The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

In September 1998, the worker suffered a compensable injury to his back region in a work related accident. He has permanent compensable restrictions. In 2009, the worker returned to modified duties in a custodial position. He felt that the job duties were outside of his compensable restrictions.

An appeal was filed with the Review Office of the Workers Compensation Board ("WCB"). Review Office ultimately determined that the custodial position was within the worker's compensable restrictions and that he was not entitled to benefits after August 17, 2009.

The worker disagreed. An appeal was filed with the Appeal Commission through the worker's union representative. A hearing was held on October 27, 2010 to consider the two issues.

Issue

Whether or not the custodial duties were within the worker's compensation restrictions; and

Whether or not the worker is entitled to wage loss benefits effective August 17, 2009.

Decision

That the custodial duties were within the worker's compensation restrictions; and

That the worker is not entitled to wage loss benefits effective August 17, 2009.

Decision: Unanimous

Background

On September 8, 1998, the worker suffered a compensable disc herniation at the L5-S1 level in a work related accident. His claim for compensation was accepted and various types of benefits were paid on the claim. On September 27, 2007, it was determined by the WCB's Review Office that the worker was entitled to a 11% permanent partial impairment award in relation to his back condition. The file notes also show that the worker has the following permanent compensable restrictions:

· To avoid repetitive bending or twisting of the lumbosacral spine;

· To avoid repetitive heavy lifting over 30 pounds;

· To avoid occasional heavy lifting over 50 pounds;

· To avoid prolonged use of heavy machinery over uneven ground.

In December 2008, the worker was involved in a non-work related motor vehicle accident. In May 2009, the worker was cleared to resume alternate duties that were in keeping with his permanent restrictions.

On May 7, 2009, the worker began working at a custodial position with the accident employer.

On May 11, 2009, the worker advised the WCB that three quarters of the job duties in his new position were against his restrictions. In a further telephone conversation on May 13, 2009, the worker indicated that he had to mop the floor constantly, and that he worked alone and could not get help. The worker indicated that his doctor had told him that the job was beyond his restrictions.

E-mail correspondence from the employer dated May 13, 2009 stated:

"The Department has addressed [the worker's] concern and is in agreement the mopping of the whole facility would be outside of his restriction. We have directed [the worker] not to engage in mopping the facility and only focus on ensuring the bathrooms are tidy and stocked with paper and the facility is free from garbage. We have asked him to try do some window cleaning intermittently throughout his shift but to stop if he feels any pain. If there is a small spill or mess he is able to use the mop to sop up the water but he has been instructed to leave the mopping to the staff members on the other shifts. We have reminded [the worker] to share his concerns regarding his work tasks with his foreman directly and to stop performing a task that is causing him pain."

E-mail correspondence received from a coordinator with the accident employer dated May 27, 2009 stated:

"[The worker] has apparently submitted a medical form stating he is unable to sweep, mop and or wash windows. These tasks were assigned to him in the role of custodian…[the worker] was encouraged to work at his own pace and to not perform any one of these tasks for long periods of time. He was told to only spot mop meaning only if there was a spill or dirt to only mop the small area and if spills were too large he was to call for assistance. All of these duties can be inter changed with checking the washroom facilities for paper and cleanliness, sweeping the dust from the door ways and intermittently washing down the windows which are knee to above shoulder height. Based on this recent change to his restrictions we will have to place [the worker] back on WCB as we work to identify alternate duties…".

On May 29, 2009, the WCB case manager advised the employer "As long as the worker has the ability to pace himself and is not mopping/sweeping repetitively, the work duties assigned were within his restrictions."

A chiropractor progress report dated June 5, 2009 stated that the worker's back was much worse since returning to work in May. It stated that the worker was responding to chiropractic and physiotherapy work hardening programs. "His work has him doing tasks outside of his previous restrictions".

A doctor's progress report dated June 18, 2009 indicated that the worker was taking medication for his chronic back pain.

On June 22, 2009, the treating physician advised the WCB that not much had changed regarding the worker's back. He stated that the worker does complain of chronic abdominal pain and fatigue and a cause for this had not yet been identified.

On July 31, 2009, the worker spoke with a WCB case manager about a position that his employer was providing him with as of August 4, 2009. The worker was concerned that the job duties fell outside of his work restrictions. The duties involved cleaning/unplugging toilets which required him to bend over and twist. He would have to mop when the floors got dirty and wash windows. Some windows were above chest level and he had to climb ladders and change light bulbs. The case manager advised the worker that she would contact the employer and ask for clarification on what the job expectations were.

E-mail correspondence from the employer dated July 31, 2009 stated:

"…The following is a list of duties that fall within the custodial position [the worker] permanently owns. Operates hand or power operated cleaning equipment. Ensures the safety and sanitation of facilities. Cleans sinks and mirrors, cleans and disinfects toilets and urinals, etc. Cleans, vacuums, removes garbage from receptacles in public areas, offices general custodial duties, refilling paper dispensers, roll towels and maintain blow dryers. Maintains entrances and walkways to ensure safe public access. Travels within [place] or other sites as required. Carries out building security checks, as required and reports damage to the Foreman 1. Opens and closes facilities as required. Performs minor maintenance functions to equipment including monitoring equipment as required. Performs other duties consistent with the classification, as assigned. Required to work assigned shifts including evenings and weekends. To respond to the bathroom cleaning concerns. [The worker] has been encouraged not to bend and we will be providing a padded mat so that he is able to kneel instead of bending over to clean lower surfaces as well as an extended handle on the toilet scrubber so that he can stand fairly straight and reach into the toilet without bending as well as a longer handle straight push mop and broom to eliminate the twisting and bending required of a normal mop. To my knowledge and that of the foreman, we are unsure when [the worker] would be climbing ladders. The department has also not received "reaching over head" as a restriction…"

In an e-mail to the employer dated July 31, 2009, the WCB case manager stated that she told the worker that in her opinion, the duties did fall within his restrictions. She stated "He does not believe they do and advised me he will not be attending work Tuesday morning but will be seeing his physician. The main concern is the "mopping" that [the worker] says that is involved in the position."

In claim notes dated August 7, 2009, the case manager stated that she spoke with the treating physician and it was agreed that the worker was not totally disabled from working and agreed with his restrictions.

In e-mail correspondence dated August 14, 2009, the employer indicated that the worker was going home sick (3.5 hrs) from a re-occurrence of a previous back claim. The e-mail further stated "this comes just following an on site Occupational Therapy Assessment of the Utility II Custodial position and all work tasks associated. The Assessment confirms that all work tasks fall within [the worker's] medical restrictions."

On August 24, 2009, the worker left a voice message with the WCB case manager that his doctor placed him on workers compensation as his back flared up and he cannot do the duties as assigned.

On August 28, 2009, the case manager wrote a letter to the worker asking him to respond to six questions in relation to his recent back difficulties. On September 21, 2009, the worker responded to the case manager's letter.

In a decision dated September 30, 2009, the case manager stated she was unable to relate the worker's current time loss to the workplace injury. The case manager referred to the worker's submission dated September 21, 2009 when he stated that he noticed an increase in pain and spasm upon returning to work after clearance from his motor vehicle accident. She stated that based on a review of the worker's restrictions and job duties provided by the employer, she felt the job duties were within the worker's permanent restrictions.

The worker was examined by a WCB medical advisor on September 30, 2009 for PPI purposes. The medical advisor concluded that the worker had a permanent partial impairment of 12 percent.

In subsequent claim notes dated October 8, 2009, the WCB case manager noted that she discussed the file with the WCB medical advisor. It noted that there was no evidence of total disability at this time and that the previous restrictions would remain appropriate.

In a submission to Review Office dated October 29, 2009, a union representative appealed the case manager's decision of September 30, 2009. The union representative quoted the following excerpt from the worker's September 21, 2009 letter:

"The custodial duties I was performing at the time of the increase in my back pain were as follows; these duties occurred due to the fact that someone in the men's washroom shoved a full roll of toilet paper into the toilet and then proceeded to take a bowel movement afterwards. After having taken his bowel movement, he then flushed the toilet continuously until the entire bathroom floor was flooded and was coming out of the main floor and seating area. The duties that I had to perform by myself due to the fact that my coworker was already busy cleaning the north washrooms that was plugged as well were as follows: first I had to unplug the toilet with the plunger which took me approximately a half an hour to 45 minutes. Then I had to get a dust pan and bend down and scoop up all the feces and socking (sic) wet toilet paper from the floor and empty it into another toilet receptacle. I then had to get a mop and soak up the dirty water into a large mop pail. I had to continuously squeeze the mop semi dry and keep mopping it up and emptying it into the pail. It took approximately seven almost full pails to get the floor reasonably clean. Once each pail was full (weighting about 20 to 30 pounds if not more) I then had to drag the pail into the custodial service room and lift the pail around three feet into the air and dump the pail out. . .Since this made it unsanitary, I had to keep continuously mopping and emptying for several hours until the incident area was clean and sanitary for the public to use. As well as mopping and scooping up the mess, I had to get on my hands and knees and wipe the toilets, toilet stall walls and walls down as well, of the feces and toilet paper. The next day while I was out doing duties around the pavilion and parking lot, someone female filled one of the sinks in the female washroom with a pail of mud and dirt. They then turned on the taps and left them running when they left. This time I caught the mess before it exited the washroom. I then had to mop all the floors up as well as also having to use several pails of clean water to get the mud streaks off the floor too. The sinks and counters had to be cleaned as well. This also took several hours of hard continuous work. I also had to sweep and wash about 20 risers of steps going upstairs to the entrance,.."

"My direct foreman 1 at [employer] was [name]. Within two days of witnessing me attempting to do my duties at the pavilion, he commented that the position I was in appeared to be beyond my capabilities".

The union representative submitted that if a situation arose that required immediate attention, like the toilet incident described above, the worker would have no choice but to address the issue to the best of his ability. He felt that the duties of sanitation in a building for the general public was clearly outside of the worker's medical restrictions and on a balance of probabilities caused an aggravation to his compensable medical condition.

On January 4, 2010, the employer's representative responded to the union representative's submission to Review Office. He noted that the WCB determined that the custodial position, with the concessions noted in the e-mail of May 13, 2009, fell within those restrictions. The employer's view was that the primary issue was one of job dissatisfaction rather than the duties being outside of the worker's restrictions. He stated that neither the worker nor the union representative presented any factual evidence that would buttress their position that the duties involved in the custodial position, as modified, were outside of the worker's permanent restrictions. "In the absence of same, we believe the preponderance of evidence on file clearly supports not only the position being medically appropriate but also the Case Manager's decision of September 30, 2009. Under the circumstances we would respectively request that the Review Office confirm the board's current position."

In a decision dated January 28, 2010, Review Office determined that the custodial duties were within the worker's compensable restrictions and there was no entitlement to wage loss benefits effective August 17, 2009 due to either his compensable injury or due to a new injury. Review Office noted that the worker was required to constantly mop the floor upon his return to work in May 2009 and that the employer acknowledged that this was outside of the worker's restrictions. The employer instructed the worker to leave the mopping for other staff to complete on their shifts. The evidence also showed that the employer advised the worker to stop performing any tasks that were causing him pain and to alert his foreman immediately. Review Office noted that situations might unknowingly arise such as a plugged toilet and overflowed toilet or sink. The employer, however, had offered the worker some latitude in which "to leave the mopping for other staff."

Review Office stated that the medical evidence supported that the worker is capable of work within his physical restrictions and that this was supported by the opinions of the WCB medical advisor and the worker's doctor. It also felt there was no evidence to indicate that the worker's physical status had significantly declined requiring a change to his compensable restrictions.

On February 22, 2010, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

The Oral Hearing

The worker's representative contended that the worker's custodial duties were not within his compensable restrictions. He referred to:

· a Departmental document dated May 29, 2009 stating “when we received the medical following the modifications we made the decision that the work was likely not a good match”;

· a June 5, 2009 chiropractor's progress report suggesting the worker's back was much worse since returning to work;

· an e-mail from the acting WCB case manager dated July 31, 2009 suggesting that the work “may be outside of [the worker's] restrictions";

· a job demands analysis suggesting that the utility 2 custodian position required a significant amount of twisting and bending from the waist; and,

· an incident with a plugged toilet which required the worker to go beyond his restrictions.

The worker's representative suggested that:

· the modified position that the employer placed the worker in was not suitable for him to perform within his medical restrictions;

· the twisting and bending motions demanded from the job “are required to be done constantly throughout the shift and…require [the worker] to work beyond his restrictions of avoid repetitive bending or twisting of the lumbosacral spine”;

· the duties of the position that are required to be performed by the worker to ensure the safety and sanitation of the building for the general public are clearly outside of his medical restrictions and, on the balance of probability, caused an aggravation to his compensable medical condition.

The employer's representative took issue with the worker's contention. He argued that while the worker had a compensable back condition which warranted the imposition of certain physical restrictions, his custodial duties as modified were within those restrictions.

The employer's representative noted that the worker had the following compensable restrictions:

· to avoid repetitive bending or twisting of the lumbosacral spine;

· to avoid repetitive heavy lifting over 30 pounds;

· to avoid occasional heavy lifting over 50 pounds;

· to avoid prolonged use of heavy machinery over uneven ground.

He observed that while the worker's physician had provided the employer with a report suggesting a number of additional physical restrictions, the WCB had concluded that “there was no documentation to support the additional restrictions recommended by the attending physician.” He noted that the medical advisor who examined the worker on September 30, 2009 had confirmed the restrictions. In his submission,

"[the worker's] physical restrictions have been confirmed on at least two separate occasions and those restrictions allow him to safely perform the custodial duties as modified."

The employer's representative outlined the essential duties of the employment. He suggested they included:

· unlock and open the gates;

· open the washrooms;

· clean the bathrooms;

· replace supplies such as paper towels and toilet paper;

· sweep, wash, wax and vacuum floors; and,

· wash windows and mirrors.

In the submission of the employer's representative, the weights that the worker was required to lift including toilet paper and garbage were well within the restrictions identified. He suggested that the mopping duties were essentially spot mopping which did not involve frequent twisting back and forth. He underscored the argument that the work place duties were ones which the worker could conduct at his own pace.

The employer's representative emphasized that the job duty analysis on file was designed to reflect what a fully functional person would do. He pointed to a series of accommodations the employer had made to the worker's duties. The employer's representative noted that:

· when the employer recognized that the requirement to mop the entire facility was outside the worker's restrictions, it instructed the worker to simply mop up the odd spill or mess that might arise but leave the overall mopping to other staff on other shifts;

· while the worker was asked to perform window cleaning, the duties could be performed on an intermittent basis with the worker being asked to “cease if he experienced any pain”;

· the employer had advised the worker that he would be provided with a padded mat in order that he could kneel rather than bend to clean the bathroom;

· the worker was told that he would be provided with a toilet scrubber fitted with an extended handle in order that he could stand straight and reach the toilet without bending;

· arrangements were made with the worker to meet with two student occupational therapists on August 12, 2009 to review the job demands analysis with a view to making further modifications to his duties and the way he performed his duties; and

· the worker was advised that notwithstanding the modifications that had been made, should he experience discomfort while performing any of his tasks that he should cease that task immediately and notify his foreman.

The employer's representative suggested that the compensable injury did not lay at the roots of the worker's dissatisfaction with his custodial duties.

"If [the worker]…view[s] his previous placement as a failure, then we suggest it, more probable than not, is based on job dissatisfaction or issues unrelated to his compensable condition."

In response to the worker's suggestion that he had encountered serious discomfort cleaning up of a substantial mess related to a plugged toilet, the employer's representative challenged the veracity of the worker's claim. He also indicated that the type of clean up identified by the worker was beyond the job requirement of utility 2 custodial staff. He submitted that the worker was aware that:

"Building [s]ervices would be contacted and the site would be shut down for sanitary purposes while cleaning took place."

The former occupational therapy student who was called as a witness by the employer noted that other potential accommodations were discussed during the meeting of August 12, 2009. She indicated that:

"We were thinking maybe a back saver grip which you could add on to the handle of the mop to reduce the amount of bending from the waist, also long-handed…apparatus to wipe the windows and the mirrors."

The former student occupational therapist emphasized that there were a series of steps that could be tried to modify the worker's duties and the manner in which he conducted his duties. She emphasized that:

"What's nice about this position is that, you know, you can kind of work at your own pace…it wasn't like he'd have to do, you know, an hour straight of mopping. He could definitely break up that task, say even ten minutes."

In her view, “with the equipment that would be put in place, based on our recommendations, he could have done the job.”

The worker's evidence later in the hearing echoed to a certain extent the testimony of the former student occupational therapist. He testified that during the meeting of August 12, 2009, he was told that “if there's something you can't do, just leave it for the day crew.”

The worker concluded by noting his unhappiness with the fact that he was no longer assigned to equipment driving duties.

"Wait a minute. That's not right. I put in 30 years. I'm watching junior employees driving equipment that I know was within my restrictions, that I have done since my back was injured, and I did it good."

Reasons

• the alternate duties as subject to ongoing modification were appropriate and within the worker's existing restrictions;

• there was no change in the worker's medical condition to suggest that he was not capable of performing workplace duties within his compensable restrictions.

• by choosing not to show up for work on August 17, 2009 or on subsequent days, the worker refused appropriate alternate employment.

Conclusion

Given the evidence on file and presented in the hearing, the panel finds that on a balance of probabilities:

· the custodial duties were within the worker's compensable restrictions; and

· the worker is not entitled to wage loss benefits effective August 17, 2009 given his refusal to perform appropriate alternate work within the meaning of Board Policy 43.20.20.

Accordingly, the appeal is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 20th day of December, 2010