Decision #121/16 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") to provide the worker wage loss benefits with respect to his compensation claim. A file review was held on June 1, 2016 to consider the employer's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits to November 4, 2013.
Decision
That the worker is entitled to wage loss benefits to November 4, 2013.
Decision: Unanimous
Background
On October 22, 2013, the worker injured his left shoulder, elbow and knee when he slipped on a stainless steel casing that was around a filler platform. Initial medical reports showed that the worker was diagnosed with a strained left shoulder and a left elbow contusion.
On October 25, 2013, the employer advised the WCB that the worker refused their offer of suitable modified duties on October 22 and October 24, 2013. The employer asked the WCB to review the worker's entitlement given that suitable modified duties were offered.
On November 4, 2013, a WCB adjudicator spoke with the worker by telephone regarding the incident that occurred on October 25, 2013. On the date of the accident, the worker advised that his employer provided him with modified duty forms to take to his doctor to fill out. When seen by his physician on October 22, the worker gave the capabilities form to his doctor and the doctor told him he would fill it out when the time came. The worker then returned to work and told the employer that the doctor did not complete the forms and that he was going to have an x-ray taken the next day. When seen by his physician again on October 29, 2013, the worker asked
about the capabilities form and the doctor replied that he would fill out the forms when the time came.
On November 4, 2013, the WCB adjudicator spoke with the receptionist at the treating physician's office. The receptionist advised that the doctor does not complete capabilities forms until a worker is considered ready to return to work in an alternate or modified capacity. She indicated that a note was issued to the worker on November 1 confirming he was off work completely and a return to work date was pending the next reassessment.
In a letter to the employer dated November 4, 2013, Compensation Services advised that the WCB accepted responsibility for the claim as it was established that the worker suffered a personal injury due to an accident arising "out of or in the course of" his employment. The employer was advised that the medical information on file showed that the worker was first treated on October 22 and again on October 29, 2013 and was deemed totally disabled from work until further assessment. A follow-up telephone call to the doctor's office confirmed that the capabilities form would be completed when the worker was considered capable of returning to alternate or modified duties.
In a telephone conversation with the worker on November 14, 2013, the WCB advised that based on a review of the file which included an opinion provided by a medical advisor, it was determined that the worker was capable of returning to work in a modified duty capacity. The worker was advised that his wage loss benefits would be paid to November 14, 2013. A letter dated November 21, 2013 was subsequently sent to the worker confirming the November 14, 2013 discussion.
On July 21, 2015, the employer appealed the November 4, 2013 decision to Review Office. The employer stated:
The worker was offered modified work duties at the time of the accident and the medical information does not give evidence to support he was totally disabled, unable to do any duties what so every (sic).
He was able to travel on his own to medical visits and treatments and the employer offered modified duties to facilitate the accepted injuries.
It was his noncooperation (sic) in the acceptance or (sic) appropriated accommodations that caused him to lose time from work.
On August 14, 2015, Review Office considered the employer's appeal and determined that the worker was entitled to wage loss benefits to November 4, 2013. Review Office referred to a report from the worker's treating physiotherapist that was received at the WCB offices on
November 4, 2013 regarding an examination that took place on October 31, 2013. The report indicated the worker was cleared to return to modified duties respecting restrictions of no lifting, reaching or carrying with the left arm. Review Office noted that these restrictions were overlooked by Compensation Services or they preferred the forms filled out by the treating doctor noting the worker was fully disabled.
Review Office noted that the worker and the employer held discussions with the WCB regarding updates and a return to work on November 4, 2013. This supported that the employer would have been able and willing to accommodate the worker the following day within the restrictions outlined by the treating physiotherapist.
Review Office indicated that the medical information from the treating physician was incomplete but it did not accept the worker was fully disabled for a period of almost a month from a fall that injured only his left shoulder and elbow. Review Office accepted the restrictions of the treating physiotherapist and noted that since the information was not received until November 4, 2013, it was reasonable to conclude the worker's loss of earning capacity ended as of that date.
On February 12, 2016, the employer appealed Review Office's decision to the Appeal Commission and a file review 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 Board of Directors.
This is an employer appeal. The employer is appealing the WCB decision to pay the worker wage loss benefits to November 4, 2013.
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 time as the worker’s loss of earnings capacity ends, as determined by the board.
Employer’s Position
The employer’s submission was stated to be as follows:
Worker was offered modified duties at onset, medical information does not support he was totally disabled, unable to do any duties. He was able to travel on his own to medical visits/treatments. Employer offered modified duties. His non-cooperation rather than medical evidence was the cause of lost time and as such no loss of earnings should be considered.
Worker’s Position
The worker did not participate in this appeal.
Analysis
The issue before the panel is whether the worker suffered a loss of earning capacity beyond the day of the accident. In considering this issue, the panel has assessed the evidence with a view to determining whether it was reasonable for the worker to have refused the employer’s offer of alternate work and for what period of time.
The issue of reasonableness is a matter that must be determined having regard to all of the relevant facts. Its determination is likely to vary from case to case. What is reasonable in one context may not be in another.
The panel considered the following to be relevant to making a determination on when the worker's loss of earning capacity ended:
The worker’s injury, to the left side of his body, was a significant injury that resulted in considerable pain. The injury required active treatment that continued through to December 6, 2014.
The injury occurred on October 22, 2013. Shortly before the worker left to seek medical treatment, the employer provided him with a modified duties form that he was to take to his doctor. That form stated that he was being offered the following modified duties, commencing the day after the accident:
Putting shells on production line conveyor (requires one arm to perform this task)
Clerical duties
Cleaning
Filing/organizing inventory
The worker attended at his doctor on the day of the accident. He provided his doctor with the employer’s modified duties form that his doctor was to complete and return to the employer. The doctor advised the worker that he would complete the form at a time when the worker was considered capable of performing modified duties. A WCB First Doctor Report completed that same day noted that the worker was advised to remain off work. An x-ray was scheduled for the following day.
The worker initially advised his doctor that he did not want to be prescribed painkillers because of the side effects, and that he would see how he made out the first night. The following day the worker returned to his doctor and advised that his pain was unbearable. At that point his doctor prescribed a narcotic medication.
The worker attended his doctor on a follow-up basis on October 29, 2013. He again asked his doctor about returning the forms to his employer, and he was provided with the same answer – they would be completed when the worker was ready to return to work. The doctor's progress report of that date indicates that there had been no marked improvement and advised that the worker was to continue to remain off work.
The worker was seen by a physiotherapist on October 31, 2013. The physiotherapy report on file states that the physiotherapist recommended light duties with restrictions of no lifting/reaching/carrying with the left arm for a duration of two weeks. That report was received by the WCB on November 4, 2013.
On November 1, 2013, the employee’s doctor provided him with a note stating that he was to remain off work pending further assessment. A pre-scheduled plant shutdown began on November 4, 2013.
On November 13, 2013, the worker again saw his doctor, and was once again advised to remain off work. He spoke with a WCB adjudicator and advised her that the only specific job that the employee’s production supervisor had offered him was tossing shells. That task involved the worker reaching up to take empty shells, weighing 3-4 lbs, off a pallet and then placing them on a conveyor line. The worker advised that he had previously performed this function, but he had done it using two hands. He stated that it involved a lot of twisting and turning and he was concerned about further injury.
On November 14, 2013, the worker spoke with an adjudicator who advised him that the file had been reviewed and that he was expected to return to work with restrictions. He was informed that he would be paid up to and including November 14, 2013. He was also advised that he should meet with the employer and attempt to perform modified work. The worker agreed to meet with the employer for that purpose.
The worker returned to modified duties on November 18, 2013, immediately following the plant shutdown.
For the employer’s appeal to succeed, the panel must find that it was reasonable for the employee to have returned to work, on modified duties, on the day following his accident. The panel cannot make that finding.
The employer has a return to work protocol that is intended to assist injured workers to return to work. The normal process would be for the employer to receive a completed capabilities form from a physician outlining restrictions and limitations. As the form was not completed in this case, the employer was not aware of the worker's capabilities and in particular, whether the worker could safely perform the placement of shells on the production line duties using only one hand or safely perform production line work while under the influence of a narcotic medication.
In addition, the worker advised that the employer had never explored with him the nature of the clerical type of tasks that were being offered to him, and accordingly, he would not have had an opportunity to consider whether he had the necessary skills to perform such tasks.
The panel finds that the worker’s actions were reasonable. He was certainly justified, at least in the early stages of his recovery, in relying on his doctor’s advice, who was clearly stating that he was not prepared to authorize a return to work and had declined to complete the employer's modified duty form. At the request of his WCB case manager, the worker met with the employer immediately following the plant shutdown to discuss a possible return to modified duties, and he then returned to modified duties the following day.
The panel notes that the first definite indication that the worker was cleared to return to work was on October 31, 2013 by the treating physiotherapist. This report was, however, not received by the WCB until November 4, 2013, which coincidently was the day of the plant shutdown. In the panel's view, the November 5, 2013 date, that being the date following the receipt of this report, best represents the date the worker could return to work to modified duties.
The panel further notes that a WCB physician reviewed the worker’s file on November 14, 2013 and concluded that it would now be safe and appropriate for the worker to return to work with appropriate restrictions, confirming the physiotherapist's conclusions.
The panel finds, on a balance of probabilities that the worker's loss of earning capacity ended as of November 4, 2013.
The employer’s appeal is hereby dismissed.
Panel Members
D. Kells, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
D. Kells - Presiding Officer
Signed at Winnipeg this 27th day of July, 2016