Decision #28/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They are not entitled to wage loss benefits for October 24, 2019 and October 25, 2019; and
2. They are not entitled to wage loss benefits for the period October 30, 2019 to December 4, 2019.
A videoconference hearing was held on February 4, 2021 to consider the worker's appeal.
1. Whether or not the worker is entitled to wage loss benefits for October 24, 2019 and October 25, 2019; and
2. Whether or not the worker is entitled to wage loss benefits for the period October 30, 2019 to December 4, 2019.
1. The worker is not entitled to wage loss benefits for October 24, 2019 and October 25, 2019; and
2. The worker is not entitled to wage loss benefits for the period October 30, 2019 to December 4, 2019.
The employer reported to the WCB on November 13, 2019 that the worker injured their lower back on October 22, 2019 while performing their job duties. On the Worker Incident Report provided to the WCB on November 15, 2019, the worker indicated that on October 22, 2019, they were performing job duties that required twisting and turning while reaching up for several hours and worked a longer shift that day. The worker noted “My back kind of seized up and moving or twisting in certain ways makes the pain worse. The pain is in the center of the lower back, shooting pains going up and down.”
The worker sought medical treatment at a local walk-in clinic on October 29, 2019, reporting pain in the lower back and that they were not able to sit for long following an injury to their back at work. The clinic physician noted a restricted range of motion and tenderness but no swelling or bruising and recommended the worker remain off work until November 1, 2019.
On November 4, 2019, the worker saw a sports medicine physician who diagnosed lumbar discogenic pain. X-rays taken that day revealed grade 1 spondylolisthesis at L5-S1 and degenerative disc disease. The physician recommended light duties.
On November 8, 2019, the worker was assessed by a physiotherapist who noted limited range of motion of the worker’s back and recommended the worker remain off work due to pain.
On November 12, 2019, the WCB discussed the worker’s claim with the employer. The employer advised that the worker reported the workplace accident on October 23, 2019 and continued their full regular duties that day. The worker did not attend work on October 24, 2019 and October 25, 2019, advising the employer they were not seeking medical attention, but resting. The employer advised light duties were offered on those days, but the worker declined the offer.
On November 27, 2019, the employer advised the worker that due to their “…refusal to follow our Return to Work program, your current limitations and our work availability, we are unable to accommodate you currently…” and laid the worker off.
The WCB contacted the worker on December 4, 2019 to discuss the claim. The worker advised that they had been cleared for full duties as of that date, but the employer did not have work available. The worker confirmed the accident occurred on October 22, 2019 and was reported to the employer the next day, with their symptoms increasing throughout that day. The worker also confirmed they took October 24, 2019 and October 25, 2019 off to rest and returned to work on October 28, 2019. The worker’s back pain symptoms increased again on October 29, 2019 and they then sought medical treatment and were placed off work. The worker advised that on November 7, 2019, another physician in the sport medicine clinic provided a note excusing the worker from work initially from November 5-8, 2019, and then until November 20, 2019. On November 20, 2019, the sports medicine physician provided the worker could return to work on light duties but on November 27, 2019, the employer advised they had no work for them. A copy of the note from the worker’s treating sports medicine physician for December 4, 2019 was provided, indicating the worker could resume their full regular duties.
On December 9, 2019, the WCB advised the worker the claim was not acceptable as a causal connection between the worker’s diagnosed condition and an accident arising out of or in the course of their employment could not be established.
On January 2, 2020, the worker requested reconsideration of the WCB’s decision to deny the claim. Included with the submission was a detailed chronology of the events and a narrative report dated December 23, 2019 from the worker’s treating physiotherapist. On January 3, 2020, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation of the new information submitted. On January 8, 2020, the WCB advised the worker the decision of December 9, 2019 was reversed, and their claim was acceptable.
On January 9, 2020, the employer requested reconsideration of the WCB’s January 9, 2020 decision to accept the worker’s claim, noting modified duties were offered to the worker, which the worker refused and on January 16, 2020, Review Office again returned the file to the WCB’s Compensation Services for further investigation.
On February 11, 2020, the employer provided the WCB with a timeline of events from October 22, 2019 to November 27, 2019 regarding the workplace accident, as well as copies of text messages between the employer and the worker. On February 12, 2020, the WCB advised both the worker and the employer that the previous decision to accept the worker’s wage loss benefits for October 30, 2019 to December 4, 2019 had been rescinded based on the information provided by the employer related to modified duties offered to the worker.
On February 18, 2020, the worker provided copies of notes from their treating sports medicine physician, a report from their treating physiotherapist and advised their healthcare providers recommended they remain off work until November 20, 2019 and that they had followed that recommendation.
A WCB medical advisor reviewed the worker’s claim file on February 21, 2020 and provided an opinion that total disability would not be accounted for in relation to the worker’s workplace injury and as such, the very light duties offered to the worker would have been appropriate. The WCB advised the worker on February 25, 2020 that the new information was reviewed but there would be no change to the earlier decision they were not entitled to wage loss benefits for the period October 30, 2019 to December 4, 2019.
On March 6, 2020, the worker requested Review Office reconsider the WCB’s decision, providing a further chronology of the workplace accident and asking that Review Office also consider the information previously provided. On April 20, 2020, the employer provided a submission supporting the WCB’s decision and the worker responded on April 29, 2020. On the same date, Review Office advised the worker that the additional issue of wage loss entitlement on October 24, 2019 and October 25, 2019 would also be included in the review.
Review Office found on May 6, 2020 that the worker was not entitled to wage loss benefits on October 24, 2019 and October 25, 2019, nor for the period October 30, 2019 to December 4, 2019. Review Office relied upon the opinion of the WCB medical advisor that the worker was not totally disabled from the workplace accident and found the worker was capable of working modified duties on October 24, 2019. Review Office further found the employer had offered suitable duties within the worker’s restrictions, and as such, the worker did not have a loss of earning capacity and was not entitled to wage loss benefits.
The worker filed an appeal with the Appeal Commission on May 15, 2020. A videoconference hearing was arranged and held on February 4, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB 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 to the worker. Under s 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.
Section 22(1) of the Act requires that the worker mitigate the effects of the compensable injury by taking reasonable steps to reduce or eliminate any loss of earnings resulting from an injury and co-operating 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. If a worker fails to comply with these obligations, the board may reduce or suspend the compensation payable to the worker pursuant to s 22(2).
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.
The worker appeared at the hearing and made a submission on their own behalf. The worker also provided answers to questions posed by panel members.
The worker’s position is that there is entitlement to wage loss benefits for October 24-25, 2019 and for the period October 30, 2019 to December 4, 2019 as the evidence supports a finding that the worker was unable to work on those dates due to the injury arising out of the compensable workplace accident.
The worker’s position is that they relied on the medical notes provided by multiple treating medical professionals and reasonably followed the recommendations not to work during the recovery period. The worker stated that it was unreasonable to expect them to work when the medical professionals explicitly recommended the worker not work.
Upon questioning by members of the panel the worker confirmed that they did not seek any medical attention until October 29, 2019 but self-treated with ice and heat and stretches on October 24 and 25, 2019. Further, the worker confirmed that a conversation took place with the employer on October 24, 2019 in which the employer and the worker spoke about the employer’s return to work program options.
The worker confirmed to the panel that they understood the employer had light duties available to them but stated that due to the effects of pain medication prescribed during the recovery period, it was too difficult to concentrate on and complete the online training courses offered. The worker also indicated that they completed 1.5 online courses during this time.
In sum, the worker’s position is that they are entitled to wage loss benefits for the periods in question as they were not able to work as a result of a compensable workplace injury, as confirmed by the treating medical professionals.
The employer was represented in the appeal by a safety manager, who made a brief oral submission on behalf of the employer and answered questions posed by members of the appeal panel.
The employer’s position is that the worker should not be entitled to wage loss benefits for October 24-25, 2019, nor for October 30 – December 4, 2019 as the worker was not totally disabled from all work during that period and could have participated in the employer’s return to work program.
The employer’s representative provided the panel with a description of the employer’s return to work program, noting that the worker was offered light duties in the form of online training that could be completed from the worker’s own home and with appropriate breaks and that these duties were within the restrictions later outlined by the worker’s treating medical professionals.
The employer’s representative outlined the timeline of events relating to the worker’s injury on October 22, 2019 and in the following weeks, referencing the information provided to the WCB as to when the worker was offered light duties and the worker’s failure to participate in or even attempt those duties. The employer’s representative confirmed that the light duties initially offered to the worker were appropriate for the worker to complete at home with ample opportunity to take breaks as required. The duties included online training programs that allowed the employer to monitor participation. The employer stated the worker did not complete the training with the exception of a 30-minute program on November 5, 2019. Further, the employer noted that had the worker participated in the light duties offered, the worker would have received full wages as though in their regular duties.
In sum, the employer’s position is that the decision of the Review Office of May 6, 2020 should be upheld, and the worker’s appeal should be denied.
The issues for determination relate to whether or not the worker is entitled to wage loss benefits for the periods of October 24-25, 2019 and October 30 – December 4, 2019. In order to find that the worker is entitled to wage loss benefits for either or both periods under consideration, the panel would have to determine that the worker was disabled from all work during the period in question as a result of the compensable injury that occurred on October 22, 2019. The panel was not able to make such determinations for the reasons that follow.
In considering the questions before it, the panel reviewed the medical reports and opinions in the worker’s file. The panel noted that the walk-in clinic physician the worker saw on October 29, 2019 stated in a restrictions report that the worker was unfit for all duties from that date through to November 1, 2019 but also noted in the Doctor First Report of the same date provided to the WCB that the worker was capable of alternate or modified work. Notably, that report notes objective findings of no swelling or bruising, with tenderness and restricted range of motion. The worker stated that the physician also recommended a full assessment at a sport medicine clinic.
When the worker ultimately attended for assessment at the sport medicine clinic on November 4, 2019, the treating physician noted tenderness in the lumbar spine as well as limited range of motion. An x-ray was taken, and the treating physician recorded a diagnosis of lumbar discogenic pain stating the worker could undertake light duties.
The worker subsequently obtained, on November 7 and November 12, 2019, notes from another physician in the same clinic excusing the worker from work for the period of November 5-20, 2019. The panel noted there are no clinical findings or reports by that physician to support the recommendations outlined in these notes.
The worker also saw their physiotherapist for assessment on November 8, 2019. The chart notes from that appointment include a comment that the worker “Had this week off....had to convince MD to let [them] be off – MD didn’t seem concerned – [Patient] didn’t feel [they] could work.” The physiotherapist’s examination notes set out set out that the worker “needs more time off.” The Physiotherapy Initial Assessment report to the WCB of the same date noted that the worker would be disabled from work as a result of the injury for 4-6 weeks and was not capable of modified or alternate duties due to the worker’s very limited range of motion and soreness post treatment. The subjective complaints noted set out that the worker did not feel they could “stand/sit nevermind (sic) work mod duties. Felt [they] just needed time to rest.”
The medical reporting confirms that on November 20, 2019 the worker was cleared to return to work on a limited basis with lifting and bending restrictions and that on December 4, 2019 the worker was fully recovered and cleared for work without restrictions.
When the WCB medical advisor reviewed the worker’s claim file on February 21, 2020, they noted that the reported mechanism of injury would not be likely to account for “a significant disabling low back injury” and that the diagnoses provided by the physiotherapist also would not account for total disability. The medical advisor outlined that typical restrictions for an injury of the kind sustained by the worker would include avoiding repetitive or sustained bent, flexed or stooped postures, avoiding heavy lifting and push/pull greater than 5 pounds and allowing for change of position and stretching as required. The medical advisor concluded that the light duties available from the employer would have allowed the worker to participate in the return-to-work program with such restrictions in place.
The panel accepts the worker’s testimony that they did not seek medical treatment on October 24 or 25, 2019, but chose to self-treat the injury at home and did not accept the employer’s offer of light duties on those dates. The panel noted that when the worker then returned to regular duties on October 28, 2019, an increase in symptoms resulted, leading the worker to seek medical treatment on October 29, 2019. Despite that physician’s recommendation that the worker attend for further assessment, and multiple reminders by the employer, the worker did not do so until November 4, 2019. Further, the worker did not attend work on October 30, 2019 and did not accept the employer’s offer of light duties on that date or on subsequent days during the recovery period.
The panel acknowledges that the employer had an appropriate return-to-work program in place and was able to offer very light duties to the worker. The evidence confirms that the employer offered light duties to the worker on multiple occasions, including in conversations with worker that took place on October 24, 2019 and again on October 25, 2019, as well as in communications on October 30, 2019 and following. The panel is satisfied that the employer effectively communicated to the worker that appropriate light duties were available within the worker’s functional capabilities and further, that the worker understood those duties to be available.
The panel finds, on the basis of the available medical evidence, that the worker was not fully disabled from all employment as a result of the accident of October 22, 2019, noting in particular that there is a lack of medical evidence to support the worker’s contention that they were unable to work on October 24 and 25, 2019. Further, the panel accepts the opinion of the WCB medical advisor that the mechanism of injury and the clinical findings would not account for total disability of the worker after October 29, 2019 and that the worker would have been able to undertake at least light duties with restrictions during the period of recovery ended on December 4, 2019.
The panel further finds the worker’s failure to participate in the employer’s return to work program to be a failure to mitigate the effects of the compensable injury by taking reasonable steps to reduce or eliminate any loss of earnings resulting from the compensable injury. Had the worker participated in that program, they would not have had any loss of earning capacity related to the workplace accident.
Therefore, the panel determines, on a balance of probabilities, that the worker is not entitled to wage loss benefits for October 24-25, 2019, nor for the period of October 30 – December 4, 2019.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of February, 2021