The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 31, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on the same day and again on September 2, 2004.

Issue

Whether or not the claimant is entitled to further benefits.

Decision

That the claimant is entitled to benefits between November 14, 2002 to November 28, 2002.

Decision: Unanimous

Background

In October 2002, the worker sustained a compensable injury to his right upper and lower back during the course of his employment as a labourer. Medical information received from the treating physician diagnosed the worker with a mechanical neck/back strain. The worker was subsequently treated by a physiotherapist and was diagnosed with an L5 disc with T3-8 facet muscle irritation. It was anticipated that the worker would be able to return to work by November 18, 2002.

After consulting with the treating physiotherapist, a WCB physiotherapy consultant stated the worker could return to work with no shoveling, avoid repetitive flexion and can lift 20 - 25 kg. with proper body mechanics.

On November 7, 2002, the WCB advised the treating physician that the employer found alternate duties for the worker which included shop sweeping, taking out the garbage and placing away inventory. The worker would have the ability to go at his own pace and to sit/stand as needed.

In a progress report dated November 7, 2002, the treating physician reported that he reviewed the light duties and felt the worker was capable of a graduated return to work. In a "Medical Restrictions" form dated November 7, 2002, the treating physician outlined restrictions which included no lifting over 25 lbs., no repetitive bending or shoveling.

Information was obtained from the employer which showed that the claimant performed light duties on November 7 and 8, 2002. On November 12, 2002, the worker called in sick with a cold and did not report for work on November 14, 2002 or thereafter.

In a progress report dated November 14, 2002, the treating physician reported that the worker had a flare-up of back pain and was unable to tolerate light duties. On November 15, 2002, the treating physiotherapist advised the WCB that the worker was not doing well in physiotherapy and that he was experiencing a burning sensation in his back.

On December 12, 2002, the worker was assessed by a WCB physiotherapy consultant who noted that the worker presented with a significant sleep disturbance and his musculoskeletal examination was essentially normal. The worker had some increased muscle tension and some limitation of lumbar movements. The consultant was unable to identify any factors that would limit the claimant from performing his regular activities except for pain. Recommendations were made for eight additional weeks of physiotherapy and for the worker to increase his activities so that he was more functional. The consultant felt the worker was capable of returning to work with the avoidance of shoveling for longer than 10 to 15 minutes at a time and that the restriction would be lifted after he completed his physiotherapy program.

In a letter dated December 23, 2002, the worker was informed of the WCB's position that he would have been capable of performing his alternate duties from November 12, 2002 to December 19, 2002 and therefore he would not receive any wage loss benefits during this period. The worker was also advised that he would not be entitled to wage loss benefits effective January 6, 2003, as his employer would be able to accommodate him with alternate duties.

Information obtained from the treating physiotherapist revealed that the worker did not attend all of his appointments.

On January 13, 2003, the WCB advised the worker that if he had continued attending the physiotherapy appointments, the additional sessions that had been authorized, would have been used up. The WCB expressed the opinion that had the worker attended for treatment, he would have recovered from the effects of his compensable injury. Therefore, he was considered to have recovered from the effects of his compensable injury.

On January 21, 2003, the Review Office received an appeal submission from the worker. The worker outlined several concerns with respect to the adjudication of his claim and the WCB's decision to deny him wage loss benefits.

In a decision dated March 28, 2003, Review Office stated that the worker was not entitled to wage loss benefits between November 12, 2002 and December 19, 2002, for the following reasons:

• On November 7, 2002, the treating physician felt the light duties available with the accident employer were compatible with the worker's physiotherapy restrictions;
  
  
• A company Alternate Employment form completed by the treating physician on November 7, 2002, indicated that the worker was capable of sweeping, light lifting and cleaning;
  
  
• On November 14, 2002, the treating physician said the worker couldn't tolerate modified duties but no physical findings were provided. By November 28, 2002, the physician felt the worker was again capable of performing modified duties.
  
  
• The modified duties offered by the employer involved shop and yard clean up, sweeping and taking out garbage and putting things away for the winter.
  
  
• In the opinion of Review Office, the weight of evidence supported that the worker was capable of modified duties during this period and the work offered by the employer was within his work restrictions.

Review Office was further of the opinion that the weight of evidence confirmed that the worker was capable of performing his regular duties effective January 6, 2003 and the WCB's decision to end benefits on January 3, 2003 was upheld, based on the following rationale:

• the opinion expressed by the WCB physiotherapy consultant on December 12, 2002, i.e. that the worker could perform regular activities and that he was unable to account for the pain described by the worker.
  
  
• the opinion of a WCB orthopaedic consultant who advised Review Office on March 25, 2003 that the worker should have recovered within six weeks of his injury and there was no evidence to suggest that he had not recovered from the effects of his compensable injury. The treating physician said the worker had a tender back and full range of motion of his neck and back.
  
  
• the employer had alternate duties available beginning January 6, 2003 but the worker refused these duties and stopped attending physiotherapy after January 6, 2003.

On March 18, 2004, legal counsel acting on behalf of the worker, appealed Review Office's decision of March 28, 2003, and an oral hearing was arranged.

Reasons

As noted in the background, a hearing was convened to deal with the worker's appeal. The worker was represented by legal counsel who made a presentation on his behalf. The worker's common-law spouse was called as a witness and provided evidence regarding her observations of the worker's activities and condition. The worker provided evidence on his condition, reasons for refusing to work at the light duties position and other matters affecting his claim.

The employer was represented by the current Safety, Health & Environment Officer who set out the employer's position on the claim.

The issue before us was "whether or not the worker is entitled to further benefits". In determining the scope of the term "further benefits", we note that the issue dealt with by Review Office "was whether the worker is entitled to further wage loss benefits." It appears that Review Office did not address the issue of the worker's entitlement to other benefits, such as medical aid benefits. Accordingly, we have decided to limit our considerations to the same issue as was addressed by Review Office.

For the worker's appeal to be successful, we must find that the worker's loss of earning capacity was caused by his work injury. Or in other words, we must find that due to his injury the worker was not capable of returning to modified or regular duties. We were able to determine that the worker was unable to return to work for a limited period of time and thus is entitled to wage loss benefits for that limited period of time. We also found that on and after January 6, 2003, the worker was capable of returning to work and that his loss of earning capacity was no longer related to the compensable injury but instead to his failure to return to work.

Applicable Law and Policy

There are several sections of The Worker's Compensation Act (the "Act") applicable to this appeal.

The worker is claiming wage loss benefits. Section 39(1) provides that wage loss benefits are payable where an injury results in a loss of earning capacity. Section 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the board.

Section 22 of the Act is also relevant to this appeal. It provides:

22 - Practices delaying worker's recovery

Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

Board Policy 43.20.20 is applicable to this appeal. It deals with modified and alternate return to work with the accident employer. Of specific note is Section B. 6(c) which applies in cases where it is determined that the worker does not participate in suitable alternate work. This section states that compensation benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the alternate work situation.

Parties' Presentations

The worker's position was enumerated by legal counsel and included the following points:

• that the light duty position offered by the employer was not appropriate;
  
  
• that the worker while not totally disabled was not able to return to his pre-accident employment;
  
  
• that the worker was only able to do sedentary work but was not qualified for sedentary positions and required retraining to find employment;
  
  
• that the worker took steps to mitigate his loss;
  
  
• that the worker continues to suffer from the effects of the accident
  
  
• that the worker's pre-existing condition was not the cause of his wage loss

With respect to benefits legal counsel advised that the worker is seeking:

• wage loss benefits for the period between November14, 2002 and December19, 2002, and on-going from January 6, 2003
  
  
• medical aid benefits
  
  
• vocational rehabilitation benefits

The employer representative submitted that the light duty positions were appropriate, that the employer did everything possible to assist the worker with returning to work and that the worker's actions demonstrate that he was not interested in returning to work with the employer. The employer is opposed to awarding further benefits to the worker.

Wage Loss Benefits From November 14, 2002 to December 19, 2002

The worker was injured on October 21, 2002. He reported his injury to the employer on October 22, 2002. The employer offered the worker alternate employment by way of a light duty position in the shop/yard area. The duties consisted of general cleaning and included sweeping, taking out the garbage, and putting things away for the winter. The shop included 4 bays for servicing equipment and other work areas. Several other staff worked in the shop/yard area.

The worker reported for work on Thursday November 7, 2002 and Friday November 8, 2002. His next scheduled work day was November 12, 2002. He called in sick on November 12 and 13, and did not report for work on November 14, 2002. The worker has not reported to work since this date.

On November 7, 2002, the worker's physician completed a Medical Restrictions form provided by the employer. On this form the physician indicated that the worker may return to alternate duties subject to the following restrictions: no heavy lifting, no lifting greater than 25 lbs, no repetitive bending or shoveling. The physician also noted that the worker was capable of sweeping, light lifting, and cleaning.

The physician also completed a report for the WCB on November 7, 2002. The physician notes that the worker is capable of alternate work and comments "Gradual RTW - L.D. reviewed". He also noted that "will do L.D."

The worker attended his physician on November 14, 2002. The physician noted that the worker is not capable of alternate work at this time and comments that the worker cannot tolerate light duties.

The worker next saw his physician on November 28, 2002. He then reported to the WCB that the worker is capable of alternate work. The physician also provided a medical note on this date which indicated "please excuse from bending repeatedly, or lifting >10 lbs for the next 3 weeks for medical reasons."

The employer confirmed that the light duty position remained available but that the worker did not return to work. The employer also reported that they had difficulty contacting the worker.

We find, on a balance of probabilities, that the worker was not able to perform light duty work for the period from November 14 to November 28, 2002 and is entitled to payment of wage loss benefits during this period. In arriving at this decision, we rely upon the medical reports of the worker's physician. We note as set out above that the physician found the worker unable to do modified work on November 14, 2002 and able to recommence modified work on November 28, 2002. We also note that the worker was examined by a WCB physiotherapy consultant on December 12, 2002 who commented that the worker would be able to return to work with the avoidance of shoveling for longer than 10 to 15 minutes at a time.

In light of the above we find that the worker is not entitled to wage loss benefits for the period from November 29, 2002 to the date of the Christmas lay-off, December 20, 2002. There is no medical evidence supporting the worker's absence from work during this period.

Wage Loss Benefits from January 6, 2003

On January 2, 2003, the worker saw his physician. The physician reported to the WCB that the worker was capable of alternate work if it is available.

In January 2003, the employer again confirmed that the light duty position was available for the worker. The employer also offered the worker the opportunity to deliver parts. The worker, however, did not report to work.

Prior to the hearing the worker's legal counsel provided a report from a chiropractor, dated August 24, 2004, who commenced treating the worker on May 18, 2004. The chiropractor had treated the worker before his work injury. The chiropractor provided a diagnosis of a chronic subluxated rib in the mid scapular region.

With respect to the worker's current ability to work and restrictions, the chiropractor notes the worker can not do repetitive twisting and bending, including activities such as shoveling, raking, or repetitive lifting of greater than 15-20 lbs. We note these restrictions are similar to the restrictions imposed in 2002 by the worker's physician. We also note that the light duty position offered to the worker in 2002 and 2003 was consistent with these restrictions.

We find that the position offered by the employer in January 2003 was appropriate and consistent with the restrictions recommended by the worker's physician. In addition we find there was no medical evidence to support the worker's refusal to report to work. We place significant weight on the opinion of the worker's physician. Given that a suitable position was available for the worker, we find that his absence from work and resulting wage loss commencing January 6, 2003 is not related to his compensable work injury but rather to his refusal to return to work.

The worker's counsel referred to Board Policy 43.20.20. We are satisfied that the alternate work offered by the employer was consistent with the requirements of this policy. We note that advice was received from the worker's physician regarding duties and restrictions involved in the alternate work. We note that the worker did not attempt to perform the alternate work other than the days worked on November 7 and 8, 2002.

We also find the worker has failed to mitigate the consequence of his accident in accordance with Section 22 of the Act. We note that the worker would have been paid at his pre-accident wage while performing the light duties employment and therefore would not have received wage loss benefits from the WCB.

We also find that the worker did not make reasonable efforts to locate suitable alternate employment. The worker advised that he had attended one job interview since he was injured, applied for very few positions, and worked briefly at a job which he considered to be outside his restrictions. When asked about his regular daily activity the worker advised that he spends between 8 and 12 hours each day on the computer. During this time he checks for positions on an internet job site. We find that the worker has done little to mitigate the consequences of the accident. Accordingly, for the various reasons stated above, we find that the worker is not entitled to wage loss benefits on and after January 6, 2003.

At the hearing the worker's legal counsel referred to the worker's failure to complete the authorized physiotherapy treatments in January 2003. While this conduct by the worker may be a failure to submit to medical treatments that would reasonably promote the worker's recovery as provided under Section 22 of the Act, we make no finding on this matter, as we have already found that the worker was medically able to return to the light duty position with the employer as of January 6, 2003.

Medical Aid Benefits

At the hearing the worker indicated that he would like to receive medical aid benefits including coverage for recent chiropractic treatments and prescription drugs. As noted above, ongoing entitlement to medical aid has not been addressed by the WCB, therefore we have not made a decision on this issue. We understand that it is available for the worker to apply for medical aid benefits and to have his claim for this entitlement adjudicated by the WCB.

The worker's appeal is allowed in part. The worker is entitled to wage loss for the period from November 14, 2002 to November 28, 2002.

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 20th day of September, 2004