The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits after April 11, 2015. A hearing was held on January 19, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 11, 2015.

Decision

That the worker is not entitled to wage loss benefits after April 11, 2015.

Background

The worker filed a claim with the WCB for injury to her right wrist, arm, hip and knee when she slipped at work on August 14, 2014. The accident description provided by the worker was confirmed in the Employer's Accident Report dated August 21, 2014. File records show that the claim for compensation was accepted and various benefits were paid to the worker. The compensable diagnoses related to the accident are a right wrist fracture and major depressive disorder.

On February 17, 2015, the treating hand therapist outlined work restrictions of no heavy lifting and limit repetitive grip right hand.

On February 25, 2015, the WCB wrote the worker to confirm the details of her return to work program with the accident employer, noting that she was considered fit to perform modified duties with temporary work restrictions of no heavy lifting and limited repetitive grip with the right hand. The program was to start on February 25, 2015, and it was anticipated that the worker would be back at her regular work schedule of eight hours per day by March 28, 2015.

In March and April 2015, the treating hand therapist again outlined work restrictions as follows:

March 20, 2015: No heavy lifting with right wrist and limit repetitive grip.

April 14, 2015: No heavy lifting and limit repetitive grip.

On April 27, 2015, a WCB medical advisor opined that the restrictions provided by the treating hand therapist should be modified to read: No heavy lifting and no repetitive forceful hand gripping. The advisor further stated that the medical evidence did not substantiate the need to restrict work hours.

On April 30, 2015, the WCB wrote the worker to confirm the details of her revised return to work program, which had been adjusted to take into account a two week vacation that the worker had taken. According to the revised program, the worker was to have been back to a full eight hours per day by April 11, 2015. File records indicate that the worker had returned to work performing modified duties, but worked less than the scheduled hours each day, and was continuing to perform modified duties, but at two hours per day.

On May 5, 2015, in response to questions posed by the case manager, a WCB psychologist consultant opined:

Based on information available, it does appear that there are significant workplace issues and workplace dissatisfaction on the part of the [worker]. These factors appear to be strongly associated with the current subjectively reported exacerbation in her symptoms of depression. However, this increase in symptomatology related to workplace dissatisfaction would not be seen to be materially related to the compensable injury, although it may be a barrier to participation in return to work. Therefore, there would be no restrictions based on increase in symptomatology as related to the compensable injury. (emphasis in original)

On June 25, 2015, the worker was advised by her case manager that she was considered capable of returning to her pre-accident job and was not entitled to wage loss benefits beyond April 11, 2015. Reference was made to the WCB medical opinions of May 5, 2015 and April 27, 2015.

On July 9, 2015, a worker advisor asked Review Office to reconsider the April 30 and June 25, 2015 decisions denying partial wage loss benefits. The worker advisor argued that the modified duties the worker was asked to perform were outside her compensable restrictions and her physical abilities, and the evidence supported that the worker was unable to perform full-time hours due to her right hand injury.

On October 14, 2015, the employer's representative submitted to Review Office that the work accommodation provided was well within the worker's functional limitations. Further responding submissions on behalf of the worker and the employer are on file.

On July 7, 2016, Review Office referred to specific file information to support its findings that the graduated return to work plan that commenced on February 25, 2015 was appropriate for the worker and the worker was entitled to partial wage loss benefits based on that schedule from February 25 to April 10, 2015. Review Office further determined that there was no entitlement to wage loss benefits beyond April 11, 2015, as the worker was fit to work her regular hours within her compensable restrictions.

On August 17, 2016, the worker advisor appealed Review Office's decision that the worker was not entitled to wage loss benefits beyond April 11, 2015 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.

The worker was employed by a federal government agency or department and her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Pursuant to subsection 4(2) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

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 "Return to Work 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 provides that 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.

The Return to Work 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 by a worker advisor, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker responded to questions from the worker advisor and from the panel.

The worker's position was that she had not recovered from the effects of the workplace accident as of April 11, 2015, and continued to be in a loss of earning capacity after that date.

The worker advisor submitted that point 1(a) of the Administrative Guidelines in the Return to Work Policy confirms that the WCB will "pursue placement in a modified/alternate work situation concurrent with medical management and physical rehabilitation." Point 1(f) of the Guidelines further states that any "return to work plan should be amended as required…" It was the worker's position that as of April 11, 2015, the WCB refused to accept the medical management of the worker's case, and did not consider amending the work plan schedule, in contravention of the Return to Work Policy. It was submitted that medical management had directed a reduction in work hours directly related to the compensable injury, to assist in a successful return to full regular work duties and hours, which the WCB had to respect.

The worker advisor stated that Compensation Services had confirmed on April 30, 2015 that they would pay additional time loss beyond April 11, 2015 if there was medical evidence to support a loss of earning capacity. It was submitted that medical information provided to the WCB and the WCB's medical advisor's October 26, 2015 report confirmed that the worker had ongoing right wrist impairment and pain complaints, and supported that a loss of earning capacity existed beyond April 11, 2015. Based on physician-imposed restrictions for the compensable injury the worker's loss of earning capacity did not cease on April 11, 2015, and there was further WCB responsibility for wage loss benefits.

Employer's Position

The employer was represented by its WCB specialist, who provided a written submission in advance of the hearing and made a presentation to the panel.

The employer's position was that the employer had appropriately accommodated the worker with work which was meaningful, productive and within the worker's limitations, and the worker was not entitled to any wage loss benefits beyond April 11, 2015.

It was submitted that the employer had not only followed and accommodated the functional limitations with respect to the worker's compensable injury, as outlined in the return to work plan, but had also respected limitations provided by the worker's treating practitioners for a non work-related condition. The worker did not follow the graduated return to work agreement, but worked a reduced work week based on her doctors' directions.

In the employer's view, the modified duties which were identified did not involve heavy lifting and were not repetitive, particularly since the worker only worked two to three hours per day. The worker was always allowed to work at her own pace. There was no production quota and the worker was never pushed to work hard or fast.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after April 11, 2015. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity after April 11, 2015 due to the workplace injury. More particularly, the panel must find that the worker suffered a loss of earning capacity after April 11, 2015 due to an inability to return to the physical demands of her pre-accident job as a result of her compensable injury. For the reasons that follow, the panel is unable to make that finding.

Dealing first with the workplace restrictions, the panel notes that the worker was provided with a return to work plan towards the end of February 2015. The plan identified temporary work restrictions and a timetable for a gradual return to work over a period of several weeks.

The worker advisor has submitted that the timetable should have been amended and the work hours reduced based on medical information provided to the WCB. The panel is unable to make such a finding. The panel is satisfied that the restrictions identified by the hand therapist in February 2015 were appropriate and the medical evidence does not support a change to the revised return to work plan.

The panel places significant weight on the WCB medical advisor's April 27, 2015 opinion that the medical information does not substantiate a need to restrict work hours, over the medical reports relied upon by the worker advisor. The medical advisor established restrictions of no heavy lifting and no repetitive forceful hand gripping with no restriction of work hours.

The worker advisor relied on a report from the treating physiatrist dated April 9, 2015 and reports from the worker's treating physician dated April 28, May 19 and June 16, 2015. The panel notes that in his April 9, 2015 report, the physiatrist stated that the worker "is encouraged to continue with the present daily work schedule, 2 hrs/day, although she wants to reduce to 3 days/wk." The physiatrist expressly stated in his report that he had incomplete data at the time, and would be ordering a bone scan. The results of the bone scan later indicated no abnormality, and in his subsequent report dated May 12, 2015, the physiatrist made no comment with respect to the work schedule, other than to say that he "would encourage [the worker] to take advantage of any return to work options WCB and her employer can make for her."

With respect to the reports from the treating physician, the panel notes that while the physician indicated that the worker should continue with previous work restrictions at two hours/day, there were no clinical findings to support or explain the need for such a reduction in the worker's work hours. The panel further notes that in a previous modified work information sheet dated March 24, 2015, the treating physician recommended a restriction of two hours of work a day with reference to two injuries, the second one being to the worker's left forearm. Information on file indicates that the worker decreased her hours after March 23, 2015 claiming a new injury to her left forearm and reduced her hours to two hours per day. The panel notes, however, that this new injury and any associated restrictions are not part of this claim.

In light of the foregoing, the panel is of the view that the medical advisor's April 27, 2015 opinion more accurately reflects the worker's medical restrictions, and therefore finds that the return to work plan was appropriate.

The panel then assessed whether the worker's job duties were within her compensable restrictions. At the hearing, the panel questioned the worker in detail with respect to the duties she performed in her pre-accident job and the modified duties she was performing between February and April 2015.

The panel notes that prior to the accident, the worker was employed in a term position, in a supervisory role. The evidence indicated that all supervisor term assignments ended on November 30, 2014 (with the exception of one individual who was retiring less than one month later). The worker's evidence at the hearing was that the supervisor's duties were less demanding than the modified duties she was assigned when she returned to work in early 2015. The panel is

satisfied, based on the evidence before us, that the duties which the worker was performing at the time of the accident were within the restrictions which were identified in the return to work plan.

The worker acknowledged at the hearing that she would have been able to do the supervisor's job in April 2015 and before. The panel notes that the worker's evidence was that the same or a similar full-time position was posted in December 2014 then reposted several times after that, and that she applied for that position, as well as for other positions with the employer. In the panel's view, this supports that the worker herself was of the view at that time that she was physically capable of doing the work that was required in those positions.

With respect to modified duties, the worker advisor submitted that the duties which the worker was performing from February to April 2015 were not within the worker's restrictions, as evidenced by physical demands analyses ("PDAs") which had been provided by the employer and were on file. The employer's representative submitted that the worker was not performing all aspects of those jobs as listed on the PDAs, but only a small portion of them. Based on our review of the evidence, the panel is satisfied that the worker was not expected to perform all of the duties set out in the PDAs.

The worker advisor acknowledged that the modified duties met the restriction regarding heavy lifting. The advisor submitted, however, that the duties involved constant repetitive movement for the duration of the worker's shift, which fell outside the worker's restrictions. In particular, the worker had to forcefully grip and operate a scanner throughout her shift. The panel notes, however, that the evidence indicates the worker was performing a series of different physical tasks. Thus, while each task may have been done frequently, individual tasks were not done constantly. The panel finds that the modified duties which the worker was performing in February to April 2015 were within her restrictions.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker would have sufficiently recovered from her workplace injury and been fit to return to her pre-accident duties or a position with comparable or equivalent physical demands on a full-time basis as of April 11, 2015.

In conclusion, the panel finds that the worker was capable of returning to the physical demands of her pre-accident job. The panel finds that the worker did not suffer a loss of earning capacity due to her workplace injury after April 11, 2015, and is not entitled to wage loss benefits after that date.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 17th day of March, 2017