The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker underwent surgery related to his right shoulder injury on January 4, 2005 and began physiotherapy on February 5, 2005 with some improvement. In July and August 2005 functional capacity evaluations were performed and further treatment options were considered.

In a letter dated December 21, 2005 the case manager advised that a work hardening program had been recommended that may provide the worker with additional therapeutic benefits.

In February 2006 the case manager concluded that the worker would not be able to return to work with the pre-accident employer. A return to work plan was developed that included a referral to a reconditioning program to increase the worker’s functional capabilities and provide more options for possible retraining followed by a vocational rehabilitation assessment. The reconditioning program was to take place in early March 2006 at the same physiotherapy clinic that the worker had attended in the past and where he had achieved functional improvement.

On February 21, 2006 the worker advised that he was not willing to partake in the reconditioning program at the previous clinic he had attended. The case manager offered the worker an opportunity to suggest another clinic. The case manager advised the worker of his obligation to mitigate the consequences of his accident and that the refusal to attend the reconditioning program could impact entitlement decisions. The worker advised that he would speak with his counsel.

In a letter dated February 25, 2006, the worker wrote to the WCB case manager with regards to her request that he participate in a program at the clinic and stated: “In no way shape or form am I refusing to participate in any program that would inable (sic) me to benefit the use of my right arm and gainful employment.” He stated there was a conflict of interest with this physiotherapy clinic and he requested that another facility be appointed to prepare him to participate in the vocational rehabilitation program.

In a letter to the worker dated February 27, 2006, the case worker set out the rationale for the WCB’s referral to a reconditioning program to increase the worker’s functional gains and assist in the vocational rehabilitation process. The case manager noted that the worker had not referred to any other program or facility which could provide this type of reconditioning program rather than general physiotherapy. The worker was advised that an assessment was scheduled for March 1, 2006 at the clinic chosen by the WCB. The letter also explained that the WCB has the right to direct and refer workers for specific treatment and failure to participate in the referral could result in the suspension of wage loss benefits. The letter referenced section 22 of The Workers Compensation Act (“Act”) and WCB Policy 44.10.30.60, which speak to the obligation of the worker to participate in the treatments referred by the Board.

The worker did not attend the assessment on March 1, 2006. However benefits continued.

On March 9, 2006, the case manager spoke to the worker and offered an alternative reconditioning program provided by a different facility that had been suggested by the worker. The case manager provided the worker with information she had obtained about this program and explained that this program included a physical, functional and psychological assessment and would assist him in possible functional gains that would prepare him for a vocational rehabilitation assessment. The worker advised that he wished to discuss this referral with his orthopedic surgeon first and determine whether this program was required before vocational rehabilitation.

By letter dated March 10, 2006, the worker advised the case manager that he was confused as to what was involved in a reconditioning program. The letter included a report from the worker’s physiotherapist dated March 8, 2006 indicating that in his opinion attending a “work hardening” program would not benefit the worker. The physiotherapist explained that a work hardening program is generally geared to preparing a worker to return to a specific job and given the worker’s permanent restrictions, he would be at high risk to re-injure his shoulder if he was prepared for returning to his pre-accident job.

The worker also indicated in his March 10, 2006 letter that he had consulted with his physiotherapist, orthopedic surgeon and physician and that they all agreed that physiotherapy would be beneficial. The worker advised that he was only willing to attend the alternate facility for physiotherapy.

The worker was examined by his orthopedic surgeon on March 10, 2006. The surgeon provided a report dated March 13, 2006 in which he noted that the worker had been advised by the WCB to enter a “work hardening” program. The surgeon stated as follows:

“He has been advised by Workman’s Compensation that he is to enter a work hardening program. He has not been told which job or position that he is being hardened for. He is clearly not able to return to his previous employment as confirmed via the functional capacity evaluation obtained by WCB. He is not able to perform any work at shoulder height or above and lifting is limited. I would add a limitation of lifting or carrying anything forward away from his body, as this will also put significant stress on the rotator cuff. Other than this, the limitations noted in the functional capacity evaluation appear satisfactory. It does not appear reasonable to expect this gentleman to enter a work hardening program, having not had any physiotherapy for several months now. Obviously this would depend some extent on what position he was been rehabilitated for. I would suggest that this be clarified prior to embarking on work hardening, so that this program could be tailored to the specific needs of the position.”

The case manager referred the file to a WCB medical advisor for review. The file was reviewed by a WCB physiotherapy consultant and in a memo dated May 3, 2006, the WCB physiotherapy consultant, after consulting with a WCB medical advisor and the case manager, concluded that there was potential for further strength gains with a reconditioning program. The WCB physiotherapist outlined a four week reconditioning program, followed by an 8 week gym program. After twelve weeks, the worker would complete a second functional capacity evaluation.

On June 22, 2006, the case manager spoke with the worker to advise him of the WCB physiotherapist’s recommendations. According to the file notes, the case manager advised the worker that a referral to a vocational rehabilitation consultant would be made after the worker had participated in the reconditioning and gym program. The worker indicated that he did not understand why he had to participate in a reconditioning program instead of going straight to vocational rehabilitation. The case manager explained the importance of knowing that a worker has reached the maximum level of improvement in order to determine appropriate functional capabilities necessary for a vocational rehabilitation assessment.

According to the file notes dated June 22, 2006, the case manager advised the worker that she would refer him to the alternate facility that the worker had suggested. The notes indicate that the worker would not agree to participate in this referral. The case manager advised the worker that she would set out her recommendations in a letter and provide a copy to the worker’s physicians to determine if they had any concerns. The case manager also advised the worker that any further nonparticipation in the referral would likely result in benefit suspension.

In a letter dated June 29, 2006, the case manager wrote to the worker summarizing their past discussions. The case manager noted that she had referred the file to the WCB healthcare department for review in light of the worker’s concerns and indication that he would only participate in physiotherapy and not a full reconditioning program. The case manager set out the opinion of the WCB’s healthcare department that there was potential for further strength gains and the recommendation that the worker be referred to a 4 week reconditioning program followed by an 8 week gym program and a functional assessment. The case manager advised the worker that this letter would be sent to the worker’s treating practitioners to allow them to provide reasons why the reconditioning program would not be of therapeutic value.

The June 29, 2006 letter from the case manager also referred to the consequences of not participating in the referral, and referenced section 22 of the Act and WCB policy 44.10.30.60 relating to the responsibility of the worker to participate in rehabilitation efforts and the consequences of failure to do so. The worker requested additional time to review the June 29, 2006 letter with his counsel. This request was granted and wage loss benefits were not suspended.

On July 13, 2006, according to notes on file, the worker advised the case manager that he would not participate in the reconditioning program as he was of the view that this program was the same as a “work hardening” program and participation would aggravate his shoulder. The case manager noted that no response or additional information was received from the worker’s medical practitioners indicating concerns with the recommended reconditioning program.

In a letter dated July 13, 2006, the case manager informed the worker that his wage loss benefits were being suspended effective July 14, 2006 as a result of his decision not to participate in the recommended plan.

In a letter from the worker dated July 13, 2006, the worker referred to the opinions expressed by his physiotherapist and orthopedic surgeon in their prior reports, which in his opinion indicated that a reconditioning program would be detrimental to his condition. The worker requested that a medical review panel be convened as in his view the opinion of his medical practitioners regarding treatment differed from that of the WCB healthcare department.

In a letter dated July 20, 2006, a WCB manager denied the worker’s request for a medical review panel on the basis that there was no difference of opinion. The WCB manager noted that the reports from the worker’s practitioners referred to the consequences of a “work hardening program”, while the WCB consultant was recommending a “four week reconditioning program”. The WCB manager explained the difference between these two programs as follows:

“There is a distinct difference between a work hardening program and a reconditioning program. The Wellness Institute indicates that their work hardening program features work simulation, progressive physical reconditioning, and job activities specific to the work-site to build an employee’s functional tolerance to a full workday. The program runs five days a week, for six weeks, and is based on seven-hour days to simulate a realistic workweek. It is generally accepted in the rehabilitation field that work hardening is used when a patient has a specific job to return to, and the program is tailored to simulate that work.

On the other hand, a reconditioning program is for patients who have been treated for acute injury but need further treatment to enhance their overall fitness level. The goal may still be a return to work but it is not necessary to have a specific occupational goal.

Because [the physiotherapist and orthopedic surgeon] are under the impression you would be attending a work hardening program, which is not the case, I do not find that there is a difference of opinion in respect of a medical matter affecting entitlement and I am unable to grant a medical review panel.”

In a letter dated July 26, 2006, the worker advised the WCB manager that he was not sure what a “reconditioning” program involved and whether his physiotherapist and physician would approve. He requested a list of all the physical tasks that would have to be performed under this program. He also asked for reconsideration of the denial of a medical review panel.

In a letter dated August 9, 2006, the WCB manager advised the worker that it was not possible to provide a list of the tasks to be performed in the reconditioning program as the therapist would do an assessment to develop a plan to increase his functional capabilities and the worker had failed to attend the assessment. The WCB manager re-iterated the worker’s obligation to participate.

By letter dated August 17, 2006, the worker was provided with the Review Office decision denying his request to convene a Medical Review Panel.

On August 18, 2006, the worker advised the case manager that he was willing to attend the reconditioning program. According to the file notes, the worker stated that the case manager had not explained the difference between a reconditioning and work hardening program. The case manager contacted the facility and was advised that the therapist was not able to schedule an initial assessment until September 15, 2006.

On August 31, 2006, the worker asked the WCB to re-instate his benefits retroactively to July 14, 2006. The worker explained that he did not attend the assessment as he was under the impression that a reconditioning program was the same as a work hardening program. The worker stated that it was not until he received the WCB letter dated July 20, 2006 that he became aware that work hardening and reconditioning programs were different.

By letter dated September 5, 2006, the case manager advised the worker that wage loss benefits would remain suspended until the worker attended the assessment for the reconditioning program on September 15, 2006.

The worker was assessed and according to notes on file dated September 25, 2006, the therapist advised the case manager that the worker’s restrictions were reviewed and she would be able to work within those limitations. The therapist noted that the worker was deconditioned and their program goal would focus on returning him to his previous functional capabilities. Wage loss benefits were reinstated effective September 14, 2006.

In its decision dated April 4, 2007, the Review Office held that wage loss benefits should not be paid retroactively from July 14 to September 14, 2006. The Review Office determined that WCB representatives fulfilled their responsibility by counselling the worker as to the treatment the WCB believed advantageous and the consequences of failing to participate in treatment as well as addressing the worker’s concerns. The Review Office noted that it was likely that the worker’s future return to work capacity was delayed by his non-participation for this period of time.

Analysis

Subsection 4(2) of the Act provides that a worker injured in a work-related accident is entitled to wage loss benefits for loss of earning capacity “resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens”.

Section 22 of the Act refers to the worker’s responsibility to submit to medical treatment the WCB believes is reasonably essential to promote his recovery and mitigate the consequences of the accident stating as follows:

“Practices delaying worker’s recovery

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 where such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.”

As an aside, the panel notes this section was amended January 1, 2006 but continues to place a positive duty on workers to receive medical treatment the WCB believes will promote the workers’ recovery.

WCB Policy 44.10.30.60 sets out the obligations of the worker to participate in treatment in order to maintain eligibility for compensation benefits and the responsibilities of the WCB to identify mitigation issues; counsel the worker about those issues and their potential impact on recovery; and ensure that the worker is aware of the WCB position in any instance that it is different than the opinion of the attending professional. The policy states that the WCB must inform the worker of the consequence of failing to submit to treatment that the WCB believes to be reasonably essential and advantageous to the worker’s recovery.

The policy sets out the consequences of a worker’s failure to mitigate, providing as follows:

“If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to cooperate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.”

After carefully considering all of the evidence in this case, the panel is of the opinion that the worker’s failure to participate in the reconditioning program amounted to a failure to mitigate the effects of his injury, which entitled the WCB to temporarily suspend benefits during the period of July 14 to September 14, 2006. The panel has reached this conclusion for the following reasons.

The worker testified at the hearing that while the case manager initially indicated in December 2005 that she was referring the worker to a “work hardening” program, once the worker indicated his confusion in February and March 2006 regarding the difference between a work hardening program and reconditioning program, from June 2006 on the case manager only discussed the WCB plan to refer him to a “reconditioning” program.

In addition, the file notes of the case manager’s conversation on June 22, 2006 with the worker and her detailed letter to the worker dated June 29, 2006 indicate that it was explained to the worker that the goal of the reconditioning program was not to prepare the worker for a return to his pre-accident employment, but rather to enable the worker to reach his maximum functional potential to support an appropriate assessment of vocational rehabilitation options. The worker testified at the hearing that he understood that this was the goal of the reconditioning program.

The evidence indicates that at least by June 2006, the worker was aware that the WCB recommendation for therapy was not to return him to his pre-accident job through a work hardening program, which had been the concern expressed by his physiotherapist and surgeon in their March 8 and March 13, 2006 reports respectively.

The evidence also indicates that the worker advised the case manager on August 18, 2006 that he had refused to participate in the reconditioning program due to his confusion between that program and a work hardening program. However, in his letter dated August 31, 2006, the worker stated that when he received the WCB manager’s letter of July 20, 2006, he became aware that the two programs were different. The worker stated that “had you made me aware of this, we would not be in this position now.” Despite this acknowledgement of having been aware of the difference at least by July 20, 2006, the worker continued to refuse to participate in the WCB’s treatment plan until August 18, 2006. This suggests to the panel that the worker’s reason for not participating was not based on confusion regarding the programs and that his continued refusal to participate in the plan was unreasonable given his knowledge of the goal of the reconditioning program at least by June 2006, if not earlier.

The evidence also indicates that the worker’s physiotherapist, surgeon and physician were provided with a copy of the case manager’s June 29, 2006 letter outlining the rationale for the reconditioning program and the worker was given an opportunity to provide their response to this proposal, but none was received. The worker testified that he discussed the WCB plan with his physiotherapist and surgeon following the June 29 and July 20, 2006 letters outlining the difference between a work hardening and reconditioning program. According to the worker, the practitioners would not put anything in writing. This suggests to the panel that the treatment proposed by the WCB was not unreasonable or considered a risk to the worker by his own treating practitioners.

In fact, once the worker participated in the four week reconditioning program beginning on September 15, 2006, his functional capabilities improved and he was subsequently referred for a vocational rehabilitation assessment. The panel finds that the treatment plan proposed by the WCB was in fact reasonably essential and advantageous to the worker’s recovery.

The panel also notes that at the hearing the worker was unable to provide a credible reason as to why he continued to refuse to attend even the first assessment for the reconditioning program in July 2006, at which time he would have had an opportunity to discuss his restrictions and concerns with the therapist and determine whether the program was likely to improve his functional capabilities. This suggests that the worker’s continued refusal to participate in the reconditioning program, based on his alleged confusion as to the physical tasks required by that program, was unreasonable.