Decision #142/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for a work related accident that occurred on August 10, 2005. The claim for compensation was accepted and the worker eventually returned to work on August 21, 2006. On December 21, 2006, the worker slipped on ice on his way to work and claimed that his fall was due to the effects of his compensable accident. His request for wage loss benefits was denied by both primary adjudication and Review Office as neither were able to establish that his compensable back injury was the predominant cause of his slip and fall on December 21, 2006. The worker appealed the decision to the Appeal Commission and is requesting wage loss benefits from December 21, 2006 to March 2, 2007, the date he was terminated by the accident employer. On September 24, 2008 a file review was held at the Appeal Commission to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits for his time loss from work commencing December 21, 2006.

Decision

That the worker is not entitled to wage loss benefits for his time loss from work commencing December 21, 2006.

Decision: Unanimous

Background

On August 10, 2005, the worker injured his low and middle back in a work related accident. It was later accepted by Review Office that the accident of August 10, 2005 caused the worker to suffer a disc herniation at the L5-S1 level.

On August 21, 2006, the worker returned to work with the accident employer to commence a training program to become a forklift operator.

In a September 25, 2006 report, a neurosurgeon indicated that the worker continued to experience low back pain with a tendency to radiate into the gluteal region and pain in his left lower extremity and some numbness on the top of his foot. It was felt that the worker’s ongoing symptoms were related to potential irritation of the L5 root within the foramen.

The worker was seen by a physical medicine and rehabilitation consultant on October 16, 2006. In his report to the WCB case manager dated October 24, 2006, the consultant’s impression of the worker’s back condition was “Left L5 and S1 radiculitis has improved but has not resolved.” He encouraged the worker to continue with dynamic lumbar stabilization exercises and modified work. He stated that the worker may only use a forklift if it had a hydraulic chair, otherwise vibrations while operating a forklift may aggravate his disc herniation and radiculitis.

Following a work site assessment by a WCB rehabilitation specialist, it was found that the forklift operator position was outside of the worker’s capabilities.

On December 12, 2006, the worker was examined by a WCB medical advisor to obtain an up to date assessment of the worker’s current work capabilities. Based on history and physical examination, it was determined the worker presented with ongoing back pain secondary to a low back strain as well as historical and clinical evidence of a left S1 radiculopathy. The worker exhibited decreased range of motion and decreased sensation in the S1 distribution and mild decrease in strength in his left leg which was non-dermatomal. Moderate pain behaviors were also noted on the examination. It was the medical advisor’s opinion that the worker was able to undertake sedentary work related duties; that work restrictions should be in place for the next six months; and there did not appear to be any evidence of a pre-existing illness which contributed to or prolonged the duration of the worker’s compensable injury.

It was subsequently arranged through the accident employer for the worker to commence a light duty position in quality assurance starting December 14, 2006.

On December 21, 2006, the worker reported that he accidentally slipped on some ice in his driveway on his way to work and landed onto his buttocks. He felt immediate pain throughout his entire back which resulted in him not being able to go to work. The case manager advised the worker that he was not entitled to further wage loss benefits beyond December 20, 2006 based on the following rationale:

  • The worker was participating in a modified duty position which was within his physical limitations and restrictions from activity;
  • The worker was not involved in any new accident or incidents;
  • There was no significant changes to his job duties or increase in workload;
  • There was no reporting of any problems to his employer/co-workers;
  • The secondary injury occurring at home was not related to the compensable injury;
  • The secondary injury was the sole cause for the worker’s current symptoms and inability to perform modified duties.

On December 21, 2006, the treating physician indicated in a medical certificate that the worker should be off duty from December 21, 2006 and to return to modified duties on January 22, 2007.

A surveillance video was taken of the worker on December 12, 13 and 18, 2006.

In a memo dated January 9, 2007, the WCB medical advisor stated that he had the opportunity to review the surveillance videotape. “It demonstrates ease of movement walking, bending, lifting, and throwing. The (sic) is no observed grimacing, guarding or cautious movement to indicate any degree of discomfort. It appears from the video that he is more capable of activity than he reported at the recent call-in exam when he suggested that he was limited in many activities by back pain.”

In a telephone conversation with his case manager on January 24, 2007, the worker stated he could work modified duties but not during the day as he was in school. (File records indicate that the worker attended Red River Community College on a full time basis commencing August 2006. The worker later confirmed that he had been in receipt of Employment Insurance benefits while attending school).

On January 29, 2007, the worker appealed the case manager’s decision to deny him wage loss benefits commencing December 21, 2006. The worker indicated that he slipped on ice because he was unable to walk properly due to his back injury. If his back had been alright, he would have been able to twist and turn to avoid a fall. He said it was specifically due to his compensable injury that he fell on ice.

On February 9, 2007, Review Office confirmed that the worker was not entitled to wage loss benefits from work commencing December 21, 2006. Review Office noted that WCB policy 44.10.80.40 stipulates that a further injury occurring subsequent to a compensable injury was only compensable if it was predominantly attributable to the compensable injury. Review Office indicated that it could not accept the assertion that the worker’s compensable back injury was the predominant cause of his slip and fall on December 21, 2006. It also noted that videotape surveillance of the worker’s activities in the week prior to the fall was reviewed by a WCB medical advisor who noted that the worker was capable of walking, bending and lifting without evidence of guarding or cautious movements.

In August 2007, the worker appealed the decision made by Review Office dated February 9, 2007. In a subsequent telephone conversation with the Appeal Commission’s assistant registrar, the worker indicated that he related his secondary accident from December 2006 to his compensable injury. He said the secondary injury prevented him from returning to work; however, he added that the effects of this incident only lasted for several weeks and that he received advice from his physician to remain off work during this period. Once the effects of the secondary injury had subsided, he was unable to return to work as his employer had terminated his employment. The worker was therefore claiming an entitlement to wage loss benefits on the basis of both the secondary accident and subsequently, due to the lack of employment to return to given his termination. The worker was of the view that his wage loss entitlement extended beyond the period of recovery from the secondary accident. The assistant registrar advised the worker that it was premature for the Appeal Commission to consider the matter as the decision by Review Office dated February 9, 2007 only considered the entitlement from the perspective of the incident when the worker slipped on ice. The worker’s entitlement subsequent to his recovery from this incident had not been fully considered by Review Office. He stated the file did not clearly show whether the worker’s termination was due to the compensable injury or due to other factors.

In a letter authored by the WCB case manager dated November 2, 2007, the worker was advised that the WCB was unable to accept responsibility for any wage loss benefits beyond the secondary slip and fall accident of December 2006. The case manager indicated that his employer offered him full time modified duties but the worker declined the day shift as he was attending school. The worker was terminated from employment on March 2, 2007. During this period, the worker never re-contacted the WCB to advise that he was fit to return back to modified duties. The case manager noted that the medical reports submitted to the WCB during this same time frame continued to indicate that the worker remained totally disabled since the secondary accident. Therefore, the WCB was unable to assist him in facilitating a return to work with his employer. The case manager noted that file information shows that the worker, in March 2007, exacerbated his back pain while bending in the shower. This again was not related to his compensable injury and time loss would not be paid for this secondary aggravation. Based on these factors, the case manager indicated that suitable full time modified duties were made available to the worker by his employer and he chose not to participate in the modified duties due to his school commitments.

On May 5, 2008, the worker appealed the case manager’s decision of November 2, 2007 to Review Office. He indicated that the medical evidence supported his continued disability. He indicated that his employer fired him because they were frustrated with his inability to perform regular duties.

On May 13, 2008, Review Office determined that the worker was not entitled to wage loss benefits commencing March 2, 2007. Review Office indicated that it disagreed with the worker that he should be entitled to wage loss benefits commencing March 2, 2007 as his employment was terminated that day and he considered himself to be incapable of working. The file evidence showed that the doctor okayed a return to modified work duties on March 1, 2007 and that the worker did in fact approach his employer on that day to arrange a return to work. This suggested that the worker rejected the modified duties offered to him by the employer as those duties were only available on the day shift, creating a conflict with his attendance at school. Although the worker continued to have compensable restrictions, there was evidence that the employer was willing to accommodate him with duties that were suitable for him. Review Office found no evidence that the worker was completely disabled beyond March 2, 2007 and concluded that any subsequent loss of earning capacity was related to his decision not to accept the modified duties offered to him.

On May 5, 2008, the worker appealed Review Office’s decision dated February 9, 2007 on the basis that he was unable to prevent his fall because of his compensable injury and therefore he should be entitled to wage loss benefits until he recovered (“which is still ongoing”). A file review was arranged by the Appeal Commission and took place on September 24, 2008.

Reasons

Applicable Legislation

The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

This case deals with ongoing benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

This case also involves a secondary accident, one which occurred after the workplace accident. The Board of Directors made WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, which applies to a separate injury where there may be a causal relationship between the further injury and the original compensable injury.

Worker’s Position

The worker’s notice of appeal indicated that he slipped and fell on December 21, 2006 and that he was unable to prevent his fall because of his compensable injury. He asked for wage loss benefits until he recovers from the fall.

In a letter addressed to the Appeal Commission dated May 5, 2008, the worker noted that the Review Office decision appeared to be based on a video surveillance tape filmed on December 12, 13, and 18, 2006. He provided comments on the contents of the video surveillance for the three days. He noted that although he was under surveillance for most of the day, the tapes show him involved in very little physical activity. He stated that nothing in the video reflects his ability to walk on ice with ease, nor does it measure his ability or symptoms on the date in question.

The worker stated that it was true that he slipped on ice on December 21, 2006, but this was because he was unable to walk properly due to his back injury. He stated that had his back been alright, he would have been able to twist and turn to avoid a fall. He referred to medical authorization to remain off work after the fall. The worker noted that he had been fired by the employer on March 2, 2007 and was requesting the Appeal Commission to address the issue of wage loss from December 21, 2006 to March 2, 2007.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits for time missed from work commencing December 21, 2006. For this appeal to be successful, the panel must find that the worker suffered a loss of earning capacity commencing on December 21, 2006 as a result of his workplace accident. In other words, the panel must find that the worker was unable to work commencing this date due to his workplace injury. The panel was not able to make this finding.

The panel finds that on December 21, 2006, the worker suffered a non-work related accident when he slipped on ice on his driveway and fell landing on his buttocks. The worker reported to a WCB staff member that he felt immediate discomfort throughout his entire back, which resulted in him being unable to go to work.

The worker argued that the December 21, 2006 accident occurred because “I was unable to walk properly due to my back injury. Further, if my back had been alright, I would have been able to twist and turn to avoid a fall.”

In cases involving a subsequent accident, the panel must apply WCB Policy 44.10.80.40. This policy provides, in part, that a further injury occurring subsequent to a compensable injury is compensable “where the cause of the further injury is predominantly attributable to the compensable injury.”

In determining whether the further injury is predominantly attributable to the compensable injury, the panel looked at medical evidence and other evidence of the worker’s condition at the time of the further injury. In this case, the worker was subject to surveillance on three days prior to the further injury. The panel has reviewed the surveillance tapes and finds that the worker was reasonably mobile on the dates of the surveillance. He appeared to walk and move easily without significant impairment. The surveillance evidence does not suggest that the worker’s reactive capacity to a slip and fall was impaired. The panel further notes that the worker had returned to modified duties prior to the further injury and was able to perform these duties.

The panel finds, on a balance of probabilities, that the further injury was not predominantly attributable to the compensable injury and that the worker’s loss of earning capacity was not caused by the compensable injury.

The panel notes that the worker was attending school on a full time basis before the further injury, returned to school after the Christmas break on January 2, 2007 and continued to attend school beyond March 2, 2007. Any loss of earning capacity is not due to the compensable injury but to the further injury and his personal decision to remove himself from the workforce to attend school.

In conclusion, the panel finds, on a balance of probabilities, that the further injury on December 21, 2006 is not predominantly attributable to the worker’s compensable injury and that wage loss commencing December 21, 2006 is not related to the compensable injury. The worker’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of November, 2008

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