The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to full wage loss benefits for the initial time period of his compensation claim. A hearing was held on May 26, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits for the period July 16, 2015 to August 3, 2015.

Decision

That the worker is entitled to full wage loss benefits for July 16 and 17, 2015 inclusive.

Decision: Unanimous

Background

On July 13, 2015, the worker reported that he injured his right shoulder at work while picking up a 75 pound (34 kilogram) metal sheet. The accident described by the worker was confirmed in the Employer's Accident Report dated July 15, 2015.

A Doctor First Report dated July 14, 2015 indicated that the worker was unable to move his right arm without pain. There was a burning sensation over the deltoid. The attending physician suspected a "right anterior shoulder dislocation." The physician noted that the worker was not capable of alternate or modified duties.

On July 15, 2015, a WCB adjudicator spoke with the worker by telephone and documented the following:

Worker called, he indicated the doctor has taken him off work for 3 weeks. I asked if he had the restriction form filled out and he indicated the doctor was going to fax it to the WCB. I stated that if the employer has modified duties available, we would expect that he return to work. He understood and indicated he is unable to work as it hurts to walk. Employer offered him modified duties of walking around. He stated he is leaving for [city] on Monday, July 20/15 for two weeks. A leave of province form has been faxed to his employer which he is going to pick up today.

A doctor's progress report on July 17, 2015, indicated that the worker's diagnosis was "query biceps tendinopathy, can't rule out rotator cuff injury." On exam the worker had a weak grasp and tenderness in the anterior shoulder along the biceps head. The treatment plan included a sling, muscle relaxants and NSAIDs, and a reassessment in two weeks. An MRI was recommended if the worker showed no improvement.

On July 21, 2015, the accident employer's representative advised that the worker was offered modified duties on July 14, 2015 and the worker indicated that he could not work with his left hand and that his doctor told him he was not capable of working modified duties.

A Physical Capabilities Analysis dated July 14, 2015 indicated that the worker was not capable of lifting, operating heavy equipment or a motor vehicle. He was limited to using his left hand only and was not capable of performing light or modified duties for 3 weeks.

When speaking with a WCB senior case manager on August 4, 2015, the worker stated he could not work with his left hand as he was not left-handed.

On August 4, 2015, the employer's operations manager advised the WCB that the worker was offered duties as a supervisor with no use of either arms or hands. The worker could sit or stand and take breaks as required. The employer would again offer these duties to the worker.

On August 4, 2015, the worker advised a senior case manager that he would return to light duties on August 5, 2015.

On August 12, 2015, the worker was advised by letter that there was no loss of earning capacity due to the workplace injury after July 15, 2015 as his employer offered him appropriate modified duties as of that date and he was advised earlier by the WCB that should his employer have modified duties available he was expected to return to work.

On October 3, 2015, the worker appealed the WCB decision to deny wage loss benefits for the period July 20, 2015 to July 31, 2015.

On December 21, 2015, Review Office determined that there was no entitlement to full wage loss benefits from July 16 to August 3, 2015.

Review Office referred to the July 14, 2015 Physical Capabilities Analysis which outlined the worker was capable of "Balance, crawling, crouching, climbing stairs, kneeling, stooping, bending, standing, walking, sitting, raising left arm above shoulder, and use of left hand only." Review office acknowledged that the form indicated the worker was not considered capable of performing light or modified duties , however the form identified activities the worker was capable of performing. It noted that the worker continued with his scheduled vacation from July 17 to August 3, 2015 and this demonstrated that he was not totally disabled.

Review Office noted the employer offered the worker modified duties that would not involve the use of his right arm and that the worker did not attempt to return to work. Review Office found the worker was likely capable of performing the alternate/modified duties offered by the employer. Based on WCB policy, the work accommodation offered by the employer was suitable work. On January 6, 2016, the worker appealed Review Office's decision 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.

Under subsection 4(1) of the 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.

WCB Policy 43.20.25 Return to Work with the Accident Employer (the "Return to Work" Policy) describes the approach to the return to work of injured workers through modified or alternate duties with the accident employer. The policy states in part:

Policy Purpose

When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time, the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with the parties to help the worker safely return to work.

WCB Policy 44.10.30.60 Practices Delaying a Worker's Recovery outlines the worker's responsibilities to participate in treatment and efforts by the WCB to recover in a timely and effective manner. It states in part:

Subsection A. 1.

In order to maintain eligibility for compensation benefits a worker is required to:

…

(f) Participate in an employer sponsored disability management program if required to do so by the WCB.

Worker's position:

The worker was self-represented at the hearing. He described what happened on the day of accident and his activities in the following days and answered questions from the panel.

It was the worker's evidence that after the lifting incident he was able to finish that shift. He informed his production manager that he was leaving and was given a physical capacity form. The next day he went to work at 7:30 a.m., but had excruciating pain at work and had to go to his family physician at 9:00 am. His physician referred him to the hospital to deal with the suspected shoulder separation. The hospital took an ultrasound and x-ray and made attempts to put his shoulder back in. The emergency doctor suspected it could have been a torn biceps. They gave him a note for 2 weeks off and told him to rest, his arm was put in a sling, and he was given a prescription for Tylenol 3 to take as needed.

The worker submitted that his arm hurt when hanging down, so he went to work after the hospital visit and handed in the completed forms that he was given by the employer prior to going to see his physician. He took the forms to the operations manager who asked him if he can come in and supervise. He responded that he was in too much pain and went home.

The worker advised that the next day, Wednesday July 15, 2015, he went to work and filled in WCB forms and his Leave of Province form for his pending vacation on July 20, 2015. He had a follow-up medical appointment after the long weekend, August 4, 2015 after his vacation. He stated that he did not talk to anyone from work on either July 16 or 17, 2015. He did attend his physician's office on July 17, 2015 prior to leaving for his vacation.

It was the worker's evidence that he went on vacation leaving the city in the evening of July 17, 2015 and returned to the city on August 3, 2015. He acknowledges he was paid by the employer for the two weeks as vacation pay. The worker also stated he no longer works for the employer and has secured employment elsewhere.

It was the worker's position that on July 14, 2015 until August 4, 2015 he was unable to work as noted on the doctor's note, he was not available for light duties, and he was unable to drive. He acknowledged that the operations manager had offered light duties but none were offered in a reasonable sense. He stated that there was no discussion on what light duties were available or would be done on Thursday the 16^th or Friday the 17^th.

Employer's position:

The employer was represented at the hearing by its Operations Manager and Plant Supervisor who outlined their modified work program and interactions with the worker in the week following his injury.

The Operations Manager did not recall the specific discussion with the worker on July 14, 2015 and was unable to confirm the worker's response of too much pain to supervise.

The Plant Supervisor submitted that they employ 36 staff in a manufacturing shop that included an office component. At the time of the worker's injury their light duties program consisted of matching the injured worker's restrictions from the capabilities form to some of the various positions in the shop or office. Nothing specific was designated as "light duties" but as an example, when one of their staff injured his foot, they had him sit at the punch to make holes in sheet metal.

It was the employer's position that at that time, they did generally offer light duties to all injured staff even to sit in the office or do data entry in the computer terminals in the shop area. The plant supervisor was unsure who initiated a corporate change at that time but since then they have developed a more formal program of modified duties.

The plant supervisor confirmed that he did recall the events when the worker returned to the operations manager's office on July 14, 2015. He recalls reading the capabilities form and that the worker was wearing a sling.

Analysis:

For the worker to be successful in his appeal, the panel must find that the worker suffered a loss of earning capacity due to his right shoulder injury and is entitled to wage loss benefits. On a balance of probabilities we are able to make those findings for the reasons that follow.

The panel notes that the employer's representatives provided details on the return to work program at the plant. It was a very informal process involving a doctor's restrictions and capabilities that they would attempt to find sufficient work during the day to occupy the injured worker in meaningful work. If they failed to find suitable work, they would just ask the worker to sit and occupy themselves. The panel notes also that the employer has taken steps since that time to establish a formal process to place workers in suitable alternate or modified work.

The panel places significant weight on the observations of the plant supervisor when the worker returned to the workplace after being at the hospital. He stated that: "…he did recall seeing [worker] after his injury in July 2015. He did see [worker's] capabilities form and that he was wearing a sling. He looked like he was having pain issues and got the impression that he would be away for a while."

The panel also places weight on the worker's attending physician comments on the physical capabilities analysis dated July 14, 2015 which definitively notes:

Is the individual capable of performing light or modified duties effective immediately? (X) No. If no when will the individual be able to return to work Modified duties unknown Regular duties ~ 3 weeks.

The panel notes there is no record in the file of an offer of modified work that was, or could have been, made to the worker.

Based on the above analysis, the panel finds that on July 14, 2015 no formal offer of modified duties and no refusal was made. The employer had accepted the recommendation of no work for 3 weeks made by the worker's physician and after a short discussion with the worker, determined that they were unable to accommodate him. Both the employer and the worker anticipated that the worker would be absent in the days immediately following the injury.

Therefore the panel finds the worker suffered a loss of earning capacity in the initial period following his compensable injury.

The panel notes that in the period from July 20, 2015 to August 3, 2015 the worker was on annual vacation for two weeks for which he was paid. The panel notes that this period included a Manitoba Statutory holiday on Monday, August 3, 2015 for which the worker was also paid wages.

Based on the foregoing information, the panel finds the worker's loss of earning capacity and actual wage loss was for July 16 and 17, 2015 only. The panel finds that the worker's entitlement for wage loss benefits are limited to those days, specifically July 16 and July 17, 2015 inclusive.

 

The worker's appeal is accepted, in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

P. Walker - Commissioner

Signed at Winnipeg this 2nd day of June, 2016