The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 14, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond February 4, 2005.

Decision

That the worker is entitled to wage loss benefits beyond February 4, 2005 until plant shut down.

Decision: Unanimous

Background

In February 2001, the worker incurred a left inguinal hernia during the course of his employment activities as a trim technician. The Workers Compensation Board (WCB) accepted the claim for compensation and in April 2001, the worker underwent surgery to repair the inguinal hernia. Due to post surgical symptomology, the worker continued to receive wage loss benefits to February 4, 2005.

On January 20, 2005, a senior WCB medical consultant reviewed the file information and stated "I see no reason for any restrictions as activity should not alter his symptoms in any way…I see no evidence of recent progress."

Following consultation with a WCB medical consultant on January 20, 2005, a WCB case manager determined that the worker had functionally recovered from the effects of his 2001 work injury and that he was capable of resuming his full pre-accident duties.

The case manager advised the worker on January 27, 2005 that he was expected to work four hours per day for the week of January 31, 2005 to February 3, 2005. By February 7, 2005, it was expected that the worker would return to his full time regular duties.

On January 28, 2005, the worker advised the WCB that his employer was unable to accommodate him with duties as of January 31, 2005 and that the employer needed at least three weeks to arrange a job for him. Based on this information, the worker was paid full wage loss benefits to February 4, 2005 inclusive and final.

On February 2, 2005, the worker appealed the WCB's decision of January 28, 2005 and provided Review Office with a completed occupational health/fitness assessment form for consideration.

In a submission dated June 6, 2005, the employer's representative outlined her position that the health fitness assessment form provided by the worker was not supported with objective medical findings.

On August 19, 2005, Review Office determined that the worker was not entitled to wage loss benefits beyond February 4, 2005. Review Office noted that the worker resumed working in February 2005 at four hour shifts. It could not accept that the worker was incapable of working 8 hour shifts given the nature of his injury and the fact that pain was the only limiting factor. Review Office noted that when the worker's wage loss benefits were stopped, he had essentially concluded ongoing medical investigations and elected to pursue conservative treatment options only. On October 5, 2005, the worker's union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The panel was asked to determine whether the worker is entitled to wage loss benefits beyond February 4, 2005. For the appeal to succeed, the panel must find that the worker suffered a loss of earning capacity after February 4, 2005 as a result of his workplace injury. In other words, the panel must find that the worker lost wages due to his workplace injury. The Panel found that the worker did lose wages due to his workplace injury. This loss continued until the plant's summer shutdown in July 2005. The worker returned to modified full time work in August 2005 when the plant re-opened.

Evidence and Argument at Hearing

The worker attended the hearing with a union representative who made a presentation on his behalf. The worker answered questions posed by the parties and panel.

The employer was represented by an advocate and a staff person. The advocate made a presentation on behalf of the employer. The representatives answered questions posed by the panel.

The worker's representative reviewed the claim history from injury to current date. He advised that the worker returned to work in February 2005 to four hour shifts, against his doctor's recommendation. He worked at modified duties initially in the sand and fill area but these duties were too difficult so he was moved to the wrapping area. In April 2005, the worker asked his physician to remove the four hour restriction. The worker then increased his hours to seven hours and then to eight hours per day. After this time the worker worked four hours in the wrapping area and the balance performing sedentary duties, such as office work. The plant shut down for summer break in July 2005. When the plant re-opened the worker returned to work eight hours each day at modified duties. As of the date of the hearing, the worker has not returned to his regular duties.

The employer representative submitted that the medical information on the file supports the WCB's determination that as of February 5, 2005 the worker was recovered sufficiently from his injury to resume full time regular duties. The worker's wage loss from this date was related to restrictions imposed by the worker's treating physician for non-compensable medical reasons. The employer representative noted that the worker's return to work was delayed due to the return to work process until February 21, 2005, and that it would be appropriate to pay wage loss benefits until this date.

In answer to questions, the worker advised that he continues to have pain but can work at modified duties. He continues to see his treating physician and a psychologist and has a referral to another specialist. He advised that in February 2005 he asked his treating physician to permit him to return to work because he needed to earn an income. He described the various jobs he performed since returning to work. in February 2005. Some of the positions were arranged through the formal return to work program, but he also found other duties through his own initiative.

Analysis

The panel has considered all the evidence, including the evidence provided at the hearing, and finds, on a balance of probabilities, that the worker is entitled to wage loss benefits beyond February 4, 2005 until the plant's summer shutdown in July 2005.

The panel notes that the medical evidence does not suggest the worker has recovered from his workplace injury. At the hearing the worker advised that he continues to see his treating physician and psychologist and has been referred to another specialist. He also continues to use prescription drugs for his condition.

A WCB medical consultant commented on January 20, 2005 that "I see no reason for any restrictions as activity should not alter his symptoms in any way." The worker, however; has testified that physical activity increased his symptoms. When he returned to work on February 21, 2005, he attempted the sand and fill position but was not able to do this job because of increased pain caused by the use of a vibrating sander and the stretching required to perform these duties. After about one and one half weeks in this position the worker was assigned duties in the wrapping area which he found easier to perform. The panel prefers the worker's evidence that the duties he returned to on February 21, 2005 increased his symptoms.

The Panel finds that the worker was not able to return to full-time regular duties in February 2005 due to the continuing effects of his compensable injury. The panel accepts the restrictions recommended by the treating physician in February 2005 and subsequently amended in April 2005 as being reasonable given the worker's medical condition.

The panel notes that the worker demonstrated a desire to return to work and through his own initiative arranged to have his restrictions reviewed by his physician. He also found modified duties with the employer outside the formal return to work process.

The panel notes the evidence that worker stopped work in July 2005 when the plant shut down for summer break and returned to work full time in August 2005 to modified duties. The panel therefore finds the worker is entitled to wage loss from February 5, 2005 until the plant shut-down in July 2005.

The appeal is accepted.

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 9th day of February, 2006