Decision #34/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits for the period April 8, 2019 to April 12, 2019. A hearing was held on January 16, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits for the period April 8, 2019 to April 12, 2019.
That the worker is not entitled to wage loss benefits for the period April 8, 2019 to April 12, 2019.
On April 9, 2019, the worker submitted a Worker Incident Report to the WCB indicating that he injured his lower back in an incident at work on April 4, 2019. He described the incident as "I was stacking items. When I lifted the item it was a bit heavy and it strained my back. I continued to work. I reported it to the Lead Hand and he gave me a helper. It was still hurting and I was given light duties."
The employer also filed an Employer's Accident Report and a chronology of events on April 9, 2019. In the chronology, the employer noted that the worker reported the workplace accident on April 5, 2019 and advised he would not be seeking medical treatment over the upcoming weekend as he wanted to rest and see how he felt after that. The employer noted that the worker contacted his supervisor on April 8, 2019 to advise his back was sore and he would not be in, and the supervisor told the worker he needed to have a Work Capabilities Assessment Form (WCA) completed by his healthcare provider. The employer advised the worker they could offer him modified duties, and provided him with the WCA form. The worker returned later that day with the WCA, on which the treating physician had indicated the worker was to be off work from April 8 to April 12, 2019.
A Doctor First Report dated April 8, 2019 noted the worker's complaints of low back pain, with muscle spasms and shooting pains to his right leg, and an inability to sit or stand for long periods of time. The treating physician reported clinical findings of "lumbosacral spine is irritated and tender and rt [right] sciatica" and recommended the worker be off work for one week, then return to full regular duties.
On April 15, 2019, a WCB adjudicator contacted the worker to discuss his claim. The worker confirmed the mechanism of injury and advised the adjudicator that the employer provided him with a helper for the rest of the day on April 4, 2019 and he performed lighter duties on April 5, 2019, but found that part of the modified duties provided by the employer were difficult for him to perform. He further advised that he saw the doctor on April 8, 2019 and told the doctor the employer had modified duties for him but she said he should not work for one week. The doctor also prescribed medications for pain, which the worker said made him drowsy.
The WCB adjudicator gathered further information from the employer with respect to the modified duties, and on May 7, 2019, the worker's file was reviewed by a WCB medical advisor. The WCB medical advisor noted there was no medical evidence of total disability, and opined that reasonable restrictions would have been "i) the opportunity to change positions from sitting to standing as needed and ii) limiting lifting to 10 lbs for 1 week." The WCB medical advisor further opined that one of the medications provided to the worker "…is associated with drowsiness and as such he may have been limited in driving or operating heavy machinery while taking this medication."
The WCB was subsequently provided with a Sickness Certificate and a Doctor Progress Report from the treating physician, both dated May 22, 2019, which indicated the worker was unable to work from April 8 to April 12, 2019 due to medications and back pain, and that the return to work policy was discussed and he was able to resume work on April 15, 2019. The WCB gathered further information from the worker's supervisor, including photographs, relating to the modified duties the employer offered the worker. On May 24, 2019, the WCB's Compensation Services advised the worker that his claim was accepted for a low back muscle sprain, but he was not entitled to wage loss benefits for April 8 to April 12, 2019 as the medical information did not support that he was totally disabled, appropriate and suitable modified duties were available to him and he had failed to fully mitigate the circumstances of his injury.
On June 28, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that facts and medical information was not considered correctly. The worker further submitted that the medication his physician prescribed caused drowsiness and he was not able to perform the light duties offered to him by his employer. The employer provided a submission in support of Compensation Services' decision on August 9, 2019, and the worker responded to that submission on August 15 and August 20, 2019.
On August 21, 2019, Review Office determined that the worker was not entitled to wage loss benefits from April 8 to April 12, 2019. Review Office found that the worker's treating physician provided little medical evidence regarding his symptoms and limitations or restrictions and did not complete the forms required by the employer. Review Office further found that the physician's recommendation that the worker abstain from all work for one week was "…not in keeping with common medical recommendations for musculoskeletal injuries; which is typically keeping limited provocative activity, followed by increasing activity, progressing to full activity."
Review Office accepted the opinion of the WCB medical advisor that the worker was not totally disabled and would have been capable of performing duties with recommended restrictions. Review Office further accepted the possibility that the medication prescribed to the worker may have made him drowsy, but noted that the employer advised that if the medication issue had become a concern, they would have been able to accommodate the worker. Review Office found the worker was not totally disabled from April 8 to April 12, 2019 and his employer was capable of accommodating his work restrictions for that week. Review Office determined that the evidence did not support there was a loss of earning capacity and found the worker was not entitled to wage loss benefits.
On September 16, 2019, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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.
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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and reads as follows:
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.
The obligation to co-operate and mitigate is further addressed in WCB Policy 188.8.131.52, Co-operation and Mitigation in Recovery (the "Policy"), which states that:
The Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury. This is also known as a duty to mitigate the negative effects of a workplace injury. A worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work.
Part B of the Policy, entitled Return to Work and Other Programs, further states, in part, that:
An injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs. The worker's responsibilities include the following:
a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker's recovery…
WCB Policy 43.20.25, Return to Work with the Accident Employer, outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.
The Return to Work Policy describes suitable modified or alternate work as follows:
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.
The worker was self-represented. The worker made a presentation at the hearing and responded to questions from the panel.
The worker's position was that he did everything he could to mitigate his injury and return to work, in accordance with the Act and policy, and is entitled to wage loss benefits from April 8, 2019 to April 12, 2019.
The worker provided a summary of the events starting April 4, 2019. The worker submitted that he suffered a lower back strain at work on April 4, when he lifted an item from the conveyer, which he discovered was heavy. He dropped the item and called for help. Someone else replaced him on the line and he was moved to another line to do miscellaneous work. He said that when he returned to work on April 5, 2019 he told his supervisor he was still having back pain. He continued to do miscellaneous work and another worker was assigned to help him. The worker said that over the weekend, his back got worse, and he was just lying on the floor and doing some stretch exercises.
The worker said he called his supervisor early Monday morning, to say his back was very sore and he needed to see a doctor. A friend drove him to work, and he was given the WCA form and sent by cab with a supervisor to a walk-in clinic, where the physician examined him, prescribed medication, ordered an x-ray and told him to be off work for one week. The worker said he returned to the office with the WCA, and the employer contacted the WCB. The worker said that he was never asked about working a "lesser job," that the job which the employer offered at that time was the same as he had previously done, that they agreed to wait for the x-ray and called a cab that took him home.
The worker indicated that he did not return to work after that for several reasons, including the doctor had taken him off work for one week; he did not have the results of the x-ray; he was prescribed medication which caused drowsiness, and would impair his ability to drive and to operate machines if he was working with machines; and he was not offered a cab to come to work.
The worker said that he co-operated, but his employer never offered him any lighter duties which would have allowed him to sit. He said that it would have been different if the employer had offered, and he had refused, lighter duties that would have enabled him to sit down and work, and not to stand up and be walking around, but no such duties were ever offered to him.
The worker submitted that he took all reasonable steps to mitigate the effects of his injury, starting from doing stretching exercises throughout, seeing the doctor to make sure he recovered and was able to return to work, and keeping in contact with his employer. He submitted that he was not responsible for what the physician wrote. He referred to documents he had submitted in advance of the hearing, as showing that he is still seeing a physiotherapist with respect to his back strain.
The employer provided a written submission dated January 3, 2020 in support of the Review Office decision, but did not otherwise participate in the hearing of the appeal. The employer's position, as set out in their written submission, was that the Review Office decision was correct and the evidence on file does not support the worker was totally disabled or entitled to wage loss benefits during the period under appeal.
The employer noted the worker reported a left side lower back injury while lifting an item on April 4, 2019. He was able to continue working light duties the remainder of the shift on April 5, 2019. He sought medical attention on Monday, April 8, 2019, and returned to work with a blank WCA form, where only the Doctor's Comments Section was filled out, indicating the worker would be off work from April 8 to April 12, and would resume regular duties on April 15, 2019. The employer noted that Review Office found that this recommendation was not in keeping with common medical recommendations for musculoskeletal injuries. The employer further noted that the worker did not disclose he was prescribed medication which might have a side effect of drowsiness, and that he refused modified duties prior to taking that medication.
The employer submitted that the worker was capable of performing modified light duties on April 5, 2019 and was not totally disabled. The WCB medical advisor confirmed that there were no objective findings of total disability and that the worker's injury would not preclude him from performing modified duties. The medical advisor outlined restrictions, which Review Office noted were in keeping with the duties the worker performed on April 5, 2019 and with the modified duties which were offered on April 8, 2019.
The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period April 8, 2019 to April 12, 2019. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity between April 8 and April 12, 2019 as a result of his April 4, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a low back muscle sprain suffered at work on April 4, 2019. The panel notes that the evidence shows the worker continued to work performing modified duties on Friday, April 5, 2019, and did not seek medical attention until April 8, 2019, even though he indicated that his condition was becoming much worse. While the worker explained at the hearing that he could not seek medical attention without first obtaining a WCA form from the employer and had to wait until Monday to obtain that form, the panel does not accept that explanation.
The panel finds that the evidence does not support the worker was medically unable to perform the modified duties which were offered to him by the employer from April 8, 2019 to April 12, 2019. The panel notes that while the physician who saw the worker on April 8, 2019 wrote on the WCA that the worker "will be off from Monday April 8, 2019 until Friday 12 April 2019 & resume regular duties on Monday 15, 2018 (sic)", sections of the form relating to abilities and limitations/restrictions were simply stroked through. In the Doctor First Report dated April 8, 2019, the physician noted objective findings of "lumbosacral spine is irritated and tender and rt sciatica," and indicated as restrictions, that the worker "…will be off for 1 week and will start on Monday regular duties." The panel accepts and agrees with the WCB medical advisor's opinion that there is an absence of clinical findings of total disability.
The panel is satisfied, based on our review of the evidence which is before us, that the worker was capable of performing the modified duties which were offered to him on April 8, 2019. In arriving at that conclusion, the panel places weight on:
• The evidence shows the worker was provided with help and offered modified duties which he was able to perform on April 5, 2019;
• The evidence shows, and the worker acknowledged at the hearing, that the modified duties he was offered on April 8, 2019 were the same as he had performed on April 5, 2019, and that the helper would have been able to continue helping him, although the worker added that he would still have had to do the work;
• On April 8, 2019, the attending physician stated that the worker would be fit to return to regular duties on April 15, 2019;
• In her report dated April 16, 2019, the attending physician cleared the worker to return to regular duties, without restrictions, as of April 15, 2019;
• In clearing the worker to return to his regular duties, the treating physician reported on April 16, 2019 that the worker had "good rom [range of motion]" and that recovery was satisfactory.
The panel also places weight on and accepts the restrictions as recommended by the medical advisor on May 7, 2019. In addition, the panel accepts that one of the medications which was prescribed for the worker is associated with drowsiness, but is satisfied that this could have been accommodated if it became a concern.
The panel notes that in response to questions at the hearing, the worker stated that he did not say that the employer did not offer him modified duty, but that the modified duty they offered "wasn't reasonable because they were offering me modified duty of picking miscellaneous and dropping off miscellaneous, and they required me to be bending, standing and walking all day." The worker stated that "the only job they offered me was putting that miscellaneous, they never offered me other." The worker went on to say:
Miscellaneous is more tedious than [item] because [item] you can lift and drop, you can sit down while the [item] is not coming to rest, but when I'm doing miscellaneous, you cannot rest unless on break, because you walk and bend all day, that is why I didn't accept that one. And I asked them give me alternative lesser job, they said, no, they don't have any other one. If they had offered me any alternative one, I would have said, okay, I will go back, but they refused to offer.
The panel notes that the Policy requires that workers reasonably participate in any return to work program. While the modified duties which the worker was offered by the employer may not have been what he would have preferred, the panel is satisfied that those duties were suitable and he was capable of doing them. However, the worker did not even attempt to perform those duties starting on April 8, 2019 or in the days that followed.
Finally, the panel notes that while the worker was cleared to return to work on April 15, 2019, the worker's evidence at the hearing was that he did not do so. He said his wife gave birth on April 9, 2019 and "I called my supervisor to tell my supervisor I want to be off, and he gave me off for how many days. And after that, I called him to say, can I go on parental leave." The worker said that at the time of the hearing, he was still on unpaid parental leave from the accident employer, and was working at another lighter job in the meantime, which did not require physical strength.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity between April 8 and April 12, 2019 as a result of his April 4, 2019 workplace accident. The worker is therefore not entitled to wage loss benefits for that period of time.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of March, 2020