The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 17, 1998, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 17, 1998.

Issue

Whether the claimant is entitled to compensation benefits subsequent to June 2, 1997.

Decision

That the claimant is entitled to compensation benefits subsequent to June 2, 1997.

Background

On September 27, 1995, the claimant experienced lower back and left leg pain from lifting and twisting loaded bags during the course of his employment as a tin tie tender. Later the same day, the attending physician made a diagnosis of musculoligamentous strain of the lumbar spine. The physician also noted that the claimant had recovered from a previous discectomy in 1975. The 1995 claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On November 21, 1995, x-rays of the lumbosacral spine showed osteoarthritic changes at the apophyseal joints at L5-S1. Increased sclerosis was noted, as well, in the posterior element of L5 and S1.

Subsequent file documentation revealed that the claimant was referred for physiotherapy treatments. By November 27, 1995, the attending physician considered the claimant fit for light duties, however, no light duties were available and the claimant continued to receive wage loss benefits.

On April 15, 1996, the attending physician reported that the claimant could return to work on April 22, 1996, but to avoid heavy lifting for the first 10 days and to wean off physiotherapy over the next two weeks. File information showed that the employer was only able to accommodate the claimant with one week of light duties. When the claimant tried other duties requiring bending and lifting, he experienced further back difficulties. Wage loss benefits were reinstated effective May 3, 1996.

An orthopaedic specialist examined the claimant in June 1996. The specialist noted that the claimant had diffuse lumbar disc degeneration with evidence of multi-segment instability and pain. Arrangements were made for a CT scan of the lumbar spine, which was later carried out on August 9, 1996.

On November 5, 1996, the claimant was examined by a WCB medical advisor. Briefly, the medical advisor noted that the claimant's present condition related primarily to mechanical factors including both an underlying degenerative condition throughout the lower lumbar spine, as well as, deconditioning of the supporting musculature. The medical advisor recommended permanent restrictions which related to repetitive twisting and bending based on the claimant's pre-existing degenerative changes. The claimant subsequently underwent further physiotherapy treatments with a view to returning to work.

In early May 1997, a Vocational Rehabilitation Consultant (VRC) recorded that the accident employer had two positions available for the claimant which were in keeping with his restrictions. One position was a tin tie machine tender (pre-accident job) and the other was in the slitter roles department. The VRC commented that the first occupation appeared to be more appropriate considering the claimant's condition. On May 22, 1997, the VRC met with the claimant to discuss a return to work plan. The claimant allegedly refused to cooperate in the graduated return to work process. As a result, the claimant's wage loss benefits ended on May 25, 1997.

In another memo, dated May 27, 1997, the claimant told a WCB adjudicator that he could not do the tin tie job as he was unable to perform repetitive bending, twisting and standing in one place for long periods of time. He said that he was capable of performing a shipper/receiver job, but his employer was preventing him from doing this job.

On May 30, 1997, the claimant met with his WCB adjudicator, VRC and legal representative to discuss a return to work. At the conclusion of the meeting, it was agreed that the claimant would visit the worksite on June 2, 1997, to preview the duties offered by the employer. On June 2, 1997, the claimant decided not to view the worksite. He was aware of the duties and felt they were beyond his restrictions.

In a letter, dated June 3, 1997, Claims Services wrote to the claimant indicating that in its opinion he was capable of performing the duties provided to him by the accident employer on June 2, 1997. As a result of this decision, the claimant was advised that wage loss benefits would not be paid beyond June 2, 1997.

On July 15, 1997, the family physician wrote to the legal counsel describing the claimant's back condition since 1981. The physician also mentioned that he had reviewed the job description for the tin tie job and felt that the claimant would be unable to perform the duties associated with this position. He further felt that the bending and twisting would jeopardize the claimant's low back condition.

Following receipt of an appeal from the claimant, dated July 25, 1997, a WCB Review Officer attended the employer's work site on August 19, 1997, to review the position offered to the claimant. In a decision, dated September 5, 1997, the Review Office determined that the claimant was not entitled to benefits subsequent to June 2, 1997. The Review Office also referred the case back to primary adjudication to determine if the claimant had any entitlement to workers' compensation benefits with respect to his 1974 claim. In arriving at the above decision, the Review Office stated the following:

• it was of the opinion that the claimant was capable of working as a tin tie tender. The Review Office acknowledged, however, that to perform this job within his limitations, the claimant would have to use proper body mechanics.
• that the claimant did not attempt to mitigate the effects of his accident to an ideal degree. The claimant gained weight and file documentation revealed that he was not totally compliant with the exercise program developed by his physiotherapist.
• the Review Office referred to sections 39(2) and 60(2) of The Workers Compensation Act(the Act). As there was suitable work made available to the claimant , the Review Office believed that the claimant did not have any loss of earning capacity subsequent to June 2, 1997, as a result of his September 1995, accident. As such, there was no entitlement to wage loss benefits.

On September 4, 1998, at the request of the claimant, the Review Office reconsidered the case once again. The Review Office concluded its earlier decision would stand. The Review Office noted that the only change in circumstances since its previous decision was that the claimant's grievance had been settled. The employer had provided him with a letter indicating that he was laid off on medical grounds rather than terminated for disciplinary reasons. The end result, however, remained the same in that the claimant's job was terminated. The Review Office remained of the opinion that the employer was prepared to modify the tin tie position in order to make it suitable for the claimant. It also considered the claimant was capable of performing the work. Had the claimant mitigated the consequences of his accident in the summer of 1997, the Review Office felt he would have made a successful return to work. It followed that there was no basis for setting aside the previous decisions.

The claimant appealed the Review Office's decision and an oral hearing was held on December 17, 1998.

Reasons

The claimant appeals the decision of the Review Office wherein it was decided that he was not entitled to the receipt of further benefits beyond June 2nd,1997, because he no longer had a loss of earning capacity as a result of his 1995 compensable injury. The Review Office considered the claimant was capable of performing a modified job function that the employer was prepared to implement on behalf of the claimant. In addition, the Review Office believed that the claimant had failed to mitigate the consequences of his accident by not attempting this modified job function. Had he made the effort, as is required by Section 22 of the Act, then "...he would have made a successful return to work".

The claimant's treating physician attended the hearing to give evidence as to whether or not the claimant had the physical ability to perform the proposed modified job.

Q. Now, in your opinion, could [the claimant] have done this job, even if those modifications had been made?

A. "I think I answered that question in my last paragraph on page 5 where I indicate that I had reviewed this job description. I reviewed it alone, after I received it by mail, and then I reviewed it in discussion with [the claimant] as well, when I saw him in my office in follow-up. You know, my concern was that even with modifications it would require a significant amount of bending and twisting and that this particular job description, even with modifications, would not allow for elimination of those movements that had caused the aggravation of his back previously. So I did not feel that even with modifications [the claimant] would be able to handle that job."

Q. So if [the claimant] would have attempted to do it, it would have been against your better advice?

A. "It would have been against my advice to him, yes."

The treating physician was also asked his opinion with respect to whether the claimant's job duties could aggravate his significant pre-existing degenerative disc disease. "The job duties involving repetitive bending and twisting and lifting could certainly aggravate an underlying degenerative condition of the lumbar spine, in my opinion."

We are satisfied that the claimant was not totally disabled at the time his benefits were terminated. He was, in our view, capable of working within certain restrictions. In this regard, we attached considerable weight to specific comments made by a WCB medical advisor in his examination notes of November 5th,1996, who stated, "Based on the claimant's pre-existing degenerative changes, permanent restrictions relating to repetitive twisting and bending seem reasonable. Periodic twisting and bending should not pose particular increased risk at this time. Considering this claimant's prior compensable injury, it is possible that the discogenic condition leading up to the laminectomy may have played a partial role in the development of this claimant's degenerative picture." In addition, we also placed weight on the fact that the attending physician did not actively treat the claimant for any specific back concerns during 1998.

Section 27(20) of the Act empowers the WCB with the discretionary authority to allow the continued payment of benefits and services to a claimant even though there may not be an ongoing total loss of earning capacity. Of course, the exercise of this discretion, on the part of the WCB, presupposes that the claimant has made an active attempt to mitigate the consequences of the compensable accident. The claimant testified at the hearing that he had co-operated with the WCB at all times, that he began an exercise program to increase his conditioning and to lose weight and that he endeavored on many occasions to find suitable alternate employment. He outlined the following facts:

• did a lot of walking;
• bought and rode a bicycle;
• purchased an exercise machine;
• obtained an exercise bike for indoor winter use;
• advised the WCB he would take any training that would help him;
• offered the employer that he would take a forklift course at his own expense;
• applied to Employment Insurance for training, but was advised that he did not qualify;
• applied for several forklift, machine driving and shipper/receiver type jobs;

We find that the claimant has made a sincere and honest attempt to mitigate the consequences of his accident. Accordingly, we are of the view that the claimant is entitled to the reinstatement of compensation benefits retroactive to the date of termination. We further recommend that the WCB provide the claimant with time limited job finding assistance. The claimant mentioned at the hearing the strong possibility of a job opportunity with a local car dealership, if the WCB was willing to assist with the training period. It is also apparent that the claimant possesses many transferable skills which would not violate his restrictions.

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 10th day of February, 1999