Decision #86/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits for the period March 29, 2017 to March 31, 2017. A hearing was held on April 23, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits for the period March 29, 2017 to March 31, 2017.
The worker is entitled to wage loss benefits for the period March 29, 2107 to March 31, 2017.
The worker reported to the employer on November 19, 2016 that he injured his left shoulder in an incident the worker described as:
Worker claims that he was tightening a spring on a door and while doing this felt a slight twinge in his shoulder. He continued his regular work and did not report any concerns on the day of the alleged incident.
At the worker's initial doctor's appointment on November 20, 2016, he reported pain, stiffness, painful restricted movement, inability to sleep and was diagnosed with a rotator cuff tear. The doctor recommended modified duties of "restrict use of left shoulder, restrict lifting, pushing, pulling to 10lb." for a period of four weeks.
The worker continued to work, with modified duties, but due to continuing symptoms, saw a physiotherapist for an initial assessment on December 21, 2016. The physiotherapist diagnosed the worker with a left shoulder sprain/strain and recommended restrictions for work that the worker "Avoid arm elevation past 90 deg" for two weeks.
At a follow-up appointment on December 29, 2016, the worker's doctor diagnosed a left shoulder strain and set out restrictions of "Limited use of left shoulder until pain levels decreased" for approximately two to four weeks.
At a follow-up appointment on February 8, 2017, the worker's physiotherapist recommended regular work, but avoid working above shoulder height for two weeks.
On March 27, 2017, the worker contacted the WCB to advise that his doctor had recommended a cortisone shot to help relieve the symptoms he was experiencing in his left shoulder. The worker's doctor was going to administer the cortisone shot the following day. On March 29, 2017, the worker contacted the WCB to advise that he had received the cortisone shot from his doctor on March 28, 2017 but had missed work on March 29, 2017 as he was unable to sleep and had cramps in his legs due to the pain. The employer contacted the WCB on March 29, 2017 to advise that they had contacted the worker who indicated that he had a doctor's note to be off work until March 31, 2017. The employer confirmed with the WCB that they had advised the worker that they would accommodate his shoulder injury and offered the worker light duties but the worker refused as he felt he couldn't work at all. The WCB had a further conversation with the worker on March 30, 2017 and advised that his employer had offered him modified duties and the WCB was prepared to provide transportation assistance so he could get to work however, the worker declined.
The worker was cleared by his doctor to return to his regular duties on April 3, 2017.
The WCB advised the worker on April 6, 2017 that he was not entitled to wage loss of March 29 to March 31, 2017 as he had declined the modified duties offered by his employer and as a result, did not "reduce or eliminate any impairment or loss of earnings resulting from an injury."
On April 26, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker disagreed with his employer's and the WCB's position that he should go against his doctor's advice and return to work. Review Office upheld the decision of the WCB on June 15, 2017. Review Office relied on the evidence provided by the worker's doctor who noted that the worker's shoulder initially improved after the cortisone injection. The day after the injection, the worker was examined by his doctor who noted that the worker's shoulder was the same as it was prior to the injection. Review Office concluded that as the worker's shoulder was the same after the injection as it was prior to the injection, the medical evidence did not support that there was any "additional level of disability due to the injection." Added to the employer's offer of modified duties, Review Office determined that the worker did not suffer a loss of earning capacity.
The worker filed an application with the Appeal Commission on December 2, 2017. An oral hearing was held April 23, 2018.
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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
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.
The worker was self-represented. He outlined his reasons for appealing and answered questions from the panel.
The worker advised:
• he was injured during the course of his employment.
• he sought medical attention as he was required to do.
• his physician advised that as part of his treatment he should receive a cortisone shot.
• he received a shot on March 28, 2017.
• his physician, with full knowledge of his medical history, advised that he should not work from March 29th to March 31, 2017.
• he provided the certificates of illness to the WCB, which clearly states that after reviewing his medical history, doing an examination and confirming objective evidence, his physician determined that it was not in the best interests of his recovery for him to return to work immediately.
• his physician is well aware of his medical history and the medications he takes on an ongoing basis.
• in addition to receiving the cortisone shot the worker was given Naproxen and Omeprazole.
• due to this treatment he began to have severe cramping in his legs, and also suffered from severe nausea.
• he was required to take medication related to his medical condition • the treatment for his shoulder injury interacted with his heart medication, causing the symptoms noted above.
• he was not able to attend to work due to combination of these symptoms.
The worker agreed that the employer offered him modified duties. However, he felt that in the state he was in, due to the treatment, he was unable to attend work. He said that he had ongoing pain for the shoulder injury, symptoms in his legs and nausea. He said that even desk work was not possible for him during this period of time.
The worker said that he felt his employer and the WCB advised him to go against his doctor's professional opinion and return to work, despite the fact that he was clearly not in a condition to return to work.
The worker submitted that:
I do not agree that returning to work against my doctor's advice is a reasonable step. It is unreasonable for WCB to insist I return to work against my doctor's opinion.
The worker noted that there was no other medical information and that the decision was made in the absence of any evidence or any contradicting medical opinion.
The employer was represented by its Health and Safety Manager. The employer representative explained the employer's position regarding the worker's appeal. She submitted that the WCB decision was appropriate.
She noted that the injury date was November 18th, and that he had some physio. She said the employer understood the worker returned back to regular duties hadn't informed the employer that he was having any ongoing issues. She advised that on March 29th the worker called in to a supervisor to let him know that he had this cortisone shot. She noted that the employer did not have an opportunity to give the physician occupational fitness evaluation form.
The employer representative noted that:
In a situation like this, you know, we've had other employees have cortisone shots, and it was pretty standard that the day of the shot maybe take some time off, but then after that it's usually alternate work, and then back to regular duties.
The employer representative noted that:
We've got a light duties program in place. He's done it before. He's a millwright with us, so there's a certain aspect of their job that is just paperwork, following up with their work orders and stuff and making sure that those things are being submitted.
She commented that:
For a WCB claim we know that there's two things that we look at: One, the employer had the duty to accommodate, so we were obviously doing our part there; and then the employee has a duty to mitigate any kind of losses.
She noted that the WCB adjudicator contacted the worker but that he refused to return to work.
The worker is appealing the WCB decision that he is not entitled to wage loss benefits for the period from March 29, 2017 to March 31, 2017. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity arising out of and in the course of his employment. The panel considered whether it was reasonable in the circumstances of this claim for the worker to decline to attend work for three days following the medical treatment.
The panel accepts that the employer has an established and flexible modified duties program that would have accommodated the workers; right shoulder condition. This is also confirmed by the worker, who indicated that he could have easily adjusted his job duties as a millwright to perform them with one-hand.
The panel finds that the worker's refusal to perform the modified duties was related to an unanticipated medical reaction associated with the injection which was provided to him, as well as the other medications that had been provided to him. The consequences were short term and improved in the next three days consistent with the attending physician's note authorizing three days off work.
The panel notes that the worker attended his physician the day following a cortisone injection. The physician noted the following in the worker's medical records:
March 28, 2017
- here for depo-medrol joint injection into L shoulder
- Steroid joint injection
- Return to clinic if any worsening pain/fever/redness/swelling
March 29, 2017
- Fu - Having cramp to right knee overnight
- couldn't sleep
- Pain to left shoulder was better after injections yesterday
- But overnight worsened again and pain to shoulder radiating down arm
- no fever
After considering all the evidence, the position of the employer and the worker, the panel finds in the circumstance of this claim, it was reasonable for the worker to decline to work during the period from March 29 to March 31. The panel finds that the worker's wage loss was a result of his workplace injury.
The worker's appeal is allowed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of June, 2018