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 after October 5, 2015 in relation to his compensable injury. A hearing was held on September 8, 2016, and reconvened on December 7, 2016, to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits after October 5, 2015.

Decision

That the worker is not entitled to full wage loss benefits after October 5, 2015.

Background

On July 29, 2014, the worker suffered a work-related injury to his abdomen during the course of his employment as a maintenance helper. The worker attended medical treatment for his injury and underwent exploratory and ventral hernia repair surgery on September 23, 2014. His claim for compensation was accepted, and benefits and services were paid to the worker to February 17, 2015, when he was cleared to return to work by his treating surgeon. On March 13, 2015, the worker discontinued working due to further abdominal pain. On May 15, 2015, the worker underwent further surgery with the final diagnosis noted on the operative report as "Extensive Adhesions Small Bowel."

On May 26, 2015, a WCB medical advisor reviewed the file and stated, in part:

The May 15, 2015 operative report described a laparotomy (surgical exploration of the abdominal cavity) with the finding of small bowel adhesions that included adhesions to the anterior abdominal wall and previously placed mesh.

The aforementioned previously placed mesh was part of the September 23, 2014 operative procedure to evacuate a hematoma and repair a weakness of the anterior abdominal wall. The hematoma and weakness of the anterior abdominal wall are considered to be accounted for by the July 29, 2014 workplace accident.

Responsibility for the May 15, 2015 surgery was accepted by the WCB and benefits and services were reinstated.

On June 19, 2015, the treating surgeon reported that the worker was doing well and had no complaints. The physical examination was unremarkable and there were no masses or visceromegaly detected. Both groins were intact. The surgeon stated the worker should be able to return to work in the next four weeks or so.

In another report dated July 24, 2015, the treating surgeon reported that the worker was still having some mid abdominal pain. The wound had healed well and there was no sign of infection. The worker had tenderness which the surgeon thought had something to do with the mesh that was put in place to reinforce the hernia. He said the worker should be able to gradually return to work in the next three to four weeks.

In a doctor first report dated July 27, 2015, an attending physician noted that the worker had "incisional hernia scar tissue - mild bulge above umbilicus - mild tenderness." He stated that the worker could not return to regular duties and was not capable of modified or alternate work.

On July 29, 2015, the WCB wrote the attending physician requesting his input regarding work restrictions for the worker given that it was 11 weeks post-surgery.

On August 17, 2015, a WCB medical advisor opined that the worker was able to participate in workplace activities given that he was now at the 13 week point from his May 15, 2015 surgery. The medical advisor outlined specific temporary workplace restrictions and a graduated return to work schedule.

On August 18, 2015, the case manager wrote the worker to advise him of the workplace restrictions and the details regarding a return to work schedule.

In a letter dated August 28, 2015, the treating surgeon reported that the worker was doing well at the moment. The wound was healing well. There was a bulge in the center part of the wound but it did not look like a hernia. The surgeon said he reassured the worker and would see him again in a couple of months.

On September 3, 2015, the WCB tried to contact the worker but was unsuccessful.

On September 8, 2015, the case manager wrote the worker to advise that arrangements had been made for his return to work on September 8, 2015 to the job duties referred to in that letter.

In a memo dated September 16, 2015, the case manager documented that the worker called to advise that he received the letter dated September 8, 2015 and that he would not return to work as his doctor said he could not do so.

In a letter dated October 2, 2015, the treating surgeon reported that the worker seemed to be doing reasonably well but did not want to do any physical work for fear of recurrent herniation.

On October 5, 2015, the worker advised the case manager that the modified duties that were outlined in the WCB's September 8, 2015 correspondence were not modified duties. They were exactly the same duties as he was doing when he initially "ripped the mesh" at the time of his post-op return to work, and he did not want to go through the same problem again. He also indicated that he saw his surgeon on October 2, 2015, and the surgeon did not want him to return to work yet.

The worker was paid partial wage loss benefits to October 5, 2015 based on the graduated return to work schedule.

On October 27, 2015, a WCB physiotherapy consultant observed that it was now five and a half months after the May 15, 2015 surgery date. He noted that the healthcare opinion dated May 26, 2015 indicated recovery time of up to 10 weeks. The report by the treating surgeon dated October 2, 2015 did not list any clinical findings. The consultant opined that there was no indication for ongoing restrictions at this time.

On January 21, 2016, the worker's legal counsel wrote the WCB indicating the worker's benefits were terminated without providing him the required advance notice and the medical evidence supported that he was unable to do any physical labour.

In a decision dated January 22, 2016, the case manager advised the worker that based on the medical information on file and discussions with his employer, the modified duties offered to him by his employer were considered suitable and within his restrictions. The case manager advised that wage loss benefits ended on October 5, 2015 and there was no entitlement to any compensation benefits past October 22, 2015 as there was no indication of restrictions required in relation to his workplace injury. The file information showed that he had recovered from his laparotomy of May 15, 2015. On February 2, 2016, the worker's legal representative appealed the decision to Review Office.

On April 5, 2016, Review Office determined that there was limited entitlement to wage loss benefits beyond October 5, 2015 and that the worker had not been provided advance notice of change in his benefits.

Review Office found that the worker made a satisfactory recovery from the May 2015 surgery. Review Office referred to the reports on file from the treating surgeon starting in June 2015 up to and including early October 2015. Review Office said the medical evidence did not support that the worker was totally disabled at the time modified duties were available. The findings provided by the attending physician of "mild tenderness" were minimal. It was felt that the restrictions and graduated return to work program imposed by Compensation Services were consistent with the recommendations proposed by the surgeon.

Review Office noted that the worker's desire not to do any physical work for fear of sustaining a recurrent hernia was not the WCB's responsibility. There was no medical evidence to support that the worker required sedentary duties in relation to the compensable injury.

Review Office indicated that the worker should have been provided with advance notice of the change in his benefits (seven calendar days) and the worker was therefore entitled to a period of notice of seven calendar days from September 8, 2015 (full wage loss benefits less any partial wage loss benefits received), then four weeks of partial wage loss benefits as per the graduated return to work.

On April 28, 2016, the worker's legal representative appealed Review Office's decision of April 5, 2016, regarding his entitlement to wage loss benefits after October 5, 2015. An oral hearing was arranged to consider the worker's appeal.

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) 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 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 all parties to help the worker safely return to work.

With respect to modified or alternate work, the Policy provides in part:

The WCB will only become involved in two situations. The first is when either the worker or the employer requires financial or technical support to help the worker return to work. The second is when the worker and the employer disagree about whether the modified work placement is appropriate…

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 assisted in his appeal by legal counsel, who made a submission on his behalf.

The worker's position was that he was not able to return to work, based on his ongoing condition and his doctors' advice. The treating surgeon had advised that he could not do physical work, the attending physician had advised that he could not return to work, and both doctors had recommended retraining. The WCB disregarded his treating doctors, and ordered him back to work against his doctors' orders.

Worker's counsel submitted that the WCB medical advisor identified general guidelines only, and that those guidelines were not appropriate or applicable to his situation. The surgery he underwent was particularly difficult, and involved a re-injury. The WCB medical advisor himself later acknowledged that the worker's recovery had been prolonged.

It was noted that while the WCB took the position that the worker was able to return to work with restrictions, the worker did not have that information. The WCB created the restrictions and advised the employer of those restrictions, but the worker was left out of the discussion. He was not notified of the plan in advance and did not have the opportunity to voice his concerns or to consult his doctors. There is no evidence the worker received the August 18, 2015 letter. Further, that letter did not indicate any date for a return to work. The September 8, 2015 letter, requiring him to return to work on September 8, was sent on that date and he did not receive it until sometime later. He could not have attended work on that date, as he had not received any advance notice and did not know of it. According to the letter, the only day he was scheduled to work was September 8, 2015. He was not provided with any further shifts or any further opportunity to return to work.

It was submitted that when he received the information that he was to return to work, all the worker asked for was to speak with his doctors. The last time he returned to work from his injury, he had been re-injured. The return to work plan referred to lifting weights of up to 25 pounds, which was a lot of weight for someone with such significant medical issues. In the circumstances, it was reasonable for the worker to ask to speak with his doctors.

It was further submitted that to the extent that there were indications that the employer could have accommodated a five pound weight restriction, that was never communicated to the worker and he never had an opportunity to accept such a restriction.

The worker's counsel submitted that the June 6, 2016 report from the treating surgeon confirms that the worker still cannot do physical labour, and that the worker's evidence supports that he has not fully recovered. He still has restrictions, although the extent of his restrictions is unclear, as the doctors have only provided general cautions.

In conclusion, it was submitted that the worker did not refuse to work. Rather, the evidence showed that he was not afforded the opportunity to meaningfully participate in a return to work. Based on the totality of the evidence, it was therefore submitted that the worker's benefits from October 5, 2015 should be reinstated.

Employer's Position

The employer was represented by legal counsel, who supported the decision made by Review Office, and submitted that the finding that the worker could have worked with restrictions after October 5, 2015 was the appropriate finding based on the medical evidence.

The employer's position was that they did everything they could. The WCB provided them with restrictions and they developed a return to work plan based on those restrictions. They tried to communicate with the worker. They were more than willing to accommodate whatever restrictions were provided, as long as they could do so. This was a multiparty process, and the employer was caught in the middle, trying to work with both the WCB and the worker in an effort to return the worker to the workplace. In their view, they did all that an employer can do.

In the employer's view, there was nothing to indicate that the worker was unable to do anything at all. It was submitted that the medical evidence must be carefully reviewed and considered in terms of what it says and what it does not say. The doctors' reports do not specifically say that the worker cannot work. Although the doctors were repeatedly asked for specific weight restrictions, with supporting evidence, they just kept saying that the worker could not lift anything heavy. They were not saying that he could not lift anything at all.

It was noted that the June 6, 2016 letter from the treating surgeon did not contain anything different in terms of restrictions, and what the worker could and could not do, from when the decision was made to end his benefits. That letter refers to the worker being unable to lift heavy objects and to do hard physical labour which, in the employer's view, was consistent with the medical opinions throughout. Counsel noted that the October 2, 2015 letter from the treating surgeon and the October 27, 2015 letter from the attending physician suggested training for a lighter job, again indicating that modified duties were doable.

Counsel noted that the evidence showed that the worker was not going to have to lift anything heavy. The restriction with respect to heavy lifting was going to be accommodated. There was an indication that the treating surgeon's office advised that the worker could not lift more than five pounds. The evidence was that the employer could have accommodated that restriction and was, in fact, looking at three-pound and one-gallon lifting as the heaviest amounts to start.

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits after October 5, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after October 5, 2015 due to his compensable injury. Having carefully reviewed and considered all the evidence before us and the submissions of the parties, the panel is unable to make that finding.

The panel notes that in its April 5, 2016 decision, Review Office determined that there was limited entitlement to wage loss benefits beyond October 5, 2015 based on a period of notice of seven calendar days from September 8, 2015, then four weeks of partial wage loss benefits as per the graduated return to work program. That decision has not been appealed. The only issue which is before us relates to the worker's entitlement to full wage loss benefits beyond October 5, 2015.

Based on our review of the medical information on file, the panel finds that by September 8, 2015 the worker was fit to return to work in some capacity and was not precluded from returning to work on modified duties.

In arriving at that conclusion, the panel places weight on the July 24, 2015 opinion of the treating surgeon, who stated that the worker's wound had healed well and he "should be able to gradually return to work in the next 3-4 weeks." The treating surgeon thus acknowledged the opportunity for the worker to return to work, with some restrictions.

The panel places no weight on the July 27, 2015 opinion from the attending physician that the worker was not capable of alternate or modified work. The worker confirmed at the hearing that this was the first time he saw this doctor. The panel notes that the physician's opinion with respect to the worker's capabilities differs from that of the treating surgeon, provided three days earlier. There is no indication, however, that the worker's condition had changed in those three days. The attending physician did not report any new clinical findings or diagnoses which might explain such a difference or change in the worker's capacity to return to work. In the panel's view, the treating surgeon had a better understanding of the nature of the worker's injury, and what the worker could or could not do, having performed the surgeries and followed-up with the worker on an ongoing basis.

The evidence shows that the WCB medical advisor had previously reviewed the claim file and prepared a list of restrictions which had been sent to the treating surgeon on May 26, 2015, with a request that the surgeon advise if he disagreed with the proposed restrictions and indicate his findings that would support any other restrictions. On August 17, 2015, having reviewed the updated information on file, including the July 24 letter from the treating surgeon, the WCB medical advisor opined that the worker was able to participate in work-related activities, and stated:

Given [the worker's] size and his history of recurrent incisional herniation, it would be reasonable to begin a graduated return to full activities in accordance with the July 24, 2015 report from his attending general surgeon.

A typical regime may be instituted as follows…

The restrictions which were set out on August 17 mirrored those which were listed on May 26, 2015. By letter dated August 18, 2015, the case manager advised the worker and the employer of the workplace restrictions and details regarding the worker's graduated return to work schedule.

By a subsequent letter dated September 8, 2015, the worker was advised of arrangements that had been made for his return to work. The panel finds that by that time, the employer had identified modified duties and was attempting to get the worker back to work.

The panel further finds that the employer had a developed return to work program, and that this was known to the worker. In response to questions from the panel, the worker described other situations he was aware of where workers had returned to work on modified duties, including a situation where a worker was assigned to sit by a particular machine, and did not have to actually physically work. In the panel's view, the environment was amenable to a successful return to work.

The panel notes that information on file shows that an assistant from the treating surgeon's office subsequently advised that the treating surgeon had indicated that the worker could not lift more than five pounds. In response to a question from the case manager, the employer advised that the heaviest amount the worker would be lifting in modified duties would be maybe three pounds, and that they saw no problem having the worker restricted to lifting less than five pounds.

Based on the evidence and on a balance of probabilities, the panel finds that the modified duties which had been identified would have respected the worker's restrictions, including a five pound weight restriction, and allowed him to recoup his pre-accident wages by October 5, 2015 if he had participated in the process. The panel is satisfied that to the extent that any adjustments to the return to work plan were required, the process would have allowed such adjustments to be made.

The panel finds, however, that the worker refused to engage in that process. The process itself was reasonable and was not new to the worker. The worker had been advised from the beginning of his claim of his obligation to stay in contact with the employer and the WCB. While there is some dispute as to whether or when the worker received the August 18, 2015 and September 8, 2015 letters from the WCB, the evidence indicates that the worker had sufficient information by September 16, 2015 to at least meet with the employer regarding the restrictions which were outlined in the August 18 and September 8 letters and an appropriate job offer. He made no attempt to do so. Instead, he advised that he would not return to work, as his doctor said he could not do so. The panel notes that while the worker stated and it was argued at the hearing that the worker simply asked to speak to his doctors, that statement and position are not consistent with or supported by the information on the file.

In conclusion, the panel finds, based on the foregoing analysis and on a balance of probabilities, that the worker did not suffer a further loss of earning capacity after October 5, 2015 due to his compensable injury.

The panel therefore finds that the worker is not entitled to full wage loss benefits after October 5, 2015.

The worker's appeal is dismissed.

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 3rd day of February, 2017