The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This is an employer appeal. The appeal deals with the worker's entitlement to wage loss and medical aid benefits in relation to his August 6, 2011 compensable injury. 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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Employer's Position

The employer was represented by its Compensation Coordinator who provided a written and verbal submission. The employer representative answered questions posed by the panel. The employer representative noted that the employer disagreed with the Review Office decision which found that the worker was entitled to wage loss benefits.

The representative noted that at the time of the incident the worker was being provided modified work due to a non-compensable condition. There were two duties: clearance work which the worker accepted and painting which the worker refused. The representative noted that painting duties had been reviewed by the employer's occupational health branch and were cleared for the worker to undertake. On August 6, 2011 the only available work was painting. The worker agreed to perform these duties. The representative noted that the worker had been instructed to obtain a stool for use in painting but instead asked for a lunchroom chair. The worker reported that he was injured performing the duties.

The representative noted that the worker had refused painting duties on 10 separate occasions between May 1 to August 1, 2011. He said that the worker told a department representative that he was uninterested in performing these duties as they had been assigned to him as a student.

The employer representative noted that the worker did not seek medical attention for the August 6, 2011 incident until 9 days later on August 15, 2011.

The employer representative indicated that the employer agrees with the WCB adjudicator's decision that the worker had symptoms related to his back prior to the injury and that it cannot be determined that the worker sustained a total loss of earning capacity as a result of his August injury.

The employer representative submitted that the Review Office erred by not recognizing the fact that the restrictions which, presumably, negated painting duties are the same restrictions that existed prior to the incident. He noted these restrictions had been in place since February 17, 2011 due to a non-compensable fall in January 2011. He also noted that the exact pattern that existed before the incident continued after the incident. He said the worker refused to perform the painting duties before the incident because he was uninterested in performing the duties and refused them thereafter as they were outside the restrictions that were established for a non-compensable injury to his back.

The representative noted that Review Office relied upon a DVD which depicted the duties involved in painting. He said the DVD does demonstrate the work required to paint but that the person in the DVD had an injured arm and painted in a stooped position. He referred to this evidence as "misleading DVD evidence."

The representative noted that the worker presented himself for work the morning after the incident and left the premises only when advised that the only light work available was the painting duties.

The employer representative concluded that "…regardless of whether you believe that an accident occurred on August 6 or not, the fact is, in our opinion, indisputable that the prevailing restrictions are those that were well established prior to the August 6, 2011 injury and that [the worker's] post August 6 work pattern was identical to that demonstrated prior to August 6, 2011."

He submitted that the evidence fails to establish wage loss or medical aid entitlement beyond August 6, 2011.

Worker's Position

The worker was represented by a union representative who provided a written and verbal submission. The worker and his representative answered questions posed by the panel.

The worker's representative stated that the worker was performing modified duties painting when he sustained an injury to his back which further aggravated a pre-existing non-compensable injury. The worker reported the injury to the employer on the day it occurred.

The worker representative advised that between May 2, 2011 and August 6, 2011 the employer had two different duties to accommodate the worker's medical restrictions depending on availability. On 37 days the worker performed underground clearance duties. He took sick leave on 4 days and vacation on 8 days when painting was offered. On August 6 he performed painting and was injured. On August 8 he was offered underground clearance duties. After August 8, he was only offered painting duties which he refused.

The worker representative noted that on August 15, 2011 the worker's physician reported that the worker exacerbated his back condition while painting. On August 24, 2011 the treating physician authorized a return to work but restricted to no painting. He also noted that the employer's occupational health physician saw the worker on August 24, 2011 and determined that painting was outside the worker's restrictions.

According to the worker representative, after the August 6, 2011 injury, except for August 8, 2011, the only duties offered by the employer were painting which were determined to be outside the worker's restrictions. In summary, he submitted that the worker sustained a loss of earning as a result of his compensable injury as the employer did not offer work, after the date of the injury, that was within the worker's medical restrictions.

Analysis

The issue before the panel was whether or not the worker is entitled to wage loss and medical aid benefits in relation to his August 6, 2011 compensable injury. For the employer's appeal to be successful, the panel must find that the worker did not suffer a loss of earning capacity or require medical services as a result of his compensable injury.

The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker did suffer a loss of earning capacity and required medical services as a result of the injury and is therefore entitled to wage loss and medical aid benefits in relation to his August 6, 2011 compensable injury. Specifically we find the worker is entitled to benefits until August 25, 2011, the date that he was cleared to return to work by his physician.

We find that the worker was injured performing the duties. We also find that the worker sustained a wage loss and required medical services. We rely on our assessment of the duties, the worker's description of his symptoms and the medical reports noted in these reasons.

This was a difficult case due to the worker's pre-existing condition and the early suggestions that the worker disliked the assigned duties. However, it is clear that the worker performed the duties on August 6, 2011, was injured and the claim was accepted. We note that the employer agreed that the claim was acceptable.

The crux of the issue is whether the worker was injured to the extent that he suffered a loss of wages and required medical services and more particularly, whether the worker's refusal to perform the painting jobs was reasonable, i.e. the job was outside his compensable restrictions. The employer representative submitted that the worker's symptoms, restrictions and pattern of refusing the painting duties was the same after the injury as it was before the injury. He said there was no difference in the worker's condition hence it cannot be said that the worker suffered wage loss as a result of the injury. He attributed the worker's time loss after the injury to the worker's pre-existing condition and the worker's dislike for the painting duties.

We have considered the painting duties, viewed the DVD supplied by the employer and obtained information from the worker about how he performed the duties. We find that the duties require significant bending and twisting. We believe it is likely that a worker with a disc protrusion, which required restrictions of no bending and twisting, could experience pain and a resulting strain by performing the duties over an eleven hour shift. We also note the worker is 6'3" in height and was provided with a "lunchroom chair" so that he could sit and paint. In our view the chair did not reduce the amount of bending and twisting nor would a stool. The worker would have been stretching forward and down to the ground level from chair height to paint the full object. We are satisfied that the DVD, which includes two workers demonstrating the duties, is a fair representation of the duties.