Decision #79/20 - 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 January 30, 2019 to June 30, 2019. A teleconference hearing was held on June 9, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits for the period January 30, 2019 to June 30, 2019.
The worker is not entitled to wage loss benefits for the period January 30, 2019 to June 30, 2019.
The worker filed a Worker Incident Report with the WCB on January 4, 2011 reporting that he injured his left ankle in an incident at work on December 30, 2010. The worker stated:
I stepped off a set of ramps and I twisted my left ankle. I was wearing my safety boots at the time. This caused me to injure my left ankle.
The worker's claim was initially accepted by the WCB as a severe left ankle sprain, but it was subsequently determined that he sustained a fracture of the navicular bone of the left foot as a result of the workplace incident. It was further noted that the worker had a pre-existing condition which was diagnosed when he was a child and made him prone to injuries in his ankles.
The worker continued to attend medical appointments with his family physician and his orthopedic specialist, and receive conservative treatment up until January 22, 2018 when he underwent surgery on his left foot. The worker attended follow-up appointments with his treating orthopedic surgeon, and his file was reviewed at various times by a WCB orthopedic consultant.
On July 25, 2018 the worker attended a call-in examination with the WCB orthopedic consultant to address the worker's status and a possible return to work and restrictions. Following the examination, the consultant noted the worker's reporting of "…considerable pain…in the left foot and ankle region" which limited his current capacity. Physical restrictions of no standing or walking more than 10 minutes; no repetitive steps or stairs; no ladder climbing; no kneeling, squatting or crawling; and no walking over rough ground were recommended. The consultant further noted that the combination of the worker's physical capabilities and his dependence on narcotic pain medication was a "significant" barrier to work, and that further diagnostic imaging might be done in the future to clarify the exact source anatomically for the worker's pain generation.
At an appointment with the treating orthopedic surgeon on August 2, 2018, it was noted that the worker had lateral foot pain, medial ankle impingement pain and pain in the "…medial ankle joint with ankle dorsiflexion and issues with alignments." The surgeon noted that the worker had a broken screw on the calcaneo-cuboid joint, and recommended the use of an ultrasound bone stimulator to help with the non-union.
Discussions were held with the worker and the employer with respect to return to work planning. On November 2, 2018, the WCB's Compensation Services confirmed that they had determined that the worker was capable of participating in a graduated return to work plan with restrictions, starting at four hour shifts and increasing to full hours by the week of January 7, 2019. The worker began the graduated return on December 3, 2019, and on December 17, 2018, Compensation Services advised that the graduated return to work plan would be extended by one week, with full-time hours beginning on January 14, 2019.
On January 17, 2019, the worker was seen by his treating orthopedic surgeon, who recommended further revision surgery. On January 23, 2019, the worker saw his family physician, who placed him off work until the surgery. On January 30, 2019, the worker's orthopedic surgeon provided a note indicating that the worker was to have revision surgery and was "unable to perform sedentary duties due to pain."
On February 12, 2019, the WCB's Compensation Services advised the worker that the medical notes from his treating healthcare providers had been reviewed but did not provide clinical findings to support the worker could not work sedentary duties and he would not be paid wage loss benefits while awaiting further surgery. On March 29, 2019, the worker saw a sports medicine physician, who diagnosed him with left foot pain and recommended he use crutches and "…keep the weight off the foot until reassessed [by the orthopedic surgeon]." On April 4, 2019, the WCB orthopedic consultant reviewed the report from the sports medicine specialist and added a further restriction to the worker's restrictions of no weight-bearing on the left lower limb pending orthopedic reassessment.
As the worker was unable to see the treating orthopedic surgeon, a call-in examination took place on May 2, 2019 with the WCB orthopedic consultant to assess the worker's physical capacity. After that examination, the WCB orthopedic consultant recommended that the worker use a cast boot with axilla crutches either feather weight or non-weight bearing on the left foot for pain control, and opined that the previous restrictions as recommended in July 2018 remained valid. On May 9, 2019, Compensation Services advised the worker that his restrictions remained the same, along with using crutches to assist with pain control, and that based on those restrictions, he was capable of performing his sedentary duties and was not entitled to wage loss benefits after January 30, 2019. On June 20, 2019, the employer contacted the WCB and advised that the worker was retiring as of July 1, 2019.
On July 9, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that he continued to suffer from pain after the surgery to repair his left foot, and due to the pain and pain medication, he could no longer continue working. The worker noted that he had also been prescribed crutches and advised not to weight-bear on his left ankle, and was awaiting a revision surgery date. On September 11, 2019, the employer provided a submission in support of Compensation Services' decision, and on October 24, 2019, the worker responded to that submission.
On October 31, 2019, Review Office determined that the worker was not entitled to wage loss benefits from January 30 to June 30, 2019. Review Office determined that the employer demonstrated the ability to provide suitable modified duties on a full-time basis, and that the accommodated sedentary position offered by the employer was suitable with minimal physical requirements. Review Office found that the evidence did not support that the worker was unable to work in any capacity from January 30 to June 30, 2019, noting that the physical requirements for the work accommodation were minimal (sedentary) in nature and no different than light activities of daily living. Review Office concluded the worker's loss of earning capacity from January 30 to June 30, 2019 was not the result of the compensable injury, but was due to the worker declining suitable work.
On December 5, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged and proceeded by way of teleconference on June 9, 2020.
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.
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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states:
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.
Subsection 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.
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.
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 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.
WCB Policy 184.108.40.206, Co-operation and Mitigation in Recovery, elaborates on the responsibility of both workers and the WCB in ensuring compliance with section 22 of the Act, and 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.
The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.
The worker's position was that the November 2018 return to work plan was neither appropriate nor safe, and full wage loss benefits should be granted through to June 30, 2019.
The worker's representative submitted that one of the historic principles, and a recurrent theme of the Act and policies, is the timely and safe return to health and work. The representative submitted that the WCB had the worker return to, and continue working in, unsafe work. This lead to an increase in his pain and suffering through the continued aggravation of his compensable left foot injuries, as identified in an August 2, 2018 x-ray and December 17, 2018 CT scan. The representative submitted that the worker's family physician and attending orthopedic surgeon were therefore justified and correct in advising that he discontinue working in late January 2019.
It was submitted that despite changes which were identified in the August 2, 2018 x-ray, Compensation Services did not inquire, and the WCB consultant did not comment on, whether the restrictions as outlined at the July 25, 2018 call-in examination remained appropriate. The representative submitted that the WCB should have sought an internal healthcare opinion before instructing the worker to return to work in late November 2018, particularly when the orthopedic surgeon had not approved his return to work.
The worker's representative submitted that the December 17, 2018 CT scan results were significant because of the identification of new objective findings and the WCB's response to those results. It was noted that the WCB consultant stated the CT findings represented complications of the prior WCB-approved surgery, which would be expected to cause ongoing pain with weight-bearing, and deferred comment on whether the worker remained capable of working within his restrictions until after he had received an orthopedic report. The representative submitted that given the consultant's unwillingness to address the appropriateness of the current restrictions, the return to work plan should have been immediately put on hold.
The worker's representative noted that when the orthopedic surgeon cancelled his March 2019 appointment, the worker attended another physician who prescribed crutches and no weight-bearing, and the WCB consultant agreed with that recommendation a few days later. The representative submitted that the recommendation for crutches to avoid weight-bearing should have applied equally through the December 2018 to January 2019 return to work period. He further noted that although Compensation Services knew the worker was suffering through his return to work and the consultant had supported that weight-bearing was a source of his pain, they did not amend the return to work plan.
It was submitted that the fact that a call-in examination was arranged for May 2019 indicated that the WCB consultant was not comfortable addressing the worker's capabilities based on a file review. The representative submitted it was not reasonable to say the worker failed to mitigate by discontinuing working on the advice of his healthcare providers, especially when the WCB consultant would not comment on the worker's capabilities without a call-in examination.
The worker's representative submitted that at a minimum, the worker should be entitled to full wage loss benefits to May 3, 2019, being the first date following his December 2018 CT scan where the WCB orthopedic consultant commented on his physical capacity. As no medical restrictions were in place between those dates, the WCB could not address the worker's physical capabilities or compare them to any job duties, and any available duties were therefore not suitable.
The worker's representative further submitted that after May 3, 2019, the WCB was obliged to investigate whether the employer was willing and able to accommodate the WCB-imposed restrictions, failing which they could not establish the availability of suitable modified or alternate work. The worker's representative submitted that wage loss benefits should therefore be approved to June 30, 2019.
The worker's representative also submitted that while what was offered may have seemed appropriate initially, on paper, the worker's actual experience in the workplace in December 2018 and January 2019 was very different. The worker responded at length to questions from his representative relating to his work duties and his return to work in December 2018 and January 2019.
The employer was represented by its Disability Case Manager, who made an oral presentation at the hearing and responded to questions from the panel.
The employer's position was that the modified duties which the worker was offered were suitable and reasonable and within his restrictions and limitations, and his appeal should be dismissed.
The employer's representative submitted that the job the worker was returning to was the same as the work he had been doing prior to his January 2018 surgery and at which he was somewhat expert. The representative submitted that the worker was aware of what he was returning to, but never raised any concerns with respect to the tasks he was assigned or would be performing. The representative submitted that if the worker had any such concerns, he had opportunities to raise them in the time leading up to his return to work and could easily have communicated his concerns to his supervisor. The representative acknowledged that the worker's supervisor was usually away at different locations, but noted that the worker had worked with him for a number of years and the supervisor was very accessible by telephone or email.
The employer's representative stated that the worker's focus, however, was on other things, including that he did not feel ready to return to work, his doctor had not agreed to his doing so, and he had safety concerns relating to his use of medication.
The employer's representative submitted that when the worker actually started his return to work in December 2018, there was some discussion with his supervisor about his difficulties, but not about the tasks the worker was assigned. The representative submitted that the duties which the worker was assigned were sedentary and he could work at his own pace. While the worker was expected to perform his tasks, there was no quota and no set production level.
The employer's representative noted that every time the worker raised a concern or a barrier to his return to work, it was immediately addressed by the employer, including by arranging a parking spot close to the building and providing a stool to enable the worker to rest and alleviate pressure on his foot.
The employer's representative further submitted that although the case manager had sought feedback from the worker's healthcare providers, neither his family physician nor his treating orthopedic surgeon commented on whether the return to work was outside his functional abilities or provided clinical information to support that the worker was unable to work. It was submitted that in the absence of such information, it was difficult to understand or address what was preventing the worker from returning to work.
In conclusion, the employer's representative submitted that the Review Office decision should be upheld and wage loss benefits from January 30 to June 30, 2019 remain disallowed.
The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period January 30, 2019 to June 30, 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity between January 30 and June 30, 2019 as a result of his December 30, 2010 workplace incident. The panel is unable to make that finding, for the reasons that follow.
Based on our review of all of the information on file and as presented at the hearing, the panel is satisfied, on a balance of probabilities, that the modified duties which were offered to the worker between January 30 and June 30, 2019 were suitable and appropriate and within his restrictions, and that the worker was capable of working and performing those duties during that period of time.
The evidence shows that the duties which were offered to the worker were the same as the duties he had been performing prior to his January 22, 2018 left foot surgery and with which he was very familiar. Information on file shows that the worker's restrictions when he returned to work in December 2018 were also similar to those which had were in place prior to his January 2018 surgery.
The panel is satisfied that the modified duties were basically sedentary in nature and were within the worker's restrictions. The panel accepts the employer's evidence that the worker was able to work at his own pace, and that there was no quota or set production level. In response to questions from the panel the worker stated that no one replaced him during his absence following his January 2018 surgery, and he was able to do his work part-time when he returned to the workplace in December 2018.
The panel is unable accept the worker's position that his actual experience at work in December 2018 and January 2019 was different than what was offered. While the worker described his duties at the hearing as being much more demanding and involving a significant amount of standing and walking, the panel notes that the file information shows the worker did not raise issues or concerns with respect to the duties themselves or suggest that he was being asked to work outside his restrictions at the time or in the months that followed.
The panel is unable to place much weight on the medical notes that were provided by the worker's family physician and his orthopedic surgeon in January 2019, taking the worker off work. There is an absence of clinical information from the physician and the surgeon to support that the worker was unable to work or that his restrictions were not appropriate. The panel notes that Compensation Services wrote to the orthopedic surgeon on January 31, 2019 to request information which would support his statement that the worker was not able to do sedentary duties, but received no response.
The panel finds that the recommendation that the worker use crutches and be non-weight bearing was not a significant change and did not have an effect on the worker's ability to attend at work and perform his work duties. The evidence shows that the recommended use of crutches was to assist with pain control. The panel is satisfied that the use of crutches was consistent with the worker's other restrictions and with the sedentary nature of his duties. The panel further notes that Compensation Services wrote to the worker on May 9, 2019 and to the employer on May 10, 2019, to advise that it had been recommended that the worker use crutches and that the worker remained capable or working sedentary duties.
In conclusion, the panel acknowledges that the worker has ongoing pain and left foot and ankle difficulties, but is satisfied that his loss of earning capacity between January 30 and June 30, 2019 was due to his declining to perform suitable work, and was not as a result of his compensable injury.
The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity between January 30, 2019 and June 30, 2019 as a result of his December 30, 2010 workplace incident, and the worker is not entitled to wage loss benefits for that period of time.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of August, 2020