The Appeal CommissionThe Workers Compensation Act of Manitoba

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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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.

WCB Policy 43.20.25, Return to work with the Accident Employer (the “Policy”) outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy describes suitable modified or alternate work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

In order to determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

Employer’s Position

Two representatives from the employer appeared at the hearing. The employer's position was that they did not dispute the claim itself, but they were opposed to the payment of wage loss benefits. The employer only became aware that there was a claim for work-related wage loss on September 9, 2011, when the worker left a message on the call-in line. Prior to that, the employer did not know that the claim was work-related, so they were unable to offer an accommodation during that time. The time had previously been reported to them as sick time.

On September 9 when the employer became aware that the injury was being reported as work related, they provided the worker with a written offer of modified work to take to his medical practitioner. In this case, the worker took the list to his chiropractor. On the form, the chiropractor circled the duties he felt were appropriate, but then listed that the worker could not start these duties until September 16 and was to be off work completely in the meantime.

The employer's concerns were:

• The offer included some sedentary-natured duties which the employer felt the worker could have performed despite his injury;
• The WCB medical advisor's note of September 27, 2011 agreed that the worker was likely capable of working within restrictions; and
• Most importantly, the employer received information that during this period of time, the worker had been attending university classes.

The employer submitted that if the worker could participate in university classes, then he could have participated in the "office related" modified duties which were offered to him. The employer also stated that the fact that the worker did not report his injury until a week later negated the employer a chance to offer the worker modified duties prior to September 9. The employer felt quite strongly that a person who suffers from back pain will not improve their situation by staying home and doing nothing, and therefore the offer of modified duties was made on September 9, as soon as they were notified of the injury. The offer was ultimately refused by the worker, and the employer submitted that wage loss benefits ought not to have been paid.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity resulting from the accident. On a balance of probabilities, we find that while the worker did suffer a loss of earning capacity on account of his compensable injury, by September 16, 2011 he was capable of performing the modified duties offered by the employer for three hours per day. Accordingly, the worker is entitled to full wage loss benefits up to and including September 15, 2011, and only partial wage loss benefits from September 16, 2011 to October 3, 2011.

One of the major concerns raised by the employer was the information it received regarding the worker's attendance at university classes commencing in September 2011. Unfortunately, the worker did not attend the hearing and the panel therefore did not have the benefit of the worker's evidence in this regard. At the hearing, the employer described the sedentary duties as inserting loose leaf updates into binders. This would be performed at a boardroom table and the worker would have ample opportunity to change positions and get up and stretch as required.

The panel felt that the proposition raised at the hearing regarding the potential similarity between the ability to attend university and the modified work offered by the employer required further investigation. Accordingly, after the hearing, the panel requested the WCB to contact the worker and to obtain more information regarding his attendance at university classes. On July 26, 2012, the worker was interviewed and provided the following information:

• He registered for two university courses during the summer of 2011.
• One course was on Wednesdays from 8:30 am to 11:25 am.
• The second course was on Thursdays from 2:30 pm to 5:25 pm.
• The classes started on September 8, 2011 and continued until early December.
• The worker only missed one class in each course, due to the flu. Other than that, his attendance was flawless.
• He did not spend much time studying at the library.
• He was a good student and did well in his courses, achieving a 3.83 GPA that session.
• When he did perform modified duties for the employer, he found it very uncomfortable because the seat was uncomfortable, he had to get up and run around a bit, and he was doing the duties for six hours straight.
• The worker stated that he was willing to suffer to attend university as this was his future. As for work, if he did not have money, he did not care. "I'm not going to suffer for money."

On the WCB file, there is a letter (undated) written by the worker in approximately December 2011 to appeal the adjudicator's initial decision to deny wage loss benefits. In it, the worker describes his condition in September as follows:

• "I awoke around 11:00 am on September 2^nd with tremendous pain in the upper chest and back area, and experienced difficulty breathing."
• "For the next 2 days, I almost entirely stayed in bed."
• "During the first week, I phoned in sick for all of my shifts at (employer). For that first week, I was in far too much pain to do even the simplest task; there was no way I could work."
• "Of note, to deal with my back pain, I would sleep approximately 10 hours a day. I could not stay awake for more than 7 hours at time (sic) without strong fatigue."
• "Since my injury, I have been extremely bored with very little to do, and have suffered from depression and feeling of helplessness as a result of my inability to complete even simple household tasks."

The panel's deliberations were influenced by the significant discrepancy between the worker's description of his condition in September, and his actual ability to attend university courses. Attending university would have involved not only sitting in a classroom for three hours with only one 20 minute break, but also travelling to the university campus and physically getting to the classroom. The discrepancy causes us to question whether there was any willingness on the part of the worker to participate in the employer's modified duties program. It is also notable that in a physiotherapy report dated October 20, 2011, the worker was reported as saying he was feeling 90% better with localized pain to the left shoulder blade but otherwise doing well. The report also states that the worker was to start a different job on Friday, October 21 with no restrictions and full duties.

The attending chiropractor's first report based on his examination of September 2, 2011 opined that the worker was totally disabled and incapable of alternate or modified work. He wrote that the worker could perform "modified in 7-10 days." On September 9, 2011, the chiropractor completed a functional abilities form which approved certain specified light and sedentary duties, with a start date of September 16, 2011. We know that on September 16, 2011, the worker returned to work at modified duties, but experienced a flare-up of his symptoms after working for five hours. As outlined earlier, the worker was later reported by an attending physiotherapist to be capable of a full return to work with no restrictions by October 21, 2011.

The September 27, 2011 opinion of the WCB medical advisor was that from the date of the accident on September 2, the worker was likely capable of working with restrictions of having the opportunity to change positions from sitting to standing on an as needed basis, avoidance of more than occasional forward flexion of the spine and any loaded twisting of the spine, and lifting restrictions from floor to waist of no greater than 10 pounds.

After considering all of the foregoing, it is the panel’s opinion that, despite the chiropractor's continued support of total disability, the worker would have been able to perform the modified duties offered by the employer for three hours per day, commencing September 16, 2011. We feel that the worker's demonstrated ability to attend university courses supports this finding. It is also notable that by the end of October 2011, the worker was determined by the physiotherapist to be capable of a full return to work with no restrictions. In view of this, we feel that the worker's condition would have settled enough by September 16 to allow him to work a shift of at least three hours of sedentary duties by that date. The WCB medical advisor's opinion was that the worker could perform modified work from the date of the accident, but given the nature of the injury and his failed attempt to return to a full shift of modified duties on September 16, 2011, we feel it is reasonable to set the worker's return to modified duties on a three hour basis effective two weeks post-accident.

It is therefore the panel's decision that the worker is entitled to full wage loss benefits from September 3, 2011 to September 15, 2011, and thereafter his entitlement is limited to partial wage loss benefits based on an earning capacity of three hours per day. The WCB Rehabilitation and Compensation Service's determination that no wage loss benefits are payable following the worker's October 4, 2011 resignation has not been appealed, therefore partial wage loss benefits are payable only to October 3, 2011.