Decision #67/20 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that it was appropriate to implement a graduated return to work program effective October 4, 2017 and that he is not entitled to full wage loss benefits throughout the graduated return to work program. A teleconference hearing was held on May 14, 2020 to consider the worker's appeal.
Whether or not it is appropriate to implement a graduated return to work program effective October 4, 2017; and
Whether or not the worker is entitled to full wage loss benefits throughout the graduated return to work program.
It is not appropriate to implement a graduated return to work program effective October 4, 2017; and
The worker is not entitled to wage loss benefits after leaving the work-hardening program.
On August 8, 2016, the worker filed a Worker Incident Report with the WCB. In that Report, the worker noted that he injured his lower back in an incident on August 2, 2016. The worker described how he grabbed a 40–50 pound vice off a workbench and felt a twinge or discomfort in his lower back as he turned to place it on a milling machine. He noted that he continued working but that his back became very stiff that evening. At work the next day, while taking a 30-pound box from his boss, he felt a shooting pain down the back of his leg and up into his back. He rested awhile and then finished his work in a seated position, or leaning on a chair. He was unable to sleep that night and saw a chiropractor the next morning.
The employer filed an Employer Injury Report on the same date and confirmed the worker’s reporting of the incident.
On August 4, 2016, the worker saw his chiropractor for initial assessment, reporting sharp constant pain on his left side radiating down his left leg. The chiropractor noted the worker also reported burning, pulling and a sensation of numbness into his calf. On testing, the chiropractor found the worker had decreased range of motion and muscle strength on his left side. The chiropractor diagnosed lumbar radiculopathy on the worker’s left side and recommended he remain off work, as his limited range of movement rendered him unable to complete his duties. The WCB accepted the worker’s claim on August 9, 2016.
The worker saw his family physician on August 31, 2016. The physician reported mild tenderness of the worker’s left lower back – SI (sacroiliac) joint, a positive straight leg test on the left and decreased strength on extension of his left leg. The physician diagnosed “mechanical back pain – lumbar radiculopathy” and recommended the worker remain off work, as there were no light duties available.
The worker continued to receive chiropractic treatment and at the request of the WCB, attended a call-in examination on October 20, 2016 with a WCB chiropractic consultant. After the examination, the WCB chiropractic consultant concluded that the worker’s injury resulting from the August 2, 2016 workplace accident was a “…lumbosacral strain/sprain type of injury with an associated radiculopathy involving the L5 nerve root.”
The WCB chiropractic consultant recommended the worker undergo an MRI study and noted that the worker should begin his return to work at four hours a day, to be reassessed after a few weeks to determine if the hours could be increased.
An MRI study of the worker’s lumbar spine conducted on November 7, 2016 revealed degenerative changes “…predominantly at L4-5 and L5-S1 where there is spinal canal and neural foraminal narrowing.” Due to ongoing symptoms of lumbar radiculopathy the worker’s treating family physician referred the worker to a neurosurgeon on December 12, 2016.
On January 9, 2017, the worker was assessed by a neurosurgeon. The examination notes indicate the worker’s lumbosacral range of motion was restricted with approximately 70% flexion and extension. Rotation and lateral bending were also noted to be approximately 70%. The neurosurgeon concluded that the worker’s clinical presentation indicated “…some mechanical low back pain” and the worker’s reported pain extending to the lower left extremity “…are very probably radiculopathic secondary to the disc protrusion/spinal stenosis at L4-5” indicated on the November 7, 2016 MRI. The neurosurgeon recommended the worker continue with conservative treatment, adding physiotherapy.
The worker first attended for physiotherapy on February 10, 2017. The physiotherapist noted the worker’s report of numbness, general weakness and decreased function and found the worker had a positive straight leg test on the left and poor general fitness. The physiotherapist diagnosed discogenic lower back pain/sciatica and noted the worker required significant rehabilitation. The physiotherapist recommended the worker not return to work, as he was unable to sit for more than 10 minutes and could not lift or pull. At a follow-up physiotherapy appointment on March 23, 2017, improvement was noted to the worker’s condition and modified duties of sedentary work were recommended.
At the request of the WCB, the worker attended for a call-in examination with a WCB orthopedic consultant on May 10, 2017 to determine workplace restrictions and the worker’s progress in recovering from the workplace injury. The WCB orthopedic consultant recommended restrictions of:
a. No prolonged standing or walking more than 30 minutes.
b. No prolonged sitting or standing postures without opportunity to move around.
c. No repetitive bending and twisting of the spine.
d. No lifting from floor level. e. No lifting or carrying more than 10 pounds.
The WCB orthopedic consultant was of the view that the worker’s pre-existing degenerative changes in his spine, including facet osteoarthritis, disc bulging and protrusion, had significantly prolonged his recovery from the workplace accident.
On May 11, 2017, the WCB advised the employer of the worker’s temporary restrictions and the employer indicated they would review available jobs and would advise the WCB on developing a return to work program. On May 18, 2017, the worker advised the WCB that the employer could not accommodate him within his restrictions.
The WCB discussed a graduated return to work plan with the employer on July 6, 2017 and the worker on July 7, 2017 with a start date of July 10, 2017 at two hours per day. When the worker attended on July 10, 2017, he was sent home by the employer due to his inability to put on required safety boots without assistance.
On July 17, 2017, the WCB contacted the worker’s treating physiotherapist for clarification as to the worker’s abilities. The physiotherapist confirmed the worker was able to perform exercises requiring bending while undergoing physiotherapy and could not find a reason why the worker would be unable to put on the required safety boots.
At a meeting on July 20, 2017, the WCB case manager, the employer and the worker were to discuss the worker’s graduated return to work. The worker expressed concerns regarding his inability to put on the required safety boots and coveralls and the WCB case manager made suggestions to address those concerns. The case manager indicated their expectation that the worker would start the graduated return to work plan by July 26, 2017.
On July 25, 2017, the worker contacted the WCB to advise he was still having difficulties in finding a solution to the issue with his safety boots and that a new medication he was prescribed was having an effect on him, making him feel like he was “drunk” for the whole day. The WCB case manager advised the worker that it was still the WCB’s position that he was capable of participating in the graduated return to work plan and that his wage loss benefits would be reduced based on that plan. The worker did not return to work and advised the WCB accordingly on July 28, 2017.
The worker saw his treating family physician on July 31, 2017 for follow-up. The physician noted the worker’s report of pain that worsened with moving and walking and recorded that the worker was “unable to bend enough to put shoes on from either standing or sitting position” and that his gait was uneven. The family physician reported some improvement in managing the worker’s pain with new medication but concluded the work was not capable of a return to work as he worker could not bend to put his boots on.
The WCB orthopedic consultant reviewed the worker’s file on August 9, 2017. At that time, the WCB consultant determined the worker’s medical status had not materially changed since the call-in examination on May 10, 2017 and could not identify any medical barrier to the worker putting on and tying laces of work boots. The WCB orthopedic consultant provided that the worker was able to return to work on a gradual basis, commencing two hours per day and increasing by one hour per day every three weeks or so, within his recommended restrictions. On August 9, 2017, the WCB advised the worker that his wage loss benefits would be reduced based on the graduated return to work plan, effective August 8, 2017.
At the request of the worker’s treating physiotherapist, the WCB referred the worker for a work hardening program on August 14, 2017. On August 22, 2017, the worker attended the work hardening program for an initial assessment and full wage loss benefits were re-instated. The physiotherapist conducting the work hardening program contacted the WCB on September 19, 2017 to advise that the worker could not be assessed that day due to a non-compensable health issue. On September 21, 2017, the therapist advised the WCB the worker was informed the work hardening program would not continue until the non-compensable health issue was under control.
The worker advised the WCB that his family physician cleared him to return to the work hardening program on September 28, 2017. On October 4, 2017, the WCB advised the worker that it determined he could return to work on a gradual basis commencing October 2, 2017 with a return to full hours by November 6, 2017 and as such, his wage loss benefits would be reduced.
The worker contacted the WCB on October 11, 2017 to advise he had not returned to work as he had not received the WCB’s letter advising him of the graduated return to work program until that date and that he was out of the medication prescribed for him for pain.
The physiotherapist contacted the WCB on October 26, 2017 and advised the worker had attended the work hardening program on October 17, 2017 and October 19, 2017 but had not been for further treatment as he had advised the physiotherapist that he had fallen and sustained a concussion. The worker confirmed to the WCB on October 30, 2017 that on October 20, 2017 he sustained a concussion from a non-compensable accident.
The WCB sent a claim summary letter to the worker on January 4, 2018 confirming the history of the worker’s claim and noting that his wage loss benefits ended November 2, 2017 and a review by a WCB medical advisor would be conducted to determine ongoing entitlement to medical aid benefits.
On January 19, 2018, the worker attended for a call-in examination with a WCB medical advisor. Based on the examination, the WCB medical advisor opined that the current diagnosis for the worker was a “…resolved low back muscular injury and essentially resolved radiculopathy.” The WCB medical advisor further provided that the worker’s current difficulties, if any, were not related to the workplace accident as the worker was considered recovered.
On February 13, 2018, the WCB advised the worker he was not entitled to further benefits in relation to the August 2, 2016 workplace accident.
On November 8, 2018, the worker’s representative requested reconsideration of the WCB’s decisions to Review Office. The representative requested consideration for additional wage loss entitlement related to the October 2017 graduated return to work program.
Review Office determined on January 30, 2019, that the worker was entitled to partial wage loss benefit, based on a graduated return to work schedule, from October 4, 2017 to February 6, 2018. Review Office accepted the opinion of the WCB medical advisor that the worker was capable of participating in a graduated return to work plan in October 2017 but found that the decision to reduce the worker’s wage loss benefits as of October 2, 2017 were not communicated to him until October 4, 2017. As such, Review Office found that the worker was entitled to partial wage loss benefits as of that date, that a graduated return to work plan was appropriate and based on the graduated return to work schedule, once the worker would have returned to full regular hours on February 6, 2018, he was no longer entitled to wage loss benefits.
The worker’s representative filed an appeal with the Appeal Commission on November 26, 2019. An oral hearing was arranged and was held by teleconference on May 14, 2020.
Applicable Legislation and Policy
Under s 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. That compensation includes wage loss and medical aid as set out in s 37 of the Act:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
Entitlement to wage loss benefits is addressed in s 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an 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.
Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."
The obligations of the worker to cooperate and mitigate are set out in s 22(1) of the Act, which requires that 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, cooperate 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.
Failing to meet these obligations may result in reduction or suspension of compensation payable by the WCB to the worker.
Section 49.3 of the Act outlines the obligations that apply to the WCB and the employer in terms of a worker’s return to work, including how disagreements about a worker’s fitness to return to work will be addressed where a worker has not returned to work with the employer. The question to be determined in this circumstance is whether the worker is medically able to perform the essential duties of their pre-accident employment or to perform suitable work.
The WCB has established Policy 43.20.25, Return to Work with the Accident Employer (the “Policy”) to provide guidance and interpretation of the re-employment obligations set out in s 49.3 of the Act. The Policy sets out that graduated return to work, described as “the worker temporarily working for limited hours or limited duties as part of a plan leading to full employment” is included in the definition of modified work. Modified work is defined as 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. The Policy outlines that suitable work is that which the worker is medically able to do. In order 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 participated in the hearing with a worker advisor. The worker’s spouse also participated in the hearing as an observer. The worker advisor provided the panel with a written copy of the oral submission made on behalf of the worker. The worker provided direct evidence to the panel through questioning by the worker advisor as well as by members of the panel.
The worker’s position, as outlined by the worker advisor, is that it was not appropriate to implement a graduated return to work program effective October 4, 2017 as the WCB failed to establish that the employer was able to provide suitable modified or alternate work as set out in the Policy. More specifically, the claim file provides no evidence that the WCB compared the worker’s compensable medical restrictions and capabilities to the demands of any proposed and available duties with the employer. The claim file does contain evidence that the employer told the WCB in July 2017 that there were no sedentary jobs available that could have accommodated the worker’s restrictions. There is no indication on file of any follow up by the WCB with the employer as to the worker’s return to work, after August 22, 2017.
In the result, the worker advisor stated, because the WCB did not establish the availability of suitable modified or alternate as required under the Policy, the worker did not fail to mitigate the effects of his compensable injury as required by s 22 of the Act.
Furthermore, the worker advisor argued that the proposed return to work program start date of October 4, 2017 was premature given that the worker was only advised of that expectation on October 3, 2017 and that the WCB did not approve the worker’s prescription for pain medication, related to the compensable injury, until October 12, 2017. The worker’s position is that the return to work program should not have commenced before the medication approval was provided.
The worker advisor noted that the worker is seeking an additional period of full wage loss benefits from October 4, 2017 through February 20, 2018.
The worker, in answer to questions from the worker advisor and members of the panel, stated while the employer indicated to him that there was “bench work” available, no further detail was provided. In fact, the worker stated, there was no workbench or area for seated work activity in the shop area. When he attended the meeting with the employer and the WCB case manager, most of the time spent at the shop was in conversation with the case manager as the employer representative was busy with other responsibilities. The employer did confirm at that time that it would accommodate the worker’s restrictions but did not elaborate.
The worker stated he recalled that the employer advised him on July 20, 2017 to call when he was coming in to work, but noted that he did not do so at any point. On further questioning by members of the appeal panel, the worker confirmed he had no contact with the employer after that meeting.
The worker advisor, in response to questioning from the appeal panel, noted that when the worker discontinued the work hardening program in September 2017 due to an unrelated health condition, the WCB case manager did not discontinue the worker’s wage loss benefits but rather put him into the graduated return to work program. The worker advisor noted that the WCB could have suspended wage loss benefits at that time, but chose not to.
The worker confirmed to the panel that he returned to the work hardening program for two further appointments on October 17 and 19, 2017, but then was unable to continue as a result of a non-compensable injury that occurred on October 20, 2017. He confirmed that he never returned to complete the final three appointments in that program.
The worker advised the panel that he continues to experience symptoms of low back pain, reduced range of motion in his leg and numbness in his toes. He took another job beginning on April 1, 2019 that accommodates his physical abilities.
In sum, the worker’s position is that he met his obligations under the return to work plan, but the plan was not developed based upon adequate investigation by the WCB as to the nature and kind of work the employer was offering to the worker. The WCB did not meet its obligations to the worker in the development of the plan, as required by the Policy, and therefore it was not appropriate to implement the graduated return to work program effective October 4, 2017. Further, the WCB accepted that until February 2018 the worker had compensable restrictions in place and any return to work required would have to be within those restrictions. Because there was no safe work available to the worker within his restrictions, he should receive full wage loss benefits until February 20, 2018.
The employer did not participate in the appeal.
There are two inter-related issues on appeal, both relating to the worker’s participation in the return to work program the WCB established for the worker. The first question is whether it was appropriate to implement a graduated return to work program effective October 4, 2017 and second, whether the worker is entitled to full wage loss benefits through the graduated return to work program. In order to find that implementation of the graduated return to work program as of October 4, 2017 was appropriate, the panel would have to determine that the worker was medically able to perform the work duties, and in order to find that the worker was entitled to full wage loss benefits, the panel would have to find that the worker had a loss of earning capacity as a result of the compensable injury. For the reasons outlined below, the panel was not able to make such determinations.
Was it appropriate to implement a graduated return to work program effective October 4, 2017?
In order to determine this question, the panel reviewed the evidence as to the worker’s medical condition and functional abilities during the period leading up to and following October 2017. The panel considered the following evidence from the worker’s file:
• July 21, 2017 report from treating physiotherapist recommending that the worker is ready to return to work as of July 26, 2017 at two hours per day with restrictions. The physiotherapist noted that the worker’s recovery was not satisfactory due to chronic low back pain behaviour and recommended he be motivated with a hardening program.
• August 9, 2017 opinion of the WCB orthopedic consultant that the worker’s medical status had “…not materially changed since the call-in examination of May 10, 2017…Work within the recommended physical restrictions should be feasible. Because of the period away from working environment, commencement at two hours a day would be reasonable increasing by one hour per day every three weeks or so.”
• August 22, 2017 claim note regarding reconditioning assessment of the same date setting out that the worker was not ready for the reconditioning program. “He couldn’t squat, bend forward, transition on and off the table….His function level is “NIL”. He…was told to get his pain management under some control.”
• August 24, 2017 Initial Assessment for work hardening program indicating the worker’s active range of motion in his lower back and hips at 50-75% below normal ranges due to pain. The physiotherapist stated that the worker is not capable of alternate or modified work as he is unable to squat, put on work boots and work on functional strength. A work hardening program of 2 sessions per week for 6 weeks is recommended.
• September 19, 2017 memorandum of conversation with the physiotherapist re work hardening program noting the worker completed 6 sessions and is a very high level of pain, takes very long to complete the assigned exercises and is attending regularly. An unrelated health condition had arisen that required the worker to seek further medical attention.
• September 21, 2017 memorandum of conversation with the physiotherapist regarding the work hardening program indicating that the worker was advised not to return to the program until the unrelated health condition was under control.
• September 28, 2017 memorandum of conversation with the worker in which the worker advised the WCB case manager that his treating physician authorized him to restart the work-hardening program.
• October 4, 2017 report from the worker’s treating physician detailing the history and progression of the non-compensable unrelated health condition that resulted in suspension of the work hardening program.
• October 11, 2017 Doctor Progress Report from the treating physician indicating that the worker is capable of alternate or modified work and noting objective findings of uneven gait and difficulty rising from a chair. The physician reported that the worker’s pain was still not optimally managed, and recommended he continue with physiotherapy.
• October 26, 2017 memorandum of conversation with the physiotherapist regarding the work hardening program indicates that the worker provided a letter from his physician dated October 3, 2017 indicating he could resume therapy and that he returned on October 17 and 19, and has three appointments remaining. The worker cancelled his next appointment as he sustained a concussive injury. Treatment was again suspended until the worker provided clearance to continue from his physician. The physiotherapist noted that the worker “…has lots of issues going on and that he has not progressed at all.”
• November 2, 2017 Doctor Progress Report from the treating physician noted that the worker continued to experience pain and exhibit an uneven gait. The report noted that the worker was also dealing with the complication of a head injury unrelated to the workplace injury.
• November 22, 2017 file note indicating that the physiotherapist confirmed the worker did not return for treatment after October 19, 2017.
• January 18, 2018 notes from WCB call-in examination indicating there were no objective findings consistent with radiculopathy and that the likely diagnosis at that time was resolved low back muscular injury and essentially resolved radiculopathy. The WCB medical advisor noted a number of barriers to the worker’s recovery including a medication effect, the worker’s self-reported inability to put on his work boots, and the head injury sustained in the previous fall. The WCB medical advisor concluded that the worker’s present difficulties, if any, related to factors other than the compensable workplace injury of August 2016.
The claim file documents that after at least two failed attempts to get the worker to return to work on a graduated basis in July and August 2017, the WCB determined instead on August 17, 2017 to initiate a four-week work-hardening/reconditioning program. As noted above, the worker attended to be assessed for participation in that program on August 22, 2017 and ultimately was assessed on August 24, 2017. A six-week program of two sessions weekly was recommended and initiated. By September 19, 2017 the worker had completed six of the 12 reconditioning sessions. His participation in the program was halted after the September 21 session due to a non-compensable medical condition. Although file notes indicated the worker’s physician approved his return to the program as of September 28, 2017, the worker did not do so until October 17, 2017. He completed two sessions that week and then injured himself on October 20, 2017. The worker did not ever return to complete the remaining 3 work-hardening program sessions.
The evidence before the panel does not support the WCB’s decision to implement a graduated return to work program effective October 4, 2017 as it is clear that the worker had not at that time completed the work-hardening program required by the WCB in order to ensure the worker was medically able to participate in a return to work program. The worker had by that time completed 7 of the 12 approved sessions, and had temporarily halted his participation due to a non-compensable health condition.
There is insufficient evidence before the panel to establish that the worker was medically able to return to alternate or modified duties as of October 4, 2017. The file documents suggest, rather, that even by October 19, 2017, the worker had not “progressed at all” in the reconditioning program.
On the basis of the evidence on file, and in particular the medical reporting, the panel finds, on a balance of probabilities, that the worker was not medically able to participate in a return to work program as of October 4, 2017 as he had not at that time completed the required work hardening program. Therefore it was not appropriate to implement a graduated return to work program effective October 4, 2017.
The worker’s appeal on this question is allowed.
Is the worker entitled to full wage loss benefits throughout the graduated return to work program?
For the worker to be entitled to full wage loss benefits, the panel would have to determine that the worker’s loss of earning capacity was the result of the compensable injury. The evidence before the panel does not support such a finding.
As outlined above, the worker left the work-hardening program after September 21, 2017 due to a non-compensable health condition, details of which are set out in an October 4, 2017 letter from his treating physician. The file documents that the worker’s treating physician cleared him to return to the work-hardening program as of September 28, 2017. On October 2, 2017 the WCB case manager advised the worker to return to the program, but the panel notes that the worker did not return to the work-hardening program until October 17, 2017. The physiotherapist confirmed that the worker completed that session and one more on October 19, 2017.
On October 3, 2017 the WCB case manager reminded the worker of his mitigation responsibilities, with reference to his return to the work-hardening program. The WCB case manager indicated that although benefits could be suspended for the worker’s failure to return to the program, instead the WCB would implement a reduction in his wage loss benefits based upon a gradual return to work with restrictions.
The Doctor Progress Report of November 2, 2017 noted that the worker was being treated, at that time, for a head injury unrelated to the workplace injury. The worker confirmed in his evidence that this injury arose from a non-compensable accident that took place on October 20, 2017. As a result of this injury, the worker did not again return to the work-hardening program after October 19, 2017 and it remained incomplete.
The Act requires a worker to cooperate with the WCB in implementing programs for rehabilitation and return to work to promote the worker’s recovery. The WCB here determined that in order to promote the worker’s recovery and return to work, he should complete a work-hardening program. The worker cooperated with this plan at the outset, but after completing just over half of the program, he left it and ultimately did not complete it for reasons unrelated to the compensable workplace injury.
The evidence before the panel supports a finding that the worker’s loss of earning capacity, when he was not in participating in the mandated work-hardening program, was not the result of his compensable workplace injury, but was the result of other non-compensable health issues. After September 21, 2017, the worker participated in only two compensable reconditioning program sessions before he again left the program as a result of the non-compensable accident of October 20, 2017.
While the WCB determined on October 4, 2017 not to suspend the worker’s benefits for failing to continue in the work-hardening program, and instead placed him on partial wage loss benefits based upon a graduated return to work plan, it was not appropriate to do so for the reasons outlined above. The worker’s entitlement to wage loss benefits was tied to his participation in the work hardening program. When he left that program for reasons unrelated to the compensable injury, his entitlement to wage loss benefits should have been suspended.
The panel therefore concludes, on a balance of probabilities that the worker was not entitled to wage loss benefits after leaving the work-hardening program as he did so for non-compensable reasons.
The worker’s appeal on this issue is dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of June, 2020