Decision #98/16 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after March 6, 2015 in relation to his compensable injury. A hearing was held on May 18, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after March 6, 2015.

Decision

That the worker is entitled to wage loss benefits after March 6, 2015.

Decision: Unanimous

Background

On April 7, 2014, the worker was untying a tarp strapped to steel columns midway up a 10 foot ladder when the ladder tipped over. The worker landed onto his right arm resulting in a fracture to his right elbow and a right rotator cuff tear which was later confirmed by an MRI taken June 16, 2014.


File records showed that the worker returned to modified duties with the accident employer in May 2014 while undergoing physiotherapy treatment and was paid partial wage loss benefits.


By letter dated February 12, 2015, the employer was advised by Compensation Services that the worker continued to undergo treatment for his elbow and shoulder on regular basis and that he was entitled to ongoing treatment and benefits until he had recovered from his compensable injuries.


In a memorandum to file dated February 18, 2015, the WCB case manager noted that she spoke with the accident employer who indicated that because of significant changes in the workplace it was unlikely that they could accommodate the worker much longer. The employer noted that they were no longer operating in Manitoba and asked if they could accommodate the worker in another province. The employer indicated that other employees that were hired with the worker had been laid-off as the project had ended. These workers were only hired temporarily for the length of the project. The case manager advised the employer that it would not be reasonable to expect the worker to leave his home to be accommodated in another province as it would likely create a hardship for him. If the employer was unable to accommodate the worker, the worker would be entitled to benefits from the WCB as long as there were restrictions related to his injury.


On March 6, 2015, the worker advised the WCB that he had been laid off from employment. On March 10, 2015, the worker advised that he had been operating mechanical equipment at that time. He noted that three of his co-workers were laid off at the same time. The case manager advised the worker that as there were still restrictions related to his compensable injury, he would begin to receive wage loss again until such time as he returned to work or was cleared for duties.


Medical information showed that the worker was examined by a WCB physiotherapy consultant on March 17, 2015.


On April 10, 2015, the employer called to enquire why the WCB continued to pay the worker wage loss benefits, as they had received clearance from the treating physician that the worker was fit for regular duties. The employer noted the worker's pre-accident job demands were no lifting more than 30 pounds. While speaking with the employer, the case manager received by email the healthcare form referred to by the employer. The case manager noted that the form did state that the worker could do his regular duties but it also stated that he had restrictions of no lifting more than 50 pounds which was the same information on file from the treating physician dated February 26, 2015. The case manager advised the employer that the worker was therefore entitled to further benefits as he still required workplace restrictions, was laid off and was competitively disadvantaged from seeking further employment.


In a letter dated April 10, 2015, the employer was advised by Compensation Services that based on the March 17, 2015 examination, the worker had ongoing restrictions related to the workplace injury and that a reconditioning program would be of benefit. The employer was advised that based on the file information and WCB Policy 43.20.25, the worker was still entitled to wage loss benefits. On April 13, 2015, the employer appealed the decision to Review Office.


On June 2, 2015, Review Office determined that the worker was not entitled to wage loss benefits beyond March 6, 2015.


Review Office stated, in part, that they accepted the opinions of the treating physiotherapist and surgeon, who had cleared the worker to return to his regular duties by the time of his lay off on

March 6, 2015 (with the exception of a 50 pound lifting restriction). Review Office indicated based on the Physical Demands Analysis on file, the worker's job as a labourer was classified as medium work which he was cleared to perform. On April 10, 2015, the employer confirmed that the worker's regular job duties did not involve him lifting greater than 50 pounds (30 pounds maximum).


Review Office found that the worker was not competitively disadvantaged in seeking new employment and was laid off for economic reasons rather than for reasons related to his compensable injury. The worker had been performing regular duties prior to being laid off and his limited restriction would not prevent him from finding work in the construction field. As such, the worker was not entitled to wage loss benefits beyond March 6, 2015.


On February 9, 2016, the Worker Advisor Office filed an appeal with the Appeal Commission regarding Review Office's decision of June 2, 2015. The worker advisor noted that the file evidence supported that the worker had not recovered from the effects of his compensable elbow injury and required work restrictions beyond March 6 as well as June 15, 2015. It was submitted that the worker was entitled to further wage loss benefits on the basis that he was competitively disadvantaged in the general construction labour market.

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 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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.


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 an injury arising from a 2014 workplace accident. He is seeking wage loss benefits after March 6, 2015.


Worker's Position


The worker was represented by a worker advisor who provided a written copy of his submission. The worker advisor submitted that:


  • the worker originally had been correctly provided wage loss benefits beyond March 6, 2015 on the basis that he was, in fact, competitively disadvantaged in the general labour market at the time the employer ceased its operations in Manitoba.

  • the worker is entitled to wage loss benefits after June 15, 2015 including up to September 13, 2015, which is the day prior to undergoing his compensable elbow surgery.

  • the worker had not been performing his regular work duties prior to March 6, 2015. He said that information on the claim file from both the worker and employer confirms that the worker performed either modified or alternate work duties leading up to March 6, 2015.


The worker advisor noted that on March 9 and 10, 2015, the worker told his case manager that he had tried performing some of his regular duties, but only those he was able to tolerate. Specifically, he said he had operated mechanical equipment but no heavy lifting. On June 8, 2015, the worker advised his case manager that prior to his workplace accident, his regular job duties involved putting up forms, lifting lumber, doing concrete work and putting lumber up on a roof.


The worker advisor also noted that on May 8, 2015, following completion of the reconditioning program, a WCB physiotherapy consultant wrote that the worker was capable of lifting 50 pounds on an occasional basis, which was suggested to remain in place for another eight weeks.


He said this would establish a restriction review date around July 6, 2015. He submitted that the worker should be paid benefits to this date, at least.


The worker advisor asked the panel to give less weight to the form completed by the worker's surgeon on February 26, 2015. He noted the form indicates the worker is fit for regular duties but imposes a 50 pound lifting restriction. The worker advisor also suggested that the physician was not aware of the worker's regular duties.


In regard to wage loss entitlement from June 15 to September 14, 2015, the worker advisor commented that while there are no medical reports on file pertaining to this time period, it is likely because the worker was simply waiting for his surgery date.


The worker advisor noted that the April 1, 2016 call-in examination report, includes information which supports the worker required restrictions beyond those identified by his treating physiotherapist and surgeon, and which left him competitively disadvantaged in the general labour market.


In answer to a question, the worker advised that his pre-injury job with the employer limited him to lifting more than 30 to 35 pounds without assistance. The worker indicated that he was required to lift various types of lumber which exceeded this weight.


The worker advised that following his accident, up until the layoff in March of 2015, his duties included mostly some general cleaning and involved sweeping of jobsites. He was also on a man watch when workers went into confined spaces and no heavy lifting. He operated a machine lifting material up, or loading onto trailers, skid steer work with removal of snow and generally moving around forms or lumber for the other workers. He said he worked between 8 and 10 hours each day and spent three quarters of his time on the machine.


The worker said that in the first couple months of 2015, he was in Winnipeg at the employer's shop and "doing very minimal there, like besides a little bit of forklift material coming in and out of their second shop or their offices. Very minimal work there, that’s when they transferred me out to that bridge project, that’s where I did more operating with the moving materials around."

The worker said he spent about 20% of his time operating the equipment before he was injured.


The worker advised that after he was laid off in March, he did not apply for any other construction jobs. He said that he was told he would be called back within a few weeks but did not receive a call.


In reply to a question about job opportunities after he was laid off, the worker stated:


I…had no other opportunities. I didn’t feel that I would be hired by a construction company because of my ongoing issues with that arm…


Employer's Position


The employer was represented by its Occupational Health Advisor and Labour Relations Manager.


The Occupational Health Advisor provided a written submission. She noted that the worker had surgery on April 8, 2014, returned to modified duties on May 22, 2014, and continued to work modified duties up to and including his last day of work with the employer which was May 6, 2015. She noted that an MRI was conducted on June 16 which reported, in part, the following findings, a low grade small bursal-sided tear on the interior fibers of the supraspinatus tendon, flattening of the posterolateral head which may be secondary to degenerative change, moderate osteoarthritis of the AC joint with inferior directed osteophytes.


The employer's representative noted that on February 26 the primary care provider provided a form indicating that the worker could return to work, regular duties, with no lifting above 50 pounds. She advised that this is the same limit as his regular duties and that the worker was meeting his pre-accident job demands as of February 26, 2015. She also referred to a March 2, 2015 report which acknowledged that the worker gets some aching in the elbow, but has been doing his full duties.


The representative advised that on March 6, 2015, the worker was issued a notice of termination from the employer. She advised that as of this date, the employer was no longer performing work in Manitoba. All projects had come to a completion at that time.


The representative also noted that on May 6, 2015 a physiotherapy clinic report came to file which also stated, in part, when he was last working he was performing modified duties, where he was not to lift anything greater than 50 pounds. She submitted that this documentation continued to support that the worker continued to be medically fit to perform his pre-accident job demands. She noted that the worker underwent surgery on September 13, 2015.


She advised that it is the employer’s opinion that the worker is not entitled to wage loss benefits from March 6 to September 13, 2015. Because the worker was meeting his pre-accident job demands from February 28, up to and including September 13, 2015, it is the employer’s opinion that the worker is not entitled to wage loss benefits during that period.


Analysis


The worker is appealing the WCB Review Office decision that he is not entitled to wage loss benefits after March 6, 2015. The worker has been paid wage loss benefits to June 15, 2015. He indicated that he is seeking wage loss benefits after June 15, 2015, to September 13, 2015, which is the day before he underwent compensable elbow surgery.


For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity arising out of and in the course of his employment after March 6, 2015. The panel is able to make this finding. The panel finds, on a balance of probabilities:


  • that prior to the lay-off the worker had not performed his regular duties. The panel accepts the evidence of the worker, who described the tasks that he performed prior to lay-off. The panel also notes the employer confirmed that the worker had performed modified duties to the date of the lay-off.

  • that although the worker was able to perform modified duties up to the day of lay off, March 6, 2015, at the time of the lay-off, the worker was not fit to perform his regular duties. The panel relies upon the following evidence:


    • the March 17, 2015 examination by WCB physiotherapy consultant. The consultant examined the worker and found that the worker should avoid working at end range extension right elbow and avoid forceful or repetitive pronation/supination motion of right forearm such as using a screw driver. He indicated that these restrictions were to be reviewed in 2 months. The consultant also found that the worker was an appropriate candidate for a reconditioning program.

    • in March 2015, the worker commenced a reconditioning program, funded by the WCB.

    • in a report dated May 6, 2015, the treating physiotherapist recommended a gradual return to work doing 2 hours of regular duties with the rest of the day performing modified duties with the same lifting restrictions.

    • the May 8, 2015 opinion of the WCB physiotherapy consultant that the worker was capable of lifting 50 pounds on an occasional basis, which should remain in place for a further 8 weeks (to approximately July 6, 2015).

    • surgery on the worker's left shoulder was scheduled for July 2015 but was cancelled and rescheduled to September 14, 2015.


  • that the worker is entitled to full wage loss benefits from March 6, 2015 to September 13, 2015. The panel finds that the worker is entitled to benefits during:


- the period that he attended the reconditioning program,

- the period that he was fit to perform modified duties and a graduated return to work (approx. to July 6, 2015) given there was no position for him to return to

- the pre-operative period (July 6 to September 13, 2015). The panel finds that it was not reasonable for the worker to look for full time employment because he had been in benefits for a portion of this period and had pending surgery for a portion of this period.


Given our decision, it is moot to consider whether the worker was competitively disadvantaged.


The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 28th day of July, 2016

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