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 wage loss benefits from December 8, 2017 to December 26, 2017. A hearing was held on August 22, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from December 8, 2017 to December 26, 2017.

Decision

The worker is entitled to wage loss benefits from December 8, 2017 to December 26, 2017.

Background

The worker injured his left hip and groin in an incident at work on November 23, 2017. While driving a pallet jack, the worker used his right leg to kick open a divider between rooms and as he did so, felt pain in his left hip and groin area. The worker finished his shift and worked his regular shift the next day.

The worker sought treatment from his chiropractor on November 25, 2017. The treating chiropractor noted the worker had left hip and groin pain and diagnosed the worker with a left sacroiliac sprain/strain and a left groin pull. The treating chiropractor recommended the worker return to work with restrictions and the worker did so on November 27, 2017 and was provided with alternate duties by the employer.

On November 28, the worker provided the employer with an Initial Medical Evaluation form completed by the worker's treating medical professional and dated November 25, 2017. The form set out that the worker is capable of: 

• Standing 30% 

• Walking 30% 

• Sitting 30% 

• Lifting, pushing and pulling up to 5 kg 

• Reaching 

• Raising both arms above shoulder 

• Using both hands.

The form also set out that the worker cannot drive machinery and needs varied positions. The employer's Transfer of Communication Memo dated November 29, 2017 restated the capabilities and noted "no driving" but did not reference the need for varied positions. The limitations were to be reassessed on Monday, December 4. On November 29, 2017, the alternate duties offered to the worker were on the assembly line, as well training another employee in his regular duties. The alternate duties on the assembly line continued on November 30. On December 1, 2017 the worker again spent his workday training another worker in his regular position.

On December 2, 2017, the worker's chiropractor completed a Functional Capabilities Assessment for the worker noting the same restrictions in terms of the worker's sitting, standing, walking and lifting. The employer received the Functional Capabilities Assessment on December 4, 2017 and prepared a Transfer of Communication Memo on the same date. This memo referenced the worker's capabilities and again noted "no driving" as a limitation. This memo also set out "Please provide chair." On the same date, the worker was presented with an Offer of Modified/Alternate Duties Accommodation that he accepted. The Offer document stated: 

Assigned job duties include: 

No driving 

Please provide a chair & allow to sit as needed.

In a follow-up appointment with his chiropractor on December 7, 2017, the chiropractor noted that the modified duties assigned by the employer were aggravating the worker's pain. The chiropractor prepared another Functional Capabilities Assessment that noted the worker's condition was worsening and that the worker was not able to work at all for one to two weeks. No capabilities were noted at this time.

The worker provide this Functional Capabilities Assessment to his employer on December 8, 2017 and the employer offered accommodation of alternate duties, with assigned job duties listed as: 

• Ability to sit or stand as needed, as well as take walk/stretch breaks as needed, while on trim line 

• Ice/heat/lay down if needed in health unit.

The worker refused the employer's written offer of modified duties and on the same date, the employer provided the WCB with a copy of the Functional Capabilities Assessment completed by the worker's chiropractor on December 7, 2017 and advised that the worker refused the written offer of modified duties provided by the employer.

The worker filed a Worker Incident Report on December 8, 2017 and the WCB accepted his claim on December 12, 2017.

In a discussion with his WCB adjudicator on December 13, 2017, the worker advised that the modified duties offered by the employer created more pain for him. He confirmed that he was able to sit and stand as tolerated and able to walk around when needed. The worker stated he had tried different periods of sitting and standing but his condition had not improved. He noted he had requested several times to be transferred to other modified duties and confirmed that he did not suffer another accident or injury to account for his ongoing difficulties.

A narrative report from the worker's chiropractor dated December 14, 2017 noted that after the worker was placed on light duties, the worker's left hip difficulties initially improved but that the worker reported he was not able to regulate his standing and sitting as needed, causing him emotional and physical stress. The chiropractor noted that the "undue stress" placed on the worker at his workplace was negatively affecting his emotional and physical state and therefore it was best for the worker to be off work until able to return to full duties. The chiropractor noted as well that the worker's condition was "improving consistently" since December 7, 2017.

On December 21, 2017, the worker attended for further follow-up with his chiropractor. At that time, the chiropractor noted that the worker did not have any further groin pain but had continued sacroiliac pain and recommended that the worker return to work on a graduated basis beginning December 27, 2017. The employer confirmed the worker returned to work on December 27, 2017.

The WCB advised the worker on January 4, 2018 that he was not entitled to wage loss benefits for the period from December 8, 2017 to December 26, 2017 as his employer was able to accommodate the worker based on his restrictions set out by his chiropractor.

The worker requested reconsideration of the WCB's decision to Review Office on May 8, 2018, noting that the modified duties provided by his employer aggravated his hip and groin pain and did not follow the restrictions set out by his chiropractor. On May 16, 2018, the employer provided a letter indicating agreement with the WCB's January 4, 2018 decision.

On July 6, 2018, Review Office determined that the worker was not entitled to wage loss benefits from December 8, 2017 to December 26, 2017. Review Office acknowledged the evidence supported that the worker was experiencing difficulties while performing the modified duties; however it found that the worker's inability to continue the modified duties was related to labour relations issues and the worker's stress in dealing with the modified duties program, rather than to his compensable injury. Review Office found that acceptable modified duties were made available to the worker on December 8, 2017 and that the worker did not have a loss of earning capacity and was not entitled to wage loss benefits from December 8, 2017 to December 26, 2017.

The worker's representative requested reconsideration of Review Office's July 6, 2018 decision on November 1, 2018 on the basis that the information on the file did not support that the worker was taken off work as of December 8, 2017 due to stress. Review Office determined on December 19, 2018 that the worker was not entitled to benefits beyond December 7, 2017, confirming that no new evidence had been provided to change the previous decision that the worker had been provided with suitable modified duties but it was non-compensable issues that caused him to go off work after December 7, 2017.

The worker's representative filed an appeal with the Appeal Commission on January 10, 2019. 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.

Section 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. Under s 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. Section 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Policy 44.40.10 Evidence of Disability sets out that "[w]age 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."

Policy 43.20.25 Return to Work with the Accident Employer sets out provisions regarding modified or alternate work where a worker is not medically able to return to their pre-accident employment:

Modified or Alternate Work 

Employers are expected to consider the following objectives in the following sequence: 

1) Return to the same work with the accident employer. 

2) Return to modified work with the accident employer. 

3) Return to different (alternate) work with the accident employer. 

All employers…are encouraged to provide modified or alternate work to injured or ill workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity. 

… 

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…. 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. 

… 

III. Definitions 

… 

Alternate Work: 

Alternate work is that which is offered when the worker is temporarily or permanently unable to perform the pre-accident work. It is a job or position that is different than the one performed by the worker prior to the injury. … 

Modified Work: 

Modified work is that which is offered when a worker is able to return to work but is unable to do all of the duties of the pre-accident job without help. It includes any modification of the previous job that helps a worker safely return to work. It may involve a modification to the job, task, function, hours of work, worksite, or any combination of the above. Graduated return to work (the worker temporarily working for limited hours or limited duties as part of a plan leading to full employment) is included in modified work.

Worker's Position

The worker was represented in the hearing by a worker advisor who made submissions on his behalf and asked questions of the worker. The worker also addressed questions from members of the panel.

The worker advisor outlined the position of the worker that he is entitled to wage loss benefits for the period of December 8 through 26, 2017 on the basis that the evidence establishes there was a loss of earning capacity for that period arising out of the worker's compensable injury.

The worker advisor stated that the medical information supports that the worker was totally disabled from employment for the period of December 7, 2017 to December 26, 2017, relying upon the objective findings and recommendations noted in the treating chiropractor's December 7, 2017 progress report.

The worker advisor stated that the modified duties provided were not appropriate to the restrictions established by the worker's treating medical professional and that the duties provided exacerbated the worker's symptoms rather than minimizing the impact of the worker's injury. The worker advisor argued that the employer disregarded the healthcare provider's direction set out in the return to work plan and failed to provide the appropriate accommodation to meet the restrictions noted.

The worker advisor confirmed that the worker's position is that the temporary removal from all work duties for the period of December 8 - 26, 2017 was an acceptable amendment to the return to work plan and was related to the compensable injury as supported by the medical evidence on file. 

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue for the panel to determine is whether or not the worker is entitled to wage loss benefits from December 8, 2017 to December 26, 2017. In order to find that the worker is entitled to those benefits, the panel must find the worker experienced a loss of earning capacity resulting from the compensable injury caused by the accident of November 23, 2017.

We are able to make that finding.

The worker seeks wage loss benefits for the period of December 8 - 26, 2017 on the basis that his injury resulted in a loss of earning capacity as evidenced by the December 7, 2017 report from his treating medical professional which set out that the worker was unable to work for 1-2 weeks.

There is an obligation on the employer to comply with the provisions of Policy 43.20.25 to provide modified or alternate work to injured or ill workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity. The employer is obligated under the provisions of that policy to examine whether the worker can return to their regular job duties, or if not, to their regular duties with modification, or if not, to alternate duties that are suitable. The policy states that:

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…. 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.

The file documents that the worker's treating medical professional provided functional capacity assessments to the worker on November 28, December 2 and December 7, 2017 and that these were provided to the employer by the worker on November 29, December 4 and December 8, 2017, respectively.

The employer acknowledged receipt of the functional capacity assessments and stated that it offered the worker alternate duties accordingly. The worker's representative noted that the alternate duties offered by the employer did not fully meet the requirements set out by the treating medical professional.

The worker, in answering questions from the panel, provided a clear description of the nature of the work offered to him beginning November 27, 2017 when he first provided a note from his treating medical professional stating light duties were required, through November 29 when the employer received the first functional capacity assessment with the restrictions noted, and into the subsequent week until December 8 when the employer received the recommendation that the worker remain off work for 1-2 weeks.

After the injury and before seeking treatment from his chiropractor, the worker testified that he worked at his normal duties for one day. He first sought treatment for that injury from his chiropractor on November 25, 2017. After receiving the initial "sick note" from the treating chiropractor, the employer offered the worker alternate duties in a job new to the worker in which he worked all day on his feet at an assembly line.

The panel heard that the worker was placed in alternate duties on a conveyer belt line with other workers who were standing. He could work in either a standing or seated position, but that a chair was not initially provided to him. The worker told the panel that the work was more challenging from a seated position as the line had multiple levels that needed to be accessed. The worker described the opportunities to walk during the course of the day as limited to walking to and from the washing station and cafeteria in the course of a morning, lunch and afternoon break and indicated that this took approximately 2 minutes in each direction for a total of 12 minutes daily. The balance of his day was spent in a seated or standing position.

The worker stated that during the two weeks of alternate duties, there were days he was assigned for a period of time to train other workers in his usual job duties, which took place for part of the day on November 29, on December 1 and part of December 4. At those times, he was less limited in his movement options and could sit or stand or walk with greater flexibility. The only other exceptions noted were when the worker sought medical attention, or went to speak with the Health Unit or his Supervisor about the alternate duties assigned.

The worker stated that these alternate duties did not fully align with the capabilities outlined by the worker's treating chiropractor and point the panel to the Transfer of Communication memoranda as evidence, noting that these did not convey the same restrictions as set out in the functional capacity assessments. The worker told the panel that he attempted to complete the duties provided to him by his employer but found, by December 7, 2017 that doing so was causing his physical condition to deteriorate.

Based upon the assessment by his treating chiropractor on December 7, 2017, the worker was advised not to return to work for 1-2 weeks. The treating medical professional set out in the Functional Capacity Assessment of that date that the worker was not capable of any modified or alternate duties. In compliance with the medical advice he received, the worker refused to participate when presented with another offer of accommodation of alternate duties on December 8, 2017. In fact, the worker did not return to work until December 27, 2017 when he was authorized to do so by his treating medical professional as part of a graduated return to full duties program.

Policy 44.40.10 Evidence of Disability sets out that "[w]age 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."

The panel reviewed and considered the medical information from the worker's treating healthcare professional on file and noted that:

• The treating chiropractor first examined the worker with respect to this injury on November 25, 2017 at which time he presented with "visible discomfort" and he was diagnosed with acute left groin pull and left sacroiliac sprain/strain. 

• The next chiropractic progress report, dated December 7, 2017 indicates that the worker reports alternative work duties are aggravating the pain and that working on the line makes it worse. Objective findings include increased symptoms with hip flexion, pain at 4/5 and painful and slow walking. 

• The December 14, 2017 narrative report from the treating chiropractor sets out that the worker was treated with adjustments and soft tissue therapy, and instructed on stretching exercises and cryotherapy. 

• While improvement was noted initially, despite receiving treatment three times weekly and working alternate duties, the worker's condition had begun to deteriorate by December 7, 2017. 

• The treating chiropractor sets out that as of December 7, 2017, "[t]he undue stress being placed on him at the work place was clearly affecting his emotional and physical state negatively" [emphasis added]. The treating chiropractor therefore recommended that the worker be taken off work completely until he was ready to return to this normal full duties and completed the functional capacity assessment accordingly. 

• On December 21, 2017, the treating chiropractor noted that the worker did not have any further groin pain but had continued sacroiliac pain and recommended that the worker return to work on a graduated basis beginning December 27, 2017.

On December 7, 2017, the worker's medical restrictions explicitly provided that he was not to return to work for one to two weeks and that he was not capable of any modified or alternate work. The offer of accommodation provided to him by his employer on December 8, 2017 does not align with the clearly stated medical restrictions set out by the worker's treating medical professional.

Having considered the medical findings and the nature and kind of alternate work the employer offered to the worker, the panel finds, on the standard of a balance of probabilities that the evidence supports that the worker was medically unable to return to work, not even to modified or alternate duties, from December 8, 2017 through December 26, 2017. The panel further finds that the medical evidence supports that the worker was unable to work from December 8, 2017 through December 26, 2017 as a result of the compensable injury to his hip and groin arising from the workplace accident of November 23, 2017.

The worker is therefore entitled to wage loss benefits from December 8, 2017 to December 26, 2017.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of September, 2019