The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on April 9, 1999, at the request of the claimant. Following discussion of the case, the Panel arranged for a visit to the employer's work site in order to recreate the alternate duties that were offered to the claimant in the laundry area. A videotape of the work site visit was carried out and a Workers Compensation Board Occupational Therapist confirmed the comments she made during the work site visit in a report dated June 4, 1999. On August 12, 1999, the Appeal Panel met to render its final decision.

Issue

Whether the claimant was capable of participating in a graduated return to work program beginning October 7, 1998.

Decision

That the claimant was incapable of participating in a graduated return to work program beginning October 7, 1998 and therefore is entitled to benefits.

Background

During the course of her employment in a poultry plant on August 17, 1997, the claimant sustained a compensable tibial plateau fracture in her left knee. According to subsequent medical reports, a total knee replacement was anticipated.

On March 18, 1998, a medical advisor from the Workers Compensation Board (WCB) examined the claimant. It was concluded that the claimant would be fit for sedentary duties after four additional weeks of physiotherapy treatments.

In June 1998, a Vocational Rehabilitation Consultant (VRC) contacted the accident employer at which time it was learned that there were no alternate duties which would respect the claimant's permanent restrictions (the restrictions consisted of sedentary work mostly sitting, minimal standing as tolerated, and no carrying of any loads).

On September 15, 1998, the employer contacted the VRC stating that they had a position for the claimant in the laundry area of the plant. The job duties required a worker to load the washing machines, remove the laundered items to the dryer and then hang the uniforms on a rack. While the laundry was being washed and dried there was mending to be done. Most of the work would be done while sitting except for the loading and unloading of the washing machines.

In a memorandum dated September 22, 1998, the VRC provided additional details regarding the alternate work duties offered to the claimant. The VRC stated, in part, the following: "The job is done exclusively while seated although there is a requirement that the worker stand to hang uniforms and to move to the sewing area which is less than 20 feet away. There is no heavy lifting required, the heaviest weight being a wet lab type coat which the workers wear for uniforms in the plant. The employer is willing to begin a graduated return to work as (the claimant) has not been working for some time. In addition, the laundry room is about 20 feet inside the entrance to the plant. There are no steps to access the building and (the claimant) would be provided with the parking space immediately outside the door. The floor of the hallway and laundry room are smooth concrete and dry. The laundry room area is about 20 feet x 20 feet and (the claimant) could wheel around quite easily on a stool or wheelchair without any obstruction."

In September 1998, a WCB medical advisor was consulted regarding the alternate duties offered by the employer. The VRC commented to the medical advisor that the claimant felt she was too unstable on her feet to be able to walk any distance and was afraid to return to work because she had a terrible fear of falling. Following review of file documentation, the medical advisor decided that the claimant was capable of returning to work on a graduated basis over an eight week period and that a reconditioning program would be carried out in conjunction with the graduated return to work program. The claimant was then advised in a letter dated October 5, 1998, that the job offered by the employer was within her restrictions and she was to commence the return to work program on October 7, 1998 working two hours a day. The claimant refused to participate in the program as she was worried about the risk of further injury. As a result, the claimant's benefits were reduced.

On October 15, 1998, the claimant appealed the reduction of her benefits. The claimant provided commentary as to the nature of her left knee difficulties, her concerns about getting to and from work , etc..

On December 11, 1998, the Review Office determined from the weight of evidence that the claimant was capable of participating in the graduated return to work program beginning October 7, 1998. The Review Office referred to Section 39(1) of the Workers Compensation Act (the Act) and indicated that the claimant's loss of earning capacity would have decreased on October 7, 1998, and there would have been no loss of earning capacity. as of November 30, 1998. As such, the claimant was not entitled to payment of further wage loss benefits. The claimant appealed the Review Office's decision and a non-oral file review was held on April 9, 1999.

Prior to rendering a decision, the Appeal Panel arranged for a work site visit to recreate the alternate duties that were offered to the claimant in the laundry area. The work site visit took place on May 26, 1999, and was videotaped. A WCB occupational therapist also attended the work site visit and later provided a June 4, 1999, memo to the Panel documenting her comments made during the visit. All parties were then provided with a copy of the memo and a copy of the videotape and were asked to provide final comment. Comments were later received from both the employer's advocate and a worker advisor, on behalf of the claimant. On August 12, 1999, the Panel met to render its final decision.

Reasons

The issue in this appeal is whether or not the claimant was capable of participating in a graduated return to work program beginning October 7, 1998.

The relevant subsections of the Workers Compensation Act (the Act) in this appeal are subsections 39(1) which provides for the payment of benefits for a loss of earning capacity for an injured worker and subsection 27(20) which provides for academic, vocational, and rehabilitative assistance to an injured worker.

The appropriate Workers Compensation Board (WCB) policies are Section 43.00, Rehabilitation and Section 43.20.20, Modified Duties.

We reviewed all the evidence on file, given at, and subsequent to, the work site assessment conducted by the Appeal Panel and find that the evidence, on a balance of probabilities, supports a finding that the claimant was not capable of participating in the graduated return to work program as set out in the file documentation beginning October 7, 1998. In arriving at this conclusion we placed weight on the following evidence:

• the claimant was examined at a call-in examination by a WCB medical advisor on March 13, 1998 as the medical advisor felt, on a review of the file, that the need for the claimant to use both a wheelchair and a walker was unusual at that time and that the use of a cane may provide greater mobility;
• following the examination on March 13, 1998 the medical advisor anticipated that the claimant would be fit to perform sedentary duties, with brief standing, or taking a few steps, following progression of her physiotherapy for at least four weeks. However we note that the medical advisor also states

“ Since there is a significant concern regarding the safety at the plant, particularly the floor, I would recommend that an occupational therapist evaluate the work site prior to Mrs. (the claimant) returning to a modified job.”

• the same WCB medical advisor in a memorandum to file dated September 25, 1998 further states:

“ Discussed with V.R.

The employer has offered a sedentary position which would be within the outlined restrictions.

However the most recent report from Dr. (consulting orthopaedic specialist) indicates total disability.

Ms. (the claimant) has complaints of severe pain which prevent her from returning to the workplace.

Given the severe nature of this injury, in my opinion, further medical is warranted prior to clearing her for the position suggested by the employer.”

• at the time of the planned graduated return to work commencing October 7, 1998 we note that the claimant had permanent restrictions which were:

(1) sedentary work - mostly sitting

(2) minimum standing

(3) no carrying of heavy loads;

• in a memorandum to file dated September 22, 1998 a vocational rehabilitation consultant outlines the modified duty position in the laundry area which had been crafted for the claimant to return to work on a graduated basis commencing October 7, 1998;

• the claimant raised many concerns about the planned return to work which were, amongst others :

-continuing problems with her left knee and ankle, primarily giving way;

-having to hold onto furniture as she moves around her home;

-mobility when there is ice and snow in the car park at work;

-uneven surfaces and slippery floors at the work place;

-getting out in the event of fire;

-the frequency of the requirement to stand to hang up uniforms

(overalls);

- the fact that the modified duty position was scheduled for the evening shift;

• the claimant also has concomitant decreased range of motion of the left ankle in addition to the limitations with her left knee. In this regard we note a WCB medical advisor indicated in a memorandum to file dated January 9, 1999 that, given the mechanism of injury, the left ankle may also be related to the compensable event.

• following our review of the file we asked that a work site visit be arranged for the Panel, all interested parties and their representatives. A WCB occupational therapist also attended as part of the observation and assessment of the work site and was to submit a report to the panel following the assessment and prior to a decision being made with respect to the appeal.

We find that the evidence, on a balance of probabilities, supports a finding that the claimant was not capable of participating in the graduated return to work as outlined and planned to begin October 7, 1998. We find that at the time of the development of the graduated return to work plan the full physical limitations and outlined restrictions of the claimant had not been adequately addressed and that it was subsequent to the panel’s work site assessment and the occupational therapist’s evaluation that all the required elements of an appropriate graduated return to work had been addressed.

We also find that the plan as presented at that time by the employer had not been adequately formulated or developed by the WCB vocational rehabilitation department and that while attempts had been made to address the claimant’s physical limitations, the claimant’s emotional fears associated with the return to work were not sufficiently addressed. Therefore we conclude that the original proposed graduated return to work plan was inappropriate.

In this regard we note that the WCB occupational therapist in her report has made many modifications to the original plan in order to accommodate the claimant in alternative duties. We entirely endorse the recommendations of the WCB occupational therapist as outlined in her report of June 4, 1999. We feel that the occupational therapist’s recommendations form a positive basis for the development of a suitable and appropriate rehabilitation plan and we hope that these recommendations will be given due consideration by the WCB and the employer in implementing a further return to work plan.

In this regard we also find that the claimant is not totally disabled and is now capable of a return to work on a modified basis taking into account her permanent restrictions. We further note at the work site assessment the claimant indicated that she was ready to return to work and expressed her willingness to participate in a return to work program. In this regard we would point out that any future, benefits and services would be dependent on the claimant’s full and active participation in a return to work plan.

We should point out that we found the employer to be very helpful and amenable to the panel at their work site visit and to the discussions which took place as well as very forthcoming and willing to attempt to accommodate the claimant.

In light of the above, the claimant’s appeal is allowed and we find the claimant is entitled to benefits beyond October 7, 1998.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 24th day of August, 1999