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 after December 8, 2017 to February 7, 2018 and he is not entitled to benefits after February 7, 2018. A hearing was held on November 7, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after December 8, 2017 to February 7, 2018; and

Whether or not the worker is entitled to benefits after February 7, 2018.

Decision

That the worker is entitled to wage loss benefits after December 8, 2017 to February 7, 2018; and

That the worker is entitled to benefits after February 7, 2018.

Background

On November 16, 2017, the worker reported to the WCB that he injured his neck and low back in an incident at work on November 15, 2017. He described the incident as "I was on the way to a site. I was the passenger in the vehicle when we were rear ended by another vehicle." The worker attended for medical treatment at a walk-in clinic on the day of the incident, where the attending physician noted the worker had "pain in neck and lower back" and "headache due to neck pain" and recommended the worker remain off work for a week.

On November 20, 2017, the worker saw a physiotherapist, who diagnosed a cervical sprain and recommended the worker be off work until November 27, 2017, then return to work on a graduated basis with light duties. The WCB accepted the worker's claim on November 22, 2017.

The worker returned to work for four hours a day with light duties on November 28, 2017. On November 29, 2017, the worker's treating physiotherapist confirmed that he was capable of working eight hours a day, starting November 30, 2017.

On December 8, 2017, the worker advised the WCB that the employer had terminated his employment. On December 11, 2017, the employer confirmed that the worker's employment had been terminated as of December 8, 2017 and that he would be paid two weeks' pay in lieu of notice, to December 22, 2017. The WCB subsequently advised the worker that they would continue wage loss payments after December 22, 2017.

The worker continued to seek medical treatment including an initial assessment with a chiropractor on January 23, 2018. The chiropractor noted the worker's complaints of subacute neck pain and low back pain and diagnosed the worker with WAD II (whiplash associated disorder) and lumbar sprain/strain. The WCB attempted to arrange a call-in examination of the worker, but the worker advised that he was unable to attend, and a WCB chiropractic consultant undertook a review of the worker's file on January 30, 2018. Based on his review of the claim file, the WCB chiropractic consultant opined that the most probable diagnosis as related to the workplace accident was a cervical strain injury. The chiropractic consultant further noted that it was ten weeks since the workplace incident and opined that this timeframe would have been sufficient to resolve the worker's injury as related to that incident. On February 1, 2018, the WCB's Compensation Services advised the worker that they had determined he had recovered from the effects of his compensable injury and was not entitled to wage loss and medical aid benefits beyond February 7, 2018.

On May 9, 2018, the worker's representative requested that Compensation Services reconsider the February 1, 2018 decision based on new medical information provided by the worker's treating family physician. On May 9, 2018, Compensation Services advised the worker that the updated medical information had been reviewed and there would be no change to the February 1, 2018 decision.

On May 23, 2018, the worker requested that Review Office reconsider Compensation Services' decisions. In his submission, the worker noted that medical information past February 7, 2018 indicated he had ongoing difficulties and limited function and that he continued to require light duties and restrictions. The worker further disagreed with the comment by his WCB case manager that he declined to attend the call-in examination scheduled for January 30, 2018, noting that he had been unable to attend due to a pre-scheduled non-work-related surgery set for the day prior to that examination. The worker stated that he felt he was being penalized for his inability to attend the call-in examination scheduled for January 30, 2018.

On May 29, 2018, a WCB Sector Manager asked that the call-in examination with the WCB chiropractic consultant which had previously been considered be rescheduled. The call-in examination was rescheduled and proceeded on June 13, 2018. In his notes of that examination, the chiropractic consultant opined that "Currently, it appears that [the worker] is complaining of nonspecific cervical and lumbar discomfort. In my opinion, [the worker's] ongoing symptoms noting the findings/responses in this evaluation dated June 13, 2018, would not relate to the reported incident November 15, 2017." On June 15, 2018, Compensation Services advised the worker that they had reviewed the call-in examination notes and the February 1, 2018 decision remained unchanged.

On June 14, 2018, the employer provided a submission to Review Office in support of Compensation Services' February 1, 2018 decision, and on June 29, 2018, the worker provided a response to the employer's submission.

On July 12, 2018, Review Office determined that the worker was not entitled to benefits beyond February 7, 2018. Review Office noted that the worker was involved in a "…low velocity motor vehicle collision" as a passenger in a company vehicle that was rear-ended, that the vehicle sustained only a scratch on the bumper and the driver sustained no injuries. Review Office further noted that when the worker was let go from his employment on December 8, 2017, he was working full hours with restrictions. Review Office relied on and accepted the June 13, 2018 opinion of the WCB chiropractic consultant that it was difficult to state an exact diagnosis as related to the workplace accident of November 15, 2017. Review Office also found that the worker's loss of earning capacity after December 8, 2017 was the result of his being fired for reasons unrelated to the claim and was not due to his compensable injury, and as such, he was not entitled to wage loss benefits beyond December 8, 2017.

On March 14, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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.

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.

Worker's Position

The worker was represented by a worker advisor, who submitted further information in advance of the hearing, including additional medical reports and medical literature, and documentation from a WCB Compliance Services investigation. The worker's representative made an oral presentation at the hearing, a written copy of which was also provided to the panel. The worker responded to questions from his representative and from the panel.

The worker's position was that the worker is entitled to wage loss benefits after December 8, 2017 to February 7, 2018, and to benefits after February 7, 2018 as a result of his November 15, 2017 workplace incident.

The worker's representative submitted that the evidence supports that the worker's WCB claim, injury and/or associated functional limitations were likely wholly, or at least in part, the reason the employer terminated the worker's employment in December 2017. Further or alternatively, it was submitted that the employer committed a discriminatory act when terminating the worker's employment. In either case, the representative submitted that the worker's loss of earning capacity remained related to his injury up until Compensation Services ended his benefits on February 7, 2018.

The worker's representative further submitted that reports from the worker's attending physician, physiotherapist and an assessment report from a chiropractor identify the need for medical aid, and continuing work limitations extending well beyond the benefits end date of February 7, 2018.

The worker's representative submitted that the Review Office decision was procedurally unfair and fell short of a comprehensive review as contemplated by WCB policy. The representative expressed concerns with the process and information relied on by Review Office in making their decision. He noted that the worker made no mention of the termination of his employment in his appeal to Review Office. He was not informed that Review Office had expanded their review to include entitlement to wage loss benefits prior to February 7, 2018 and had no opportunity to address that issue.

It was submitted that the decision to backdate wage loss entitlement flowed from Review Office's conclusion that the worker's termination was due to "labour issues" as opposed to his claim and/or injury. The representative noted that Review Office did not identify those "labour issues," or discuss how they arrived at that conclusion. He noted that at the time of their decision, Review Office had access to a December 8, 2017 claim memo, which stated that the worker had told the adjudicator his employer just fired him and that he had a disagreement with his supervisor over performing a task which was outside his compensable restrictions. According to a December 11, 2017 claim memo, on the other hand, the employer's sole documented reason for terminating the worker's employment was that he was "not an organizational fit." The representative submitted that such an ill-defined and unsubstantiated reason does not support the Review Office decision.

The worker's representative submitted that medical information after February 7, 2018 demonstrated continuing cervical and lumbar spine injuries for which the worker's treating physician and physiotherapist said he was only capable of performing light duties. A January 23, 2018 assessment from a chiropractor also indicated at least five weeks of treatment were needed to address the worker's cervical and lumbar spine injury. The representative submitted that as the worker remained injured and had no job to return to by virtue of the termination of his employment, his loss of earning capacity and need for medical aid continued well beyond February 7, 2018.

The representative noted that the worker more recently met with a physician with an interest in occupational health medicine ("occupational health medicine physician"), who reviewed his entire claim file, interviewed the worker and examined him. The representative requested that the panel attach weight to the February 5, 2019 opinion from the occupational health medicine physician regarding the worker's non-recovery from his cervical spine injury, which was submitted in advance of the hearing.

The worker's representative submitted that the only contrary medical opinion at the time benefits ended in February 2018 came from a WCB chiropractic consultant who completed a file review. The representative submitted that there was no clear explanation as to why the consultant who had initially requested that a call-in examination be scheduled, changed his mind and decided that a file review would suffice, instead of re-scheduling the examination. The representative submitted that the consultant's January 30, 2018 comments focus on an expected natural recovery, as opposed to the worker's actual recovery.

The representative submitted that it was noteworthy that the WCB arranged a call-in examination for June 13, 2018. The representative submitted that the WCB was under no obligation to proceed with such an examination at that time, and that the fact they did so suggests that they agreed the January 30, 2018 call-in examination should have been rescheduled and the file review comments were insufficient.

With respect to the substance of the WCB chiropractic consultant's June 13, 2018 comments, the worker's representative pointed to certain omissions from the consultant's analysis. The representative submitted that if the panel chose to attach weight to the consultant's opinion, the worker should at least be entitled to wage loss and medical aid benefits up until the June 13, 2018 assessment date. In this regard, the representative stated that they were relying on the reports from the worker's healthcare providers indicating non-recovery from his cervical or lumbar area injuries. The representative further submitted that it should not be presumed that all of the consultant's mid-June 2018 examination findings would have been present or observed if the assessment had taken place in January 2018.

In conclusion, the worker's representative submitted that the primary evidence which supports the worker's appeal is the consistent symptoms of pain and range of motion limitations that seem incompatible with the worker's pre-accident work duties, and which continued well beyond February 7, 2018. It was submitted that the worker did not have the opportunity to be accommodated because of his employment ending, and as a result, has further entitlement to both wage loss and medical aid benefits.

Employer's Position

The employer provided a written submission dated March 22, 2019 in support of the Review Office decision but did not otherwise participate in the appeal. In their submission, the employer's representative noted that the worker was an experienced worker, who was successful in jobs where he worked independently. The nature of the employer's work, however, required significant teamwork and collaboration, and the worker struggled with this during his probationary period.

The employer's representative submitted that the worker complied with his work accommodations and restrictions while at work, but that this was not consistent with his behaviour outside work. The representative noted that the worker commented that he struggled with his tool belt at work, but he rode his bicycle to work with his backpack on his back or walked with his backpack over one arm. The representative noted that the tool belt weighed approximately 20 pounds, but the backpack would have weighed between 25 and 30 pounds. The representative submitted that it seemed odd that someone who reported the injuries which the worker described would be physically able to ride a bike with such weight on his back.

Analysis

Issue 1. Whether or not the worker is entitled to wage loss benefits after December 8, 2017 to February 7, 2018.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond December 8, 2017, through to February 7, 2018 as a result of his November 15, 2017 workplace incident. The panel is able to make that finding.

The worker has an accepted claim for a cervical sprain/strain injury. Based on our review of all of the information which is before us, as documented on file and as presented at the hearing, the panel is satisfied that the worker's loss of earning capacity after December 8, 2017 through to February 7, 2018 is directly related to his workplace injury.

The panel notes that the focus of our inquiry on this appeal is on whether the worker continued to suffer the effects of his November 15, 2017 workplace injury and whether he was entitled to wage loss benefits because he could not perform his regular work duties.

While certain information on file suggests that the workplace incident was of a relatively minor nature, the panel notes that the Employer's Incident Report indicates, and the worker confirmed at the hearing, that the November 15, 2017 incident involved a multi-vehicle accident, where the vehicle in which he was a passenger slid through an intersection and hit a vehicle in front of it, then was hit from behind by another vehicle. The worker further indicated that he returned to the employer's worksite, but left right away after that to see a doctor as his neck and back were sore and he felt that he could not work like that.

The panel notes that the worker returned to work within a relatively short period of time, but accepts that the available medical evidence indicates he was not able to do his regular work duties and had not fully recovered from his compensable injury as of December 8, 2017 through to February 7, 2018.

The panel does not accept that the worker was no longer entitled to benefits after his employment was terminated by the employer on December 8, 2017. The panel notes that the worker was working in an accommodated position at that time, performing modified duties in accordance with his restrictions as identified by his healthcare providers. The panel is satisfied that the evidence does not support that he removed himself from his accommodated employment by his conduct. In this regard, the panel notes that the employer indicated in their submission at the hearing that the worker complied with his accommodations and restrictions while at work.

The panel places weight on the report from a physiatrist dated October 4, 2018 which was provided in advance of the hearing. The report indicated that he had reviewed an MRI of the workers' cervical spine from October 2013, and noted that "At that time there was evidence for a C4-5 level moderately severe left facet arthrosis with hypertrophic changes. This resulted in report of moderate left foraminal narrowing." A September 15, 2018 report of an MRI of the worker's cervical spine, a copy of which was also provided in advance of the hearing and was reviewed by the treating physiatrist, showed "Multilevel degenerative changes within the cervical spine including moderate to severe left neural foraminal narrowing at the C3-C4 and C4-C5 level predominantly related to severe facet arthropathy." Based on his investigations and physical examination of the worker, the physiatrist provided a diagnosis of "cervical spondylosis with severe left C3-4 and C4-5 facet arthropathy with associated severe neuroforaminal narrowing."

The panel notes that while there is reference to the worker having declined to participate in the call-in examination on January 30, 2018, the information on file shows that the worker actually indicated that he could not attend on that date due to a pre-scheduled surgical procedure. The panel is of the view that the worker provided a reasonable explanation as to why he could not attend that day. The panel has not identified any explanation on file as to why that examination was not rescheduled or could not have been rescheduled to another date around the same time, when the worker could have attended.

Based on his review of the worker's file, the WCB's chiropractic consultant opined on January 30, 2018 that ten weeks since the work incident would have been sufficient to resolve the workplace injury as related to that incident. The panel notes that the 2013 MRI report was not on file at that time, and the consultant made no reference to any degenerative conditions in providing that opinion. The panel is of the view that the ten week timeframe as identified by the consultant was based on an expected natural history or period of recovery and was not reasonable in this instance, given the worker's degenerative back condition.

While the call-in examination was eventually rescheduled for June 13, 2018, well over four months later, the panel is the view that the findings from that examination were still not complete. For example, the chiropractic consultant indicated in his medical summary at the time of that examination that the worker had one prior compensable claim with regard to his lower back which was not accepted. The panel notes, however, that a review of a list of the worker's prior and subsequent claims shows that the worker had five prior claims relating to his lower back, including another 2006 claim for his neck and lower back which was accepted and where the worker was paid several months' wage loss benefits. In addition, in his examination notes, the consultant again does not refer to degenerative conditions of the worker's cervical spine.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond December 8, 2017, through to February 7, 2018, as a result of his November 15, 2017 workplace incident. The panel therefore finds that the worker is entitled to wage loss benefits after December 8, 2017 to February 7, 2018.

The worker's appeal on this issue is allowed.  

Issue 2. Whether or not the worker is entitled to benefits after February 7, 2018.

For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond February 7, 2018 as a result of his November 15, 2017 workplace incident. The panel is able to make that finding.

In addressing this issue, the panel relies on the reasons noted in Issue #1 above. Based on those reasons and on our review of all of the available evidence, the panel is satisfied that as at February 8, 2018, the worker had not recovered from the effects of his November 15, 2017 compensable injury, that injury having occurred within the environment of a degenerative back.

The panel therefore finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid beyond February 7, 2018 as a result of his November 15, 2017 workplace incident and is entitled to benefits after February 7, 2018.

The panel notes that while the worker's representative has argued that the worker's entitlement to such benefits should extend to at least June 13, 2018, based on the information which is before us, we are not in a position to determine what benefits in particular the worker would be entitled to and for what length of time they would be entitled to such benefits, and it will be up to the WCB to obtain further information and render a decision in that regard.

The worker's appeal on this issue is allowed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of January, 2020