The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing five decisions made by the Workers Compensation Board ("WCB") with respect to his claim for a groin injury that occurred in the workplace on July 24, 2009. A hearing was held on February 5, 2014 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's low back condition in relation to the compensable injury of July 24, 2009;

Whether or not the worker is entitled to further psychological treatment;

Whether or not the alternate work offered to the worker effective January 24, 2013 is suitable;

Whether or not the alternate work offered to the worker effective April 15, 2013 is suitable; and

Whether or not the worker is entitled to full wage loss benefits effective January 24, 2013.

Decision

That responsibility should not be accepted for the worker's low back condition in relation to the compensable injury of July 24, 2009;

At the worker's request, the second issue regarding psychological treatment was withdrawn at the hearing;

That the alternate work offered to the worker effective January 24, 2013 was suitable;

That the alternate work offered to the worker effective April 15, 2013 was suitable; and

That the worker is not entitled to full wage loss benefits effective January 24, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left groin injury that occurred at work on July 24, 2009 when he pulled down suitcases from an overhead area and felt a pull and burning sensation in his groin. The worker was later diagnosed with a left inguinal hernia and he underwent surgery to repair the hernia on November 5, 2009. The worker was also diagnosed and treated for a left leg deep vein thrombosis ("DVT") stemming from the surgery and left groin and leg nerve pain. These conditions were accepted as a WCB responsibility.

The worker is appealing five decisions that were made by the WCB to the Appeal Commission. The first issue relates to whether or not his low back condition is related to his compensable injury of July 24, 2009.

In a report dated August 26, 2011, the treating physician noted that the worker developed left-sided low back pain following his surgery in 2009 which was now radiating down the foot affecting the L4-L5 and the S1 level. The diagnosis rendered was low back pain, likely radiculopathy at the level of L4-5. A CT scan was recommended to confirm the diagnosis.

A CT scan of the lumbar spine was done on September 6, 2011. At the L4-5 level there was facet arthropathy along with spinal stenosis and ligamentum flavum hypertrophy. There was disc bulging and bilateral neural foraminal narrowing. At the L5-S1 level there was a small amount of gas within the left lateral recess consistent with disc protrusion. There was spinal stenosis and bilateral neural foraminal narrowing. This was contributed by facet arthropathy and a small posterior vertebral body osteophyte.

On October 20, 2011, the worker met with his WCB case manager to discuss his claim status. The worker indicated that he had no prior history of arthritis or pinched nerves in his back. He did have pain from his neck downwards.

A WCB physical medicine and rehabilitation specialist responded to questions posed by the case manager related to the worker's back condition on November 7, 2011. The specialist indicated that there was no file evidence of any plausible new diagnosis as related to the claim injury or hernia, there was no evidence of any claim related physical diagnosis for the neck and back symptoms and there was no evidence of any chronic regional pain syndrome ("CRPS") related to the claim injury as per the call-in examination notes.

By letter dated December 14, 2011, the worker was advised that the WCB was accepting responsibility for his left leg and foot pain as being related to his compensable injury but it was not accepting responsibility for his neck, back or CRPS symptoms based on the WCB medical opinion of November 7, 2011. This decision was again confirmed to the worker on April 12, 2012. On June 14, 2012, the worker appealed the decision to Review Office and he referred to medical evidence on his file to support that the pinched nerve in his back was related to his compensable injury.

On November 23, 2012, Review Office confirmed that no responsibility should be accepted for the worker's low back condition in relation to his compensable injury. Review Office commented that the first mention of low back pain or symptoms was on the treating physician's August 2011 report which was approximately 22 months following the left inguinal hernia repair on November 5, 2009. In addition to this finding, Review Office referred to the following evidence to support that the worker's back condition was not compensable:

• When seen at a local hospital on November 16, 2009, the worker complained of left leg pain. These complaints were also recorded by a number of physicians/specialists and the treating physiotherapist.

• At a call-in assessment on March 8, 2011, the worker denied any lower back pain or radicular symptoms to the WCB medical advisor.

• The treating neurologist, on March 22, 2011, found no evidence on the nerve conduction study of neuropathy (femoral, tibial, peroneal, sural), plexopathy or radiculopathy involving the left leg.

• The CT scan of September 6, 2011 did not support that the findings were caused, aggravated or enhanced by the compensable injury or associated surgery.

• The comments made by the treating physiotherapist on October 3, 2011 that the worker was surprised about his recent CT scan results because "he has never had any P (pain) in his back."

• The opinion of the WCB physical medicine specialist dated November 7, 2011.

The second issue that the worker appealed was whether or not he was entitled to further psychological treatment. The worker withdrew his appeal of this issue.

The remaining issues being appealed by the worker relates to whether or not the alternate work offered to him by his employer effective January 24, 2013 and April 15, 2013 were suitable and whether or not he was entitled to full wage loss benefits effective January 24, 2013.

In its decision of November 23, 2012, Review Office determined that the worker's work restrictions were as follows: "at least, within the light physical demand level for pushing, pulling, lifting and carrying (i.e. 1 - 20 lbs. on an occasional basis and 1 - 10 lbs. on a frequent basis). The Review Office finds it is reasonable that the worker's restrictions, at this time, should include avoidance of repetitive stair climbing, prolonged standing, walking and sitting without the opportunity to take a break as needed. This is subject to review by Compensation Services on a going forward basis."

On January 17, 2013, the employer offered the worker a position as a Souvenir Kiosk Sales Attendant. The modified position included selling souvenirs and re-stocking souvenir items. On January 22, 2013, the worker advised the WCB that "this is not even a job, it is a place for employees when they are doing a grad RTW or for females who are pregnant and can no longer work on the trains." On February 5, 2013, the worker was advised by his case manager that his wage loss benefits would be gradually reduced based on his decision to decline the employer's job offer. On February 11, 2013, the worker appealed the decision to Review Office. On March 27, 2013, the employer's representative responded to the worker's submission of February 11, 2013.

On April 8, 2013, the employer offered the worker an administrative support position effective April 15, 2013. The employer considered the position was within the worker's restrictions. The job entailed collection of data, On Train Service (OTS) Blackberry, occasional work errands and supporting the manager on duty. The worker indicated that he would not agree to start the accommodation as his union representative was not available to view the job position.

On April 15, 2013, the worker was advised that in the opinion of the WCB, the return to work represented suitable modified transitional work. Therefore his wage loss benefits would be adjusted as if he were working full time duties effective April 15, 2013. On April 17, 2013, the worker appealed the decision to Review Office.

A worksite meeting/assessment was conducted on May 29, 2013. A final report regarding this assessment is on file dated May 31, 2013. On June 17, 2013, the worker provided Review Office with his comments regarding the worksite assessment as did the employer's representative on June 26, 2013.

In a decision dated June 27, 2013, Review Office concluded that the two work positions offered to the worker on January 24 and April 15, 2013 were suitable and were consistent with his work restrictions, supported by the worksite assessment. Review Office noted that the alternate duties were within a light physical demand level. Review Office referred to the following comments made by the occupational therapist:

"It is also understood the employer has provided [the worker] with scope to take rest breaks as often and for as long as he requires throughout his work shifts. The employer has also reported [the worker] is only required to complete certain duties such as building shower kits and serving customers at the souvenir kiosk at a frequency and duration [the worker] feels he is able to complete. It is due to this flexibility that the employer was not able to provide information specific to the duration and frequency of all work duties [the worker] will be expected to complete should he return to the proposed duties."

Review Office also stated that should the worker be asked to complete a task from this category that he felt was outside of his restrictions, then it could be assessed at that time. This was not a barrier for not returning to work. Based on WCB policy, Review Office confirmed that the worker's wage loss benefits should be reduced effective January 24, 2013 based on the earnings he would have earned in the alternate work position.

On October 1, 2013, the worker appealed the decisions made by Review Office dated June 27, 2013 to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Relevant provisions of the Act include:

· ss. 4(1) provides that 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.

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

· ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

· ss. 40(1) provides that the loss of earning capacity is the difference between the worker's net average earnings before the injury and the net average amount the WCB determines the worker is capable of earning after the accident.

The WCB Board of Directors enacted WCB Policy 43.20.05, Return to Work with Accident Employer, which outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.

The worker has an accepted claim for a left hernia injury. He is appealing the WCB decision that his low back injury is not related to his workplace injury of July 24, 2009. He is also appealing the WCB decisions that the alternate work offered by the employer on January 24, 2013 and April 15, 2013 are suitable and that the worker is not entitled to full wage loss benefits effective January 24, 2013. The worker withdrew an appeal regarding additional psychological treatments.

Worker's Position

The worker attended the hearing with his wife and a union representative. The worker explained his reasons for appealing and provided a detailed review of his interactions with the WCB, the employer and medical providers. He answered questions from the panel. His wife and union representative also answered questions.

Issue 1. Whether responsibility should be accepted for the worker's low back condition in relation to the compensable injury of July 24, 2009?

The worker advised that prior to the July 24, 2009 workplace injury he had no back problems or groin problems. The worker advised that he saw a pain specialist in August 2011 who diagnosed lower back pain, likely radiculopathy at the level of the L4-L5. The physician noted that "He has no relevant past medical history." The worker said that he saw a neurologist on May 27, 2011 regarding the leg pain and the neurologist advised the worker's "symptoms are most consistent with a stretch injury of the lumbosacral plexus and musculoskeletal injury due to positioning during his hernia surgery." The worker said that the day after the surgery he felt pain in the back of his leg.

The worker submits that his current low back condition is the result of his workplace accident.

Issue 3. Whether the alternate work offered to the worker effective January 24, 2013 is suitable? and

Issue 4. Whether the alternate work offered to the worker effective April 15, 2013 is suitable?

The worker said he was suspicious that the January 24, 2013 offer of accommodation was made because he had filed a complaint with a federal tribunal. He noted that his union was not brought into the discussions on this position.

The worker was asked what was wrong with the January 2013 job. He replied, in part:

"I was afraid -- well, okay, I was afraid that -- one thing, that -- that the drugs -- the split shift. I was really worried about that and I thought, Okay, how am I going to -- okay, I'm going to have to stop taking my drugs. I don't want to stop taking my drugs. Will it hurt me? And I guess the fear came from the previous appeal, saying that it can enhance or aggravate, so I thought, Well, how do I know that because my previous assessment --

when people work this job, this -- this kiosk thing, this thing that -- selling, in the meantime they're running all over the station, up and down -- and I thought in my mind, Well, I can't do that. We call it -- we call it take-out -- we call it station standby. So, it's not just selling souvenirs. When there's no souvenirs to sell, you're -you're doing this, you're doing that. And then that's how I had envisioned -- historically I'd known it to be. They're not going to just let -- my opinion was that they were not just going to let me stand there at a desk and not do anything other than wait for somebody to sell something."

The worker was asked what he meant when he said the Kiosk duties were not a job. He responded that it was not a job because:

• it was not presented as a job
• there was no job description
• he was not provided with tools
• there was no ergonomic assessment
• there was no place to lie down
• there was no way of knowing if the work would aggravate or enhance his restrictions
• it was part of different jobs
• there was no kiosk in the station at the time

The worker said that he did not want to try the job and get hurt. He noted that neither the duties offered in January or April were assessed until Review Office ordered a worksite assessment which occurred on May 29, 2013.

The worker said he had many concerns about the April 8, 2013 job offer. As a result he sent the employer an email which included 11 questions. The employer provided a response dated April 11, 2013. The worker noted that the employer did not provide a job description.

The worker acknowledged that he commenced the Administrative duties job in July 2013. In answer to a question he commented that "And lo and behold, now in retrospect, yes it was a perfect accommodation. But were all those things happening at the time that could assure me that? No, they weren't."

The worker was asked why he returned to work in July 2013 to the job which he refused in April. The worker said that he had no choice, he had to work due to his financial position. He noted that the assessment had been conducted.

The worker's wife also said that the worker had no choice but return to work. She said he was medicated and in pain. She said that although the employer said the worker could rest, the only space available was in an employee lounge or in the basement. The worker also said that there was not a proper place for him to lie down and rest. He said that he went home exhausted. He said that he took time off for medical appointments and when sick.

Issue 5. Whether the worker is entitled to full wage loss benefits effective January 24, 2013?

The worker advised that he has not had any wage loss since July 3, 2013 when he commenced the alternate duties. He is seeking wage loss for the period between January 24 and July 2, 2013. He said that his wage loss benefits should not have been reduced because the alternate duties were not appropriate. The worker advised the panel that he has lost significant income and pension entitlements due to the injury.

Employer's Position

The employer was represented by an advocate and its Advisor, Disability Management.

Regarding the acceptance of the worker's low back condition in relation to the compensable injury of July 24, 2009, the employer's advocate advised that the employer believes the low back is not related to the worker's employment.

She noted that the worker had seen several doctors and did not mention low back pain. She noted that the worker did not refer to low back pain at the call-in examination at the WCB in July 2011. She said that the first reference to low back pain was in August 2011, almost 2 years after the accident.

With respect to the worker's return to work, the employer advocate noted that an offer was made in August 2012 which was not considered suitable. The employer then offered alternate duties to the worker effective January 24, 2013. The employer advocate submitted that the work was suitable. The position offered in January 2013 was based on the restrictions set out in the November 2012 Review Office decision. The duties involved work in a kiosk in the station building selling and restocking souvenirs for 16 hours per week. The worker was to be paid at his pre-accident rate. She said that the reason offered by the worker for refusing the job was that it was work that pregnant women do.

The Advisor, Disability Management, told the panel that the worker never talked to her "...about his concern about his security or maybe he could reinjure himself." The advocate noted that the worker refused the offer indicating that he did not feel it was a real job. She said that it was work of real value to the employer. She said that the initial offer was for 16 hours per week with the goal of increasing hours but that the increase took longer than expected. She noted that the employer advised the WCB that it would not have been able to increase the hours, so that the WCB would pay the worker the amount he was entitled to.

The employer advocate advised that the employer offered additional duties effective April 15, 2013. The duties were outlined in a letter dated April 8, 2013. The duties included collection of data, development of reports for the employer, support for training for employees' cell phones, occasional work errands, supporting the manager on duty preparing for the arrival/departure of trains, building of shower kits and other assigned duties. The offer was 40 hours per week at the worker's pre-accident pay rate. It was stated that the worker could work at his own pace, vary workload/duties throughout the shift, and he would not be asked to run errands or perform activities outside of his restrictions.

The employer advocate noted that worksite and ergonomic assessments were performed. The worksite assessment conducted by an occupational therapist found the duties offered in January and April 2013 fall into the classification of "LIGHT demands."

The employer advocate noted that the worker subsequently returned to work to the duties offered in April 2013 and worked until he was called in for an examination by a WCB medical advisor in November 2013.

On the final issue dealing with the worker's entitlement to full wage loss effective January 2013, the employer advocate submitted that the worker was not entitled to full wage loss benefits as he refused to participate in a return to suitable work. She noted that the worker did not attempt the duties.

The employer advocate noted that the worker ultimately returned to work and was able to perform the duties. She said that this is proof that the accommodation was suitable.

Analysis

The worker appealed 5 issues:

1. Whether responsibility should be accepted for the worker's low back condition in relation to the compensable injury of July 24, 2009?

For the worker's appeal of this issue to be successful the panel must find, on a balance of probabilities, that the worker's lower back condition was caused, directly or indirectly by the July 24, 2009 compensable injury. The panel was not able to make this finding.

In reaching this decision, the panel reviewed the medical information on file and finds that there was no reference to lower back pain at the time of the injury or in the subsequent 22 months.

The panel notes that the worker's position is largely based on a report from a pain specialist. He also referred to a report from a neurologist who commented that "symptoms are most consistent with a stretch injury of the lumbosacral plexus and musculoskeletal injury due to positioning during his hernia surgery." The panel has considered these reports and finds that the diagnostic testing and findings and other evidence does not support this position.

The panel notes that the worker specifically denied having lower back pain or radicular symptoms when seen by the neurologist on March 8, 2011. A second neurologist found there was no evidence of neuropathy, plexopathy, or radiculopathy involving the left leg in the nerve conduction studies he performed. The panel also notes that the worker had a CT scan of his lumbar spine on September 6, 2011 which did not identify any radiculopathy. The CT did identify that the worker has a degenerative condition in his back.

The panel notes that the worker was examined by two physical medicine specialists, one on July 21, 2011 and the other on July 27, 2011. The worker did not identify low back pain concerns. The physicians did not make any findings about low back pain or radiculopathy.

It was suggested that the worker's left foot problems may be due to his low back problem. The panel finds that the evidence does not support a finding that the worker's foot problems emanate from his back condition.

The worker's appeal of this issue is denied.

2. Whether the worker is entitled to further psychological treatment?

The worker withdrew his appeal of this issue at the hearing.

3. Whether the alternate work offered to the worker effective January 24, 2013 is suitable? and

4. Whether the alternate work offered to the worker effective April 15, 2013 is suitable?

For the worker's appeal of these issues to be successful, the panel must find that the alternate duties offered by the employer were not suitable. The panel was not able to make these findings. Regarding Issues 3 and 4 the panel finds that the alternate work offered by the employer to begin on January 24, 2013 and April 15, 2013 were suitable.

The panel considered the January 17, 2013 and April 8, 2013 offers from the employer. The panel notes that the January offer was for 16 hours of work per week with a goal of increasing the number of hours and tasks, eventually reaching 40 hours. The April offer was for 40 hours of work per week. In the case of both offers, the employer represented that the work would respect the worker's temporary restrictions. The panel notes that WCB Policy 43.20.25, Return to Work with Accident Employer describes "suitable work" as:

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.

The panel finds that the job offers are consistent with this definition. The letters of offer and the related correspondence demonstrates to the panel that the offers were made in good faith with the view to returning the worker to full employment. Although the worker did not perform the Kiosk duties, the panel finds that this was suitable work. Regarding the April offer, the panel finds the best evidence this was a suitable offer was the fact that the worker ultimately returned to work and performed the exact duties that had been offered by the employer. The panel notes the worker's acknowledgement at the hearing that the April offer was the "perfect accommodation."

The panel notes that many of the concerns expressed and reasons offered by the worker for not participating in the return to work appear to be based on fear of further injury and suspicion about the employer's and WCB's motives. For example, the worker advised the panel that he suspected the January offer was related to a complaint he filed with a federal tribunal. The panel's review of the evidence does not find any reasonable evidence to support these concerns or to justify the worker's refusal to return to or attempt the alternate duties.

The worker also expressed concern regarding both offers, many related to the vagueness of the description of the duties and the lack of a specific job or position. The panel finds that the employer in making the offers made a reasonable attempt to define the duties and to find work which complied with the worker's medical restrictions and would result in meaningful employment.

The worker's appeal of the above issues is denied.

5. Whether the worker is entitled to full wage loss benefits effective January 24, 2013

For the worker's appeal of this issue to be successful, the panel must find that that the worker sustained a loss of earning capacity. The panel was not able to make these findings. Given the panel's findings on issue 3 and 4, the worker did not sustain a complete loss of earning capacity due to his injuries. Any loss of earning capacity beyond the amount already paid, was the result of the worker's refusal to accept the offers of suitable duties and return to work. The worker is not entitled to full wage loss during the period.

The worker's appeal of this issue is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of March, 2014