Decision #128/18 - 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 for the period May 12, 2016 to May 16, 2016. A file review was held on June 27, 2018 to consider the employer's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits for the period May 12, 2016 to May 16, 2016.
Decision
That the worker is entitled to wage loss benefits for the period May 12, 2016 to May 16, 2016.
Background
The worker reported injuring his lower back at work on May 9, 2016 when he was moving empty wooden pallets to stack them. The worker reported the injury to his employer on the same date and to the WCB on May 11, 2016.
On May 9, 2016, the worker attended a medical clinic where he presented with "Sudden onset today of low back pain while lifting at work… Constant, severe pain to low spine…Pain worse with movements, position changes…" Following his examination of the worker, the attending physician prescribed medications and referred the worker for physiotherapy. He also recommended that the worker stay off work for one week, and provided a sick note to that effect.
On May 16, 2016, a representative for the employer provided the WCB with a copy of a modified duties form, signed by the worker and his supervisor, which indicated that the worker was offered modified duties consisting of clerical duties, with sitting and standing as tolerated, to start immediately on May 10, 2016. The representative requested that wage loss benefits be denied as modified duties had been offered immediately.
The worker attended a follow-up appointment with the attending physician on May 16, 2016, who noted that the worker could return to work with the restriction of sedentary duties. In a conversation with a WCB adjudicator, the worker confirmed that he returned to work, on modified duties, on May 17, 2016.
On May 18, 2016, Compensation Services advised the worker that his claim was accepted and wage loss benefits from May 12, 2016 to May 16, 2016 were approved.
On September 8, 2016, the employer's representative advised the WCB that the worker returned to his regular duties on July 25, 2016.
On March 27, 2017, the employer's representative requested that Review Office reconsider Compensation Services' decision that the worker was entitled to wage loss benefits after May 9, 2016. The representative provided a further request for reconsideration and submission on October 3, 2017, objecting to the payment of wage loss benefits beyond May 9, 2016 on the basis that suitable modified duties were offered to the worker on May 10, 2016. On October 4, 2017, Review Office returned the file to Compensation Services for further investigation.
On October 27, 2017, Compensation Services advised the employer that based on the information on file, including information recently obtained, they were of the opinion that the worker was totally disabled from work from May 9, 2016 to May 16, 2016 as a result of the workplace injury and was therefore entitled to full wage loss benefits for that period of time.
On November 7, 2017, the employer's representative renewed their request that Review Office reconsider Compensation Services' decision. The representative noted that the medical evidence on file confirmed that the worker had restricted movement, but submitted that there was no clinical evidence to support that the worker was not capable of sedentary work.
On November 20, 2017, Review Office determined that the worker was entitled to wage loss benefits from May 12, 2016 to May 16, 2016. Review Office found that the initial medical report noted the worker was experiencing acute, non-radicular low back symptoms, including tenderness and spasms. Based on the medical findings and the worker's symptoms, the attending physician prescribed treatment and advised the worker to remain off work for one week. Review Office found the physician's recommendation that the worker refrain from work duties for one week was reasonable.
On January 16, 2018, the employer appealed the Review Office decision to the Appeal Commission, and a file review 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.
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.
The WCB's Board of Directors has established WCB Policy 44.40.10, Evidence of Disability (the "Policy"), which states that "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition." The Administrative Guidelines to the Policy provide, in part, that:
Wage-loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker's treating healthcare professional.
Employer's Position
The employer was represented by a consultant who provided a written submission for the panel's consideration.
The employer's position was that they objected to the entitlement to wage loss benefits beyond May 9, 2016 as suitable modified duties were available to the worker. The employer's representative noted that the worker reported that he hurt his back while moving pallets on May 9, 2016. Modified duties were offered to the worker on May 10, 2016, which "included clerical duties, sitting and standing as tolerated," and the offer was signed by the supervisor and the worker.
The employer's representative submitted that while the medical on file confirmed the worker's restricted movement, there was no objective or clinical evidence to support that the worker was not capable of performing sedentary work. It was submitted that limited range of motion does not quantify total disability. There was no evidence of radiculopathy, and the worker did not even attempt a return to work in modified duties.
Worker's Position
The worker did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period May 12, 2016 to May 16, 2016. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not sustain a loss of earning capacity between May 12 and May 16, 2016 as a result of his workplace injury. For the reasons that follow, the panel is not able to make that finding.
The panel finds that the medical information on file includes reports from two treating healthcare professionals who advised that the worker should remain off work between May 9 and May 16, 2016. In his May 9, 2016 report, the attending physician stated that the worker should stay off work, with a follow-up in one week. A sick note from the physician confirmed that the worker was to be off work from May 9 to May 16, 2016. Following his initial assessment of the worker on May 12, 2016, the treating physiotherapist also reported, in his Physiotherapy Initial Assessment report, that the worker was not capable of alternate or modified duties, to be reviewed on a weekly basis.
The panel finds that there is considerable clinical evidence to support that the worker was totally disabled and unable to work between May 9 and May 16, 2016. The panel notes that the attending physician, following his examination of the worker on the day of the accident, reported that the worker was experiencing acute, non-radicular low back symptoms, including spasms and tenderness, and that he could not straighten up. The physician referred the worker for physiotherapy. The panel further notes that based on his examination and assessment of the worker on May 12, 2016, the physiotherapist reported a number of significant clinical findings which support total disability, and concluded, among other things, that the worker had minimal to no functional ability.
The panel therefore finds, based on our review of the evidence, that the worker was totally disabled and unable to work even modified duties from May 9 to May 16, 2016, and that it was reasonable for him to follow the advice of his healthcare providers and to remain off work during that period of time.
The panel notes that the worker was seen by his attending physician for a follow-up appointment on May 16, 2016. At that time, the physician reported that the worker was capable of alternate or modified work, with the stated restriction of sedentary duties only. Information on file shows that the worker returned to work, on modified duties, the following day.
In light of the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity from May 12, 2016 to May 16, 2016, both inclusive, as a result of his compensable workplace injury. The panel therefore finds that the worker is entitled to wage loss benefits for that period of time.
The employer's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of August, 2018