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 July 12, 2018. A hearing was held on January 20, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after July 12, 2018.

Decision

The worker is not entitled to wage loss benefits after July 12, 2018.

Background

The worker filed a Worker Incident Report with the WCB on June 26, 2018 reporting that he injured his left lower leg at work on June 25, 2018. He noted that he and a co-worker were attempting to move an object when "We both pulled and felt my hamstring tear, and I face planted, falling to the ground."

On June 27, 2018, the worker attended for medical treatment with his family physician. The physician diagnosed the worker with a left hamstring musculoskeletal injury, noting the worker's subjective complaints of pain when walking and sitting, limited movement, decreased range of motion and decreased power. The treating physician recommended the worker remain off work for two weeks and completed a Functional Abilities Form (FAF) for the employer noting the worker would be reassessed on July 10, 2018 for a return to his duties.

The employer completed an Employer's Incident Report on June 28, 2018 and provided the WCB with a copy of the Employee Statement of Accident and Modified Duties forms signed by the worker on June 25, 2018.

The WCB discussed the claim with the worker on June 29, 2018. At that time, the worker confirmed the mechanism of injury and that his family physician recommended he remain off work for two weeks.

The worker attended for an initial assessment with the physiotherapist on June 29, 2018. The worker reported to the physiotherapist that after attempting to move a skid on a trailer, he felt an immediate tear to his left thigh and as a result, he had pain when sitting, was unable to weight-bear on that leg, and walked with a severe limp. The physiotherapist assessed the worker, confirming his complaints and diagnosed a Grade 2 hamstring tear on the left leg. The physiotherapist noted that the worker's job requires him to sit for 11 hours per day and be able to load and unload trucks using lifts but still perform heavy duties at times. His sitting tolerance was limited to 10 minutes and he was unable to weight-bear on the left leg. The physiotherapist therefore recommended that the worker remain off work for four weeks. At a follow-up appointment on July 6, 2018, the physiotherapist indicated the worker's sitting tolerance was five minutes and standing tolerance was fifteen minutes.

On July 11, 2018, the worker attended for a follow-up appointment with his treating family physician. The physician now noted the worker's diagnosis to be a left femoris strain and recommended the worker remain off work for 2 more weeks until his next appointment on July 25, 2018. The physician recorded the worker's complaints of having difficulty sitting, walking on an incline and stairs, and inability to sit in the car for prolonged periods. On the same date, the physician completed a FAF indicating that the worker was capable of performing Clerical Activities with no lifting at all, occasional standing, sitting, driving, bending, pushing/pulling and manipulating, and frequent walking. The physician noted, in the space for start date, "to be reassessed July 25/2018". On the same day, the physician noted on a Return to Work form provided by the employer, that the worker would be capable of performing the modified duties proposed by the employer, "but not at present".

On July 17, 2018, the employer's representative wrote to the WCB with concerns regarding the worker. The employer's representative noted that the employer had offered suitable modified duties to the worker "…on multiple occasions" and that the medical information did not support that the worker was totally disabled and unable to work. The employer therefore objected to the worker being entitled to wage loss benefits.

On July 26, 2018, the worker provided the WCB with a note from his doctor advising that he could return to work as of July 30, 2018 at his regular duties. The worker's treating physiotherapist discharged the worker from treatment on July 27, 2018 noting that his gait was normal, he could fully weight-bear on his left leg and the range of motion of his left hamstring was equal to his right. The physiotherapist also indicated that the worker could return to his full regular duties on July 30, 2018.

The WCB contacted the worker on August 10, 2018 to discuss his claim. The worker advised at that time that because his commute to work is over an hour and his treating family physician had advised him that sitting for long periods of time directly on the injury was not good, his physician recommended that he not return to work until he could return to his driving duties where he could take breaks as often and for as long as needed compared to the sedentary office duties the employer had offered as modified duties.

The WCB spoke with the worker's treating physician on August 22, 2018 to clarify the information provided by the physician on July 11, 2018. The physician confirmed that the WCB should refer to his chart note, not the employer forms he completed, as he would not have wanted the worker to return to work until July 30, 2018.

The WCB advised the worker on September 25, 2018 that he was not entitled to wage loss benefits after July 10, 2018 as he had been offered suitable modified duties, which he had refused, and had been cleared for those duties by his physician on July 11, 2018.

On November 21, 2018, the worker requested reconsideration of the WCB's decision to Review Office. In his submission, the worker noted that he was following the instructions of his healthcare providers to rest and continue physiotherapy prior to returning to work. He further noted that his commute to work was over an hour, each way, and according to his physician, he would not have been able to tolerate sitting for that length of time.

Review Office determined on January 8, 2019 that the worker was entitled to wage loss benefits to July 12, 2018. Review Office noted that the FAF completed by the worker's physician on July 11, 2018 indicated that the worker could drive "occasionally" and that there were no formal restrictions placed on the worker's drivers' license. Accordingly, Review Office determined that the leg discomfort noted by the worker on July 11, 2018 would not have rendered the worker totally disabled or made him incapable of commuting, with rest breaks as needed, to work.

The worker's representative filed an appeal with the Appeal Commission on August 13, 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 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. That compensation includes wage loss benefits.

Entitlement to wage loss benefits is addressed in s 4(2) of the Act which sets out that such benefits are payable for a loss of earning capacity resulting from the accident. Section 39(2) of the Act sets out 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.

In order to be entitled to receive benefits, the worker must also comply with the obligations set out in s 22(1) of the Act, as follows: 

Worker to co-operate and mitigate 

22(1) Every worker must 

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Worker's Position:

The worker appeared at the hearing and was represented by a worker advisor. The worker's spouse accompanied him to the hearing as an observer.

The worker advisor outlined the worker's position in a written submission provided to the panel and through oral presentation. The worker answered questions put to him by the worker advisor as well as questions from members of the appeal panel.

The worker's position is that the worker complied with the instructions of his treating professionals in remaining off work until July 30, 2018 and that it was reasonable for him to do so in light of the information he received from them. Further, the worker advisor noted that the worker followed the employer's instructions in having the FAF and modified duties forms completed by his treating physician and in providing this information to the employer.

The worker advisor stated that both of the worker's treating medical professionals told him to remain home from work until July 30, 2018 in order to avoid aggravating his injury, and he complied with those instructions. The worker advisor stated that neither the WCB nor the employer advised him that he was expected to do otherwise.

The worker advisor pointed out that as a result of complying with those instructions, the worker was able to fully return to his regular job duties as of July 30, 2018. With respect to the return to work, the worker testified that his doctor initially suggested he go back two days per week only, but the worker said he would try full-time hours. He noted that he was able to do so by stopping intermittently along his driving route.

Further, the worker outlined that he did not learn that he had been expected to return to modified duties until some two weeks after his return to work. In answer to questions from members of the panel, the worker stated that he was not sure if he could have tolerated modified duties beyond one day and suggested he would not have been able to do anything at all, given that he was at home "primarily on the couch," swimming in his neighbour's pool, attending physiotherapy or doing home physiotherapy exercises during the period from the date of injury through to July 29, 2018.

The worker confirmed to the panel, on questioning, that he did not communicate his concerns about driving to and from work to the WCB. The worker also advised the panel that he was able to drive himself to and from physiotherapy, approximately 13-15 minutes journey, during this time, with stops taken as needed along the way.

In sum, the worker's position, as articulated by the worker advisor, is that it is unreasonable to expect that the worker, who had no prior experience with WCB claims, would know he was expected to return to work on modified duties in light of the instructions from his treating medical practitioners and in the absence of specific instruction to that effect from his employer and the WCB. Therefore, the worker advisor argued, the worker's appeal should be allowed.

Employer's Position:

The employer was represented in the hearing by an appeal specialist, who participated in the hearing by teleconference. The employer's representative outlined the employer's position in oral submission.

The employer's position is that the correct decision was made by the Review Office, as the evidence does not support a finding that the worker experienced a loss of earning capacity after July 12, 2018 as a result of or due to the compensable workplace injury. The worker was not totally disabled and the employer had offered suitable modified duties to the worker for the period of his recovery.

The employer noted that the FAF completed by the worker's treating physician on July 11, 2018 stated that the worker was able to undertake modified duties at that time. The statement "but not at present" on the Return to Work form was unclear in terms of its application. Further, the documents completed by the worker's physician do not reference driving at all.

The employer's representative noted that when the discrepancy or inconsistency in the treating physician's July 11, 2018 reports was put to the physician by the WCB case manager in August 2018, he provides a different response than was given nearer to the date of the accident. The employer's representative urged the panel to place greater weight on the reporting completed nearer to the date of the events than on the subsequent explanation provided.

The employer's representative noted that the worker's subjective complaints were pain related, rather than related to his functional abilities or limitations, and stated that pain should not be a barrier to a return to work. Here, the employer was willing and able to accommodate the worker. The evidence supports that the worker was able to drive to his medical appointment, albeit with frequent breaks, and this supports that he was not totally disabled.

For these reasons, the employer's representative argued, the worker's appeal should be dismissed.

Analysis:

The issue for determination is whether the worker is entitled to wage loss benefits after July 12, 2018. In order for the panel to find that there is such entitlement, it would have to determine that as a result of the workplace accident, the worker had a loss of earning capacity and was unable to return to work at that time. The panel is not able to make that finding, for the reasons that follow.

The panel considered whether the clinical findings support the worker's assertion that he was totally disabled from returning to work after July 12, 2018 and until July 30, 2018. The panel reviewed the medical reports and noted as follows:

• On June 29, 2018, the treating physician completed the employer's FAF document and indicated that the worker would need to be off work for two weeks and would be reassessed on July 10, 2018 

• On July 5, 2018, the treating physician reported based on his June 27, 2018 examination of the worker, that the worker was not capable of alternate or modified work for a period of two weeks. 

• On July 5, 2018, the treating physiotherapist reported that at the initial assessment on June 29, 2018, the worker had reduced ability to walk and sit, demonstrated a severe limp and diagnosed a grade 2 hamstring tear. The physiotherapist noted that the worker was disabled from work and suggested he was unable to weight-bear on his left leg and could only sit for 10 minutes. The physiotherapist suggested these restrictions would be in place for 4 weeks and the worker would not be able to do his job. There is no indication that the worker provided or discussed the employer's modified duties proposal with the physiotherapist.

• On July 6, 2018, the physiotherapist wrote a note indicating the worker had a 5 minute sitting tolerance and could stand for 15 minutes. This was provided to the WCB on July 11, 2018. 

• On July 11, 2018, the treating physician completed the employer's FAF document indicating the worker's functional abilities would render him capable of clerical activities with no lifting at all, occasional standing, sitting, driving, bending, pushing/pulling and manipulating. The worker was noted to be capable of frequent walking and constant grasping, but should not be exposed to unprotected heights or uneven surfaces at all. Notably, the questions of return to work with or without restrictions are left blank. 

• On July 11, 2018, the treating physician also completed the employer's return to work on modified duties form, indicating support for return to work in a modified capacity, with the caveat "but not at present." No further detail was provided on this document. 

• On July 12, 2018, the treating physician reported to WCB based upon his July 11, 2018 examination that the worker was not capable of alternate or modified work for two weeks. He noted the worker was unable to sit for a prolonged period during the examination and had pain over his left femoris bicep medially and centrally, with power noted at 4/5 and a limping gait. 

• On July 27, 2018, the physiotherapist discharged the worker from physiotherapy noting he could fully weight-bear on his left leg, had a normal gait and full range of motion in his left hamstring. No restrictions were outlined. 

• On August 23, 2018, the treating physician reported that when seen on July 25, 2018, the worker had good range of motion and a limp-free gait, and was able to sit in the examination room. Return to work on July 30, 2018 was recommended.

The panel notes that the initial clinical reports and findings support that the worker was unable to work until at least July 11, 2018. As of that date, however, the evidence is less clear. The documents submitted to the employer suggest that the worker was able to work in some capacity at least as of July 12, 2018, although with restrictions in place in terms of his specific movement and functional abilities. But, the situation is muddied by the physician's report to WCB sent July 12, 2018 which states that the worker is not capable of any modified work for two weeks.

While the treating physiotherapist noted on July 27, 2018 that the worker was ready to return to full regular duties as of July 30, 2018, the treating physician's report that suggests the worker was able to return to work on July 30, 2018, based upon the July 25, 2018 examination, was not provided to the WCB until August 23, 2018.

With respect to the worker's concerns about driving to and from work, the panel notes that none of the medical reports on file indicate that the worker is unable to drive at all, or raise a concern about his driving to and from work. In fact, this concern was first raised by the treating physician in a telephone conversation with the WCB adjudicator on August 22, 2018. The prior medical reporting by the physician to the WCB does not note any restrictions for the worker with respect to driving. On the report dated July 12, 2018, the physician does comment that the worker complained of being "unable to sit in car for prolonged periods." Notably, the physician did note the worker was capable of occasional (up to 33% of a day) driving on the FAF form completed for the employer on the same date.

The worker initially spoke with the WCB adjudicator on June 27, 2018 and did not raise any issue at that time with respect to driving to and from work. In fact, the worker did not advise the WCB of his concerns about driving until after his return to work, in the course of a telephone conversation that took place on August 10, 2018.

The panel notes as well that the employer's initial offer of modified duties, signed by the worker on June 25, 2018, places responsibility for raising issues of transportation upon the employee: "Should you require transportation based on your restrictions, please contact your manager immediately." There is no evidence that the worker did so. The employer was quick to offer accommodation in terms of making modified duties available to the worker after the injury, but the employer was not made aware by the worker of any issue with respect to his concerns about how to get to work and therefore had no opportunity to consider whether further accommodation could be offered.

In determining whether or not the worker has a loss of earning capacity as a result of the compensable injury, the question of how the worker would get to work is not determinative. Rather, the primary issue is whether the worker is able to work in some capacity. Yet, it appears that in the worker's mind the "driving question" become the "driver" of his decision not to return to work until July 30, 2018.

There is no question the worker was aware that he had an obligation to attempt a return to work so as to mitigate the effects of the injury and any wage loss. The worker advisor suggested that the worker was not familiar with WCB claim processes and expectations, but the panel notes that these obligations were outlined to him in his call with the WCB adjudicator on June 27, 2018 and then confirmed by letter from the WCB dated July 6, 2018. The evidence provided to the panel by the worker is that he did not even attempt a return to work. He stated that he wasn't sure that he could tolerate it.

The panel finds, on a balance of probabilities that the evidence supports that the worker was able to return to work in come capacity as of July 12, 2018, and would have been capable of undertaking modified duties with the employer, who was amenable to accommodating the worker's injury and any restrictions arising from it. The panel therefore concludes, on a balance of probabilities, that the worker did not have a loss of earning capacity as a result of the compensable workplace accident after July 12, 2018.

The worker is not entitled to wage loss benefits after July 12, 2018 and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of March, 2020