The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 23, 1999, at the request of the claimant. The Panel discussed this appeal on September 23, 1999.

Issue

Whether or not the claimant is entitled to benefits beyond April 11, 1999.

Decision

That the claimant is entitled to benefits beyond April 11, 1999 up to and including April 18, 1999.

Background

The claimant stated that she injured her lower back on March 12, 1999, after lifting boxes filled with pork loin onto a moving cart. The claimant advised that she did not seek medical attention immediately as she thought that she just had a sore back from lifting. On March 15, 1999, the attending chiropractor diagnosed a lumbosacral junction sprain injury. He felt that the claimant could return to sedentary duties on March 17, 1999, with restrictions.

On March 17, 1999, the claimant returned to work performing light duties with restrictions of no lifting greater than 5 pounds, no bending, and no twisting. The next day the claimant called her employer indicating that her back was too sore to continue. On March 31, 1999, the claimant advised a WCB adjudicator that the light duties she performed on March 17, 1999 involved continuous standing and that there was no place to sit down. The claimant indicated her back bothered her when she was on her feet for any length of time.

On April 9, 1999, the employer was notified that the claimant's restrictions should have been no prolonged sitting or standing in accordance with the chiropractor's initial report. The employer indicated that it could accommodate the claimant by providing a stool so that she could alternate between sitting and standing. The restrictions to avoid prolonged bending and twisting would also be in place. The modified duties would become available April 12, 1999 and the claimant was expected to report to work at 7 a.m.

The adjudicator called the claimant to advise that benefits would be reinstated from March 18, 1999 to April 11, 1999 inclusive and final. The claimant stated that her chiropractor told her that she should only return to work at 4 hours per day as she was not capable of standing for more than 4 hours. The claimant was advised by her foreman that she was not allowed back to work without clearance from her doctor. On April 9, 1999, the treating chiropractor told the adjudicator that he was in agreement with the claimant's returning to duties only on a trial basis of 4 hours per day on April 14, 1999. With regard to the provisions of a stool, the chiropractor stated that sitting would put the claimant "into orbit".

On April 9, 1999, a WCB medical advisor reviewed the file and he agreed the claimant was fit to perform the modified duties that had been offered by the employer and that she could go back to full time hours. On April 14, 1999, Claims Services advised the claimant that wage loss benefits would only be paid to April 11, 1999, as the employer had suitable modified duties available.

On May 11, 1999, a union representative wrote to Review Office indicating that the claimant followed her chiropractor's instructions to return to work at 4 hours per day from April 14, 1999 to April 16, 1999, and to commence full time work as of April 19, 1999. The chiropractor did not authorize a return to work as of April 12, 1999. The union representative referred to the chiropractor's progress report of April 21, 1999, which indicated the following:

"There appears to be a misunderstanding re: adjudication of this claim as to when she was fit to return to work and under what restrictions re: chair. No letter was provided by a WCB doctor authorizing her return to work on 12/4/99, but one was provided by her treating doctor authorizing her graduated return to work on 14/4/99 and her employer could not accept her at work without a dr's note, despite what WCB & the health nurse at her work think otherwise. She is now full time, pain free as of 19/4/99."

Prior to considering the appeal, Review Office obtained a signed statement from the claimant's foreman, dated June 11, 1999. On June 28, 1999, Review Office stated that it was satisfied that the WCB complied with Section 60 of the Workers Compensation Act (the Act) when it gave the claimant notice that wage loss benefits would not be payable after April 11th because suitable arrangements had been made to eliminate the loss of earning capacity resulting from the work related accident after this date. Review Office could find no evidence that the attending chiropractor had provided any compelling evidence to suggest that a return to modified duties on April 12th was unreasonable or was likely to result in unacceptable risks of further injury or damage. Review Office said it was unable to substantiate that the employer or foreman interfered with the claimant's resumption of modified duties on April 12th by insisting upon clearance from the attending chiropractor. In conclusion, Review Office confirmed the decision to deny entitlement to wage loss benefits after April 11, 1999.

On July 20, 1999, the union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

The claimant was initially seen by her treating chiropractor on March 15th, 1999. The accepted diagnosis was determined as a lumbosacral junction sprain injury. Restrictions of no bending and no prolonged sitting/standing were prescribed by the treating chiropractor. The claimant was examined by a second chiropractor on April 1st, 1999, as the treating chiropractor was away on vacation. It was suggested that such activities as prolonged standing, bending and twisting be avoided at this time. The claimant was then referred back to her own chiropractor for continuation of treatment.

On or about April 9th, 1999, the WCB confirmed with the employer that suitable modified work duties would be made available to the claimant, effective April 12th, 1999. According to a WCB medical advisor's memo, "The workplace is able to accommodate by providing a stool and she will be able to alternate between sit and stand at her own free will." However, the claimant testified at the hearing with respect to the suitability of these modified duties:

"The work that I was doing at that time was on ribs, where I have to grab with the left, put them on a scale, trim them down, throw them on the conveyor line with the right. Like both hands are going. But on my workplace, I go up three feet. I have to climb some stairs to go up onto a stand. This is where we work. Plus I'm on top of another stand, where I have to be waist level with the table and my scale.

And the stands that we're on and the way that they're built is like little grates. There's little interlocking holes. So I'm on this whole big stand, plus I've got another stand to bring me at waist level. There's no way I could see, I wouldn't have been able to even sit never mind put up a chair. Like I'm standing and I'm moving, swinging both ways. It was impossible."

The treating chiropractor advised the WCB that in his opinion the claimant would be able to return to work duties on a trial basis of only four hours per day commencing on April 14th, 1999. As to the matter of whether the provision of a stool would be of any benefit to the claimant, the chiropractor responded by saying, "sitting would put her into orbit." We further note that the WCB did not assess the modified duties as to their suitability in light of the claimant's restrictions. Finally, the treating chiropractor did not consider that the claimant had fully recovered from the effects of her compensable injury until April 18th, 1999.

We find that the claimant is entitled to benefits beyond April 11th, up to and including April 18th, 1999. Accordingly, the claimant's appeal is hereby accepted.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of October, 1999