The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board that her claim for compensation was not acceptable and that she was not entitled to wage loss benefits. A hearing was held on November 21, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits.

Decision: Unanimous

Background

On January 14, 2013, the worker reported that she suffered injury to her neck and upper/middle back regions on December 13, 2012. She related her injury to the following work-related activities: lifting laundry bags weighing up to 60 pounds in a very small work space, pushing carts up and down ramps into the shipping area and pulling/tossing laundry bags up to 6 feet high into a cart.

The worker advised the WCB that the symptoms in her upper back, chest and arms began at work on December 10, 2012 and that her symptoms worsened over the next 3 days. When she went away on her scheduled holidays, the pain/symptoms went away. She then returned to work on January 2, 2013 and by January 8, 2013, the pain had returned. The worker said she delayed in seeking medical treatment as she thought her condition would improve with time.

The employer's accident report noted that the worker reported a neck and upper/middle back injury to her supervisor on January 10, 2013, with the accident date of December 13, 2012. The employer stated: "minor strain started on the Monday of same week. Laundry bags overfilled and heavier than usual. By Thursday night pain and swelling - called in sick for Friday the 14^th."

Initial medical reports showed that the worker saw a nurse practitioner for treatment on December 14, 2012 and again on January 11, 2013. The diagnosis on December 14, 2012 was shoulder pain/arm strain. On January 11, 2013, the diagnosis changed to a work-related repetitive strain injury. On both reports, the nurse practitioner stated that the worker was capable of alternate or modified work with restrictions.

On January 15 and 16, 2013, the employer provided the WCB with information related to the weight of the laundry bags handled by the worker. The employer noted that they could accommodate the worker with modified duties, e.g. folding bibs and doing resident laundry.

On January 16, 2013, the worker advised a WCB adjudicator that there had been an increase to her workload over the past 6 months. She noted that the laundry bags were heavier due to the Christmas season.

On January 17, 2013, the worker was seen by a physiotherapist for an initial assessment with complaints of discomfort in her neck, mid/low back regions and left suboccipital headaches. The diagnosis was a thoracolumbar strain/cervical strain. The physiotherapist indicated that the worker was not capable of alternate or modified duty work. On January 21, 2013, however, the treating physiotherapist confirmed in a telephone conversation to the WCB, that the worker was capable of a graduated return to modified work of folding clothing protectors starting at four hours per day.

On January 21, 2013, the worker was seen by a physician for treatment with complaints of ongoing pain to her neck and back along with difficulty lifting, standing or sitting. The physician stated: "Patient was concerned about being required to fold bibs as has difficulty with fine motor skills due to a long history of carpal tunnel syndrome in both hands. Patient is very concerned about the design of the workplace causing further exacerbation to existing injury." The physician noted that the worker was capable of alternate or modified work with no lifting greater than 20 pounds.

File records showed that the worker did not return to work on January 22, 2013 on the basis that she was following her doctor's order to be off work until at least February 4, 2013. As a result, the WCB suspended the worker's wage loss benefits effective January 21, 2013 as it was felt that she was capable of performing the modified duties offered to her by her employer.

On February 4, 2013, the WCB advised the worker that the file information showed that she had a non compensable medical condition which was affecting her participation in a return to work. The worker was advised of her obligation to cooperate and mitigate pursuant to Section 22 of The Workers Compensation Act (the "Act") and was told that wage loss entitlement would not be reviewed until she fully participated in a return to work.

On February 5, 2013, a letter was sent to the worker by Review Office stating that it had received the worker's appeal submission and they were expanding the issues under appeal to include the initial claim acceptance.

In a decision dated April 17, 2013, Review Office determined that the worker's claim was not acceptable and that the worker was not entitled to wage loss benefits.

Review Office could not establish that the worker's upper back, neck and shoulder problems had arisen out of and in the course of her employment. They noted that the worker did not report her problems as work-related to her employer or any co-worker at the onset of symptoms and a change/increase in work duties could not be confirmed. It was felt that neither ergonomic factors nor a traumatic incident had caused an injury.

When the worker experienced a recurrence of upper back, neck and shoulder problems, Review Office noted that her duties were not outside of the ordinary and she did not relate her problems to any incident occurring at work. The day she went off work and reported her injury as work related, she performed less labour intensive duties than usual. In addition, when the worker was assessed for her return to work on February 1, 2013, her main complaints were related to a non- compensable health condition involving her wrists and hands.

Given the reporting discrepancies, the progression of symptoms while being off work and absence of an increase in duties, tasks, repetition or weight, Review Office was unable to establish a cause and effect relationship to the workplace for the worker's upper neck, back and shoulder problems. The worker was therefore not entitled to wage loss benefits and her claim was not acceptable. On August 22, 2013, a worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound the Act, regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Subsection 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:

Worker to co-operate and mitigate

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker’s recovery.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. The worker's position was that her claim for a repetitive strain injury was acceptable because the condition was attributable to the workplace duties as a porter. There were a number of ergonomic and work process issues that contributed to the worker's injury, including overloaded laundry bags, awkward bending, twisting and lifting, overhead tossing of overloaded bags, and pushing and maneuvering heavy carts down hallways, corridors and ramps. All these activities placed additional strain on the worker's upper body. Further, there was evidence of an increased workload. While it may not have been a sudden acute increase, in 2011 and 2012 there had been a longer term gradual increase in the workload without any corresponding increase in staff. It was submitted that the evidence indicated a muscular injury on the part of the worker, which got better when she took time off work, but the symptoms returned immediately upon returning to work. The presence of a workplace-related repetitive strain was supported by the worker's treatment providers. It was therefore submitted that the claim was acceptable due to the combination of acknowledged risk factors in the work, increased workload in general and the medical information confirming that the worker sustained a muscular injury.

With respect to wage loss benefits, the worker's position was that both the treating physiotherapist and the family physician provided reports to the WCB acknowledging the worker's injury and indicating that she ought not to work for the period of time in question. The worker listened to that advice. It was submitted that it was not right or fair to suspend the worker's wage loss benefits when she was authorized to have the time off. The workplace duties of folding may have been appropriate for some people, but given the worker's pre-existing carpal tunnel syndrome, it was not appropriate for her. The worker's position was that the WCB and the employer ought to have more proactively worked together to find appropriate work for the worker. Once the worker was authorized by her medical treatment providers to engage in modified duties, she did return to work.

The employer’s position:

The employer was represented by an advocate and a human resources director at the hearing. The employer noted that it did not question that the job duties were demanding and involved a high volume of laundry bags. It was acknowledged that there had been problems with the job and advised that the employer had taken steps to rectify the situation. The employer's position, however, was that although it was a physical job, that did not imply that a claim was acceptable just because theoretically a physical job could cause an injury. The accident history should be supported by the facts and in this case it was not. The worker had been in the position for two years without any report of injury. She indicated that problems arose in Spring 2012 with fatigue but that she did not feel any physical discomfort until December 10, 2012. There was no increase in her job duties or workload to account for the rise of symptoms. No traumatic incident was reported and initially the worker did not report her back problems to be work related to the employer. The employer noted that the weight of the bags was grossly exaggerated by the worker to be up to sixty pounds, when in fact an audit indicated that the average bag weighed 7.5 pounds with a range from one to eighteen pounds. It was also submitted that there was no significant increase in the laundry volumes in December 2012, particularly given that certain departments were closed or on reduced hours around the time when the worker's complaints arose. This indicated that there was no relationship between workloads and any possible strain injury.

Even if the panel were to find that there was an acceptable claim, it was submitted that the worker was not disabled. When the worker missed one day of work on December 14, 2012, the nurse practitioner did not write her off work but said that the worker could continue working limiting lifting of weights to under thirty pounds. This was within the worker's regular duties. After returning from holidays, the worker claimed a recurrence of pain on January 10, 2013, but it was noted that the audit had been completed that day, demonstrating that the workload was greatly reduced. On January 11, 2013, the worker sought treatment again from the nurse practitioner who again did not write the worker off work but limited lifting to twenty pounds. The employer was able to accommodate this restriction and was able and willing to make other accommodations as well. On January 15, 2012 a return to work meeting was held, and all key players were present. The return to work was planned and outlined to begin on January 21, 2012. The worker did not say or voice any indication that she would not come back to work as planned. While the physiotherapist's initial report indicated worsening pain, he conceded in a telephone conversation that the worker could keep working within restrictions that the employer could accommodate. A doctor's report dated January 21, 2013 also indicated the worker could continue working with restrictions. The worker was offered a folding job which fell within outlined restrictions and was a very light position. It would be part-time and manageable even with the carpal tunnel condition. The employer could also have provided other very light suitable duties. It was the employer's position that if the panel were to find that the claim was acceptable, wage loss benefits should not be provided except perhaps for the period between January 15 and 21 when the return to work was arranged. Other than that, the medical evidence from the worker's medical practitioners did not indicate she was totally disabled and any restrictions that were brought up for the compensable injury could be accommodated by the employer.

Analysis:

The first issue before the panel is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury during the course of her employment on December 10, 2012. We are able to make that finding.

At the hearing, the worker described the job duties she performed in the course of her employment. There is no doubt that the work was physically demanding and the employer has acknowledged this. The worker handled a high volume of laundry bags of varying weights with the overall total weight in one day being over 1,500 pounds. In addition to these lifting duties, the panel considered the requirement to push and pull large heavy carts up and down ramps. The worker once weighed a cart loaded with clean linen at 550 pounds. It was awkward to push/pull the carts and the worker had to move approximately 13 carts per day (six to seven clean and six to seven soiled).

The worker experienced a distinct onset of discomfort and swelling in her upper/mid back and neck during the course of her employment on December 10, 2012. The pain improved when she was away from work over the Christmas break, then came back when she returned to the workplace. The job duties involved a mechanism of injury which is consistent with a diagnosis of cervical and thoracolumbar strain. On a balance of probabilities, the panel is satisfied that the worker suffered a strain injury during the course of her employment on December 10, 2012 and we find that her claim is acceptable. The worker's appeal on this issue is allowed.

The second issue before the panel is whether or not the worker is entitled to wage loss benefits. In order for the worker's appeal on this issue to succeed, the panel must find that her wage loss benefits ought not to have been suspended effective January 21, 2013 for failure to participate. We are able to make this finding.

Subsection 22(1) imposes an obligation on workers to co-operate in developing and implementing a return to work program. A worker must reasonably participate by meeting and working with the employer (and in some cases, the WCB) to coordinate a way to get back into the workplace and minimize the loss of earning capacity. Failure to do so may result in suspension of benefits. This is what occurred in the present case. The WCB determined that the worker had unreasonably failed to participate in her return to work and it therefore suspended entitlement to wage loss benefits until such time as it was felt that the worker was fully participating in her return to work.

When determining whether or not wage loss benefits ought to be suspended pursuant to subsection 22(1), the panel will consider the reasonableness of the worker's actions. In the present case, we feel that the suspension was somewhat premature and it was reasonable for the worker to remain off work, given the advice she was provided by her physiotherapist and doctor. As of January 22, 2013, a suitable return to work arrangement was not yet in place. The worker refused to attend a meeting on January 22, 2013, but remained in contact with both the WCB and her employer to communicate clearly that she would not be attending the meeting and that her doctor's advice was to remain off work until February 4, 2013. This case is unusual because although the doctor and the physiotherapist both indicated to the WCB that the worker was capable of modified work, the information given to the worker by both medical practitioners was that she was not capable. The physiotherapist's report of January 17, 2013 stated total disability and indicated that the worker would be reassessed on February 1, 2013. The doctor's illness certificate dated January 21, 2013 stated: "Unable to work at this time. Off work until February 2013." In the panel's opinion, it was reasonable for the worker to rely on the information which had been directly communicated to her. The physiotherapist may have changed his opinion during a telephone conversation with the WCB, but the worker was not privy to this conversation. There is no explanation as to why the doctor's report submitted to the WCB differed from the illness certificate provided to the worker. In any event, the worker promptly re-engaged with the return to work process on February 4, 2013, as was directed by her doctor in the illness certificate. In the circumstances, the panel finds that the worker's wage loss benefits ought not to have been suspended pursuant to subsection 22(1).

The worker's appeal on the second issue is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of January, 2014