Decision #43/18 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss benefits from August 3, 2016 to August 19, 2016. A file review was held on February 15, 2018 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits from August 3, 2016 to August 19, 2016.
The worker is entitled to wage loss benefits from August 3, 2016 to August 19, 2016.
In a Worker Incident Report dated August 4, 2016, the worker, a driver, described injuring his lower back on August 2, 2016 as follows:
About 10am, I was in [location] and I was behind [store] parked by the loading docks. I was in the trailer, I was rebuilding a pallet of 7-10 ml drinks. As I was restocking, I had my toes against the pallet. I was bent down and I leaned forward slightly to grab a case of 7-10's. I guess I turned the wrong easy (sic) and I pulled my back out. It hurt considerably, very quick and sharp. So I struggled through the last few cases and got them finished stocked.
I did not finish my shift.
The worker attended at his doctor's office on August 2, 2016 and was diagnosed with acute low back pain. The worker's doctor completed a Functional Abilities Form for the worker indicating restrictions of:
No repetitive trunk movement (i.e. bending/twisting)
No lifting > 10 kg
No sitting > 60 mins
No walking long distances
No vehicle/equipment operation for now
The doctor noted that these restrictions should be in place for two weeks. The worker and the employer agreed to modified duties of "CLERICAL DUTIES - SITTING AND STANDING AS TOLERATED" on August 2, 2016 to begin on August 3, 2016.
The worker returned to his doctor's office on August 3, 2016 reporting "severe back pain relating to R. leg worsening compared to yesterday." The worker's doctor recommended the worker to be off work for two weeks and to attend physiotherapy.
On August 5, 2016, the worker attended at his physiotherapist's office for his first appointment and was diagnosed with "Lumbar strain; SIJ (sacroiliac joint) fixation." At his follow-up physiotherapy appointment on August 15, 2016, it was recommended that the worker "remain off work this week. RTW next week, sedentary/light duties for 2 weeks."
At a follow-up doctor's appointment on August 17, 2016, the worker's doctor recommended that the worker could return to work on August 22, 2016 with the following restrictions to be reviewed after two weeks:
1. No lifting from floor
2. No carrying more than 20 lbs. at waist height
3. No twisting under load
4. 8 hour shift duration with allowance to stand/walk/stretch each hour.
At the worker's physiotherapy appointment on August 19, 2016, the physiotherapist recommended that the worker return to work on Monday, August 22, 2016 "…on light duties/office work. No lifting floor to waist, no carrying > 20 lbs, no twisting with load. 8 hr shift duration."
The WCB advised the worker on August 17, 2016 that his claim for wage loss benefits from August 3, 2016 to August 17, 2016 had been approved. On August 25, 2016, the representative for the employer requested reconsideration of the WCB's decision to accept wage loss benefits beyond August 2, 2016 to the Review Office.
The employer's representative, on November 26, 2016, also requested reconsideration from the WCB regarding the worker's entitlement to wage loss benefits for August 18 and 19, 2016. The WCB advised the employer's representative on December 2, 2016 that they had reviewed the file and requested further medical information from the worker's medical provider. The WCB confirmed their decision that the worker, based on the medical information provided, was disabled and unable to perform modified duties up to August 21, 2016 inclusive and was entitled to wage loss benefits for August 18 and 19, 2016.
On February 14, 2017, the employer's representative requested reconsideration of all wage loss benefits paid beyond August 2, 2016 to the Review Office. The employer's representative disagreed with the WCB's decisions, noting that the worker was offered modified duties and the worker's doctor's initial report on August 2, 2016 did not indicate that he needed to be off work. The employer's representative felt that there was little difference in the worker's condition and clinical findings between the worker's doctor's initial report on August 2, 2016 and the follow-up report on August 3, 2016 except for a note of "unable to bend" on the August 3, 2016 report. The employer's representative also noted that the worker was referred for physiotherapy and attended for treatment on August 5, 2016. They felt that the worker's activity at physiotherapy was more physically taxing than the proposed modified duties. It was also felt that the worker's ability to attend physiotherapy two or three times a week did not support total disability.
Review Office upheld the WCB's decisions in its determination of March 16, 2017. Review Office found that as it is not uncommon for an injury to develop fully the day following an accident, they accepted the worker's evidence that he woke up sore the next day and he sought further medical treatment. The worker's doctor, based on his assessment of the worker and the worker's description of severe pain, worse than the day before, advised that he should remain off work for "acute low back pain with severe intensity…" for two weeks. Review Office found that the doctor's decision to keep the worker off work for that time established a loss of earning capacity. Review Office also found the employer's argument regarding the worker's ability to attend physiotherapy was without merit. The physiotherapy treatment prescribed by the doctor was intended to help the worker recover from his injury and allow for a safe return to work.
With respect to the acceptance of wage loss benefits for August 18 and August 19, 2016, Review Office relied on the physiotherapist's report of August 15, 2016 recommending that the worker remain off work for a week along with the worker's doctor's note that stated the worker could return to restricted work duties starting August 22, 2016.
On August 28, 2017, the employer's representative filed an application with the Appeal Commission. A file review was held on February 15, 2018.
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) 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.
Policy 44.40.10 Evidence of Disability provides that: “Compensation benefits are payable only when there is medical, or similar, evidence of disability arising from a compensable incident or condition.”
The worker did not participate in the appeal.
The employer was represented by an advocate who provided a detailed written submission.
It was the employer’s position that the worker ought not to have been entitled to wage loss benefits as he was offered modified duties. Further, the initial medical evidence did not indicate that the worker needed to be off work but instead only placed him on restricted duties, which the employer was able to accommodate. The employer also made reference to the fact that the employee was immediately referred to, and participated in, physiotherapy which the employer submits is evidence that the employee was not totally disabled.
The issue before the panel is whether or not the worker is entitled to wage loss benefits from August 3, 2016 to August 19, 2016. For the employer’s appeal to succeed, the panel must find, on a balance of probabilities, that the worker did not have a loss of earning capacity by reason of his compensable injury during the period in question. For the reasons that follow, the panel is unable to make that finding.
The panel relies on the first two medical reports provided by the worker’s treating physician which showed a decline in the worker’s physical injury between the date of the injury and the next day. On the first day, the physician concluded that the worker may return to work. The next day, however, the physician found that the worker’s condition had deteriorated significantly and he was now disabled from working.
In our view, the medical evidence was credible and persuasive. The fact that the symptomology worsened after the day of the accident is not evidence that the worker could have returned to work on modified duties as symptomology can evolve significantly over the short term. What the worker described in terms of the change and deterioration in his symptoms and the fact that he returned immediately to his doctor are evidence of progressed disability.
Given the worker’s symptomology, it was reasonable and logical that he should be off work. The referral to physiotherapy in order to return him to regular duties was appropriate in the circumstances. The worker attended physiotherapy as prescribed and returned to work on August 22, 2016, when the injury resolved.
The fact that the worker could attend and participate in physiotherapy is not evidence that he was capable of retuning to work on modified duties. The very purpose of physiotherapy is to help the worker return to full-time regular duties.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker showed evidence of progressed disability as a result of an accident arising out of and in the course of his employment that led to his inability to participate in modified duties. We find that there is evidence of disability which caused a loss of earning capacity and which was related to the compensable injury.
The employer’s appeal is therefore dismissed.
K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of April, 2018