The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further wage loss benefits for the period of March 14, 2017 to May 31, 2017. A hearing was held on June 7, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss benefits for the period of March 14, 2017 to May 31, 2017.

Decision

The worker is not entitled to further wage loss benefits for the period of March 14, 2107 to May 31, 2017.

Background

The worker sustained multiple injuries in a workplace accident on September 29, 2016. The worker's claim was accepted and payment of wage loss and medical aid benefits started.

On February 15, 2017, the WCB sent the employer a letter setting out the worker's current temporary restrictions, based on a February 15, 2017 appointment the worker had with his physiotherapist. The employer contacted the WCB for clarification on the length of time the worker would have the restrictions and confirmed with the WCB that they would have modified duties, within the worker's restrictions, available.

After a return to work meeting with all the parties present, the WCB confirmed with the worker that he would return to work, on modified duties with temporary restrictions, on a graduated basis according to the following schedule:

• Week of March 13 - 4 hours on Tuesday and Thursday 

• Week of March 20 - 4 hours on Tuesday and Thursday 

• Week of March 27 - 4 hours/ 3 days per week 

• Week of April 3 - 4 hours/4 days per week 

• Week of April 10 - 4 hours/5 days per week 

• Week of April 17 - 5 hours/5 days per week 

• Week of April 24 - 6 hours/5 days per week 

• Week of April 30 - 7 hours/5 days per week 

• Week of May 6 - 8 hours/5 days per week

At the request of the WCB, a WCB medical advisor reviewed the worker's claim on March 29, 2017 after the WCB received a medical report from the worker's orthopedic surgeon indicating the worker should be off work until such time as a second orthopedic opinion is received. The WCB medical advisor stated "There is no medical information to support total disability at present" and outlined temporary restrictions.

On April 20, 2017, the WCB advised the worker that, based on the medical information on his file, there was nothing preventing him from returning to his graduated return to work plan with his current restrictions in place. On May 3, 2017, the WCB further advised the worker that it was their opinion that the graduated return to work plan and the employer's accommodation of his restrictions were appropriate and meaningful. The WCB also confirmed that the medical evidence on the worker's claim file supports his continued participation in the graduated return to work plan and that the worker has advised he experienced steady improvements in his strength and range of motion. The WCB also provided the opinion that the worker had "presented numerous barriers to what is a reasonable return to work program." The decision confirmed that the worker understood that his choosing not to participate in the return to work plan will limit the partial wage loss benefits to which the worker was entitled.

The WCB advised the worker on May 16, 2017, that the graduated return to work plan was amended as of April 10, 2017 to limit the number of hours per day he was working to four hours a day, five days a week until further medical information was received and reviewed.

The worker's orthopedic surgeon recommended on May 29, 2017 that the worker undergo a "revision fixation surgery" to repair the breakage of the screws in the worker's pelvic area. The orthopedic surgeon noted that the worker should not stand and walk more than one hour.

On June 14, 2017, the WCB medical advisor reviewed the worker's file and provided the opinion that the medical information on the file does not support total disability and the worker would be able to participate in modified work duties. That opinion was supported by the May 29, 2017 letter from the orthopedic surgeon. Accordingly, the worker was advised by the WCB that they would be unable to pay full wage loss benefits as the worker had declined the employer's reasonable offer of appropriate modified work duties.

The worker underwent the revision fixation surgery on August 18, 2017.

The worker's representative, on September 26, 2017, requested the WCB reconsider its June 14, 2017 decision that the worker was not entitled to full wage loss benefits to the date of his second surgery August 18, 2017. The worker's representative disagreed with the WCB's decision that the worker was capable of working modified duties prior to his surgery. The worker's representative provided information from the worker that he had advised his employer the modified or light duties he was requested to do were outside of his restrictions on several occasions.

On September 27, 2017, the worker's representative was advised that based on a review of the worker's claim file, the WCB had reconsidered its June 14, 2017 decision. The WCB advised that they were still of the opinion that the worker was capable of participating in a graduated return to work with modified duties up to and including, May 31, 2017. Based on the medical information received on the file, the WCB felt that the worker was capable of working four hours per day and would be entitled to partial wage loss benefits for the period of March 14, 2017 to May 31, 2017.

The worker requested reconsideration of the WCB's decision on January 29, 2018 to Review Office. The worker disagreed with the WCB's decision as he believed he should follow his doctor's advice to stay off work until further testing was completed. The worker also felt that he was taking a lot of medications for pain and he was advised that he shouldn't be driving. The worker's representative submitted further information in support of the worker's reconsideration request on February 15, 2018.

On March 1, 2018, Review Office upheld the WCB's decision that the worker was not entitled to further wage loss benefits for the period of March 14, 2017 to May 31, 2017. Review Office found, on a balance of probabilities, the worker was fit to work within his restrictions, the employer had suitable work available within the worker's restrictions and the graduated return to work plan was suitable and addressed the worker's abilities.

The worker's representative filed an application with the Appeal Commission on March 9, 2018. An oral hearing was held on June 7, 2018.

Reasons

Applicable Legislation and Policy

The worker has an accepted claim for injury arising from a September 29, 2016 workplace injury and is seeking further benefits for the period from March 14, 2017 to May 31, 2017.

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.

Under subsection 4(2), 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 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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.

The WCB's Board of Director's enacted WCB Policy 43.20.25, Return to Work with the Accident Employer which provides, in part, that:

When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. 

The policy provides further that:

Suitable Modified or Alternate Work 

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 self-represented and was accompanied by his spouse who also provided information to the panel.

The worker advised that:

At the start of my return to work plan, my hip and pelvic area were unstable and caused me a lot of pain and discomfort. At that time my pain and swelling increased daily the more I seemed to do. The reason for this was because my first surgery to correct my accident failed, and what I needed was a revision surgery to correct my condition.

Unfortunately, my doctors were not able to tell me this at the beginning of March 2017. It wasn't until testing was completed and my condition was confirmed that my first surgery had failed. At that time the doctors agreed that a revision surgery was necessary for this, but this was not confirmed until June 1st.

The reason for this appeal hearing is because my condition was the same between March 14th and May 31st, as it was between June 1st and August 18th, when I did receive full loss benefits at that time. I feel that I deserve to receive full wage loss benefits from March 14th until May 31st.

The worker provided the following timeline in support of his claim:

• March 6, 2017 the worker's family physician submitted a report based on the work that he had been doing, and stated the worker should follow the restrictions because of the seriousness of his accident. His family physician and psychologist agreed that it would be difficult for worker to return to work at this juncture because of the ongoing physical limitations.

• March 7, 2017 the orthopedic surgeon commented that he has examined the worker and the worker's posterior pelvic pain, swelling, and tenderness to palpation anteriorly at the pelvis. He stated that it is likely the worker will have long-term issues with his pelvic region, and vocational training for employment that doesn't include heavy work, is supported by himself and two other doctors.

• March 28th, 2017 the worker met with his supervisor and WCB case worker. His supervisor stated that it was his understanding that the worker would be back to his regular duties shortly and commented that the worker was being difficult. The WCB case worker advised that he would be cut off WCB if he did not follow the back to work plan.

• March 30, 2017 the orthopedic surgeon who operated on the worker's back suggested that the worker remain off work until a second opinion is received on whether a revision surgery is required.

• April 10, 2017 another orthopedic surgeon commented that the worker should not do heavy work. He ordered a CT scan and advised the worker to follow the restrictions.

• April 20, 2017 the worker advised a case manager that he wasn't feeling well, was taking more pain medications and was concerned about the amount of medicine he was taking. The case manager reviewed expectations and other options which might be available to the worker.

The worker advised that, during this time, the duties which the employer had provided were outside his restrictions. He said that:

• some of the jobs they had me do, which [employer] claimed to be light duties, were painting, cleaning, dusting, stocking shelves, which forced me to be bending and squatting, lifting, and standing longer than the restrictions provided by WCB.

• there were limited places to sit. Even parking closer to the building was a problem. I was made to park in the parking area, which consisted of larger crater type potholes and very uneven surfaces. It was very difficult to walk or even drive through.

The worker advised that on May1, he contacted the case manager and advised that he was not continuing with the return to work plan because of the doctor's recommendations, and because he was having a very difficult time with pain.

The worker provided a further chronology of events. He advised that:

• May 3rd, he had a CT scan. He was advised that the CT report stated widening of his symphysis to 1.3 centimeters, which had increased from the previously 8 millimeters. It also states there is a definite septic arthritis in the right SI joint.

• May 4th, family physician stated that he was not capable of modified duties.

• May 9th, an orthopedic surgeon sent for the white blood cell scan.

• May 9th, the family physician wrote a letter supporting his staying off. . 

• May 10th, his psychologist stated he should remain off work until further notice, until my condition is further investigated.

• May 29th, two orthopedic surgeons comment on his ongoing condition and agree that a second surgery should be scheduled because of the condition of the worker's pelvic area.

The worker stated that:

So in conclusion, my condition between March 14th and May 31, 2017 was the same as my condition between June 1st and August 18th. This was because the first surgery to correct the issues was not successful.

In answer to questions the worker confirmed that his restrictions included the following:

• no sitting longer than an hour, or without an opportunity to change positions

• no standing or walking more than 30 minutes, no squatting, no walking on uneven surfaces, no lifting or carrying more than 10 pounds, and no ladders and/or repeated stair climbing

The worker acknowledged that the anticipation of returning to work was causing him stress. He was worried about the duties he would be asked to perform based on his past knowledge of the firm's practices. He advised that he was in pain and took painkillers to attend physiotherapy. He said walking was painful as his hip was not stable. He said that he felt terrible.

In reply to questions from the panel the worker described duties at the workplace. He said the workplace was new but very dusty and that construction was ongoing. He noted the stock was heavy and that he had to move stock when dusting. As well he had to re-stock shelves.

In response to a question about any specific duties that were agreed to in the beginning that he found that he could not do, the worker advised that:

• dusting and cleaning, required him to bend, and reach, and stretch, in order to do a good job. 

• in order to clean well, he had to remove some stock. 

• the stocking of materials was a challenge, because it was expected that he would take the products, and make sure that all the products in the storeroom were full, all the paint cans were there, all the tar cans were there.

The worker was asked which part of the stocking of products was beyond the agreed limits of the job. The worker replied that soffits were bundled together and were heavy. As well, there was rolled roofing material which he had to move to clean around and stock. He added that counting stock involved moving different products. Where small products were on the shelf, such as caulking material, all the items were taken out of a box and put on the shelves and had to be counted.

The worker noted that:

• he was asked to paint a full wall but that this was changed to painting only a strip and not the complete wall. 

• when he was working in the store or warehouse there was no place to sit. 

• the parking lot was very uneven and he had trouble walking on it.

The worker relied upon reports from his physicians to support his decision to cease working.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is seeking coverage for wage loss benefits for the period of March 14, 2017 to May 31, 2017. For the worker's appeal to be approved the panel must find that the evidence supports that the worker was unable to work at modified duties and/or that the duties offered were not appropriate during the period of March 14, 2017 to May 31, 2017.

The panel was not able to make this finding. The panel finds that the modified duties offered to the worker during the return to work program were appropriate and met his medical restrictions.

The panel acknowledges that the worker sustained a serious injury in the workplace accident on September 29, 2016. The panel also acknowledges that the worker received and continues to receive significant medical treatment as a result of the workplace injury. The issue before the panel deals with his medical condition in between March 14, 2017 and May 31, 2017.

The panel finds that WCB Policy 43.20.25 Return to Work with the Accident Employer is applicable to this appeal. The policy provides that 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.

Restrictions

The panel notes that the restrictions, as set out in a memo of March 8, 2017 from the case manager indicated included:

a) sedentary duties 

b) no sitting more than I hour 

c) no standing more than 30 minutes 

d) frequent position changes 

e) no squatting 

f) no lifting or carrying more than 10 lbs. [pounds] 

g) no lifting from the floor 

h) no uneven surfaces

The restrictions were amended on March 29, 2017 to provide:

a) No sitting more than 1 hour without ability to change position 

b) No standing or walking more than 30 minutes, allowing for frequent position changes 

c) No squatting 

d) No lifting or carrying more than 10 lbs., no lifting from floor 

e) No walking on uneven surfaces 

f) No ladder climbing or repeated stair climbing

Effective the date of the orthopedic surgeon's examination (April 10 or 11), the restrictions were further amended to:

Although the current medical on file doesn't support a discontinuation of modified work activities: it does support another freeze at 4 hrs [hours]/day Max [maximum] until further medical arrives.

The panel finds that the medical restrictions were reasonable. The panel attaches weight to the following information in arriving at this position:

• Feb 2, 2017 report of treating physiotherapist which noted the worker was fit to perform modified sedentary duties.

• report from an orthopedic surgeon, dated February 28, 2017 which stated the worker should "remain active" and encouraged "activity."

• WCB orthopedic consultant's opinion dated March 29, 2017 which reviewed medical restrictions and made further modifications.

Job Duties

The worker's job duties were noted to be sedentary and were to comply with the restrictions noted above. The worker submitted that the duties he was assigned did not comply with his restrictions and as a result he could not continue to work.

At the hearing, the worker provided examples of duties which he performed which he submitted were beyond his restrictions. The panel does not agree with the worker's assessment and found the duties were sedentary and complied with the worker's resections.

In support of his position that he could not continue to work, the worker cited reports from one of his orthopedic surgeons. The panel has considered the surgeon's notes and finds that the surgeon did not have an accurate description of the worker's job duties. Specifically the panel notes the April 10, 2017 letter from an orthopedic surgeon which indicates that the worker:

"…does heavy work ….He feels that he has gone back to work and they put him in a situation where he is doing heavier activities, which he has been uncomfortable with. He states he is in too much pain to do some of the heavier activities…

In terms of work, he does fairly heavy work and I have written him a note stating that he should be restricted from many [any] heavy work type activity."

The panel has considered the worker's duties and finds that this information is not accurate. As a result, the panel is not able to give weight to the physician's opinions as they are based on inaccurate information regarding the worker's modified work duties, which the panel finds did not involve heavy work.

The panel notes that one of the worker's orthopedic surgeons, in a letter dated May 29, 2017, proposed revision surgery. The surgeon commented that "it is unreasonable for this man to stand and walk beyond an hour" (typo corrected). The WCB orthopedic consultant reviewed this report and advised, on June 14, 2017, that this information "did not point to total disability."

The panel finds that the modified duties offered by the employer were suitable in light of the medical restrictions.

Conclusion

The worker is seeking further wage loss benefits for the period from March 14, 2017 to May 31, 2017. The panel finds, on a balance of probabilities, that the worker is not entitled to further wage loss benefits for the period from March 14, 2017 to May 31, 2017.

As noted above, the panel has reviewed evidence regarding the worker's medical restrictions and duties, and finds that the restrictions were accurate and the duties were suitable.

The panel acknowledges that while anxiety and depression are not compensable, in this instance, they may have affected the worker's general ability to understand the issues related to his claim. This however does not change the impact of the medical information on his ability to return to work. The panel found that the work that was offered was meaningful to the employer and would have to be performed by someone. The panel found that the worker was fit to perform this work.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of July, 2018