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 in relation to his compensable injury. A hearing was held on February 17, 2016 to consider the employer's appeal.

Issue

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

Decision

That the worker is entitled to wage loss benefits.

Decision: Unanimous

Background

 

The worker filed a claim with the WCB for a low back injury that occurred at work on December 16, 2014. The worker reported that he was taking an item off a pallet above his shoulder and as he brought it down close to his body he felt a pop in his low back followed by instant pain. He said the pain continued to increase overnight.

The employer's accident report dated December 22, 2014 indicated that the worker reported that he "felt a pop in his back, but continued working, thinking it would be OK." At 9:15 a.m., the worker reported the injury to a "JH&S" member and then to a supervisor at 10:00 a.m. The employer further stated: "We are objecting to the allowance of lost time in this claim as we have suitable modified duties available, and the initial medical documentation supported a return to these modified duties. In light of the initial medical documentation and the worker's denial of a leave of absence months prior to the date of injury for the same period he is now off work for related to the incident, we feel the case does not meet the requirements for a work related injury warranting lost time from work."

A doctor first report showed that the worker attended for treatment on December 16, 2014. The description of injury stated that the worker grabbed product from eye level and when turning, he felt lower back pain. Subjective findings included pain radiating down the leg to the thigh. Objective findings indicated that the worker was very uncomfortable from the cervical spine and shoulders. The worker would not walk on heels or toes and refused to bend forward. Straight leg raising was 70 degrees on the right and 50 degrees on the left. The report also noted the worker experienced sudden jerks and fell to the floor with pain. The diagnosis rendered was right sided paraspinal spasm. It was felt that the worker was capable of sedentary work with the ability to change positions.

A chiropractor first report showed that the worker attended for treatment on December 17, 2014 and was diagnosed with thoracic and lumbosacral strain/sprain with a potential for lumbar disc protrusion. The chiropractor noted that the worker was disabled from work as a result of his injury.

A medical certificate from the chiropractor dated December 17, 2014, stated that the worker was not capable of even light duties at present.

On December 23, 2014, the worker spoke with a WCB adjudicator and answered questions related to the symptoms he experienced on the day of accident when he felt a pop in his low back. The worker reported that the pain initially was not bad and he tried to continue working through the discomfort. After his break at around 9:30, his back became stiff.

The worker reported that he went to work on December 17, 2014 and started modified duties and when he started walking around he felt more pain in his back. He worked for a half day only and wanted to see his chiropractor. He was about to leave when he was asked to sign a modified duty form. He did not sign the form because of the pain and it was even hard to sit. The worker stated that he did not refuse modified duties as he had already tried to do them.

The worker was asked to clarify his days off prior to the workplace accident. The worker indicated that he requested time off 2 months prior (December 22 to 24; December 29 to 30). He was refused as he was a part-time employee. He felt discriminated against, as he was aware of other employees getting 2 weeks of holidays per year whether full-time or part-time.

When speaking with the WCB adjudicator on December 29, 2014, the chiropractor stated that the worker told him that modified duties were available at the time of the initial visit but the worker was absolutely not capable of doing even light duties. Based on his examination, the worker's range of motion was poor, he had an antalgic gait and signs of radiculopathy. He was hesitant to allow 4 hours per day at that time but felt that by now, the worker may already be capable of doing that amount at the moment.

On December 29, 2014, the WCB adjudicator spoke with an employer representative who stated the worker was assigned to do an empties inventory on December 17, 2014. He basically performed administration type work and sat down at a desk. He was not required to do anything while standing. It was confirmed that the worker put in 4 hours that day and then left work.

In a decision dated December 30, 2014, the WCB advised the employer that the worker's claim for compensation was acceptable for a low back injury sustained on December 16, 2014. The decision was based on the findings that the worker did not delay in reporting and he attempted the modified duties that were offered prior to seeking treatment from a chiropractor. The objective clinical findings justified the worker's inability to return to work. The WCB concluded that the worker was entitled to full wage loss benefits from December 17 to December 29, 2014, plus subsequent partial wage loss benefits.

On January 13, 2015, the employer appealed the December 30, 2014 decision to Review Office based on the reasons outlined in their initial Employer's Report of Injury form.

File records show that the worker returned to a gradual return to work program on December 29, 2014 and that he stopped working on January 21, 2015 when he attended a chiropractor due to ongoing back complaints.

In a decision dated February 5, 2015, the WCB advised the employer that the worker was entitled to wage loss benefits from January 21 to February 3, 2015 inclusive, as objective clinical findings justified the worker's inability to return to work during this time period.

In a submission to Review Office dated April 15, 2015, the employer outlined the opinion that the WCB failed to properly adjudicate the worker's entitlement to wage loss benefits. The employer noted that the WCB adjudicator referred to objective clinical findings to justify the worker's inability to return to work. It was further suggested that when the worker increased his hours to 6 hours per shift, his symptoms increased to the point where his chiropractor removed him from work which contributed to the secondary absence following the January 21, 2015 shift.

The employer indicated that there was nothing objective in the x-rays, CT scans, MRIs etc. to suggest that the worker could not have immediately taken part in sedentary, clerical work with transportation to and from work as demonstrated in the offer of modified work provided to the worker on the date of injury and which the worker declined to sign. As well, the WCB agreed that a gradual return to work would have benefited the worker from the onset of the injury, as indicated in the letter of December 30, 2014.

In conclusion, the employer stated the suitable modified duties that were offered to the worker immediately following the reported injury were not properly assessed in accordance with WCB adjudication policy and there was significant information on file to support that the worker could have returned to modified duties following the injury. Therefore, the decision to pay wage loss benefits should be overturned.

In a decision dated May 29, 2015, Review Office confirmed that the worker was entitled to wage loss benefits on the claim. Review Office referred to the adjudicative decision dated December 30, 2014 and WCB policy 43.20.25, Return to Work with the Accident Employer.

Review Office noted that the adjudicator's decision was based on the restrictions provided by the chiropractor beyond December 17, 2014. The employer's argument that the worker's restrictions were not predicated on objective findings is not without merit given that typically, the WCB bases workplace restrictions on same. The chiropractor's heavy reliance on subjective findings and the worker's complaints can be considered reasonable, albeit with a degree of reservation. The chiropractor's opinions were given without apparent prejudice and based on his concerns there may have been a possible prolapsed disc. Based on the preponderance of evidence, Review Office said the worker was compliant in attending to alternate duties respecting his compensable restrictions as overseen by the chiropractor and accepted by the WCB. In hindsight, and based on MRI results, the return to work approach may well have relied too heavily on the worker's subjective complaints. This was not, however, a bar to entitlement to wage loss benefits. On August 26, 2015, the employer appealed Review Office's decision 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 Board of Directors.

Under subsection 4(1) of Act, 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 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 has an accepted claim for a workplace injury that occurred on December 16, 2014. The worker's employer is appealing the WCB decision that the worker is entitled to wage loss benefits arising from the injury.

Employer's Position

The employer was represented by its abilities advisor who participated by teleconference. She outlined the employer's position and answered questions from the panel.

The employer representative submitted that the WCB has failed to properly adjudicate entitlement to wage loss benefits. She said that there is nothing objective on the file to suggest that the worker could not have immediately taken part in the sedentary clerical work, with transportation to and from work, as demonstrated in the employer's offer of modified work provided to the worker on the date of injury.

The employer representative noted that the initial physical capacity evaluation form of December 16, following the onset of the injury, cleared the worker for modified duties.

She submitted that the employer had the capacity to provide an accommodation, as demonstrated by the employer's initial offer of modified work and also by the employer's ability to implement the gradual return to work plan when the worker did return to work on December 29, 2014, and again, on February 19, 2015.

She said that the WCB decision to pay wage loss benefits was influenced by the chiropractor’s reports and that there is a significant difference of medical opinion between the initial treating physician and the chiropractor. She submitted that because of the difference of opinion, the file should have been referred for a third-party medical consultation with WCB healthcare management services.

She submitted that the WCB failed to properly adjudicate entitlement to wage loss benefits in accordance with WCB Policy 43.20.25, Return to Work with the Accident Employer. She noted that this policy specifically outlines that where there is a dispute of whether modified or alternate work is suitable, the WCB will make the final determination and may arrange for a worksite analysis. In this case, the adjudicator failed to refer the dispute and difference of medical opinion to a third-party medical consultation, and a worker’s analysis was not completed.

The employer representative asked that the Appeal Commission refer this matter back to the WCB to complete a thorough review of the suitability of modified work available to confirm entitlement to wage loss benefits in the claim.

Worker's Position

The worker was represented by a worker advisor who made a submission on behalf of the worker. The worker answered questions from the panel.

The worker's representative submitted that:

It is our position the evidence supports that there is an entitlement to wage loss benefits during this time frame because [the worker] continued to suffer a loss of earning capacity, which was directly related to his compensable injury of December 16, 2014.

The worker representative said that there was an entitlement to wage loss benefits under the policies noted by the Review Office, and that the evidence confirmed that a loss of earning capacity existed with this claim, and as such, wage loss benefits were payable as supported by subsections 4(2) and 39(2) of The Workers Compensation Act (the "Act"). She noted that the WCB accepted the worker's injury as a strain/sprain injury to the thoracic and lumbosacral areas with associated symptoms, which included spasms.

The worker's representative noted that the employer objected to the payment of wage loss benefits for this claim because there was no objective evidence such as an x-ray, CT scan and MRI, et cetera, on which to support that the worker could not have immediately taken part in modified work. She said that a physician’s examination findings are accepted by the WCB as medical evidence of disability. She relied upon WCB Policy 44.40.10, Evidence of Disability, which states that compensation benefits are payable when there is medical or similar evidence of a disability arising from a compensable incident or condition.

She submitted that the worker took part in the modified work offered to him, and did try to mitigate the consequences of his injury multiple times.

In response to the employer's concern, the worker's representative noted that, in accordance with the physical capabilities evaluation of December 16, 2014, the worker attempted to work modified duties on December 17, 2014 as directed by the walk-in clinic physician. Then in a follow-up appointment, his attending chiropractor, based on objective examination findings, removed the worker from all employment as of December 17, 2014.

The worker's representative noted that the worker returned to the modified work schedule as of December 29, 2014, but based on a medical report by the worker's chiropractor, which noted objective examination findings of spasm of the lumbar spine and significant loss of range of motion, the chiropractor removed the worker from employment which created a further loss of earning capacity.

The worker's representative noted that in a file note dated January 13, 2015, the employer confirmed that they were unable to provide modified work for six hours as recommended.

The worker again attempted another return to work on February 19, 2015. The employer confirmed in an email dated February 19, 2015 that the worker was at work and a discussion took place for the worker to start work at three hours, three days per week, on February 24th.

The worker's representative submitted that since the employer supported modified work at three days per week, a loss of earning capacity existed, and partial wage loss benefits were correctly paid by the WCB, given that the worker's regular work schedule was five days per week at 40 hours.

The worker's representative also noted that the WCB’s medical advisor confirmed that as of March 25, 2015, a temporal relationship continued to exist between the compensable injury and the MRI findings of pre-existing conditions.

The worker's representative submitted that board policy 44.10.20.10, Pre-existing Conditions, clearly sets up the directive that when a loss of earning capacity is caused in part by a compensable injury, and in part by a non-compensable pre-existing condition, or a relationship between them, the Board will accept responsibility for the full injurious result of the injury.

The worker representative noted that "at no time did the employer express disagreement with the return to work schedule. In fact, they agreed to the reduced hours and days."

The worker advisor disagreed with the employer's position that the WCB failed to properly adjudicate this claim.

In reply to a question from the panel, the worker described the accident as occurring when he was picking up an order of product, he said that while grabbing a case of the product, he turned to put it down on a pallet, twisted, and heard a pop. He said he then went to a walk-in clinic where the employer refers its injured staff. He was examined and returned to work. He was given a modified duties - physical capability forms. He attempted to work the next day but later saw his chiropractor who took him off work. He advised that he took the bus to work that day.

The worker's representative asked the Appeal Commission to uphold the Review Office decision dated May 29, 2015, that determined that there is an entitlement to wage loss benefits in this claim. She submitted that the worker did not violate any legislative provision or Board policy on which to overturn the allowance of wage loss benefits and that the evidence confirms that there was a loss of earning capacity in this case, there is an entitlement to wage loss benefits as supported by subsection 4(2) and subsection 39(2) of the Act.

Analysis

The employer is appealing the WCB decision that the worker is entitled to wage loss benefits arising from his December 16, 2014 workplace injury. The employer asked the panel to return the matter to the WCB to re-adjudicate the worker's entitlement to wage loss benefits in accordance with WCB Policy 43.20.25, Return To Work With Accident Employer, and specifically asked that a third party medical consultation with WCB Healthcare Management Services be conducted with respect to the worker's restrictions and the suitability of the modified duties that were offered.

For the employer's appeal to be approved, the panel must find, on a balance of probabilities that the worker was not entitled to wage loss benefits as a result of an injury which arose out of and in the course of his employment. The panel was not able to make this finding. The panel finds that the worker was injured in a workplace accident and sustained a wage loss as a result. The panel further finds that the worker's actions in not participating in a return to work program on a full time basis was reasonably based on the medical and other evidence at that time.

The panel reviewed the adjudicative decisions made by the WCB at four distinct periods in the claim:

1. December 17, 2014 to December 29, 2014: full wage loss benefits paid.

The employer representative submitted that there was a difference of opinion between the initial report from the walk-in physician to whom the employer sent the worker, and the subsequent report of the worker's chiropractor. She questioned why an independent assessment was not performed by a WCB physician.

The panel notes that the walk-in clinic physician found the worker to be fit for modified duties. The panel also notes that the worker, following the instructions of the walk-in clinic physician, attended work for four hours on the day following the injury and attempted the modified duties. However, the worker found his condition worsened and that he was unable to perform the duties. Later that day he attended a chiropractor who provided an illness note which indicated that the worker was "not capable of even light duties @ present time". Subsequently, on December 22, 2014, the chiropractor provided a First Report to the WCB indicating that the worker sustained a "thoracic and lumbosacral strain/sprain" and that there was a "potential lumbar disc protrusion."

The panel finds that there was reasonable medical support for the worker's absence from work.

Regarding the employer representative's suggestion that the WCB Policy 43.20.25, Return to Work with the Accident Employer, should have been applied at that time, the panel disagrees. The panel notes that this is not the type of situation contemplated by WCB Policy 43.20.25. The Policy is intended to cover situations where medical conditions have plateaued and restrictions can be reasonably determined. It is not intended to apply to situations where medical conditions are actively changing. The panel also notes that it is not uncommon that a report on the day of the injury does not reflect the full extent of the injury.

2. December 29, 2014 to January 20, 2015: partial wage loss benefits paid.

The worker advised that the modified duties he performed involved reviewing and revising company policies. He confirmed it was a sedentary position but that the amount of walking was bothering his back.

The employer representative said that the employer could have offered more work than the WCB required. She noted that the initial modified work plan, proposed by the walk-in physician, was on the basis of full eight-hour shifts per day, with no loss of earnings capacity involved.

The panel notes that on December 29th, under the guidance of the chiropractor and with the WCB, restrictions were imposed on a return to work. A physical capacities evaluation (PCE) was completed, and a return to work established from December 29th to January 20th. A January 8, 2015 PCE prepared by the chiropractor indicated the worker could return to light duties.

The panel finds that it was appropriate for the worker to return to modified duties on a limited basis during this period.

3. January 20, 2015 to February 19, 2015: full wage loss benefits paid.

The panel notes that on January 21, 2015, the worker's chiropractor noted "very significant progression of pain" on return to work. The chiropractor noted findings including spasms and reduced range of motion, and removed the worker from the workplace. A February 6, 2015 report from the chiropractor indicates "very significant exacerbation from returning to work. Poor ROM? Pain in low back + lower extremities."

The panel also notes the physiotherapist’s February 12, 2015 report indicates possible L5/S1 disc with radiculopathy and recommends an MRI. Findings included limited range of motion, numbness bilateral hips, left greater than right, heaviness into the hips, does not tolerate prolonged sitting, standing and walking, not sleeping through the night due to pain.

The employer representative submitted that "in looking at the restrictions, and in light of the very sedentary clerical-type work that was made available...it remains our opinion that full-time hours, in light of those modified duties offered, could have been performed."

The panel finds that the decision to remove the worker from modified duties during this period was reasonable given the medical report and objective findings at the time.

4. February 19, 2015 to May 7, 2015: partial wage loss benefits paid, gradual increase in hours.

The treating physiotherapist prepared a PCE, dated February 12, 2015, which recommended light duties and a gradual return to work. The worker commenced light duties on February 19, 2015.

The employer representative indicated that the initial offer of full-time modified duties was available through each of the periods, including this period, and that the worker could have performed the duties without any wage loss or time loss.

The panel finds there was reasonable medical support for modified duties during this period and that a gradual return to work was appropriate.

Conclusion

The panel finds, on a balance of probabilities, that there was medical support for the imposition of restrictions and modified duties, for each of the periods noted in the file and finds that the worker was entitled to the benefits provided during these periods.

The panel notes that the worker had difficulty with mobility and with transportation to work. The employer representative asserted that transportation was made available to the worker from the start of the injury. The panel finds that transportation assistance was not provided until the worker's second attempt to return to work as recommended by the treating physiotherapist in a report dated February 25, 2015.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of April, 2016