such a report and provided it to his supervisor. The worker's physician provided a copy of the completed form and also a copy of an invoice addressed to the employer. We note the invoice is marked "PAID AUG.08.03". We are satisfied that the worker's physician completed an OFE form and that the evidence suggests that the employer received a copy of the OFE form. However the form simply confirms that the initial assessment of the worker's injury was a low back strain. It estimates the worker can return to regular duties by July 14, 2003 and acknowledges the worker is capable of working overtime. It imposes restrictions on the worker's duties.

In as much as we have found that the worker's loss of earning capacity subsequent to July 11, 2003 was not caused by or related to his workplace injury but resulted from the intervening termination of the worker's employment, the employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of August, 2004