Decision #12/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that he did not have a loss of earning capacity in relation to his compensable injury of June 22, 2012. A hearing was held on January 16, 2013 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits.Decision
That the worker is entitled to wage loss benefits for June 23 and June 24, 2012.Decision: Unanimous
Background
The Employer's Incident Report dated June 25, 2012 indicated that the worker injured his lower back on June 22, 2012 from the following incident:
"The employee states that while he was rolling backwards in a chair the wheel hooked a piece of the floor and caused him to fall backwards."
A doctor's first report dated June 22, 2012 confirmed that the worker fell off a rolling chair at work. The diagnosis rendered was low back pain. The treating physician also reported that the worker was capable of alternate or modified duties that did not require lifting over 20 lbs. and no bending or twisting for a two week period.
On June 28, 2012, the worker advised a WCB adjudicator that he left work at 3:00 p.m. on the day of accident to seek medical attention and he was told that he could do light duties. The worker noted that modified duties had to be worked out with the manager and that the manager was away until Monday. The worker noted that he had an appointment with his family physician as he felt that he could return to work as he was feeling much better. The worker advised the adjudicator that he had no pain in his lower back prior to the start of his shift.
In a further telephone conversation with the adjudicator on June 28, 2012, the worker indicated that he left the medical appointment around 6:30 p.m. on the date of accident and by that time, everybody would have left to go home and the superintendent was not in until Monday. The worker reported that he was scheduled to work on June 23 and June 24; that June 25 and 26 were his regular days off and he was scheduled for vacation on June 27 and 28. The worker indicated that he was going to mention to his employer on Monday about the restrictions, but he was already feeling good and he knew he had regular days off and vacation and felt that he would be good to go after that. The worker indicated that he was not given a capability form and he was not fully aware of the procedure.
E-mail correspondence from the employer dated June 28, 2012 stated:
"… our scheduler just heard from [worker] and has a medical note having him off till June 25 followed by 2 weeks of light duties but he indicated he was feeling fine and was seeing the doctor today requesting to return to full duties. [The worker] acknowledged he was on annual leave today. He will let us know the outcome of his appointment."
Information submitted by the employer's WCB coordinator dated July 5, 2012 was that the employer would have been able to accommodate the worker for his shifts on June 23 and June 24. She stated that the protocol for situations where people are injured late in the day were to contact the shift operations manager to let them know what their restrictions are and the shift operations manager would then know how to accommodate. There was always a senior manager available on call who could be contacted if they were unsure of accommodation issues/placements/restrictions. The WCB coordinator indicated that the worker was trained in other duties and could have worked on June 23 and June 24, 2012 with the noted restrictions.
On July 9, 2012, the superintendent advised the WCB that the worker was familiar with the employer's ability to accommodate with modified duties. He said a shift manager was always on duty and available to address return to work arrangements. The employer would have been able to accommodate the worker within the restrictions identified on file.
On July 9, 2012, the WCB adjudicator provided the worker with the information that was given to her by the superintendent on July 9, 2012. The worker indicated to the adjudicator that he did not know the process. The worker confirmed that a shift manager would be on duty but when he was acting supervisor, direction needed to come directly from the superintendent if restrictions/modified duties were identified. Worker noted that he had never been on modified duties in the past.
The adjudicator again spoke with the superintendent on July 9, 2012. The superintendent noted that the worker called on June 22 at 7:05 p.m. and booked off the remainder of the weekend. If the worker would have told the shift operations manager he was cleared for modified duties, then arrangements would have been made for him to return to work.
On July 9, 2012, the worker indicated that he spoke with the shift manager after he sought medical attention on June 22. The worker indicated that the shift manager asked him if he put in a WCB claim and he told him that his doctor was filling out the paperwork. Worker indicated that the shift manager said he would mark him as "WCB" on Saturday and Sunday.
The adjudicator spoke with the shift manager on July 9, 2012. The shift manager recalled that the worker called in after seeking medical attention on June 22 saying that he just saw the doctor and would be off on WCB for the weekend. The shift manager could not confirm whether the worker mentioned that he had restrictions but, looking back at the notes, the worker booked off WCB for the weekend.
On July 11, 2012, the worker advised the adjudicator that he was not provided with any documentation from his doctor as to what his restrictions were. The doctor gave him the impression that he was to seek out additional medical (massage and/or physiotherapy). The worker noted that he was in a lot of pain while being assessed by the doctor and he needed to be helped off the examination table. He assumed that the doctor would send something to the WCB and the WCB would then speak to his employer and a return to work would be set up. The worker thought that that the doctor outlined restrictions but he could not recall what they were.
In a decision dated July 11, 2012, the worker was advised that his compensation claim was accepted for his low back difficulties as an accident arising out of and in the course of his employment but, that he was not entitled to wage loss benefits. The adjudicator referred to the information that she obtained from the superintendent and shift manager. The adjudicator concluded that the worker was capable of returning to work at his next scheduled shift on June 23, given that modified duties were available and that his physician provided information that he was capable of performing modified duties.
On July 30, 2012, the worker appealed the July 11, 2012 decision to Review Office. On September 2, 2012, the worker provided Review Office with a further submission for consideration.
On September 27, 2012, Review Office determined that there was no entitlement to wage loss benefits. Review Office stated that the evidence supported that the employer was not made aware by the worker that he had restrictions outlined by his doctor. This finding was based on the information obtained from the superintendent and the shift operations manager on July 9, 2012. Review Office accepted the information provided by the worker to the WCB on June 28, 2012 over the information that he outlined in his July 30, 2012 appeal letter. Review Office noted that the worker spoke to the shift operations manager on June 22, 2012 and he did not mention clearance to perform light duties or restrictions. It was not until June 28, 2012 that the employer was informed by the worker that he was cleared to return to light duties for two weeks. Review Office stated that it did not find the evidence to support the worker's loss of earning capacity after June 22, 2012 was related to the compensable injury. On October 22, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
The WCB accepted the worker's claim arising from his 2012 workplace injury but denied entitlement to wage loss benefits. The panel must determine whether the worker was capable of working full time and if not, whether he is entitled to wage loss benefits for the period that he was away from work. 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.
Worker's Position
The worker attended the hearing and explained his reasons for appealing the decision. He answered questions posed by the panel.
The worker provided a detailed account of his activities from the time of injury on June 22, 2012 until he returned to work. He advised that he was injured at approximately 10:00 AM on June 22, 2012. He promptly reported the injury to the employer and completed the required paperwork. The worker continued to work until about 2:00 PM when he felt that he could not function any longer. He said the pain had worsened and he could not concentrate on his duties. The employer arranged for a replacement and the worker left at approximately 2:30 PM.
The worker said that he attended at a walk-in clinic and saw a physician at about 6:00 PM on June 22, 2012. The worker said that the physician examined him. He said that he required assistance from the physician to get up from the examining table. She diagnosed acute muscle strain in the low back. She did not feel x-rays were needed. The physician told him that he should get physiotherapy and massage therapy. She advised that because it was a weekend he would have difficulty obtaining physiotherapy but may obtain massage therapy. She prescribed medications and told him to ice his back. She said she would recommend modified or restricted duties.
In answer to questions from the panel, the worker said that the physician did not advise him that he could return to work or that he was fit for any type of work. She only told him he would require restrictions and that she would advise the WCB.
The worker advised that after the medical appointment on June 22, 2012, he called the employer, spoke to the duty officer and advised that he would be off work on WCB for the weekend. He said he did not know he was cleared for light duties at this time as the walk-in clinic physician did not tell him that he could return to work.
The worker advised that over the next two days his back was very painful and he spent much of the time laying down. He said he could not have worked on these dates. He would like to be compensated for these two days, as he was injured and could not return to work.
The worker explained that he was working in a high security position, with two other employees. The three employees work 12 hour shifts and alternate duties throughout the day. One of the three positions is not a light duty position.
The worker stated that he did not feel he could have performed the job on June 23 and 24. He said that the position requires significant bending, twisting and stretching and that it would not have been appropriate for him given his condition.
Employer's Position
The employer was represented by the WCB Coordinator. She advised that the employer supports the WCB decision. The coordinator said that the employer would have been able to accommodate the worker on June 23 and 24 based upon the restrictions set out in the walk-in clinic physician's report which was received at the WCB on June 25, 2012.
The employer representative said that had the worker advised the duty officer on June 22, 2012 about the restrictions, the employer would have been able to accommodate the worker on June 23 and 24.
The employer representative said the worker would have been accommodated in the job he was performing at the time of the injury. She confirmed that the job in the secure area is considered light duty employment.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits after his June 22, 2012 workplace injury. For the worker's appeal to be successful, the panel must find that the worker was unable to work on the days after the workplace injury, specifically June 23 and June 24, 2012.
The panel finds the worker to be a very credible witness who answered the questions posed by the panel candidly and directly. The worker indicated that he has pursued the appeal on principle, as he feels the decision is wrong and unfair. The panel finds that the worker was unable to work on June 23 and June 24, 2012 as a result of his workplace injury.
The panel notes that the worker sustained a back injury on June 22, 2012. The panel accepts the worker's evidence that his back remained painful on June 23 and 24, 2012 and that he could not work these dates. Regarding the light duty job that the worker would return to, the panel finds that it involves significant stretching, bending and twisting. The panel accepts the worker's evidence that he left work because of the significant pain which impacted his ability to focus on the job.
The panel also accepts the worker's evidence that the walk-in clinic physician who examined him on June 22, 2012 did not advise him that he could return to work on June 23, 2012. The worker acknowledges that she told him he required restrictions and that she would contact the WCB, but did not tell him he was fit for light duty employment at that time.
The panel is satisfied based upon the worker's evidence that the worker is entitled to wage loss benefits for the dates in question, June 23 and 24, 2012.
On the file and at the hearing, there was some discussion about the Employer's Standing Orders "To establish procedures to ensure Workers Compensation receives complete information regarding workplace injuries." The panel finds that the Standing Orders do not impact its decision on this claim.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding OfficerB. Simoneau, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 22nd day of January, 2013