The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 3, 1999, at the request of the claimant. The Panel discussed the appeal on June 3, 1999.

Issue

Whether the claimant is entitled to payment of wage loss benefits between February 5, 1997 and February 5, 1999 as a result of his May 27, 1996 compensable injury.

Decision

That claimant is entitled to payment of wage loss benefits between February 5, 1997 and February 5, 1999 as a result of his May 27, 1996 compensable injury.

Background

On May 27, 1996, the claimant injured his lower back when he slipped and fell down 12 metal stairs during the course of his employment at a malting plant. The following day the attending physician reported low back pain for one month and a diagnosis of possible low back strain and contusion. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. It was also noted that the claimant has prior WCB lower back claims dating back to 1982.

Subsequent investigations consisted of the following:

• X-rays of the lumbosacral spine dated June 4, 1996 revealed degenerative disc disease at L5-S1.
• a CT scan of the lumbosacral spine taken on September 19, 1996, noted degenerative disc disease primarily involving L5-S1 which was associated with a left paracentral disc protrusion. A pars defect was also present and was associated with a mild degree of forward spondylolisthesis of L5 on S1.
• on November 14, 1996, a bone scan showed the following: "Increased tracer uptake is seen in the lumbar sacral junction. This could represent degenerative changes at the site of the spondylolisthesis. More focal uptake is not identified in the posterior elements and therefore recent fracture cannot be confirmed. This however cannot be entirely excluded as uptake in the pars interarticularis could be obscured by the activity within the disc space."

By January 29, 1997, the WCB considered the claimant to have recovered from the effects of his injuries sustained on May 27, 1996, and that he was capable of returning to regular duties. The claimant's ongoing problems were believed to be related to pre-existing degenerative changes of his spine.

Subsequent file documentation showed that the case was referred to the Review Office to consider two issues brought forward by a worker advisor. In a decision, dated September 4, 1998, the Review Office confirmed that the claimant was not entitled to wage loss benefits subsequent to February 5, 1997. When rendering this decision, Review Office concurred with the opinion expressed by a WCB orthopaedic consultant who was of the view that the degenerative changes in the claimant's spine were unrelated to any of his compensable accidents and that the effects of the accidents on the pre-existing changes had resolved.

With respect to preventative vocational rehabilitation, the Review Office stated the claimant was a reasonably young high wage earner with no obvious transferable skills. The costs associated with providing the claimant with vocational rehabilitation were greater than the costs the WCB would incur if it did nothing. Given the fact that WCB policy requires preventative vocational rehabilitation plans be cost effective, the claimant is precluded from being provided with preventative vocational rehabilitation.

Review Office further indicated that the claimant commenced collecting accident and sickness benefits through his employer, subsequent to February 1997, and that the claimant had not returned to work in any capacity. This suggested to Review Office that the claimant was not contemplating returning to work "in the occupational or industrial process which places ... (him) at risk". It therefore followed that there was no basis for the provision of preventative vocational rehabilitation.

In September 1998, the worker advisor contended that a difference of medical opinion existed between the claimant's physicians and the WCB's medical advisor. The Review Office therefore granted the convening of a Medical Review Panel (MRP) which was held on December 11, 1998.

On February 5, 1999, the Review Office accepted the opinion of the MRP that the claimant had restrictions as a result of his various compensable accidents. The Review Office considered these restrictions precluded the claimant from returning to his pre-injury work as a labourer and as such he was entitled to further wage loss benefits and vocational rehabilitation assistance.

The Review Officer spoke with the claimant on February 2, 1999. The claimant told him that he had done nothing in the way of seeking employment or obtaining retraining since his wage loss benefits ended in February 1997. The Review Office chose not to reinstate the claimant's wage loss benefits retroactively because it was considered that the claimant did not mitigate the consequences of his injuries as required by Section 22 of the Workers Compensation Act (the Act). On May 8, 1999, the claimant appealed the decision not to award benefits back to February 5, 1997. A hearing was then arranged for June 3, 1999.

Reasons

Chairperson MacNeil and Commissioner Frisken:

On or about January 29th, 1997, the WCB informed the claimant that in its opinion he had sufficiently recovered from the effects of the compensable accident and was therefore capable of returning to his regular work duties. At the request of the Review Office, the claimant was examined by a Medical Review Panel (MRP) on December 11th, 1998. The Panelists agreed there was sufficient evidence on file to indicate that the claimant's low back difficulties had been enhanced and perhaps accelerated as a result of his various compensable accidents. The Panelists further concluded that all of the claimant's various accidents were directly related to his current diagnosis. In addition, the Panelists concluded that the following permanent restrictions should be imposed: "No heavy manual labour, in particular, no shovelling, no lifting of heavy objects, no bending to lift heavy objects." On the basis of these findings, the Review Office subsequently reinstated the claimant's wage loss benefits together with the provision of vocational rehabilitation assistance effective February 5th, 1999.

Wage loss benefits were not awarded retroactively to the date of termination, however, because the Review Office felt that the claimant had not mitigated the consequences of his injuries, as required by Section 22 of the Act. The section provides as follows: "Where an injured worker...fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable...if the worker...had mitigated the consequences of the accident."

The WCB implemented policy 44.10.30.60 to explain the obligations of the worker and the WCB, as well as, to note the potential consequences to a worker of non-compliance with section 22 of the Act. According to the general information portion of this policy, section 22 creates..."a legal requirement and expectation that the worker should be a full participant in attempting to ensure full and timely recovery from the effects of the compensable accident."

Prior to the termination of his benefits , the claimant attempted on at least two occasions a return to work doing his regular duties. Each time during the course of his shifts his symptoms became progressively worse so that he could no longer continue.

The claimant's worker advisor submitted an updated medical report concerning the claimant's condition to Claim Services on March 20th, 1997. The medical report stressed the fact that the claimant would not be able to return to his previous job duties as it was likely there had been an enhancement of his pre-existing condition. The worker advisor requested that an analysis be done with respect to the claimant's qualifying for preventive vocational rehabilitation.

A memo to file, dated April 16th, 1997, indicates the preventive vocational rehabilitation committee discussed the request. "It was determined that the referral was appropriate and a VRC would be assigned to explore the option of the employer accommodating the claimant. Any other VR intervention does not appear to be cost-effective."

The VRC assigned to the case met with the claimant on April 29th, 1997. The VRC recorded certain matters that had been discussed at this meeting:

"Mr. [the claimant] is employed as a labourer with [name of employer]. He has been with them for approximately 18 years. His job duties are located within the elevator at the [location] complex. His job duties involve unloading railway cars, 'stabbing the cars' which is a means of unlocking frozen cars during the winter using torches and bars and brute force. He also is responsible for cleaning up spills, shovelling, and any other manual labour around the plant. He has a grade 12 education obtained from Kildonan East Collegiate. He stated that [employer] has reduced its work force by approximately 50% and he is senior after 18 years to only 6 other people. He was very doubtful if [employer] would be able to accommodate him in alternate/modified duties. At this point in time, he advised me he has no income and is borrowing from his parents as well as maxing out his line of credit.

Mr. [the claimant] further advised me that he has a meeting scheduled for April 30, 1997 with his union lawyer, union business manager, and union president. Apparently [Insurance Company] is refusing to provide disability benefits to him. According to Mr. [the claimant], there is a disability policy at work which is paid for by [the employer]. He feels that he should be eligible for benefits from this disability policy and is hopeful that his union will intervene in order that he can gain benefits.

Mr. [the claimant] stressed that his pre-accident (sic) employer would only be willing to accommodate him if he was 100% fit. He stated that I could try to obtain employment for him with them, but it would probably be a waste of time.

I have also written Mr. [the claimant] advising him that he does not qualify for preventative rehab benefits, however, we will remain involved to attempt to arrange a return to work with the accident employer.

I will be contacting the accident employer in the near future to determine if they are able/willing to accommodate Mr. [the claimant]." (Emphasis ours)

The VRC met with the claimant again on June 17th, 1997, during which meeting the following matters were discussed:

"On June 17, 1997, I had contact with Mr. [the claimant] and he informed me that he has not yet returned to work as he will not do so until after his July 8, 1997 appointment with his surgeon. He stated that even if the company received a letter from the Workers Compensation Board stating that he is capable of returning to his pre-accident duties he would not return to them until after he had been examined by his surgeon on July 8, 1997. He stated that his union is still meeting with [the employer] however, he has yet to be enrolled on their disability program. As this is a union shop both the enrollment on the disability program and a return to work will have to be with the involvement of his union. (Emphasis ours)

I attempted to contact Mr.[manager] of [employer] to determine what Mr. [the claimant's] status is with them. I advised Mr. [the claimant] that once I had spoken with Mr. [manager] I would again contact him. Mr. [the claimant] appears to want our involvement to try and secure lighter duties with [the employer]. I advised Mr. [the claimant] that he is considered capable of returning to his pre-accident employment without restrictions and that it would be up to his union to negotiate with [the employer] regarding his return to work. Nevertheless, I will still speak to Mr. [manager] and then contact Mr. [the claimant]." (Emphasis ours)

A memo to file, dated June 25th, 1997, indicates that the VRC after many attempts was finally able to reach the manager by telephone. "I spoke with [manager] of [the employer] who advised me that Mr. [the claimant] has enough seniority to hold a position and they are willing to accommodate should he choose to return to work. It is their understanding that Mr. [the claimant] has chosen not to return to work and is appealing the WCB adjudicator's decision instead. At this point in time there is no role for V.R. therefore file closed."

The claimant testified at the hearing that he had tried through his union to get lighter work with the accident employer. Apparently the employer had indicated that it was going to implement three light duty jobs. However, these positions never materialized as the employer, for whatever reason, did not proceed with its plan. The evidence is clear that the claimant wanted to return to work with the accident employer in a capacity not so labour intensive. No co-ordinated effort or meeting involving the claimant, his union, the WCB and the employer ever took place. In the meantime, the claimant was being advised by his treating physicians to avoid tasks involving heavy labour which in essence were his pre-accident duties. Subsequent to the termination of his WCB benefits, the claimant applied for and after several months of wrangling eventually received disability benefits from a private insurer. According to the claimant's testimony he was paid eight months of benefits retroactively. This money was used to pay back the people from whom he had borrowed. "And then income tax hit at the same time, and then I ended up borrowing more, really down the sewer." The claimant was led to believe that he was ultimately going to receive retraining through the disability insurance program. We note that the claimant received no advice or direction from either the insurer or his union with respect to his retraining for a job which would respect his restrictions.

The claimant was asked about his attempts to secure alternate employment following the termination of his WCB benefits.

Q. What kind of job searching did you do over that period?

A. Job searching. I wasn't really searching that hard, like, there was nothing in my field. Everything I know is - all I do is labour intense. So I was waiting to get into a training program. Then when I was guaranteed a training program through long-term disability, I figured, well, that's the way to go, just wait it out. Keep seeing doctors and surgeons trying to get the first appeal to Compensation done. (Emphasis ours)

The adjudicator's decision to terminate the claimant's benefits was appealed to the Review Office together with a request for the convening of a Medical Review Panel. The particular review officer assigned to the case spoke with the claimant on September 2nd, 1998, to obtain an update on his circumstances. "The claimant said he is not actively looking for work as he 'can't do anything manual until somebody does something with my back and basically all I've ever done is manual labour.' He did note that he knows the owners of [name of business] and they offered him work if he could get the required skills (to operate CNC lathes). He has no way of doing so." (Emphasis ours)

We find that the claimant did take an active role in attempting to mitigate the effects of his injury. First and foremost the claimant followed his treating physician's advice that he should not return to his prior employment duties and that his permanent restrictions would be to avoid heavy lifting, bending and shovelling. Inquiries were made of the employer concerning the implementation of light duties. After lengthy negotiations, these efforts proved to be futile. Perhaps stronger involvement on the part of the WCB at this point might have been fruitful. Following the termination of his WCB benefits, the claimant made application for disability insurance coverage. Once finally establishing his entitlement to these benefits, the claimant was left with the impression that this would eventually lead to his being retrained for a more physically suitable job. Following the findings of the MRP, the WCB recognized that the claimant, because of restrictions, was precluded from returning to his pre-accident work as a labourer. Two years after the termination of the claimant's benefits, the WCB acknowledged that it had made an error and wage loss together with vocational rehabilitation assistance were restored.

Under the circumstances of this particular case, we find that the claimant's conduct was more than reasonable. Consequently, the claimant should be entitled to the payment of wage loss benefits during the period in question. Therefore, we find the preponderance of evidence supports the claimant's contention that he is entitled to the payment of wage loss benefits between February 5th, 1997 and February 5th, 1999. The appeal is hereby accepted.

Panel Members

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

Recording Secretary, B. Miller 

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

Signed at Winnipeg this 7th day of July, 1999

Commissioner's Dissent

Commissioner Finkel’s dissent:

The claimant is seeking retroactive restoration of wage loss benefits for period between February 5, 1997 and February 5, 1999 as a result of his May 27, 1996 compensable injury. The claimant has already had wage loss benefits restored to him for the period subsequent to February 5, 1999, based on the Review Office’s acceptance of the findings of a Medical Review Panel, which concluded that the claimant had physical restrictions with respect to his lower back that were related to an accumulation of compensable accidents, and that these restrictions precluded him from returning to his pre-accident employment as a heavy labourer.

I agree with the majority that the claimant would be entitled to wage loss benefits for the period under appeal, based on the medical evidence on the file. However, I find that other evidence on file and as presented at the hearing supports, on a balance of probabilities, a finding that the claimant was not totally disabled during this period and that the claimant has failed to mitigate the consequences of the accident by his failure to seek alternate employment during this two year period. Based on the evidence at the hearing, I would provide wage loss benefits to the claimant, but would reduce his wage loss entitlement to reflect an earning capacity equivalent to minimum wage during this period.

Section 22 of the Workers Compensation Act (the Act)deals with the responsibility of a worker to minimize the financial or medical implications of a compensable accident. It states:

22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

In support of my findings, I note the following evidence:

• A report of a Medical Review Panel dated December 11, 1998, finds that the claimant’s pre-existing conditions were enhanced or accelerated by the series of compensable accidents. The Panel then places similar permanent physical restrictions to those placed in 1997 on the claimant, being “no heavy manual labour, in particular, no shovelling, no lifting of heavy objects, no bending to lift heavy objects.”

• The claimant’s evidence at the hearing was that his back was the same in February 1999 as it was in February 1998 or February 1997, when his benefits were originally terminated. The claimant also indicated that he was not totally disabled during that period, that he tried to keep busy, that he was able to putter about his house, and that he was physically capable of working as a security guard or in other such positions.

• The claimant’s evidence at the hearing was that outside of brief conversations with his pre-accident employer about a return to work and regarding an inappropriate position with a machine shop, he was not involved over the two year period in any external job searches, either through newspaper ads, his business contacts, or with Employment Insurance job banks.

• The claimant’s evidence at the hearing was that his doctors had encouraged him to be as physically active as possible, which advice he followed.

• The claimant’s evidence at the hearing was that his union suggested that he not push too hard, and even warned him when his long term disability carrier was following him with a camera. This strongly suggests that the claimant was more interested in maintaining his long term disability benefits for the full two years duration than in seeking new employment or actively demonstrating a work capacity.

• The claimant has a Grade 12 education and some three years of limited electrical training, followed by 18 years as a heavy labourer in a well-paying position that did not allow for significant skill building or transferable skills.

Based on this evidence and that on file and presented at the hearing, I find on a balance of probabilities that:

• The claimant was capable of working full time during this period, although not as a heavy labourer;
• The claimant knew that he could not return to work to his pre-injury job, and that there were no alternate or modified positions available with his pre-accident employer;
• The claimant did not actively participate in any job search activities during this period or take any other steps to return to the work force and mitigate the wage loss associated with his compensable injury;
• The claimant had limited transferable skills but had the physical capacity to work full time during the February 5, 1997 to February 7, 1999 period, at a position that would at the very least pay minimum wage.

Accordingly, the minority would provide wage loss benefits for the period February 5, 1997 to February 7, 1999, but by virtue of Section 22 of the Act, would deem the claimant as having an earning capacity in that period equivalent to minimum wage, and would reduce his wage loss entitlement to account for this deemed earning capacity.

A. Finkel,  Appeal Commissioner