The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The worker is employed by a federal government agency or department and his claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

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.

The worker’s position:

The worker was self-represented at the hearing. The worker explained that before October 2004, he was healthy and active. He had suffered from back injuries prior to 2004, but recovered reasonably well from those injuries. In October 2004, he injured his back while working for the employer. From that point onwards, he had continuing difficulties with his back. Although his condition kept getting worse, he kept on working as much as he could. On November 27, 2009, he once again reinjured his back, "or should I say, re-injured the Pre-Existing Condition, or aggravated or maybe enhanced it."

The worker's position was that although he has undergone multiple types of treatment and medication, most will only give him relief for the short term. The pain in his back remains. The WCB and his employer have decided that he is well enough to go back to work and have made accommodations. Nevertheless, his back is still sore and injured and returning to work has only worsened his condition. It is impossible for him to sit, stand, walk, turn, twist, bend and reach in a repetitive fashion as the job requires without aggravating and enhancing his injuries. Over the years he has been forced back to work several times before his back has healed and this has only caused re-injury to his back. The worker stated that at no time did he ever refuse to do anything that the WCB wanted him to do. The only time he ever left the job was at his physician's orders. He submitted that this was backed up by his chiropractor and his pain specialist.

The worker stressed that this is no life for a person of his age and that if he could work, he would. The reality, however, is that the constant pain leaves him incapable of doing much of anything. He worked hard and tried to go back to work, but the graduated return to work program failed. Unless he had a table or something to lean on to remove the pressure from his back, he could not sit for any period of time. Further, although there were only minute amounts of reaching and twisting involved, the effect of this movement on the worker's back was major. As such, the worker submitted that he could not perform the modified duties of sorting mail which the employer offered to him.

The employer’s position:

The employer's workplace safety and health WCB specialist appeared at the hearing. The employer's position was that there were insufficient clinical findings to support that the worker was not capable of performing the modified sedentary duties for three hours per day. The accommodation allowed the worker to work at his own pace and gave him the opportunity to stretch and change position. It was submitted that the accommodation was well within the worker's functional limitations. There was no evidence to suggest that the accommodation would have worsened the worker's back due to turning, reaching, bending and pushing off with his feet. After the employer made modifications to the work station, there were minimal amounts of reaching and turning.

The employer submitted that, on the balance of probabilities, the worker's pre-existing degenerative spine rather than his November 27, 2009 work related injury was the more likely cause for the worker withdrawing from the suitable modified accommodation. The panel was asked to uphold the WCB's decision to end wage loss entitlement beyond October 5, 2011.

Analysis:

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond October 5, 2011. In order for the appeal to be successful, the panel must find that after October 5, 2011, the effects of the worker's compensable injury prevented him from returning to his pre-accident earning capacity of three hours per day. On a balance of probabilities, we are not able to make that finding.

In the panel's opinion, the worker was capable of working for three hours per day at the accommodated duties offered by the employer. His compensable restrictions were light level lifting (up to 10 pounds) and sedentary duties due to low walking/standing tolerance. Significant modification of the work station was made to accommodate the restrictions by re-engineering the sortation case and provision of an ergonomic, adjustable chair. The accommodation was reviewed by the WCB rehabilitation specialist who determined that the job was very sedentary in nature and that the lifting was well within the worker's restrictions. It was noted that there were minute movements at the low back for flexion, extension (back to neutral) and slight lateral rotation.

At the hearing, the worker's position was that he could not sit for any length of time unless he had the ability to lean forward and that the minute amounts of lateral rotation had major effects on his back. The worker felt that he was incapable of performing any work. The panel does not accept that the worker is totally disabled and we find that the accommodated duties could be performed within his restrictions. The job was self-paced and there was ample opportunity for the worker to change positions as needed. In fact, the worker was encouraged to stand and stretch every 20 minutes. The worker claimed to be unable to sit for extended periods of time unless he had something to lean on, but this was not consistently demonstrated at the hearing. While he did regularly lean on the table and arm rests, there were many periods of time during the three and one half hour hearing when he did not do so. The worker also indicated the ability to drive on the highway for up to two hours at a time. The panel feels that this functionality suggests a sitting tolerance which would allow the worker to perform the accommodated duties for three hours. We also do not accept that the minute amounts of lateral rotation would prevent the worker from performing the duties. The worker was given specific instruction on how to avoid or limit the reaching and twisting movements to avoid further stress to his low back.

The panel acknowledges that given his long history of back difficulties, the worker may be concerned about the chance of re-injury to his back. The medical evidence, however, does not support a functional inability to perform the accommodated duties. While it is accepted that the worker has ongoing low back pain, the findings do not support that the worker is totally disabled. Following the hearing, the panel obtained updated medical information regarding the status of the worker's back condition. On September 25, 2012, the worker was examined by the WCB physical medicine consultant. The physical medicine consultant concluded that on a balance of probabilities, the worker's current presentation was not completely medically accounted for in relation to the compensable injury and could not be objectively accounted for either. There was no objective manner to confirm the persisting subjective symptoms of aggravation of low back pain. Nevertheless, the consultant recommended that the current restrictions be maintained for a six month period, followed by review, as they would be preventative in view of the number of prior work injuries to the back. The consultant did not support total disability.