The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 1, 2005, at the request of an advocate, acting on behalf of the employer.

Issue

Whether or not the worker was entitled to wage loss benefits beyond November 17, 2004.

Decision

That the worker was entitled to wage loss benefits beyond November 17, 2004.

Decision: Unanimous

Background

On November 9, 2004, the worker reported that he strained his lower back region during the course of his employment as a carpenter apprentice. A Doctor's First Report dated November 9, 2004, diagnosed the worker with a sprain to his lower back. It was noted that the worker was considered disabled from work which included modified duties.

In a Modified Work Offer dated November 9, 2004, the accident employer offered the worker a modified duty position which entailed sweeping floors. The offer was declined by the worker on November 10, 2004.

On November 17, 2004, the Workers Compensation Board (WCB) paid the worker full wage loss benefits from November 10, 2004 to November 17, 2004.

In a report dated November 22, 2004, a physiotherapist advised the WCB that the worker was unable to return to work at this time due to his back injury.

On November 22, 2004, the worker advised the WCB that he provided his doctor with the light duty form that he received from his employer and was advised him that he could not return to work. The worker indicated that he could not bend down and that his physiotherapist told him that he tore a muscle in his back.

A WCB adjudicator spoke with the treating physiotherapist on November 26, 2004. The therapist stated that the worker's job involved climbing scaffolds and lifting as well as reaching and jumping. The worker could not lift or sit. The adjudicator asked the therapist to submit his initial assessment form to the WCB and to address what the worker's current capabilities and restrictions were.

In a progress report dated November 29, 2004, the treating physician noted that the worker's movements were restricted and that he was not capable of alternate or modified work.

In the initial assessment report dated November 17, 2004 (received at the WCB on December 2, 2004), the treating physiotherapist diagnosed the worker with a lumbosacral strain with radiation to his right iliac crest. Restrictions included the avoidance of lifting heavy objects, forward flexion, repetitive flexion and extension and prolonged sitting for more than ½ hour.

On December 13, 2004, the employer's advocate advised the WCB that the employer was willing and able to provide the worker with light duties that were within his restrictions, i.e. organizing and doing filing in the repair shop. The employer was trying to contact the worker since December 10, 2004 but he was not answering his telephone.

On December 14, 2004, the advocate advised the WCB that the worker had moved to Saskatchewan effective December 6, 2004. The advocate felt that the WCB should suspend wage loss benefits retroactive to December 8, 2004.

In a letter to the WCB dated December 16, 2004, the employer's advocate outlined his position that he was opposed to any payment of WCB wage loss benefits past December 10, 2004. This was the date that the employer contacted the worker to offer him suitable light duties that were fully within his physical restrictions.

In a further letter dated December 20, 2004, the employer's advocate stated that he had contacted the worker's old residence and was told that the worker "had moved back to Saskatchewan about a month ago. When pressed on the exact date she replied that she wasn't positive but that it was at the veey (sic) least 3 weeks ago." Based on this information, the advocate felt that the worker's wage loss benefits should be terminated retroactively to at least November 20, 2004.

On December 21, 2004, primary adjudication advised the worker that wage loss benefits had been issued to December 1, 2004 inclusive. The worker was asked to contact the WCB to address any further wage loss benefits and to discuss the employer's ability to accommodate alternate or modified duties as of December 10, 2004. The worker was advised of the ramifications of section 22 of The Workers Compensation Act (the Act).

On March 30, 2005, the employer's advocate wrote to the Review Office outlining his position that the worker "was physically capable, by at least November 17, 2004, of performing the light duties made available by the employer and, as such, his WCB wage loss benefits should've been suspended as of that date."

In a decision dated April 13, 2005, Review Office determined that the worker was entitled to payment of wage loss benefits beyond November 17, 2004. In reaching this decision, Review Office noted the opinion which was expressed by the physiotherapist on November 22, 2004 in which it was indicated that the worker could not perform any duties. Review Office also pointed out that the attending physician repeatedly signed his forms indicating the worker was not capable of any work at all. On April 21, 2005, the employer's advocate appealed Review Office's decision and a non-oral file review was arranged.

Reasons

This is an employer appeal of a decision to pay benefits to a worker. The employer was represented by an advocate who made a written submission to the Appeal Commission. The worker did not participate in the review.

The issue we were asked to determine is whether the worker was entitled to wage loss benefits beyond November 17, 2004. After considering all the evidence, we found that the worker was entitled to wage loss benefits after November 17, 2004.

Analysis

The employer has stated that the worker was fit for modified duties on November17, 2004 and should not have received wage loss benefits after this date. The WCB paid the worker wage loss benefits up to December 1, 2004 inclusive.

After considering all the evidence, we find on a balance of probabilities, that the worker was entitled to payment of wage loss benefits beyond November 17, 2004.

In its submission, the employer relies upon the November 17, 2004 report of the physiotherapist to establish that the worker was fit for modified duties. Although the physiotherapist indicated in the Initial Assessment form dated November 17, 2004 that the worker had restrictions, this report was not received at the WCB until December 2, 2004. We note the same physiotherapist advised the WCB adjudicator in a telephone conversation on November 26, 2004 that the worker could not perform his job duties. This physiotherapist also provided a letter dated November 22, 2004 stating "This patient is unable to return to work at this time due to the back injury…" In addition, the treating physician provided reports during this period indicating that the worker was not capable of working. We note there was contradictory evidence regarding the worker's ability to perform modified duties after November 17, 2004.

With respect to the availability of modified duties employment, we note that on the day of the workplace injury, an employer representative offered the worker modified duties. This was set out in the employer's Modified Work Offer form. The only duty identified was "sweep floors." The worker declined this offer. Given his medical condition at the time (lower back sprain) and the advice of his treating physician to stay off work including modified duties, we find it was reasonable for the worker to decline the offer.

We note that the evidence does not establish that an offer of modified duties was subsequently made to and declined by the worker. A memo on file from the WCB adjudicator dated November 30, 2004 indicates that the worker contacted an employer representative regarding light duties and that light duties were not offered. This memo also notes that the worker's treating physician did not want him to return to work.

The employer's advocate argued that the worker had a proactive duty to inform the employer that he was fit for modified duties and in not contacting the employer failed to mitigate the effects of the injury. However, we note the information on file does not establish that the worker was told he was fit for modified duties. In fact, the evidence indicates that the worker's treating physician advised him that he should not work. We do not find that the worker failed to mitigate.

In conclusion, we find that the worker was entitled to payment of benefits beyond November 17, 2004.

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 11th day of July, 2005