The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for injuries he sustained in a work related accident on March 10, 2009. The claim for compensation was accepted and benefits were paid to the worker commencing March 13, 2009. The accident employer appealed the acceptance of the worker’s claim to Review Office. Review Office held that the worker suffered a work related injury and that the time loss involved in the claim was reasonable. The employer filed an appeal with the Appeal Commission. A file review was held on April 13, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits commencing March 13, 2009.

Decision

That the worker is entitled to wage loss benefits commencing March 13, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB on March 23, 2009 for injuries that occurred at work on March 10, 2009. At the time of the incident, the worker was employed at a mine as a jumbo driller. He reported that as he was climbing down a muck pile and slipped and fell, landing on his head and shoulder. He was wearing a helmet that rolled off his head while he was getting up. He also felt a kink in his neck. He was taken by ambulance to the local hospital.

The ambulance and hospital emergency reports indicate that the worker complained of a sore neck and sharp pain in his back. The worker was kept overnight. An X-ray and CT scan of his spine indicated that there was no fracture or dislocation. The worker returned to work for the following two days, but did not return to work on March 13, 2009.

The worker sought treatment from his physician on March 17, 2009. In the Doctor’s First Report it is noted that the worker complained of headaches from the time of the accident as well as some nausea in the mornings. The headaches were at the base of his neck radiating behind his eyes and around his head. The physician diagnosed the worker as suffering from “mild concussion and whiplash injury – tension headaches.” The worker was referred for physiotherapy and massage treatment and medication was prescribed. The physician noted that the worker was not capable of alternate or modified work and that he should remain off work until March 29, 2009.

A WCB adjudicator spoke to the worker on March 23, 2009. The worker explained that he almost did a complete flip when he slipped and fell down the muck pile and that he banged the right side of his head and shoulder and instantly felt a kink in his neck. The worker reported that his headaches started the next morning and gradually worsened, and that the headaches were preventing him from sleeping through the night.

The worker was assessed by a physiotherapist on March 24, 2009. The physiotherapist noted the worker’s complaints of headache in the eye and temporal region and top of his head. The therapist’s diagnosis was a cervical sprain/strain and noted that the worker was not capable of alternate or modified work and the date of return to regular duties was not known. Treatment was recommended for 2 to 3 weeks.

The worker contacted the WCB adjudicator on March 31, 2009 and advised that he had seen his physician for a follow up examination on March 27, 2009 and that he was continuing physiotherapy. The worker advised that his physician had provided a note that he should remain off work until April 18, 2009 and no modified duties were listed. The worker told the adjudicator that his headaches were not getting any better although his neck was improving. The WCB adjudicator contacted the physician’s office and confirmed that the worker was authorized to be off work until April 19, 2009 and that the worker had a follow up appointment on April 17, 2009.

By letter dated April 8, 2009, the WCB adjudicator notified the worker that his claim for compensation benefits was accepted with wage loss benefits commencing from March 13, 2009. The compensable diagnosis was “mild concussion and whiplash injury - tension headaches”.

The worker was seen by his physician on April 17, 2009. According to the Doctor’s Progress Report the worker advised that he still had headaches and trouble sleeping. He also reported blurred vision, slight nausea on and off and that the pain increases with physical activity. The doctor noted that the worker’s continuing diagnosis is “concussion” and that it was still unknown when he would be able to return to regular duties.

On April 23, 2009, the worker was treated by his physiotherapist and the progress report indicates that the worker continues to be disabled from work and is not capable of alternate or modified work. Complaints of headaches in the eyes and temporal and occipital region are noted.

On April 28, 2009, the WCB medical advisor and WCB adjudicator reviewed the file and contacted the worker’s physician. The worker’s physician was of the opinion that the worker would likely be able to return to some form of light duties; however, he requested that the WCB medical advisor examine and assess the worker first. The physician was away and unable to see the worker prior to June. An appointment was therefore scheduled for the worker to be examined by the WCB medical advisor on May 13, 2009.

The employer advised the WCB that they had asked the worker to have his physician complete a Functional Abilities Request for Modified Work Form. The employer indicated that they had not received the completed form notwithstanding that it had been provided to the worker on three occasions during the month of April. The employer expressed the view that the worker was deliberately not having the form completed so he could prolong his time off work. The employer indicated that they would like to have the worker return to work on modified duties. The employer also advised that they were going to appeal the acceptance of the claim for wage loss.

On May 7, 2009, the WCB adjudicator contacted the worker. The worker confirmed that he received emails from the employer but he was unable to print the attached forms. The worker advised that he had since received the form from the employer and he would provide it to the physician on May 13, 2009.

The worker was assessed by a WCB medical advisor on May 13, 2009. The examination notes indicate that the worker fell from the top of a 9 to 10 foot high muck pile all the way down to the bottom, head first. He was wearing a helmet but when he landed at the bottom, he lost his helmet and cannot remember whether he lost consciousness or not, although he remembers picking himself up after the fall. He was taken to the hospital emergency room, where he was alert but complained of a headache as well as tightness in his neck. The hospital physician cleared him for light duties and the worker returned to photocopying and office work. The worker advised that he experienced increasing headaches that interfered with his ability to perform his light duties and he returned to Winnipeg to see his physician for assessment. The worker continued to complain of ongoing headaches at the time of the examination starting at the base of his skull and radiating into the back of the eyes, top of the head, temples and down into his neck. He uses two medications to control the pain. His sleep is disturbed and he experienced some blurred vision which resolved on its own.

The WCB medical advisor was of the opinion that the worker suffered a neck strain and concussion as a consequence of the fall and that the remaining symptoms were primarily tension-type headaches. The neurological examination and the range of motion of the cervical spine were normal. However, given the ongoing nature of the headaches, an MRI of his head was ordered.

The medical advisor recommended that the worker resume light duties starting at four hours a day of office work that did not involve heavy lifting or vigorous activity and that the hours would gradually be increased to full time with ongoing monitoring of his headaches.

The file records showed that the WCB adjudicator contacted the employer on May 14, 2009 to obtain a return to work plan. The employer advised that the worker could be accommodated with modified duties commencing May 21, 2009. The worker returned to work on that date.

The worker was next seen by his physician on June 22, 2009. At that time, the worker continued to complain of daily headaches and insomnia. The physician noted that the worker was capable of modified duties and completed the Functional Abilities Request for Modified Work Form noting a gradual return to work with an expected date of return to regular duties of August 5, 2009. The completed form was provided to the employer.

On June 22, 2009, the employer appealed the acceptance of the claim to Review Office.

By decision dated July 23, 2009, the Review Office determined that the evidence clearly supported a determination that the worker had suffered a trauma to his head and neck during the course of employment and that the time loss claim was reasonable.

In a letter dated August 21, 2009, the employer advised that they intended to appeal Review Office’s decision for the following reasons:

“We feel that [the worker] was able to perform restricted duties as per the doctor’s report of March 12, 2009 (two days after the reported incident); however, he chose not to take part in the modified work program. The employee then went absent without leave while he was “doctor shopping” and finally had his family doctor take him off work April 17, 2009 (retroactive to March 10, 2009).

For more than a month, [the worker] refused to have a functional abilities form completed and refused to discuss any modified duties.”

The employer filed an appeal notice dated September 8, 2009 indicating that the Review Office decision should be overturned for the following reasons:

· The incident occurred March 10, 2009 and the employee continued working;

· Two days later the worker saw a health care professional who cleared him for modified work;

· On March 13, 2009 the worker went AWOL;

· On March 17, 2009 the worker saw his family doctor who took him off work;

· The employee was “doctor shopping”

A file review was held on April 13, 2010 to consider the matter. No additional submissions were provided by the employer or the worker.

Reasons

· The WCB medical examiner assessed the worker on May 13, 2009 and a gradual return to work in light duties was recommended for the first time. The WCB adjudicator contacted the employer the next day and the employer put a return to work plan in place commencing May 21, 2009. The evidence does not support the employer’s position that the worker was capable of modified duties but chose not to work during the period from March 13 to May 13, 2009 in light of the above medical opinions; and

· The fact that the worker did not provide the employer with a completed Functional Abilities Request for Modified Work Form did not delay the worker’s return to work as the worker was not assessed as being capable of modified duties until May 13, 2009. The employer was immediately advised by the WCB when the worker was considered able to return to work and the worker commenced employment as soon as the employer was able to provide modified duties.

The appeal of the employer is therefore denied.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 8th day of June, 2010