The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(2) of the Act, wage loss benefits are paid to a worker when a compensable injury results in a loss of earning capacity. Subsection 27(20) of the Act provides for vocational rehabilitation assistance which may be available to a worker. WCB Policy 43.00 provides that the goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests.

In returning a worker to sustainable employment, the WCB follows a hierarchy of objectives. There are seven steps in this hierarchy, the first three deal with returning to work with the same employer, steps 4 & 5 deal with returning to work with a different employer and step six involves retraining and re-education. The seventh step relates to self employment.

Worker's Position

The worker attended the hearing with his spouse. The worker made a presentation and answered questions posed by the panel.

Regarding the suitability of the job offered by the employer, the worker said he did not accept the job offer because it did not comply with his medical restrictions. He said that his doctors are concerned there is too much driving with this position. He said that the offer states that 75% of a 10 hour day will be dealing with driving. He noted that the trip to and from work takes one hour each way, giving him a total of 9.5 hours of driving each day. He said the job is not appropriate because he would have to work in the wash bay, and that he was to avoid bending, twisting, and turning. He said his doctors do not agree that it is a suitable position.

Regarding his entitlement to vocational rehabilitation services, he advised that while he was off work he obtained his grade 12 and signed up for an occupational health and safety course. He said this course was his best option for getting back to the earnings he had as a driver. He said that ultimately he could not take the course because he could not afford to put himself through school. He also advised that it was more cost effective than other alternatives.

In answer to a question, the worker advised that he did not try the maintenance assistant position. He advised that his knowledge of the position is from the file report.

The worker was asked why his initial concern about the job was the hours of work and not his ability to perform that job. The worker explained that he had been on the road for 16 years and 12 of these were with this employer. He said that for the last six years, he had been home every weekend. So he asked the employer to be flexible on the weekend hours, but the employer refused. The worker advised that "…if he had been flexible with the hours…it's quite possible I may have tried the position out."

He advised that he provided his orthopedic surgeon a copy of the job description and a copy of the occupational therapist's report. The orthopedic surgeon agreed to review the information and sent a note.

Regarding his current condition, the worker said that "My back problem radiates from my lower back down into my legs, into behind my knees. My legs can fall asleep, and it's just constant pain."

The worker advised that he has not worked since his benefits were reduced but is looking for employment. He described the type of jobs that he has applied for.

The worker confirmed that he is in receipt of half benefits from the WCB. The worker acknowledged that he was told by the case manager that he would lose half his benefits if he refused the job offer. He advised that he did not think he could return to work with the employer.

In closing the worker asked that the panel take into consideration his doctor's opinions. He noted that his doctors know him, have all his history and their opinion is that he should not drive. He said that "And in their determination I should not be driving a vehicle unless it's just your average day of going to work and coming home from work. That's the extent of the driving I should be doing in their opinion."

Employer's Position

The employer was represented by an advocate who made a presentation on behalf of the employer. The Director of Safety and Driver Development and the Health and Safety Officer also attended and answered questions posed by the panel.

The representative advised that with regard to the first issue, the employer concurs with the case management and Review Office decisions that full wage loss benefits are not payable to the worker after May 28, 2010, as the evidence confirms that the job offer was within the worker’s work restrictions.

The representative noted that permanent restrictions were imposed on the worker's work activities including avoid prolonged sitting or standing in excess of two hours unless there is opportunity to change, avoid repetitive flexion extension and twisting of the spine. He noted that in May 2010 lifting restrictions of no more than 50 pounds occasionally or 30 pounds frequently, and no repetitive bending and twisting of the spine when lifting were outlined by an orthopaedic consultant.

The representative advised that in recognition of the restrictions, the employer offered the position of maintenance assistant. He noted that the WCB rehabilitation specialist completed a worksite assessment and confirmed that the duties were within the worker's restrictions. He noted that worker refused the offer "due to the fact these hours will cause undue stress for a regular family life" and that the employer refused to be flexible on the hours.

He noted that the worker supplied a letter from a physician dated January 2011, which recommends the job should not involve movement of the back. The employer believes this restriction is not reasonable.

With respect to the second issue, the representative advised that considering all the evidence from the vocational rehabilitation specialists and Policies 43.20.25 and 43.00, the employer agrees with the prior decisions, that the maintenance assistant position offered was suitable, appropriate and consistent with WCB policy and the worker is not entitled to rehabilitation services.

The representative noted that the vocational rehabilitation manager reviewed the job offer and concluded that it was relatively cost effective, carried less risk than re-training and was consistent with the WCB policy objective of the hierarchy of objectives.

The Director of Safety and Driver Development was asked to describe the position that had been offered to the worker. He provided a detailed description of the duties. He said the job involved short run pick-up and delivery of parts from suppliers to the employer's facility. It also involved moving trucks in and out of the facility so the mechanics can work on them, yard checks which involves physically checking what trailers were in the yard, and moving equipment for the wash bay attendants.

Analysis

There were two issues before the panel. The first issue was whether the worker is entitled to full wage loss benefits after May 28, 2010. For the worker's appeal to be successful on this issue, the panel must find that the position offered by the employer was not appropriate or, in other words, it was reasonable for the worker to refuse to accept the offered position.

The panel was not able to make this finding. The panel finds that the worker refused a reasonable offer of employment from the employer. The position offered was consistent with the worker's medical restrictions, supported by a work site assessment and was adjusted by the employer to meet the concerns that arose from this assessment. The panel finds that the worker is not entitled to full wage loss benefits after May 28, 2010.

The worker initially refused the job offer because it involved weekend work, the hours were not flexible and would interfere with his family life. The panel finds that the worker's initial reasons for refusing the position are not reasonable.

The worker's position at the hearing was that the job was not within his medical restrictions. He said that his doctors have said no driving. He relied upon the opinion of his family doctor and his orthopedic surgeon. The worker advised that his knowledge of the job was limited to the information provided by the employer and that he did not attempt to perform the job.

In contrast, the panel finds that the worker's restrictions are as noted by the WCB's orthopedic consultant in his memos of March 25, 2010 and May 21, 2010, specifically:

• prolonged sitting and standing postures should be avoided as a measure to prevent further injury and is thus a restriction related to the CI (compensable injury). In particular, sitting in a poorly sprung driver's seat of a moving vehicle on bumpy roads is best avoided.
• avoidance of maintaining a sitting or standing posture in excess of two hours is to be advised, unless there is the opportunity to change position, as a condition related to the CI.
• repetitive flexion/extension and twisting of the spine should be avoided. e.g. such activities as snow shoveling, or loading and unloading multiple heavy packages.
• no lifting more than 50 lbs (occasional) or 30 lbs (frequent).
• no repetitive bending and twisting of the spine when lifting.

In a letter dated January 27, 2011, the worker's family physician identified restrictions as:

• not able to drive trucks inside or outside the city.
• not able to work on any other job which involved movements of the lower back, for example, snow shoveling.

The family physician concluded that the maintenance assistant position was outside the worker's restrictions as it would involve movement of the lower back. Based on our review of the medical information on the file, the panel accepts the opinion of the WCB orthopedic consultant regarding the worker's restriction. We also accept the opinion of the WCB rehabilitation specialist on the suitability of the maintenance assistant position for the worker as more relevant and more accurate based on a worksite visit.

The worker's orthopedic surgeon provided an opinion on April 5, 2011 which stated that "you need a lighter job to be able to continue working - not the truck driving". The panel notes, however, that the orthopedic surgeon did not specifically comment on the maintenance assistant position but rather the type of job that the worker had been doing prior to the accident. In a report dated June 2, 2009, the orthopedic surgeon comments that "it appears that he injured his lumbosacral disc at work in July of 2008 and is now left with poor shock absorption." The panel has considered the orthopedic surgeon's opinions and finds that they do not restrict the worker from performing the duties of the maintenance assistant position listed in the job offer.

There was some discussion at the hearing regarding the amount of driving required in this position. The panel finds that it is apparent from the evidence on file and provided at the hearing that the maintenance assistant position is not a "truck driving job." The file information shows that the employer estimated that approximately 75% of the job will involve moving trucks in the yard. The panel does not consider this estimate to be accurate given the evidence provided at the hearing, and in any case finds that it does not equate to 75% of the time is driving. While the job involves moving large trucks within the yard and driving to pick-up parts, it does not involve driving a truck for long time periods or long distances. The driving time referenced also includes significant periods of time walking to and from the trucks in the yard as well as time out of the trucks while doing pickup and delivery jobs. The duties are varied and random. The panel finds that the job is consistent with the restrictions that have been placed on the worker's work activities.

The worker's appeal on the first issue is dismissed.

The second issue to be considered by the panel is whether the worker is entitled to vocational rehabilitation benefits and services. The panel notes that provision of vocational rehabilitation services and benefits is discretionary and is subject to the Vocational Rehabilitation Policy.