Decision #60/08 - Type: Workers Compensation
Preamble
In early September 2007, the worker filed a claim with the Workers Compensation Board (“WCB”) for pain in his right leg, right hip and left back which he attributed to the operation of a double chop saw at work. The WCB accepted the claim for compensation based on the diagnosis of a low back strain/sciatica. On October 15, 2007, the WCB suspended the worker’s wage loss benefits as the worker advised the WCB that he did not want to participate in modified duties and that he terminated his employment with the accident employer. The worker appealed the decision to the Review Office and Review Office confirmed the decision to deny the worker wage loss benefits beyond October 15, 2007. The worker disagreed and filed an appeal with the Appeal Commission and a file review then took place on March 26, 2008.Issue
Whether or not it was appropriate to suspend the worker’s wage loss benefits beyond October 15, 2007.Decision
That it was appropriate to suspend the worker’s wage loss benefits beyond October 15, 2007.Decision: Unanimous
Background
The worker advised the WCB that he started to experience pain in his right leg during the morning of August 25, 2007 and that the pain increased around 3:30 p.m. He later advised a WCB adjudicator that the pain in his right leg was caused from operating a double chop saw at work and that the pain went from his low back down to his leg towards his right ankle.
Medical reports indicate that the worker sought medical treatment on August 15, 2007 and complained of severe low back pain radiating to the right leg. The diagnosis rendered by the treating physician was low back pain and he questioned sciatica. Treatment included medications and physiotherapy treatment.
On September 5 and 6, 2007, the worker attempted to return to his regular work duties but had to stop because of increasing difficulties at work.
On September 21, 2007, the employer indicated to the WCB that they may be able to accommodate the worker with modified duties depending on his physical restrictions.
A physiotherapy report showed that the worker attended for treatment on September 25, 2007. The worker subjectively complained of pain from the knee to the low back with sitting and standing. The therapist’s diagnosis was “disc with neurological pain”. Restrictions were outlined to take care with bending, prolonged sitting, standing and lifting.
On October 2, 2007, the employer advised the WCB that they called the worker regarding modified duties and that the worker had not yet returned their call. The employer did not specify the type of modified duties that were available but indicated that they wished to accommodate the worker with the appropriate duties that accommodated his restrictions.
On October 2, 2007, the adjudicator spoke with the worker’s wife. The adjudicator explained that the employer wanted to bring her husband back to work. She requested that the worker contact his employer as soon as possible and then to follow up with his doctor to see if he could be given restrictions for a return to work.
Via an e-mail message dated October 2, 2007, the employer stated the following regarding alternate duties for the worker:
“We can set up a stool at the double chop machine and have him work there. It would be the same machine that he worked at before but we could make it so that he can sit down and operate the saw. It would still require him to swivel around to pull parts off of a pallet and put them into the machine. He wouldn’t be lifting anything more than 10 lbs.
We could also put him on the Opticut line feeding the machine. Where he could also sit on a stool and feed boards into the Opticut. He would only have to pull one board at a time off of a pile and put them on a conveyor feeding the machine. Again this would require a little twisting, but he could use the chair.”
On October 4, 2007, a WCB adjudicator spoke with the worker and advised him of his obligations to mitigate his claim by contacting his employer to discuss modified duties. The adjudicator noted that the worker was resistant to the idea of returning to modified duties as he was still in a lot of pain. The worker was advised to call his employer to discuss and then to follow up with his doctor. The adjudicator further indicated to the worker that should his employer have modified duties that respected his work restrictions and he did not attend the modified duties, this would affect his entitlement to wage loss benefits
The employer contacted the WCB on October 11, 2007 stating that the worker told them that he did not wish to return to light duty work or modified duties.
On October 12, 2007, the physiotherapist outlined the following work restrictions for the worker: “…sit 30 minutes, stand 1 hour, changing position at these intervals. Forward flexion to mid shin, lifting floor – waist 5 lbs., push/pull 30 lbs.”
On October 17, 2007, the employer advised the WCB that the worker was going back to school and was not returning to work. The employer noted that the worker provided them with a note from his doctor that said he was to be off work to October 15, 2007 inclusive and that the worker would be undergoing further treatment, etc.
On October 18, 2007 the worker confirmed that he quit his job with the accident employer and was looking at going back to school part time. He indicated that he did not want to return to modified duties. The adjudicator advised the worker that any entitlement to further wage loss benefits was unlikely as he removed himself from his employment and chose not to participate in the modified duties offered to him.
In a decision dated October 26, 2007, the worker was advised that the WCB could not accept further responsibility for wage loss benefits beyond October 15, 2007 for the following reasons:
· his general practitioner advised that the worker could perform modified duties effective October 16, 2007;
· the employer had confirmed its ability to provide the worker with duties that met his work restrictions;
· there was no medical information to support the time loss from work; and
· the modified duties offered by the employer appeared to be reasonable and were of value.
On November 21, 2007, the case was considered by Review Office based on an appeal by the worker in which he contended that he still had pain in his right leg and low back and requested further WCB benefits. The worker also indicated that his doctor was making an appointment for him to have a CT or MRI examination.
Review Office determined on November 21, 2007 that wage loss benefits were not payable beyond October 15, 2007 for the time being. It noted that any future medical reports received by the WCB could be reviewed to determine if they altered the decision.
Review Office noted in its decision that the worker turned down the offer of modified duties and advised his employer that he was terminating his employment as he was intending to return to school part time. It noted that the worker did not currently have medical authorization to not be involved in the workforce in a modified duty program respecting the restrictions that were involved in the claim. Should the WCB receive medical evidence in the future, these reports should be reviewed to determine whether or not they influence the decision.
On December 5, 2007, the worker disagreed with Review Office’s decision and the Appeal Commission arranged a file review.
A CT scan of the lumbosacral spine took place on December 20, 2007. Under “Impression”, the report stated “Mild central spinal stenosis at L4-5”.
Reasons
Worker’s Position
In his Request for Appeal, the worker indicates that he disagrees with the termination of benefits because his employer offered him a job in which he was not comfortable. He stated that he did the same job before and he knew how it worked so he did not go back. We understand the worker’s argument to be that the work was not suitable for him because he would experience discomfort in performing the proposed duties and therefore it was legitimate for him to refuse to return to the modified duties which were offered to him. In a subsequent letter to the Appeal Commission dated February 10, 2008, the worker advised that he is still suffering from serious pain and referred the panel to the results of a CT scan performed on December 20, 2007.
Employer’s Position
The employer did not provide a formal position on the appeal but did provide the panel with some information surrounding the worker’s failure to return to their employ. The employer’s human resources and payroll representative advised that she had a long conversation with the worker on October 15, 2007 wherein the worker stated that he did not want to return to work as he wanted to take care of his health, to get better and go to school. They discussed light duties that the employer was able to provide and the worker again stated that he was not returning to work to either of the offered duties as he wanted to get better and go to school.
Applicable Legislation
Pursuant to subsection 37 of The Workers Compensation Act (the “Act”), where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides the general rule that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.
There are also other circumstances where payment of wage loss benefits may end at an earlier date. WCB Policy 43.20.25, Vocational Rehabilitation – Return to Work with the Accident Employer (the “Policy”) outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy defines suitable work as: “that which the worker is medically able to do, does not aggravate or enhance the injury and will provide benefits to both the worker and the employer.” The Policy further provides that: “In order to determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.” The Policy addresses the issue of non-cooperation and states: “If a worker refuses to participate in suitable work, wage loss benefits will be reduced or eliminated by the amount the worker would have earned in the suitable work.”
Analysis
The issue before the panel is whether it was appropriate to suspend the worker’s wage loss benefits beyond October 15, 2007. In order to determine the issue, the panel must consider the reasons why the worker did not accept the full time modified duties offered by the employer and decide whether or not the failure to return to work constituted non-cooperation under the Policy. If the panel finds that the worker refused to participate in suitable work, then pursuant to the Policy, it would be appropriate to suspend the wage loss benefits.
We have considered whether the modified duties offered by the employer constituted suitable work that the worker was medically able to perform. The physiotherapist’s report dated October 12, 2007 clearly sets out the worker’s restrictions as being able to sit 30 minutes and stand 1 hour, changing position at these intervals. He was capable of forward flexion to mid shin, lifting from floor to waist 5 lbs, and pushing and pulling 30 lbs. When comparing the medical restrictions to the accommodations to work offered by the employer, the panel finds that the job duties were within the restrictions. Although the worker claimed that he knew the job and that he would not be able to perform them, the panel finds that the worker’s professed inability to do the full time modified duties is not supported by the medical evidence. The CT scan referred to by the worker in his submission is of little assistance in determining that he was not capable of performing the duties offered.
In the panel’s opinion, the worker received fair warning from the WCB about the consequences of refusing to participate in suitable work. Nevertheless, the worker persisted in his refusal to attempt the modified duties. The panel therefore finds that on a balance of probabilities, the worker’s failure to return to work constituted non-cooperation under the Policy and accordingly, it was appropriate to suspend the worker’s wage loss benefits beyond October 15, 2007. The appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 7th day of May, 2008