The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits after November 20, 2014. A hearing was held on January 12, 2016 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 20, 2014

Decision

That the worker is not entitled to wage loss benefits after November 20, 2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a lower back injury that occurred at work on September 30, 2014. The worker reported that his back became sore from being thrown around while operating a mini excavator over uneven ground. The worker said he did not report the accident to his employer until October 5, 2014, as he went home after the accident and then had 4 days off. The worker indicated he sought medical attention on October 27, 2014. He stated the reason for the delay in medical treatment was that his employer took him to physiotherapy out of town and there were no doctors he could see.

The Employer's Accident Report filed October 9, 2014 stated:

Worker left on a scheduled time off after his shift on September 28th, 2014. He requested to leave a few hours earlier due (to) flu symptoms. This was granted. Upon his return to work on October 7th, he reported an injury to his back. He claims it occurred during work time the week before, although nothing was reported then nor during his time off.

The employer further noted:

… this injury most likely occurred during the workers (sic) personal time off. There was no report of injury within the week after he claims it occurred and there is no mechanism of injury. Based on the workers (sic) ability to perform his full duties, his supervisors were never given any reason to believe he had sustained an injury.

On October 6, 2014, the worker was seen by a physiotherapist for an initial assessment. The diagnosis was mechanical back pain with possible discogenic component.

File records show that the employer offered the worker light duties on October 7, 2014 which were reported to be within the work restrictions outlined by the treating physiotherapist. The modified work consisted of performing the duties of a vac truck assistant.

Medical information confirmed the worker sought treatment at a medical facility on October 27, 2014. The treating physician reported that on September 30, the worker was working on a mini excavator (being tossed around) and developed soreness and stiffness to his lower spine. The physician noted the worker had no previous back issues and was currently on light duties at work. A medical certificate dated October 27, 2014 outlined that the worker should be excused "from lifting greater than 20 lbs, bending activity or prolonged sitting for the next 3 weeks for medical reasons."

On October 27, 2014, the employer offered the worker modified duty work consisting of a vac truck operator and FOB gate watch. The specific job duties were:

Worker will perform modified duties listed within functional ability restrictions. He can perform operator duties within the vac truck and FOB gate watch at the west gravity dam. Worker will be able to stand/sit/stretch as required and should take micro breaks every 30 minutes to do so.

The physical requirements were:

No lifting greater than 20 lbs, bending activity or prolonged sitting. Worker will be able to stand/sit/stretch as required and should take micro breaks every 30 minutes to do so.

The WCB obtained further details from the worker with respect to the onset of his back complaints which he related to his work activities on September 30, 2014. The WCB also obtained statements and other information from the employer with respect to their position that the worker's back injury was not related to an accident at work.

On November 6, 2014, the WCB adjudicator accepted that the worker suffered a work-related injury on September 30, 2014. On November 10, 2014, the employer appealed the acceptance of the worker's claim to Review Office.

A further medical certificate from the worker's treating physician dated November 18, 2014 stated:

Please continue restriction of no lifting greater than 20 lbs, bending and should have the ability to sit or stand as comfortable for the next 3 weeks for medical reasons.

On November 20, 2014, the employer asked the WCB whether there were any work restrictions that would prevent the worker from riding the company bus to the work site, given that the parking lot close to the work site closed every winter due to safety reasons. Based on the file information, including the November 18 medical certificate, the adjudicator advised the employer that the worker would be considered fit to ride the bus. Subsequent information from the employer indicated that the worker said he was going to see his doctor to get a note to say that he couldn't ride the bus.

In handwritten notes dated November 20, 2014, the worker stated that the bus ride to the work site was 18 kilometers and that he told his boss the bus ride would be too rough and would not be good for his back. On November 21, the worker obtained a medical certificate from his treating physician which stated that the worker was "unable to ride bus because of back condition" and requested that he be allowed to drive his own truck to the work site until reassessed on December 16, 2014. On November 22, the worker provided the medical certificate to the employer and drove his personal vehicle directly to the site in accordance with the medical certificate, and with the approval of the employer.

On November 22, 2014, the employer offered the worker a further modified light duty position that involved FOB gate watch, office/lunchroom housekeeping, and safety administration. The specific job duties were:

Worker will perform modified duties listed within functional ability restrictions. He can perform FOB gate watch at the west gravity dam with a chair at his post giving him the ability to sit, stand as necessary. Worker is in close proximity to washroom and lunch room facility where he must take his union scheduled breaks. On days where FOB door watch is not required, worker will perform housekeeping duties within the office trailers (including the 8 plex, 9 plex and lunch trailers). This will include sweeping all floors (not mopping), tidying up, and cleaning surfaces areas. Worker can also be asked to perform administrative duties within an office setting to include safety upgrade manual completion.

The physical requirements were again:

No lifting greater than 20 lbs, bending activity or prolonged sitting. Worker will be able to stand/sit/stretch as required and should take micro breaks every 30 minutes to do so.

On November 25, 2014, the employer advised the WCB that after a meeting with the worker and his union representative, the worker decided not to accept the modified work offer dated November 22, 2014 until he confirmed with his physician at his December 16 appointment that the duties were suitable for his back condition.

File records show that the worker also met with his WCB case manager on November 25, 2014 and informed him that his union representative had advised him to have the new work offer approved by his doctor prior to his acceptance. Referring to the November 18 medical certificate, the case manager stated that it seemed reasonable for him to perform the duties of the new offer, and that if there were duties that aggravated his injury, he was to speak with the employer. The case manager informed the worker that no wage loss would be due as he should be able to perform the light duties.

In a decision letter dated November 26, 2014, the WCB case manager advised the worker that he was not entitled to wage loss benefits as it was determined that he was capable of performing the new light duty position offered by his employer based on a November 18, 2014 progress report from his treating physician.

On December 15, 2014, the employer provided a written submission to Review Office in support of their appeal regarding the acceptance of the worker's claim. On January 26, 2015, the Worker Advisor Office provided a written response to the employer's appeal. The worker advisor further submitted that the worker should be entitled to coverage for any time loss due to aggravation of his low back symptoms related to sweeping and stooping. Review Office received further submissions from the employer's representative on March 16, 2015 and the worker on April 2, 2015.

In its decision dated April 16, 2015, Review Office considered the employer's appeal regarding claim acceptability and the worker's appeal regarding his entitlement to wage loss benefits. With respect to the employer's appeal, Review Office found that the worker did sustain an injury to his low back arising out of and in the course of his employment on September 30, 2014, and the claim was acceptable. With respect to the worker's appeal, Review Office found that the lunchroom/housekeeping duties of cleaning tables/surfaces and sweeping floors in various cramped spaces would involve rotation of the spine, bending, stooping and maneuvering that were not within the worker's capabilities. Considering the type of injury the worker had, its acuteness as supported by the medical evidence on file, and that the duties offered were outside the worker's restrictions, Review Office concluded the worker had a loss of earning capacity related to his compensable injury and was entitled to wage loss benefits after November 20, 2014.

On April 24, 2015, the employer appealed Review Office's decision regarding the worker's entitlement to wage loss benefits after November 20, 2014 to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act 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. Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) provides that wage loss benefits are payable until the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

Employer's Position

The employer was represented by its Disability Claims Manager and its Safety Manager who participated by teleconference. A written submission of evidence was filed on January 5, 2016, in advance of the hearing.

The employer's position was that it accommodated the worker with alternate duties up until the day he walked off the job, refusing to partake in any of them. The worker had signed and accepted modified work offers on October 7 and October 27, 2014. The employer provided the worker with a further modified work offer on November 22, 2014 which included the FOB gate watch, administrative duties and housekeeping duties. The worker had already been performing the FOB gate watch duties. He had also already been performing administrative duties within an office setting, working on safety manual upgrades. The housekeeping duties, which involved sweeping and wiping down tables, were new and were intended to give the worker more variety and the opportunity to have contact with his co-workers.

The employer representative said the purpose of the meeting on November 25 was to discuss the November 22 modified duty offer and move forward, but there was not much discussion. The worker and his union representative expressed issues with the housekeeping duties. It was explained to them that the duties were all available, not just housekeeping, that the offer was a discussion point, that they were willing to work within his restrictions and were open to suggestions. The worker, however, kept dwelling on the housekeeping duties, and stated that he would not be at work until he had the offer verified by his doctor on December 16. He was told the employer could not pay him for his absence given they had work available for him and were willing to work within his tolerances.

The employer representative referred to the employer's modified work program as being employee-centred, where workers are encouraged to self-restrict and to communicate with their supervisors and safety department if they do not feel comfortable doing something. Changes or adjustments could then be made. The employer representative stressed the importance of flexibility within the modified work offers, noting that it was never an "all or nothing proposition." More than one or two duties would usually be included in the offers, and if the worker had an issue with a task, it could be altered or eliminated and the worker could carry on with what he felt comfortable doing.

It was noted that the only time the worker came back to the work site after November 20, 2014 was to deliver the medical certificate (to excuse him from riding in the bus) and for the meetings on November 22 and 25, 2014. He failed to make contact with the employer following his departure from the meeting on November 25, 2014. The employer wrote to him on December 2, 2014 and confirmed that the modified duties remained available, but received no response.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after November 20, 2014. For the employer's appeal to be successful, the panel must find that the worker was offered modified duties with the employer which would have enabled him to recoup his pre-accident wages after November 20, 2014, and that his non-participation or non-attendance at work was unreasonable. The panel is able to make these findings.

The evidence establishes that 2 out of the 3 modified duties which were offered to the worker on November 22, 2014, being the FOB gate watch and administrative (safety manual upgrade) duties, were duties which the worker had been performing prior to and up until November 20, 2014. The worker had been able to perform these duties successfully. There is no indication that he had expressed any specific concerns or complained of pain in carrying them out. These duties were within his restrictions and remained available to him after November 20, 2014.

The employer had added a new housekeeping duty in the November 22 modified work offer, which essentially involved wiping down tables and sweeping. The worker expressed concerns with respect to those tasks. The employer's evidence was that they explained to the worker that he could perform whatever he felt comfortable performing, that they were open to discussion and suggestions, and were willing to work within his tolerances. The panel accepts that evidence. The panel further accepts the employer's evidence that the worker and his union representative kept focusing on the fact that he should not be doing the housekeeping duty.

There is no dispute that the worker never tried to perform any duties after November 20. He simply refused to work or attend at the workplace until he had verified the new modified duty offer with his treating physician on December 16. While the worker was entitled to seek medical advice if he had concerns with respect to the appropriateness of the new tasks, the panel finds that his refusal to undertake any work in the meantime, particularly work which he had been performing previously and fell within his restrictions, was not reasonable.

The panel would note that the modified duties which the employer offered to the worker were tasks that had to be done by someone and had not been created simply for him or just to keep him busy. The work was both meaningful and productive.

In light of the foregoing, the panel finds that there was no loss of earning capacity suffered by the worker after November 20, 2014. The worker could have received his pre-accident wages after that date by performing modified duties which were within his restrictions.

Accordingly, the panel finds, on a balance of probabilities, that the worker had been offered modified duties which were appropriate and available and would have enabled him to recoup his pre-accident wages, and that his non-participation or non-attendance at work after November 20, 2014 was unreasonable. The worker is therefore not entitled to wage loss benefits after November 20, 2014.

The employer's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 11th day of March, 2016