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 wage loss benefits after October 8, 2015 in relation to his compensable injury. A hearing was held on August 16, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after October 8, 2015.

Decision

That the worker is not entitled to wage loss benefits after October 8, 2015.

Background

On April 11, 2013, the worker experienced a pull on the right side of his groin when he lifted a machine housing at work. On April 26, 2013, the worker was diagnosed with a right inguinal hernia. The worker underwent surgery to repair the hernia and was subsequently diagnosed with "right post inguinal hernia repair pain." Further surgery was performed on July 30, 2015, involving right groin exploration with double neurectomy. File records show that the worker has permanent work restrictions that consist of no heavy lifting greater than 10 kg from floor to waist, positional changes every 30 minutes, and no repetitive resisted pushing and pulling.

In October 2015, the worker was offered modified duties by his employer which involved a light material sorting position.

On October 8, 2015, a WCB case manager met with the worker and employer representatives at the workplace to review the sorting position. In a memo to file dated October 9, 2015, the case manager noted that she was adding further work restrictions, over and above the worker's permanent work restrictions, for a temporary period of time. The additional restrictions consisted of no lifting, no twisting, and no reaching outside of the body envelope.

Following a review of the modified duties, which were described as "checking [material] for holes", the case manager concluded that the job position was very sedentary and that no twisting or turning was involved. The worker advised the case manager that he had tried the same job duties before and that it was just "too painful for him."

On October 9, 2015, the worker was notified that wage loss benefits would be paid to October 8, 2015 inclusive and final, based on the case manager's opinion that the modified duties offered to him by the employer were suitable and within his work capabilities. On January 19, 2016, the worker appealed the case manager's decision to Review Office.

On March 15, 2016, Review Office determined that the worker was not entitled to full wage loss benefits beyond October 8, 2015. In reaching its decision, Review Office referred to WCB call-in examination findings dated January 4, 2016, in which the WCB medical consultant stated:

[The worker's] chronic post right inguinal hernia repair pain is related to the right inguinal hernia repair which was done in accordance to the right inguinal hernia which in turn is considered medically accounted for by the April 11, 2013 workplace injury.

The…listed restrictions would still be applicable. The timeframe for reassessment of these restrictions would be indefinite.

Review Office noted that the worker's regular job as a production worker involved lifting up to 48 kilograms and pushing up to 23 kilograms. It found that the worker did require restrictions for his compensable groin injury.

Review Office also referred to the case manager's description of the sorting position when she attended the worksite on October 8, 2015. Review Office's opinion was that the physical demands of the modified duties would not have been greater than the worker's activities of daily living, and were within the restrictions established for the compensable injury.

Review Office considered medical reports on file from the treating physician dated October 19, 2015 and a neurologist dated December 8, 2015. Review Office stated these medical reports did not support the worker's inability to perform modified duties. Review Office noted the neurologist had indicated that the worker was "unable to work at or perform the essential tasks of his employment", but found that the essential tasks were in reference to the worker's regular pre-accident work, and not to the modified work.

Finally, Review Office indicated that it acknowledged the worker's report of groin symptoms but was of the opinion that he was fit to work full-time hours on modified duties.

On April 8, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's 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 4(2) of the Act 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) of the Act 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 "Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The purpose of the Policy is stated, in part, as follows:

When a worker is injured or becomes ill at work, the goal of the…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.

The 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.

Worker's Position

The worker was represented at the hearing by legal counsel. The worker was provided with the services of an interpreter, and responded to questions from his counsel and the panel with the assistance of the interpreter.

The worker's position, as advanced by his counsel, was that he was unable to return to the workforce due to the pain and injury from his work-related incident and associated surgeries.

The worker strongly disagreed that his loss of earning capacity had ended. Counsel submitted that none of the worker's clinicians had stated that he was healthy enough to return to work. His neurologist in particular stated that he was unable to work or perform the essential tasks of his employment as a result of his condition. The WCB misunderstood the neurologist's opinion as set out in his first report. In a follow-up letter dated March 30, 2016, the neurologist clarified that in his opinion, the worker was unable to carry out his modified work, which included sorting or desk work.

It was submitted that the worker attempted to go back to work doing the sorting position following his second surgery, but it caused him too much pain and discomfort. After he consulted his treating physician and neurologist again, the decision was made that he would not be able to do that job. Counsel submitted that this was not a refusal to participate, but a medically-advised recusal from the workforce.

Counsel noted that they did not disagree with what the employer had tried to do. They acknowledged that the sorting position fit the restrictions which the WCB had identified. It was their position, however, that those restrictions were not exhaustive enough. The restrictions were established before the worker's second surgery. The worker's condition became worse after that surgery, and significantly more restrictions were required.

Counsel noted that sitting at 90°or more forward caused the worker more pain and aggravated his injury, and the neurologist had told him to refrain from sitting at that angle. The worker could therefore not do a desk job. This was also an issue with the sorting position. The worker would have to be in a reclined position, which would mean that he would have to be reaching in order to do that job. In counsel's submission, the physical toll which the sorting position would have on the worker had not been accurately described or taken into account.

Employer's Position

The employer was represented by an advocate and its health and safety coordinator. The employer's position was that the worker was offered suitable alternate or modified work which was well within the legislative requirements. The capacity for earnings existed. The loss of earning capacity was due to the worker's declining suitable work, and he was therefore not entitled to further wage loss benefits.

The employer recognized that the worker had some lingering effects and permanent impairments as a result of his compensable injury. The employer's advocate noted that the worker's restrictions were identified by the WCB medical consultant following a comprehensive examination and review of the documentation on the file, including the reports of the surgeons and specialists. In the employer's submission, those restrictions were reasonable.

The offer of the sorting position allowed for a tremendous amount of flexibility. The worker could work at his own pace and change position frequently. The duties were reviewed and evaluated at a meeting involving the worker, the employer's health and safety representatives, and the WCB. In the employer's submission, it was noted what the responsibilities and obligations of the job were, what flexibility there was and what opportunities were available for the worker to do what he could do and still have the job be productive.

The employer's advocate stated that they had difficulty accepting the neurologist's opinion, as set out in his letter of March 30, 2016, that the worker was unable to carry out the modified work. The advocate noted that the neurologist did not provide any information or rationale as to why the worker could not do the modified duties. There were no medical findings suggesting that the worker would exacerbate or further damage his condition if he was to perform the job.

The advocate noted that the sorting job was a job that needed to be done. It was not a make-work project, but an essential job that had value and would continue to be done.

In conclusion, it was submitted that the opportunity that was presented to the worker was appropriate.

Reasons

The issue before the panel is whether or not the worker is entitled to wage loss benefits after October 8, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity after October 8, 2015 due to his workplace injury. The panel is unable to make that finding for the reasons that follow.

The employer offered the worker modified duties in the form of a material sorting position. At the hearing, the panel carefully questioned the worker and the employer's health and safety coordinator with respect to the duties of the sorting position. Based on our review of the evidence, the panel is satisfied that those duties were very light in nature. We are further satisfied that there was a significant degree of flexibility with respect to those duties and how they could be performed.

The panel notes that a meeting on October 8, 2015 was held on site, to review the job duties and seek input from various individuals as to how to make the job as suitable as possible. At the hearing, the panel questioned both the worker and the employer's health and safety coordinator as to what took place at that meeting. With respect to the performance of the sorting position, the health and safety coordinator stated that:

…any chair could be used in that position that would be suitable or comfortable for [the worker] to use…We had it set up so that it could be seated. It could be standing….there's quite a bit of room in the …room for him if he needed to move about, take stretch breaks or rest breaks…we had it set up so that everything was…very close to the body. So there was very limited arm movement.

The coordinator further stated as follows:

So in that meeting…we were all there to help make recommendations to make that job as suitable to [the worker] as possible…And we had him in on that so that he can make suggestions. So if there was reaching involved, how can we bring things closer. That was the reason for that meeting …to make that job as suitable as possible.

The worker indicated at the hearing that he tried to do the job on October 8 and took a couple of items, but was in a lot of pain and said he could not do it. The health and safety coordinator also stated that the worker picked up one or two items and tried doing it, but said that there was too much pain. The coordinator added that they "all tried to ask him what could be done to make it so that it's not necessarily easier, but what could be done so that it was not creating pain for him", but that other than saying that it was causing him pain, "he didn't make any suggestions as to how to make it so that he was able to do it."

The panel considered the work restrictions which were established for the worker, including the additional temporary restrictions of no lifting, no twisting, and no reaching outside of the body envelope, which had been added by the case manager.

The worker's counsel submitted that additional restrictions were needed. In response to questioning from the panel as to what further restrictions should be included, counsel stated that:

[The worker], due to the pain, isn't sleeping much…so working eight-hour days is too much for him. He wouldn't be able to do work at a full eight-hour day.

Sitting down, well, sitting at a 90-degree angle is not feasible. Right now, what he does most of the days is, he's constantly switching from sitting at a reclined position, walking around, lying down and then starting the cycle again.

I'm not sure if that would be something that he would be able to do in a work environment. I don't know that he would have the ability to lie down and relieve that strain, I'm not sure what else we would advocate for….

I don't believe he would be able to work a full day's work. In terms of how much, we would have to consult further with doctors…

The panel notes that there is a lack of medical evidence on file to support any such further restrictions.

The panel also notes that there was no previous reference on the claim file to the worker being unable to sit at a 90° angle or slightly forward. It was submitted at the hearing that the worker had been told by the neurologist to refrain from sitting at a 90° angle. Counsel stated that he himself had spoken briefly to the neurologist, and the neurologist had mentioned that anytime the worker sat at 90° it caused additional pressure on the nerve. The panel notes that there are no medical findings on file to this effect.

The panel carefully reviewed the letters from the neurologist, including the December 8, 2015 letter and the subsequent letter dated March 30, 2016, which stated, in full:

This is to indicate that I have seen this patient in consultation with a medical condition such that he is unable to carry out his modified work that includes [material] sorting or desk work.

The panel notes that no medical findings are provided in support of the neurologist's opinions. Further, there is no indication of the extent to which the duties of the sorting position had been explained to the neurologist, or that he was aware of how those duties could be or had been adjusted.

The panel places greater weight on the opinion of the WCB medical consultant of his call-in examination of the worker on January 4, 2016, where he assessed and confirmed the worker's restrictions. In regard to counsel's assertion that the worker's condition was worse after the second surgery, the panel notes that the WCB medical consultant's opinion confirming that those restrictions were still applicable was issued more than five months after the second surgery and he specifically referred in his notes to that surgery. The consultant's notes further indicated that the call-in examination involved a one-hour assessment, including a physical examination of the worker. Regarding sitting tolerance, the panel specifically notes that the worker indicated that he will sit for a few minutes and get improvement with a change of position. The consultant meanwhile noted that the worker sat for approximately 30 minutes for the interview. The consultant did not place a sitting restriction on the worker.

The panel also places weight on the case manager's observations at the October 8, 2015 meeting and review of the modified duties, that the modified duties were suitable and within the worker's work capabilities.

In conclusion, having carefully considered the information before us, the panel finds, on a balance of probabilities, that the modified duties of the material sorting position as offered to the worker were appropriate and within his medical restrictions and capabilities.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity after October 8, 2015 due to his workplace injury and is not entitled to wage loss benefits after that date.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of October, 2016