Decision #35/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to wage loss benefits after March 15, 2018. A hearing was held on October 16, 2019 and a reconvened teleconference hearing was held on January 12, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after March 15, 2018.
The worker is not entitled to wage loss benefits after March 15, 2018.
The worker reported to the WCB on February 9, 2018 that they injured their upper back in an incident at work on February 7, 2018 which they attributed to “Continuous sanding with a hand held sander.” The worker noted on a Worker Incident Report that while sanding, they “…felt a sharp pain in the right side of my upper back and a burning sensation. When putting my head down there was a sharp pain in my upper back. The pain did not travel at all. No numbness or tingling.”
On February 8, 2018, the worker attended for medical treatment with their family physician. The worker reported to the physician that their repetitive duties at work were causing discomfort in their right shoulder and upper back. The treating physician diagnosed the worker with musculoskeletal pain in their right upper back and right shoulder and recommended restrictions of no physical activities involving the worker’s right hand until the pain subsided. On February 8, 2018, the employer offered the worker modified duties, which the worker accepted, however, a Return To Work Medical Evaluation Form completed by the worker’s treating physician, also on February 8, 2018, indicated the worker was unable to return to work until February 13, 2018.
The worker attended for an initial assessment with a physiotherapist on February 12, 2018. The physiotherapist noted the worker’s complaints of right shoulder and upper back pain, with repeated arm movements and lifting weight increasing the pain. After examining the worker, the physiotherapist provided a diagnosis of a right UFT (upper fibres of trapezius) and right rotator cuff strain. Restrictions of avoid lifting, pushing greater than 10 pounds; avoid using vibratory tools and avoid repeated shoulder movements was recommended. The worker also was seen by their treating family physician for a follow-up appointment on February 12, 2018. The physician diagnosed the worker with a right shoulder muscle sprain injury after noting a normal examination except for tenderness in the scapula area. Restrictions of avoid heavy lifting and carrying and use of right upper arm as tolerated were recommended. The restrictions provided by the treating physiotherapist were provided to the employer on February 13, 2018 and the worker returned to work with modified duties on the same date.
On March 1, 2018, the worker contacted the WCB to advise they had attended their family physician’s office that afternoon and was placed off work due to ongoing pain in their upper back and right shoulder. The worker confirmed they were performing modified duties but advised they were uncomfortable performing those duties due to constant pain in their upper back. The report from the worker’s treating family physician from the March 1, 2018 appointment indicated the worker had pain and tenderness in their cervical spine paraspinal muscles and trapezius, with painful range of motion. Further, the physician reported the worker’s recovery was not satisfactory as it was exacerbated with repetitive movements. A follow-up appointment with the physiotherapist on March 7, 2018 noted a normal examination but with pain and recommended the worker remain off work until March 9, 2018. A further follow-up appointment with the worker’s family physician on March 8, 2018 noted no specific findings and recommended anti-inflammatory medication, warm and cold compresses, strengthening exercises and physiotherapy. On March 22, 2018, the worker was advised they were not entitled to wage loss benefits after February 28, 2018 as were deemed capable of performing the suitable modified duties provided by the employer, within the restrictions set out by their treating healthcare providers.
A Doctor’s Progress Report was received for the worker’s appointment on March 22, 2018 reporting pain and tenderness in the worker’s right shoulder, interscapular region and neck. A further report was received by the worker’s treating physiotherapist for an appointment on March 23, 2018. The worker reported difficulty lifting light objects, inability to sleep due to pain and difficulty with overhead activities. The physiotherapist noted normal limits with the worker’s neck range of motion but pain at the end range on all motions, pain with right shoulder elevation and cervical compression.
On April 30, 2018, the worker requested reconsideration of the WCB’s decision to Review Office noting that they had followed their family physician’s direction to stay off work and felt pressured by their employer to return to work despite their treating healthcare provider’s instructions not to. A submission in support of the WCB’s decision was received from the employer on June 15, 2018. The employer noted they had offered the worker suitable modified duties and accommodation but the worker had refused to return to work and had not contacted them. The worker provided a response on July 12, 2018.
Review Office determined on July 13, 2018, the worker was entitled to wage loss benefits after February 28, 2018 as their treating healthcare providers both reported the worker was not capable of performing the modified duties and returned the file to the WCB’s Compensation Services for further adjudication.
At the request of the WCB, the worker’s file was reviewed by a WCB medical advisor on August 21, 2018. The advisor opined the March 1, 2018 report from the worker’s treating family physician included findings consistent with a diagnosis of non-specific right shoulder/neck pain. Further, the WCB medical advisor provided the clinical findings and the diagnosis did not represent the worker was totally disabled and based on the medical evidence, a return to work with restrictions on March 1, 2018 would have been medically supported. Based on the file information, the WCB medical advisor noted the restrictions would have included no repetitive lifting, pushing or pulling and no lifting greater than five to ten pounds with the right upper extremity. On August 30, 2018, the worker was advised by the WCB that based on a review of their file, it had been determined they were entitled to wage loss benefits to March 1, 2018 only.
The worker’s representative requested reconsideration of the WCB’s decision to Review Office on October 29, 2018. In their submission, the representative noted the worker’s treating healthcare providers all reported the worker was unable to perform the modified duties as those duties had exacerbated the worker’s upper back and right shoulder condition and it wasn’t until May 10, 2018 that the worker’s treating physiotherapist noted the worker was ready for discharge from treatment. As such, the worker’s representative took the position the worker had a loss of earning capacity after March 1, 2018.
On January 2, 2019, Review Office determined the worker was entitled to wage loss benefits to March 15, 2018. Review Office accepted the WCB medical advisor’s opinion but noted when the worker did return to work, they had not sufficiently recovered from the workplace injury to perform the modified duties, as supported by the increase in symptoms and reports of their treating healthcare providers. Review Office found that by March 15, 2018 with the time off work and physiotherapy treatment, a return to work with suitable restrictions at that time would have been appropriate.
The worker’s representative filed an appeal with the Appeal Commission on March 19, 2019. An oral hearing was arranged for October 16, 2019 and was reconvened by teleconference on January 12, 2021.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 16, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Under section 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.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Regarding 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.
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.
WCB Policy 44.40.10, Evidence of Disability, provides that: "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition."
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 188.8.131.52, Further Injuries Subsequent to a Compensable Injury. A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where: 1. The original injury causes or significantly contributes to the subsequent injury… 2. The subsequent injury arises out of a situation over which the WCB exercises direct control… 3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB)…
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 in the teleconference hearing by a worker advisor who made submissions on his behalf and asked questions of the worker. The worker also addressed questions from members of the panel.
The worker advisor outlined the position of the worker that he is entitled to wage loss benefits after March 15, 2018 on the basis that the evidence establishes there was a loss of earning capacity beyond March 15, 2018 arising out of the worker's compensable injury.
The worker advisor stated that the medical information supports that the compensable areas of injury were confirmed being the neck, right shoulder and upper back and that the WCB accepted these injuries as strain injuries.
The worker advisor stated that the worker reported that he did not refuse to cooperate, as he was told to refrain from light work by his physician. The employer chose to terminate the worker’s employment on March 28, 2018, confirming that they were no longer willing to provide further accommodation. The worker had not recovered from his compensable injuries until he was medically discharged from physician directed physiotherapy on May 10, 2018.
The employer provided a written submission supporting the decision of the Review Office that there is no further entitlement to wage loss beyond March 15, 2018.
The employer cites the August 21, 2018 opinion of the WCB medical advisor that the medical evidence supported the worker’s return to work on March 1, 2018, however, he had not fully recovered. After a period of rest and physiotherapy up to March 15, 2018, a return to work on modified duties would have been appropriate. The employer confirmed that suitable modified duties were available.
The employer refers to WCB policy 44.40.10, Evidence of Disability. The employer noted that a March 22, 2018 doctor’s progress report had no indication of capability or lack of capability to return to modified or alternate work. A March 23, 2018 physiotherapy report did not indicate whether the worker could perform modified or alternate duties.
The employer reports seven complaints of soreness to various areas by the worker in recent months preceding the accident. The complaints included his right upper arm and back.
For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was unable to work after March 15, 2018 as a result of a workplace accident that occurred on February 7, 2018. The panel is unable to make that finding.
WCB accepted the claim and authorized wage loss benefits to February 9, 2018. The diagnosis was a right upper back/ right shoulder strain. The worker returned to work and performed modified duties to February 28, 2018. Review Office subsequently determined the worker had a loss of earning capacity after February 28, 2018 and ultimately paid wage loss benefits to March 15, 2018 when it was determined a return to work on modified duties would have been appropriate.
Medical and physiotherapy reports dated March 1, 8, 15, 22, & 23, 2018 discuss the worker's ability to return to work. The reports indicate that a return to full/regular duties was unknown at the time of these examinations. The reports provide almost no discussion of whether the worker is capable of alternate or modified work. A physical therapy report dated March 7, 2018 indicated that the worker should remain off work including modified or alternate work until March 9, 2018.
The panel notes that the absence of reference to restrictions or capability of performance of modified or alternate work does not support the worker’s decision to refuse to participate in a return-to-work program made available by the employer.
A physical therapy report dated March 7, 2018 indicated that the worker should remain off work including modified or alternate work until March 9, 2018.
Based on the evidence before the panel, the panel is satisfied, on a balance of probabilities, that by March 15, 2018 the worker was capable of a return to work on modified duties and that the employer had appropriate modified duties available. The panel is unable to conclude that the worker is entitled to benefits beyond March 15, 2018.
The worker’s appeal is dismissed.
B. Hartley, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of March, 2021