Decision #150/17 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits after July 22, 2016 based on the findings that the return to work program offered was not a suitable accommodation. A hearing was held on September 11, 2017 to consider the employer's appeal.

Issue

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

Decision

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

Background

On March 17, 2016, the worker suffered a 0.5 cm second-degree burn to his left hand between the thumb and the first finger when a spark from a cutting torch fell into his glove. The worker's claim for compensation was accepted and benefits and services were paid. In May 2016, the worker was diagnosed with Complex Regional Pain Syndrome (CRPS) which was accepted by the WCB as being medically accounted for in relation to his compensable injury. File records also indicate that soon after the March 17 accident, the accident employer provided the worker with modified duties that he was able to perform at his home residence while he underwent treatment for his hand condition.

In June and July 2016, the accident employer advised the WCB that they were able to accommodate the worker with modified duties at their worksite as they were running out of computer work for him to complete from home. The job accommodation involved the detailing of trucks, which was later changed to office work. On July 22, 2016, Compensation Services sent a letter to the worker advising him that the return to work with modified duties would start on July 25, 2016, and if he chose not to participate, there would be no obligation from his employer to continue to pay him wage loss benefits. In August 2016, the worker appealed the decision to Review Office.

On October 12, 2016, Review Office determined that the worker was entitled to wage loss benefits beyond July 22, 2016 as it found that the accommodation offered to the worker beginning July 25, 2016 was not suitable.

Review Office referred to the worker's appeal submission that he was not able to perform the modified duties at the employer's worksite due to the difficulties with his left hand and the side effects of the medication he was taking for his injury. The worker also contended that he could not drive long distances. Review Office stated in its decision that it did not find merit to the worker's arguments concerning these issues but did have concerns about the suitability of the accommodation offered to the worker.

Review Office noted that the return to work program did not specify the hours of work per day or week for the office work position and that the modified duties were at a worksite that was 240 kms from where the worker resides. The worker had a non-functioning left hand and the file information did not address how the worker would essentially live independently at the worksite. It was not outlined what, if any, assistance would be provided to the worker regarding activities of daily living. Review Office acknowledged that the worker should use his left hand more, but that this would be a gradual process. The file information did not support that the function of the worker's left hand was sufficient for him to return to the worksite on July 25, 2016. Review Office concluded that the worker had a loss of earning capacity related to the workplace injury and was entitled to wage loss benefits beyond July 22, 2016.

On February 8, 2017, the employer 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.

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.

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 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.

Employer's Position

The employer was represented by an advocate, the employer's safety administrator and their safety manager. The employer's position was that the evidence supported the worker's ability to return to work effective July 25, 2016 and perform the modified duties which were offered, and that the worker was therefore not entitled to wage loss benefits beyond July 22, 2016.

The advocate stated that it was clear that the worker sustained an injury in the workplace. The worker was provided with and continued to work modified duties from his home from March to July 2016, which were monitored by the employer. The employer was satisfied that the work was being done and continued to pay the worker's regular earnings.

The advocate submitted that at the time the worker was offered modified duties in the office, the duties he had been doing at home were not exhausted. Had the WCB not approved the return to work offer, the employer would have continued to offer the worker modified duties at home as long as they could. However, the WCB supported the worker's ability to return to work in the office at the worksite, with the start date of July 25, 2016. It was the WCB who determined that the worker was not entitled to wage loss benefits and capable of work. It was submitted that the employer was being unfairly prejudiced and penalized for this decision, as they were given no further opportunity for continuing modified duties onsite or at the worker's home.

The advocate maintained that objectively, the evidence supported that the worker was able to return to work in July 2016. The worker is right-hand dominant, and was offered duties using his right hand only. While the worker had put forward many barriers to returning to work, the medical professionals were in fact encouraging him to use his left hand more. The worker reported he was unable to drive due to pain, but this was purely subjective; the worker's licence had not been revoked and there was no medical support for this. In any event, the employer had offered to provide transportation to and from the worksite, and the worker would have stayed at the work camp during the week. The worker reported having problems with incontinence due to the side effects of his medication, but the doctor had not adjusted his medication. The worker also reported dizziness. In the employer's view, however, this would not be a barrier to performing sedentary duties as offered.

The advocate stated that if there was a concern with respect to the worker's ability to live independently at the camp, an assessment could have been arranged, and any necessary assistive devices provided. The worker's concerns could have been addressed, but the employer was given no opportunity to do so.

The advocate submitted that at the end of the day, the employer complied with their obligations. They may not have had all the medical information at the time, but they did have objective functional information. The employer believed and continued to believe that the duties they offered were in line with that information. They did everything they could to remove barriers for the worker, regardless of whether those barriers were supported by the evidence or not.

The advocate stated that the employer was offering something which they felt would help the worker to progress further. They were willing to provide whatever breaks were needed, to allow the worker to work at his own pace, and to have someone beside him who would have helped him. The advocate added that the employer would have done whatever had to be done to accommodate the worker.

In summary, it was submitted that wage loss benefits beyond July 22, 2016 were not applicable as the duties which were offered to the worker were supported and the worker had already demonstrated his ability to do those duties at home. It was further submitted that the employer had complied with all that was required of them; that they were being unfairly burdened and should not be charged with the costs of the claim.

Worker's Position

The worker was self-represented, and was accompanied by his wife who assisted him with his presentation at the hearing. The worker's position was that he was not able to return to work with modified duties at the employer's worksite due to the effects of his compensable injury.

The worker stated that the employer has been wonderful towards him, and he would love to go back to work, but was not able to manage at the worksite in July 2016. The worker noted that it was documented in many places on the file that his physical ability was very limited. It was submitted that he was getting serious side effects with the different medications he was taking, including incontinence and severe dizziness. His wife noted that his safety was at risk when he was on his medications, but without the medications they would constantly have to be returning to the emergency department. His pain was and is out of control, and when he hits a pain crisis, he has to have additional medication which results in severe dizziness. His wife is able to administer the increased medication as needed, to keep him as comfortable as possible for however long the pain crisis lasts. She said that she makes him as safe as she can, but noted that he has fallen on her, and she has to have someone come and check on him if she is at work.

A number of other problems were mentioned with respect to working at the worksite and the camp. It was noted, for example, that the worker was sometimes unable to administer his medications, and there was no suggestion that someone would be provided to administer them. The work camp only had a shower, but he could not shower. Even with a bath, there was a question of safety in terms of getting in and out of the bath, and he would need help with such things as opening shampoo bottles. Work boots were mandatory at the site, but he was not able to tie the laces and would not even be allowed in the shop without the proper footwear.

In summary, it was submitted that the worker had done everything the WCB and the employer had asked him to do, but was not able to return to work modified duties at the worksite as proposed in July 2016.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after July 22, 2016. In order for the employer's appeal to be successful, the panel must find that the worker's loss of earning capacity after July 22, 2016 was not related to his workplace accident. The panel was unable to make that finding, for the reasons that follow.

The return to work offer as communicated to the worker on July 22, 2016 provided that the worker would be working at the employer's worksite, approximately 240 kms from his residence. The worker was advised that the employer was willing to provide him with transportation to and from work. The worker would be working a Monday to Friday work schedule. The employer would provide him with modified duties computer work at that time, and further modified duties would be reviewed and implemented as his medical restrictions permitted.

Information on file shows that the employer had provided the worker with online courses which he could do at home on his computer, and that he had been doing those courses from March 18 to July 2016. At the hearing, the employer's representatives said that these were professional development courses, all of which were safety-related. They indicated that the employer had not been looking to crack the whip and that the worker was able to take his time completing the work. He was allowed to work at his own pace, and do his own thing. He could lie down if he felt he needed to, and could take as many breaks as he needed. They tried to keep in contact with him and had the ability to monitor the work being done, but were lenient in terms of the amount of work; it was really a matter of allowing him to get better.

The employer submitted that the course work which the worker had been doing had not yet run out, but more options were available at the worksite and the worker had shown that he was able to do the work. The expectation, based on the information on file, appeared to have been that as the worker had demonstrated the ability to do the computer work at home, the work could be moved to the worksite and the worker would be capable of performing the same or similar duties at that location.

The panel carefully questioned the worker and his wife at the hearing with respect to the worker's activities and the computer work he was doing between March and July 2016. Information provided by the worker and his wife at the hearing in response to our questions indicates that the worker was not working full-time on his work duties from March to July 22, 2016. He was working very slowly and struggling through 20 hours of work a week. He was suffering from nausea and dizziness, and had cognitive limitations due to his medications, with periods of clarity.

The worker's wife thus described the worker's time working at the computer at home as follows:

If he was able to function quite well for himself, he could sit down for an hour, possibly more, at the computer. Then he would, just all of a sudden, stand up, vomit, and he would have to go lay down. He would have to take…two, three hours or more, nothing was steady…one day was never the same as the next. He had to go lay down, take his break, come back. He maybe could do a couple minutes, it just depended if he could. If not, then he would have to take a time out again.

They did tell him he would not be able to claim overtime, which he never, ever did, so therefore, he just worked around the clock. At times he could have been up at…2:00 in the morning or 1:00 in the morning working on it, trying to get it done, because he knew that he had to get it done. And, possibly, throughout the day, he couldn't have touched the computer…just depending on how he felt. So there, whatever was, where he could sit consistently, it was…today, maybe he got four hours in. Tomorrow, he was lucky if he got one and a half, it just went according to (sic) he was feeling.

The worker's wife estimated that the worker would have worked on the courses a total of approximately 20 hours within a normal work week, and that outside of the normal workday, "it was everywhere", he would work "whatever he could manage."

The panel notes that the worker's evidence in this regard was not discounted by the employer, and that the employer representatives acknowledged that they were expecting the work to go slowly. The panel further notes that the worker's evidence at the hearing is generally consistent with information on file, including reports at or around that time of incontinence, fatigue, dizziness, vomiting, forgetfulness and confusion.

Based on the foregoing, the panel finds that the July 22, 2016 offer of modified duties was not appropriate or reasonable. The panel is satisfied, on a balance of probabilities, that the proposal to move the worker to the work camp, for work in the office from Monday to Friday, was not consistent with the worker's capabilities and daily living needs and requirements at that time. The panel acknowledges the employer's submission that they were willing to do whatever was needed to accommodate the worker at the worksite, but finds that the employer was not well-equipped to accommodate the worker's unique needs at that time and place.

As a result, the panel finds that the proposed return to work program at the worksite, while well-intentioned, was not suitable and was destined to fail given the worker's ongoing status at that time.

The panel therefore finds, on a balance of probabilities, that the worker's loss of earning capacity after July 22, 2016 was related to his workplace accident, and that the worker is entitled to wage loss benefits after that date.

The employer's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 8th day of November, 2017

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