Decision #56/16 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits after February 27, 2015 in relation to his compensation claim. A file review was held on March 1, 2016 to consider the employer's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after February 27, 2015.
Decision
That the worker is entitled to wage loss benefits after February 27, 2015.
Decision: Unanimous
Background
The worker filed a claim with the WCB for a right biceps injury that occurred at work on February 22, 2015. The worker reported that he and another employee were trying to open a gate to allow them access into the employer's parking lot. There were two sides of the gate which were joined in the middle and they had a hard time opening both. The worker said he hurt his biceps when he felt a pull while attempting to open the gate. He felt pain right away, but continued working, and reported the incident as soon as his supervisor came in that day, at 12:30 p.m.
The Employer's Accident Report recorded that the worker injured his right biceps on February 22, 2015 when he and two co-workers were attempting to open a gate that led to the employer's parking lot. The employer said they were objecting to the allowance of the claim as "we feel proof of accident lacks in accordance with WCB adjudication policy."
In subsequent email correspondence, the employer's representative stated that they were withdrawing their objection to the allowance of the claim, but did object to time loss benefits
being paid as they had had suitable modified duties available for the worker since the date of injury.
In a decision letter dated March 3, 2015, the WCB advised the employer that the medical information on file supported that the worker was not capable of modified duties as of February 22 and 27, 2015, and that further medical evaluation was required.
On March 12, 2015, the employer appealed the decision to Review Office. In a submission filed in support of that appeal, the employer stated, in part:
While we appreciate [the worker] was advised to remain off work when he was assessed on February 22, 2015, after further investigation he was provided with a diagnosis and restrictions in the PCE [Physical Capacities Evaluation] of February 27, 2015. We cannot understand how WCB could have made a decision on the unsuitability of a return to work without understanding the duties we had available to [the worker]. It is our opinion that the restrictions provided in the PCE of February 27, 2015 did not preclude [the worker] from returning to work to the modified duties originally offered on February 23, 2015.
In a decision dated September 14, 2015, Review Office determined that the worker was entitled to wage loss benefits beyond February 27, 2015. Review Office noted that the PCE form dated February 27 was received by the employer via fax on March 2 from the physician's office. The PCE form indicated the worker "cannot use R (right) upper limb" and would be reassessed on March 6. The employer advised that return to work discussions did not take place with the worker upon receipt of this information. The February 27 PCE form and the information contained in it were not shared with the WCB at that time or considered by primary adjudication.
Review Office found that the restrictions on the PCE form were not indicated in the February 27 medical report. Consistent with the medical report on file, the worker contacted the adjudicator that same day and stated: "He is to remain off work for one week and he has a follow up appointment on March 6 he let his employer know." As the employer did not initiate a formal return to work plan with the worker until his reassessment on March 6, he remained at a loss of earning capacity. On October 20, 2015, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
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 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 the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy describes suitable modified or alternative work as follows:
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.
To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.
Employer's Position
The employer's position, as set out in its appeal form dated October 20, 2015, was that it made suitable modified duties available to the worker following injury, which the worker could have participated in.
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 February 27, 2015. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity due to the workplace injury after February 27, 2015. Having carefully reviewed the information on file, the panel is unable to make that finding.
The worker attended at a walk-in clinic on the day of the accident and was told to remain off work. He went to see his own doctor on February 27, 2015. File information indicates that a form of Modified Work Plan ("MWP") had been sent to the worker on February 23 by registered mail (but not picked up), and that the worker was told to and did attend at the workplace on February 26 to pick up a PCE form and a copy of the MWP. The duties listed in the MWP consisted of the employer's standard "list of possible duties."
The evidence indicates that the worker telephoned the WCB on February 27 and left a message that he had seen his doctor, that he was to remain off work for one week and had a follow-up appointment on March 6, and that he had let his employer know. The Doctor's Progress Report from the attending physician dated February 27, 2015 indicates, in response to a question as to whether the worker was capable of alternate or modified work: "? to reassess March 6." Given that response, no restrictions were outlined in the Report.
In its submission to Review Office, the employer relied on a completed PCE dated February 27, 2015, a copy of which was attached to that submission. The evidence shows that the employer received the February 27 PCE by fax from the attending physician's office on March 2, 2015. There is no indication that a copy of the February 27 PCE was provided to the worker or the WCB at or around that time.
In reviewing the PCE, the panel found that the form itself is difficult to interpret. With respect to the attending physician's comments, the panel notes that the physician specifically wrote on the February 27 PCE that the worker could not use his right upper limb. He also indicated that he had not discussed modified duties with the worker, and that the worker's next assessment was March 6, 2015.
The evidence indicates that the employer had no contact with the worker between the time it received the February 27 PCE and March 6, 2015. Thus, there was no discussion with respect to the worker returning to work or with respect to what particular duties, if any, would be available and suitable in the circumstances.
On March 6, 2015, the worker was again seen by his attending physician, who reported in the Doctor's Progress Report that the worker was capable of returning to work on March 8 on alternate or modified duties, and noted as restrictions "duties limited by avoidance of vigorous BC [biceps] contraction." In a PCE dated March 6, 2015 and faxed to the employer that same day, the attending physician similarly wrote that the worker "needs to avoid forceful contraction of [right] biceps - may RTW March 8." The evidence indicates that the worker did return to work full time, with modified duties, on March 8, 2015.
Based on all of the evidence, the panel finds, on a balance of probabilities, that the worker believed, and that it was reasonable for him to believe, that he was to remain off work until March 8, 2015. The panel is satisfied that the worker did not refuse to perform modified duties, and that he returned to work as soon as he was cleared to do so by his attending physician. The panel finds that the worker continued to have a loss of earning capacity after February 27, 2015 through to March 8, 2015, when he returned to work with modified duties.
The panel therefore finds that the worker is entitled to wage loss benefits after February 27, 2015.
The employer's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
S. Briscoe, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
Signed at Winnipeg this 26th day of April, 2016