The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) stemming from a work related accident that occurred in May 2006.

The issue being appealed by the worker’s employer deals with the WCB’s decision to reinstate the worker’s wage loss benefits effective August 26, 2006. The employer disagreed with the decision and presented argument that the worker failed to participate in a light duty program that met her work restrictions and therefore her benefits should not have been reinstated. An appeal was filed with the Appeal Commission and a hearing took place on November 3, 2008 to consider the matter.

Issue

Whether or not it was appropriate to re-instate the worker’s wage loss benefits effective August 26, 2006.

Decision

That it was appropriate to re-instate the worker’s wage loss benefits effective August 26, 2006.

Decision: Unanimous

Background

On May 10, 2006, the worker reported that she was experiencing progressive back pain which she related to her job activities as a healthcare aide. The claim for compensation was accepted on May 31, 2006 based on the diagnosis of a low back strain and the worker was paid wage loss benefits commencing May 17, 2006.

Effective June 26, 2006, it was determined by the worker’s treating physiotherapist that the worker was capable of returning to a graduated light duty program. As the worker claimed that she was still having pain and muscle spasm, arrangements were made for an examination by a WCB physiotherapy consultant on July 20, 2006.

In her examination report of July 20, 2006, the WCB physiotherapy consultant noted that the worker had moderately limited lumbar range of motion and segmental stiffness of the thoracolumbar spine. There was also associated paravertebral muscle tightness and neurological testing was unremarkable. There was no evidence of altered dural sensation. Recommendations were made for the worker to continue with physiotherapy and to focus on exercise progression and improving functional strength. Current work restrictions for a three week period were outlined as follows: no lifting more than 5 pounds, no repetitive or sustained bending and no pushing or pulling more than 5 pounds.

On July 31, 2006, the worker notified the WCB that she started her return to work program but after part of her shift, she had increased symptoms and was not able to continue so she went home. Later that day, the worker advised the WCB that she attended her physiotherapist and was advised to remain off work until Thursday, August 3, 2006.

A report from the physiotherapist dated July 31, 2006 indicated that the worker had a flare-up in the right SI region with swelling and muscle spasm. The worker was advised to remain off work from July 31 to August 2 and to return to work on August 3, 2006 starting 4 hours per day.

On August 4, 2006, the worker told a WCB case management representative that she was planning to return to work on August 3, 2006 but when she woke up, she was in too much pain and was not able to go in. The worker indicated that she felt a twitch in her back that went into her leg on August 2, 2006 which she related to a fall at home on her patio. The worker indicated that she was hoping to return to work by August 8, 2006.

On August 24, 2006, the treating physiotherapist spoke with the WCB case management representative. He reported that the worker aggravated her back while feeding a resident on August 22, 2006. She was required to sit on a stool which caused her back to spasm. The physiotherapist mentioned that the worker was advised by her treating physician to remain on modified duties for the next four weeks. He suggested that the worker may benefit from attending a work hardening program. Restrictions were outlined as follows: No lifting greater than 10-15 lbs, capable of pushing wheelchairs, should be able to feed residents.

By letter dated August 25, 2006, the treating physician clarified that he felt her capabilities were as follows:

“Presently able to push wheelchairs and other duties as of last week. Tried feeding, sitting on proper chair with support, was able to do it. However if sat unsupported and flexed, stated this aggravated her back. Therefore may need appropriate support and minimal flexion to do this activity.

…should be able to lift between 10-15 lb intermittently. Regarding making beds, I felt this would be difficult at this time…physiotherapy at this time may be better directed at [worker] being in a structured return to work program.”

On August 25, 2006, the accident employer’s health education coordinator advised the WCB that the worker refused to sign a return to work agreement which outlined her work restrictions that were recommended by the WCB. On this same date, the worker advised the WCB that she did not sign the agreement as the restrictions outlined were not the same as her physician or therapist had recommended.

On August 31, 2006, the WCB case manager contacted the worker’s concurrent employer. It was indicated that the worker worked two evenings a week for a total of 8 hours as a receptionist and her job duties involved standing throughout the shift doing data entry and answering telephones.

On August 31, 2006, the worker advised the WCB that she was willing to return to work. On the same day, the accident employer advised the WCB case manager that the worker was being terminated from employment partly due to the difficulties related to the return to work program but also because of the worker’s attitude, insubordination, lies and accusations.

In a letter dated September 5, 2006, the worker was advised that her wage loss benefits were being suspended effective August 26, 2006. It was the case manager’s opinion that the modified duties arranged by the employer accommodated the worker’s restrictions and were considered an active form of rehabilitation. As the worker’s employment had been terminated due to her recent actions (disciplinary matters), it was the case manager’s opinion that the worker no longer had a loss of earning capacity.

On September 6, 2006, a WCB unit manager wrote the worker to advise that he was reinstating her wage loss benefits retroactive to August 26, 2006. The unit manager stated, “After interviewing a variety of people involved in your care and return to work planning, I have reached the conclusion that a number of mixed messages and miscommunications caused your case manager to conclude that you were non-compliant with your return to work obligation. Following further investigation it became apparent that several parties involved in this case contributed to the miscommunication and confusion, but only you suffered the repercussions.”

On October 30, 2006, the employer’s advocate appealed the unit manager’s decision to Review Office.

On January 4, 2007, Review Office determined that the worker’s wage loss benefits were correctly reinstated effective August 26, 2006 and that she was entitled to receive wage loss benefits while she attended the approved supervised exercise and core strengthening program. Review Office stated it was reasonable to reinstate benefits to the worker given that it appears that some of the modified duties being performed were continuing to re-aggravate the worker’s condition. It noted that the employer made a unilateral act to bar the worker from the workplace while further efforts were being made to return her to suitable job duties. It believed that ongoing payment of wage loss benefits was warranted given that the medical documentation supported the worker’s inability to return to her regular job duties as a healthcare aide. On May 14, 2008, the employer appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Employer’s submission:

Two representatives from the employer appeared to make submissions at the hearing. The worker did not attend. It was submitted on behalf of the employer that the worker was not entitled to further wage loss benefits as she was not cooperative and she frustrated the process. The employer did not take issue with the worker’s first attempt at a return to work, but submitted that on the second return to work in August, 2006, the worker frustrated the process by refusing to take on the job duty of feeding residents. The employer referred to the letter dated August 25, 2006 from the attending physiotherapist where it was indicated that the worker was capable of performing feeding with appropriate support and minimal flexion. The employer advised that a proper chair was provided to the worker, but she insisted that she had been told by her medical practitioners that she could not do feeding duties and she refused to sign her return to work agreement. It was submitted that the worker frustrated the process, chose not to do the feedings, and had no medical basis to take that position. As a result, the worker should not to be entitled to further benefits effective August 26, 2006.

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Subsection 22(1) of the Act imposes an obligation on workers to co-operate and mitigate and provides as follows:

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker’s recovery.

Analysis:

The issue in this case is whether or not the worker’s wage loss benefits should have been suspended due to a failure to co-operate and mitigate pursuant to subsection 22(1). In order for the employer’s appeal to be successful, we must find the worker unreasonably failed to co-operate with the WCB in implementing a return to work program when she refused to accept the modified duties offered to her by her employer. We are not able to make that finding.

At the hearing, the employer submitted that it had done all that it could to accommodate the worker’s documented restrictions. They arranged for the worker to have a supernumerary position in a lighter duty ward. The duties outlined in the return to work agreement were in accordance with the restrictions recommended by the treating physiotherapist. A proper chair with support was provided to the worker. The employer claimed that it provided the worker with everything she needed in order to return to work within her restrictions. The panel acknowledges that the employer made accommodation for the worker. When considering the application of subsection 22(1), however, the focus is not on the acts of the employer. Rather, the focus is on the acts of the worker and whether or not the worker’s actions were reasonable.

The evidence on the file discloses that on September 1, 2006, the worker indicated that she was prepared to sign the return to work agreement. By that date, however, the employer had already taken steps to terminate the employment, and therefore the option of returning to work with the same employer was not available to the worker. The worker then proceeded to participate in a work hardening program. The panel finds that by September 1, 2006, the worker was fully participating with the return to work program which the WCB outlined for her, and there is no question that her obligations under subsection 22(1) were being met.

With respect to the five day period from August 26 to August 31, 2006, the panel also finds that the worker was not breaching her obligations under subsection 22(1). Even though the worker refused to sign the revised return to work agreement during this period, the panel finds that it was reasonable for her to take this position, for the following reasons:

• There was uncertainty in the worker’s mind as to whether or not her medical practitioners supported the restrictions as outlined in the return to work agreement. Notes from a conversation between the physiotherapist and the case manager on September 5, 2006 confirm that there had not been any communication between the physiotherapist and the treating physician and thus while the physiotherapist may have felt the worker was able to perform feeding with appropriate support and minimal flexion, it is not clear as to whether or not her physician supported this activity. There was uncertainty between medical practitioners in an environment where the communication between parties was less than optimal.
• It was a consistent complaint of the worker that forward flexion aggravated the condition of her back. Although the employer indicated that a proper chair was provided to the worker in response to her complaints, the panel has difficulty seeing how feeding duties could practically be performed without involving some degree of forward flexion.
• The physiotherapist’s report of August 25, 2006 stated that the worker was able to do feeding, but also indicated that if she sat unsupported and flexed, this activity aggravated her back. It recommended appropriate support and minimal flexion to perform this activity. The panel feels that the physiotherapist did not support an unqualified ability to perform this task.
• At the hearing, the employer confirmed that feeding was a required duty expected of the worker during her shifts. The option of performing all of her duties except for feeding was not discussed with the worker.
• The November 29, 2006 report of a subsequent treating physiotherapist stated that appropriate light duties for the worker would have involved walking, standing erect, pushing with a lumbar lordosis and erect sitting for short periods of time with a lumbar support. The report characterized feeding and light ADL duties as being the exact activities which put the worker at risk. It was his opinion that the worker did mitigate her condition by not performing those duties. The panel accepts the physiotherapist’s opinion. While this opinion was not available to the WCB when it made its initial decision to reinstate benefits, the Appeal Commission looks at all available evidence when conducting its review of claims decisions previously made by the WCB.

For the reasons set out above, we find that the worker did not breach her obligations under subsection 22(1) when she refused to sign the August 25, 2006 return to work agreement. She had experienced an aggravation of her back condition when she performed the feeding duties and so it was not unreasonable for her to dispute the inclusion of this duty on the August 25, 2006 return to work agreement. It is therefore our decision that the worker’s wage loss benefits were appropriately reinstated effective August 26, 2006. The employer’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 18th day of December, 2008