The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to full wage loss benefits from July 12, 2016 to July 22, 2016 in relation to his compensation claim. A hearing was held via teleconference on June 7, 2017 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from July 12, 2016 to July 22, 2016.

Decision

That the worker is entitled to wage loss benefits from July 12, 2016 to July 22, 2016.

Background

On May 26, 2016, the worker injured his right ankle and foot when he slipped on a wet surface and fell to the ground. The worker was diagnosed with a right lateral ankle sprain and an undisplaced fracture of his fibula by a sports medicine physician on May 26, 2016. The treatment plan included crutches, a back slab and reassessment in two weeks' time. An Absenteeism Certificate signed by the physician indicated that the worker should be off work from May 26 to July 8, 2016 or until further notice.

On May 31, 2016, the worker spoke with his WCB case manager to discuss his claim. The worker reported symptoms of pain and numbness in his whole leg. The worker noted that his employer had spoken with him regarding modified duties and that he was advised by the sports medicine physician that he was not to drive and was told to keep his foot up for 6 weeks. The worker said he lived 25 miles away from work.

On May 31, 2016, the employer's representative advised the WCB that they offered the worker office work which he refused on the advice of his doctor that he should be off work for 6 weeks.

The employer's representative noted that the worker's next doctor appointment was on June 8, 2016 and asked the WCB to contact the physician in advance to see if the worker could be medically cleared to do office work while he recovered from his ankle injury. She noted that the employer was able to provide transportation to the worker if travel was a barrier.

In a report to the WCB dated June 13, 2016, the sports medicine specialist noted that the worker sustained a Weber B right ankle fracture and required casting with a period of non-weight bearing and use of crutches for 4-6 weeks from the date of injury. Restrictions were to include limited standing and walking, especially through any rough terrain.

On June 13, 2016, the worker advised the WCB that his ankle was swollen and sore. His next medical appointment was on June 29, 2016. He said he was told to keep his leg elevated above his heart until the swelling went down. The worker said he discussed modified duties with his doctor and they were planning on July 8, 2016 for the worker to return to work. Both the sports medicine specialist and his family doctor told him "no" to modified duties.

On June 17, 2016, a WCB adjudicator left a phone message with the employer's representative to advise that the worker was not fit to return to work at modified duties at this time.

A medical note signed by the sports medicine specialist dated June 29, 2016, indicated that the worker "requires continued restriction of work demands, i.e unable to do commercial driving, restrict prolong walking/standing and lifting/carrying."

On July 4, 2016, the WCB wrote the employer to enquire whether they were able to accommodate the worker with a return to work program with restrictions of no commercial driving, no prolonged walking/standing/lifting/carrying.

On July 6, 2016, the worker attended a physiotherapist who reported that the worker had swelling and pain in his right ankle and that he was able to start modified work on July 11, 2016.

In a letter to the WCB case manager dated July 13, 2016, the employer's representative noted that the worker was offered suitable modified duties that were well within the work restrictions outlined by the sports medicine specialist dated June 29, 2016. She noted that the worker began office work on July 11, 2016 and they had now received a new medical note from a different doctor which stated that the worker was not fit for any type of work until July 25, 2016. The employer protested the issuance of wage loss benefits starting July 13, 2016 because there was a clear discrepancy in the medical reporting and the worker went "doctor shopping" to get a note that would take him off work. The employer felt that the worker was not totally disabled, that he was capable of sedentary work and the employer had suitable modified work available.

On July 19, 2016, the worker advised the WCB that his cast was taken off a couple of weeks ago and his ankle was still swollen. He returned to work to modified duties on July 11, 2016 and was cutting paper into 4 squares. He said his manager gave him a note to take to his doctor. The operations manager told him that cutting paper was ridiculous when he should be at home. The worker said he went to see his family doctor that day as directed by his employer, as he could not get in to see the sports medicine specialist.

The case manager contacted the worker's manager who confirmed that he told the worker to get a personal assessment from his doctor. He said the worker's foot was really swollen and that the worker was in pain. The manager confirmed that the worker could only have put his ankle up on a foot stool. The manager further indicated that the worker returned to modified duties when asked and did what was asked of him. He did not think the worker was taking advantage of the system.

In a response to the employer's letter dated July 13, 2016, the case manager confirmed that the WCB was accepting responsibility for full wage loss benefits from July 11 to July 24, 2016 as the worker was following his employer's advice and the time loss during this period was medically supported. On August 12, 2016, the employer's representative appealed the decision to Review Office.

On October 5, 2016, Review Office determined that there was entitlement to wage loss benefits from July 12 to July 22, 2016 on the grounds that the worker was unfit to perform modified work duties during this time as a result of the effects of his compensable injury. Review Office's decision was based on file information which showed that the worker attempted to perform modified duties offered by the employer and that he was given a note to take to his physician so that a further assessment of his injury could be conducted. The worker's manager confirmed the worker's swelling and pain and they instructed him to attend his physician. The family physician reported that the worker was not fit for regular or modified duties until July 25, 2016 and the treating physiotherapist felt the worker should have remained off work from July 11 to July 22, 2016. On October 18, 2016, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing 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 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 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.

Worker's Submission

The worker did not participate in the hearing

Employer's Submission

The employer was represented by an advocate who participated via conference call

The employer's advocate stated at the outset of her presentation that although they were appealing entitlement to wage loss from July 12, 2016 to July 22, 2016, the employer was of the view that they could have accommodated any restrictions put in place from the outset of the workplace accident on May 26, 2016. Further, the employer's advocate raised the issue as to whether the worker should have returned to work prior to July 12, 2016 based on the medical evidence contained in the worker's file. The panel clarified that the issue in front of them at this time was only the time loss from July 12, 2016 to July 22, 2016.

The employer's advocate stated that they had received notification from WCB dated July 4, 2016 that the worker was able to return to work at that time with the following restrictions:

No commercial driving

No prolonged walking/standing /lifting/carryings

These restrictions were outlined in a note dated June 29, 2016 from a sports medicine physician who had been treating the worker. The July 11, 2016 return to work date was also supported by the worker's treating physiotherapist July 6, 2016 report.

The employer was able to accommodate these restrictions and the worker did return to work on July 11, 2016.

The employer's advocate stated that since the restrictions were not specific enough, the employer had requested that the worker have his treating physician complete a Physical Assessment Form which provided more detailed information on the worker's restrictions. The employer was of the expectation that the worker would go back to the treating sports medicine physician who provided the initial restrictions. Instead, the employer's advocate stated, upon receiving the Physical Assessment Form on July 11, 2016, the worker went to his family physician to have the form filled out as the worker could not get in to see his sports medicine physician. The worker's family practitioner filled out the physical assessment form indicating that worker cannot return to either regular or modified duties and as a result the worker is not cleared to return to work after July 11, 2016 until Monday July 26, 2016.

The employer's advocate stated that, as a result of the worker having his family physician fill out the Physical Assessment Form which precluded the worker from any return to work during that period, which was different from the worker's sports medicine physicians' opinion that the worker could return to work on restricted duties, the employer was faced with differing medical reports on file.

The employer's advocate asked the panel to recognize the difference between a sports medicine doctor and a general practitioner. She stated that the sports medicine doctor specialized in bone and foot injuries while a general practitioner role was to advocate for their patient.

The employer's advocate stated:

I would like to bring in the point again about weight of medical evidence. So when you have differing medical reports on file, you know, discrepancies between assessments for fit for work status, weight of medical evidence should come into play. And my contention is that a sports medicine specialist should trump a GP (general practitioner) because that's his specialty. He's dealing with bones and muscles.

The employer's advocate also pointed out that if the panel compares the restrictions filled out on the Physical Assessment Form by the worker's general practitioner on July 11, 2016 to the restrictions previously outlined by the worker's sports medicine physician they are similar.

The employer's advocate stated:

So we look at this and we weren't clear why [the sports medicine physician] has approved modified work, so has the physiotherapist said he's fit, and then [the family physician] has taken him off.

Hence our appeal, because the entitlement officer then issued wage loss benefits, based upon [the family physician's] form here, for the period of July 12th to the 24th.

The employer's advocate also raised her concern with the Review Office's reliance on the treating physiotherapist's letter dated September 15, 2016. She felt that the medical information contained in the letter referring to the worker's pain and swelling in his ankle was not new information as the worker already was experiencing that as a result of the workplace injury.

The employer's advocate also challenged the appropriateness of the physiotherapist's later September 15, 2016 note, as the worker had advised the WCB review officer that he would approach his physiotherapist to obtain a note. Further, the physiotherapist's September 15, 2016 note contradicted the same physiotherapist's previous assessment on July 6, 2016 that the worker could return to work.

The employer's advocate summarized the employer's position by stating:

• That they felt that the worker was fit to return to work on July 11, 2016.
• That the worker had at that point been off work for 6 ½ weeks. Bones typically take 6-8 weeks to heal and medical reports seem to indicate he was healing well.
• Modified work was available that was within the restrictions outlined by [sports medicine physician].
• The worker was cleared (to return to work) by the physiotherapist

The employer's advocate stated that the employer did not understand why the WCB made a decision to pay the worker wage loss based, it appears, solely upon the general practitioner's report.

The worker's advocate further stated that it did not make sense to her that Review Office also upheld the wage loss because of the second physiotherapist's letter dated September 15.

Analysis

In order for the appeal panel to grant the employer's appeal, the panel would have to find that the worker was not entitled to wage loss benefits from July 12, 2016 to July 22, 2016. The panel is unable to make that finding.

The panel finds, on the balance of probabilities, that worker was unable to work between July 12, 2016 to July 22, 2016 and is therefore entitled to wage loss benefits for that period of time.

In making that finding the panel relies on the following.

Since the time of the injury the worker was being treated concurrently by both his family physician as well as a sports medicine physician.

The return to work restrictions outlined by the worker's sports medicine physician on June 29, 2016 and accepted by WCB appeared to be appropriate.

The employer was able to provide the worker with appropriate duties that fell within the treating sports medicine physician's restrictions.

However, the panel notes that on July 11, 2016, concerns were raised as to whether the worker's noted restrictions were appropriate given the work duties and the worker's actual functional abilities at that time.

A July 19, 2016 file note recorded by the WCB adjudicator stated the following:

Modified duties July 11 taken off by [family physician] why?

I returned workers (sic) call.

He went to modified duties on July 11, 2016 He was doing cutting paper into 4 squares. His ankle was swollen. He talked to his manager, [name]. [Name] seen gave him a note to take to his Dr. His Operations Manager [name] told the worker that is was ridiculous that he was cutting paper when he should be at home.

He seen [family physician] that day as he was directed by his employer. He could not get into see [sports medicine physician]

This week the swelling in his foot has gone down but his ankle is still swollen. His ankle has seemed to improvement a lot this week.

…He finds that he has sit, move and apply ice to his ankle.

***

I called [manager]. [Manager] confirmed he told the worker to get a personal assessment from his Dr. He stated that worker's foot was really swollen. [Manager] confirmed the worker was in pain. [Manager] confirmed that the worker can only have put his ankle up on a foot school.

[Manager] stated that the worker came to modified duties when he was asked and he has done what has been asked of him. [Manager] does not believe that the worker is taking advantage of the system.

The worker's family physician, after examining the worker on July 11, 2016 determined that the worker should remain off work until July 25 and that effective July 25 the worker could commence two weeks of modified duties. The panel notes that the worker's family physician had been treating the worker from the beginning of the injury and was familiar with the worker's injury. The panel accepts that the worker's family physician had the expertise in general medicine to make that determination regarding the worker's injury. While the employer's advocate asked the panel to rely instead in the restrictions placed by the sports medicine physician, the panel notes that those restrictions had been placed two weeks earlier, on June 29. The panel finds that these restrictions were anticipatory in nature, and did not reflect the worker's actual capacity for work on July 11. The panel further finds that the family physician's view of the worker's inability to work was consistent with the witnessed accounts of the employer's manager and operations manager. The worker was prescheduled for a one week vacation to commence on July 25, 2016 so the worker did not return to work until one week after July 25, 2016.

The physiotherapist's letter dated September 15, 2016 confirmed that it was appropriate for the worker to remain off work during that time. The physiotherapist was treating the worker effective July 6, 2016 and treated the worker during period subsequent to that date until October 3, 2016. The panel accepts that the worker's treating physiotherapist had the knowledge and expertise to provide that opinion.

The worker was examined by his sports medicine physician on July 27 2016 who provided the worker with a medical note allowing the worker to return to work Aug 1, 2016. However, he again imposed restrictions on the worker's return to work duties.

The file notes confirm that the case manager investigated the circumstances around the July 11,+ 2016 return to work on modified duties.

The panel accepts that the totality of the evidence supports the case manager's decision to pay for the time loss from July 12 to July 22, 2016.

1. The worker was engaged in the return to work process;
2. The worker's supervisors expressed concerns regarding the worker's return to work;
3. The worker's treating family physician examined the worker and determined that he was unable to continue work in his modified duties at that time.

Despite all parties' best efforts, the worker's July 11, 2016 return to work was simply too early in this instance.

For the reasons stated herein, the employer's appeal is denied.

Panel Members

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

Signed at Winnipeg this 13th day of July, 2017