Decision #33/21 - Type: Workers Compensation
The employer and the worker are appealing decisions made by the Workers Compensation Board ("WCB") with respect to issues regarding the worker's entitlement to wage loss benefits. A teleconference hearing was held on January 13, 2021 to consider the employer's and the worker's appeals.
Employer Appeal: Whether or not the worker is entitled to wage loss benefits effective November 19, 2018;
Worker Appeal: Whether or not the worker is entitled to wage loss benefits after January 29, 2019.
Employer Appeal: That the worker is entitled to wage loss benefits effective November 19, 2018;
Worker Appeal: That the worker is entitled to wage loss benefits after January 29, 2019.
On November 8, 2018, the worker submitted a Worker Incident Report to the WCB indicating he injured his lower back at work on November 1, 2018. The worker noted his prolonged use of a sledgehammer and increased bending while he was performing his job duties that day. The employer filed an Employer's Accident Report on November 9, 2018, noting that no specific event occurred at work, only the worker's normal tasks and conditions, and that the worker had complained of back pain in the past.
On November 6, 2018, the worker sought treatment from his family physician. The worker reported a significant increase in baseline back pain, an inability to flex or extend his back, difficulty standing and sitting due to pain, and decreased mobility. The physician noted an antalgic gait, pain to palpation over the worker's L3-S1 area, paravertebral muscle spasms and a positive straight leg raise test in the left leg. The family physician further noted that the worker had a history of chronic back pain, which was previously stable. The physician diagnosed the worker with acute on chronic back pain, and recommended he remain off work for two weeks.
On November 19, 2018, the WCB contacted the worker to discuss his claim. The worker confirmed the mechanism of injury and noted his co-workers were aware of his difficulties and that he was in pain. The worker noted he had not missed any time from work and had been accommodated with modified duties by the employer. The worker advised, however, that the employer indicated there were no more modified duties and he would be laid-off with the rest of the employer's seasonal workers. The worker further advised that he was a year-round worker and that given his seniority, he should be the last to be laid-off. On November 20, 2018, the worker contacted the WCB and confirmed he had been laid-off the previous day. The WCB advised the worker that since he was a seasonal worker and was performing modified duties when he was laid off, he was not entitled to wage loss benefits.
On January 15, 2019, the worker's WCB case manager spoke with the employer to obtain further information. The employer advised they had offered the worker part-time hours of four hours per day at the time of his lay-off, but the worker said it was not worth coming to work for only four hours as it was a long drive, and had asked the employer to lay him off, which they did. On January 16, 2019, the case manager spoke with the worker and discussed the employer's offer of part-time hours. The worker advised that the employer had offered him six hours a day, twice a week at his full regular duties. The worker confirmed he refused that offer as he still had restrictions in place, and that if the employer had offered him modified duties, he would have accepted.
On January 17, 2019, the WCB contacted the employer, who advised that the worker was offered reduced hours at the time of the lay-off, with the expectation he could perform his full duties, but that modified duties were an option, if required. The employer further advised that most of the worker's co-workers were still working, although on reduced hours. On January 24, 2019, the WCB spoke with the worker's supervisor, who confirmed he told the worker on November 19, 2018 that he could keep him working at the modified duties he had been performing or he could lay him off, and that the worker said he could not afford the driving back and forth and to just lay him off.
On January 30, 2019, the WCB's Compensation Services advised the worker that he was not entitled to wage loss benefits beyond November 20, 2018, as they had determined the employer made a suitable offer for the worker to continue working but he chose to be laid off instead. Compensation Services noted that the lay-off was a normal cyclical event, and the employer offered to keep the worker on at reduced hours, and that while the worker did not say to lay him off, it was implied from his response. On April 29, 2019, the worker requested that Review Office reconsider Compensation Services' decision.
On June 11, 2019, Review Office determined that there was entitlement to wage loss benefits effective November 19, 2018. Review Office noted that restrictions had not been implemented by the worker's practitioners at the time the worker was offered reduced hours, and were not provided by the worker's physiotherapist until January 4, 2019. Review Office further noted that while the employer had implied that modified duties were available at the time of the November 19, 2018 lay-off, no description of the modified duties was available and the appropriateness of those duties could not be established.
Review Office also noted that there was conflicting evidence as to whether other workers were laid off in November 2018. Review Office found that more than half of the worker's co-workers continued to work in January 2019, and had the worker not sustained the injury he suffered, he likely would not have been laid off due to the seasonal shutdown. Review Office found that the worker's lay-off was due to the lack of available modified duties and not the initially reported seasonal shutdown. Review Office therefore determined that the worker had a loss of earning capacity related to the workplace injury and was entitled to wage loss benefits after November 19, 2018.
On July 24, 2019, the employer filed an appeal with the Appeal Commission from the June 11, 2019 Review Office decision.
The WCB subsequently gathered further medical information from the worker's treating physiotherapist in the form of chart notes, which were reviewed by a WCB physiotherapy consultant. In a memorandum to file dated September 5, 2019, the physiotherapy consultant referred to the worker's job duties as outlined by the case manager in a January 6, 2019 assessment on file, and the worker's restrictions as provided by the treating physiotherapist on January 7, 2019, and opined that the worker "…did not have the functional capacity to return to full work duties" as of January 7, 2019. The WCB physiotherapy consultant further referred to the worker's functional capacity as documented by the treating physiotherapist on January 22, 2019, and opined that "as of January 22, 2019 participating in normal activities would likely be associated with no risk…" and the worker "…demonstrated the functional capacity to return to full work duties" as of that date.
On September 18, 2019, Compensation Services determined that the worker was entitled to wage loss benefits from November 19, 2018 up to and including January 29, 2019.
On October 25, 2019, the worker's representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the physiotherapist's treatment led to the worker's functional recovery by February 27, 2019 and that wage loss benefit entitlement should extend to that date. On December 12, 2019, the employer provided a submission in support of Compensation Services' decision, and the worker's representative responded to that submission on December 17, 2019.
On December 18, 2019, Review Office determined that there was no entitlement to benefits beyond January 29, 2019. Review Office placed weight on the opinion of the WCB physiotherapy consultant and found that the worker's demonstrated ability was at "…a similar level of function to that required for his return to his pre-accident level of activity."
On December 20, 2019, the worker's representative filed an appeal with the Appeal Commission from the December 18, 2019 Review Office decision. On December 23, 2019, the Appeal Commission confirmed that the employer's and the worker's appeals would be heard together, 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.
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 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
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.
The employer was represented by its Regional Manager, who made an oral submission at the hearing and responded to questions from the panel.
With respect to the employer's appeal, the employer's representative submitted that the worker was offered reduced hours, but preferred to be laid-off, and is not entitled to wage loss benefits effective November 19, 2018.
The employer's representative noted that the worker notified the employer he was injured on November 4, 2018 and was provided with modified duties the next day. The employer's business is very seasonal in nature, and projects start to slow down in November or December. At the time, the work for the crew which the worker was part of had started to slow, and as with the other members of the crew, the worker's hours were being reduced. The worker was given the option of working full or modified duties at reduced hours or being laid-off, and indicated he preferred to be laid-off. The representative submitted that as the worker had indicated he was not interested in reduced hours, there was no further conversation as to what the modified duties were.
It was submitted that the worker was part of a crew of seven, and that he was the only one who requested to be laid-off. The employer's representative submitted that due to the seasonality of the business, reduced hours were inevitable and the worker's injury had no impact on this as he would have been subject to reduced hours or lay-off regardless of his injury.
With respect to the worker's appeal, the employer's representative expressed agreement with the decision that the worker was not entitled to wage loss benefits after January 29, 2019.
The employer's representative referred to the worker having been laid-off, and noted that from that point forward, there was no work to bring him back for at the end of January. The work for the crew which he was part of ended at the end of that month, and this was just a continuation of the lay-off. While the worker may have been cleared to return on a graduated return to work program, there was no work to support a recall at that time. The representative went on to note that the worker was recalled when they did have the work.
The worker was represented by a worker advisor, who made an oral submission at the hearing. The worker and his representative responded to questions from the panel.
With respect to the employer's issue, the worker's representative stated that they agreed with the Review Office decision.
The worker's representative noted that the file documentation relating to this issue was conflicting. The representative said he did not know whether the employer's representative was present at the conversation between the worker and his superiors, and asked that the panel prefer the worker's evidence at that time. The representative submitted that the worker disputed he asked to be laid off or was offered modified duties, and the file evidence supported his position.
The representative noted that the attending physician and physiotherapist did not support the worker returning to work at that time, and there were no compensable medical restrictions which could be compared to any of the work demands, with respect to modified or regular duties. The representative submitted that the lay-off seemed to be related, in whole or in part, to the workplace injury and associated limitations, and the worker rightfully received wage loss benefits beyond the lay-off date of November 19, 2018.
With respect to the worker's issue, the worker's position was that he is entitled to wage loss benefits beyond January 29, 2019 through to February 27, 2019, being the date his treating physiotherapist discharged him and advised that he had achieved essentially a full functional recovery.
The worker's representative noted that they were relying on their October 15, 2019 and December 17, 2019 submissions to Review Office with respect to this issue. The representative noted that there was a clear difference of opinion between the worker's treating physiotherapist and the WCB's physiotherapy consultant. The representative submitted that the panel should attach great weight to the reports of the treating physiotherapist, who actually supervised the worker's treatment from November 20, 2018 through to his full recovery at the end of February 2019.
The worker's representative noted that even though the worker had demonstrated the ability to lift certain weights, a certain number of times, in the controlled medical setting, the treating physiotherapist was of the opinion that he still required work restrictions beyond January 29, 2019. The physiotherapist also provided that if the worker was to return to work, he should begin with a graduated return to work. The representative submitted that this showed that what a person is able to demonstrate physically does not necessarily mean that it is safe and appropriate for that person to perform the same or similar kinds of physical tasks on an unlimited basis in a work setting.
The worker's representative further noted that the worker's family physician was still advising as of mid-January 2019 that the worker continue with physiotherapy treatment, and was not indicating that he was capable of returning to his full regular duties without restrictions, and asked that the panel also acknowledge that evidence.
Employer Appeal: Whether or not the worker is entitled to wage loss benefits effective November 19, 2018.
For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a loss of earning capacity effective November 19, 2018 as a result of his November 1, 2018 workplace incident. The panel is unable to make that finding, for the reasons that follow.
The panel notes that there is a lack of clarity and numerous inconsistencies in the evidence as to what was discussed with the worker, the options that were available and the basis on which he was laid off on November 19, 2018. The panel notes, for example, that while it had been indicated that the worker had been offered the same modified duties as he had been performing, but with reduced hours, the panel is unable to accept that this was the case. The evidence indicates that the worker had been doing modified work at home, including online training and safety courses, but that this was coming to an end. Further, the indication that the worker had declined an offer of reduced hours of work, based on the distance he would have to travel to work, makes no sense if the worker was to be performing the same modified duties as he had been doing at home.
The panel is further satisfied that the evidence shows the worker had not yet recovered from his workplace injury and was not capable of performing his regular duties. Applicable restrictions had not been identified at that point, nor had other modified duties been identified, and it was not possible to determine whether any such duties or what duties might be suitable or appropriate for the worker.
The panel is not satisfied that the evidence establishes that the worker asked to be laid off. At the hearing, the worker denied that he requested to be laid-off, or that he was offered modified duties. The panel notes that the employer's representative at the hearing was not part of the actual conversations involving the worker, and acknowledged that she could only rely on the information she had been provided or was on file which, as indicated above, contained numerous inconsistencies.
The panel notes that even if the worker was laid-off, given that he had not yet recovered from his workplace injury, he would have been at a disadvantage in terms of looking for other employment.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity effective November 19, 2018 as a result of his November 1, 2018 workplace incident. The panel finds that the worker is therefore entitled to wage loss benefits effective November 19, 2018.
The employer's appeal is dismissed.
Worker Appeal: Whether or not the worker is entitled to wage loss benefits after January 29, 2019.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond January 29, 2019 as a result of his November 1, 2018 workplace incident. The panel is able to make that finding, for the reasons that follow.
Based on our review of the medical information on file, the panel is satisfied, on a balance of probabilities, that the worker had not fully or functionally recovered from his workplace injury as of January 29, 2019.
The panel notes that information on file indicates that this view appears to have been shared by the employer. Thus, in a January 18, 2019 email from the employer's office manager to the WCB responding to an inquiry as to whether the employer could provide a modified position for the worker, the office manager stated that "Yes we could provide a modified position for him. It would likely consist of his normal position, just with an extra helper to compensate for the fact he cannot lift the full amount required." At the hearing, the employer's representative further acknowledged that she was not disputing that the employer was of the view that as of January 18, 2019, the worker had not recovered from his injuries to the point that he could perform his regular duties.
The panel further notes that there is no dispute that the employer had some work which was proceeding in January 2019 and that the worker contacted them at that time to inquire as to a possibility of returning to work, but that the employer did not follow-up on that inquiry.
The panel recognizes that the evidence indicates that the worker's injury was improving, but is not satisfied that the evidence establishes that he had returned to his pre-accident baseline such that he could perform his full regular duties.
The panel acknowledges the treating physiotherapist's notations as to the worker's functional capacity as set out on January 22, 2019 in the workout log. The panel agrees that those findings do not necessarily represent what the worker would have been capable of doing on a daily basis in the workplace setting. The panel places weight on the restrictions which were outlined by the treating physiotherapist in her letter of January 18, 2019, and support that the worker had not fully recovered from his workplace injury at that time.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond January 29, 2019 as a result of his November 1, 2018 workplace incident.
The panel notes, however, that while the worker's representative has argued that wage loss benefits should be extended through to February 27, 2019, as the date when the treating physiotherapist discharged the worker and advised he had achieved essentially a full functional recovery, the panel makes no finding in this regard, and refers the question of the length or extent of the worker's wage loss benefits after January 29, 2019 to be assessed by Compensation Services.
In conclusion, the panel finds that the worker is entitled to wage loss benefits after January 29, 2019.
The worker's appeal is therefore allowed.
M. L. Harrison, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of March, 2021