Decision #46/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker’s claim is acceptable and the worker is entitled to wage loss benefits. A file review was held on April 1, 2021 to consider the employer's appeal.
Whether or not the claim is acceptable; and
Whether or not the worker is entitled to wage loss benefits.
The claim is acceptable; and
The worker is entitled to wage loss benefits.
On June 23, 2020, an Employer’s Incident Report was received by the WCB indicating the worker injured her lower back in an incident at work on June 18, 2020. The employer noted the worker advised on June 19, 2020, she had injured her back “…when she was sliding a bale off the pallet to slash it, she felt a slight pain as she was twisting.” The worker then advised she would take the weekend to rest and would return on June 22, 2020. On June 22, 2020, the worker advised the employer her back was not better, and she was seeking medical treatment that day. The employer advised the worker modified duties were available.
A Doctor’s First Report was received for the worker’s appointment on June 23, 2020. The worker reported right thoracolumbar back pain, worse when sitting and any other movements and the physician noted decreased lumbar range of motion, pain to palpitation in the right thoracolumbar area and the worker was unable to sit comfortably. The worker was diagnosed with a right thoracolumbar back strain and it was recommended she remain off work for two weeks.
The worker filed a Worker Incident Report with the WCB on June 24, 2020, describing the incident as working with bales, then "I switched from using my right arm to then using my left arm, that’s when I felt a pain run through my back.” The worker didn’t report the incident right away as the pain wasn’t bad but when she woke up the next morning, she could hardly walk or stand up straight and then reported the incident to her supervisor. A Physiotherapy Initial Report was received by the WCB on June 30, 2020. The worker reported “Constant sharp pain in the back, worse with activity. Virtually and (sic) movement in the back causes an increase in pain, but twisting is the worst. Unable to tolerate any sustained position, sleeping very difficult”. The physiotherapist noted the worker had reduced range of motion in her thoracic and lumbar areas to less than 50 percent and diagnosed the worker with facet joint sprain at thoracolumbar junction and a second degree erector spinae muscle strain. It was noted the worker was totally disabled as they were unable to tolerate any sustained posture; unable to lift, pull or push; and unable to travel to work as she was unable to drive her usual method of transportation, with a duration of two weeks.
Also on June 30, 2020, the WCB spoke with the employer. The employer noted their concerns with the worker’s claim and advised the WCB the worker had been told modified duties were available but had not officially offered the duties to the worker as the worker’s treating healthcare providers indicated the worker was completely disabled. The worker’s claim was accepted by the WCB on July 3, 2020.
On July 3, 2020, the worker’s treating physiotherapist provided updated restrictions for the worker. The restrictions were noted to be lift/carry/push/pull up to 10 pounds; sit/stand/walk for up to an hour with frequent position changes; no squatting, bending or twisting at the waist, no reaching, and no working above the shoulder; with her hours of work limited to four hours a day. The physiotherapist further noted that the worker’s means of transportation was driving an ATV and the worker was not capable of that, noting the worker driving to work could result in further injury or a delay in the worker’s progress. On July 6, 2020, the employer advised the WCB they were unable to provide the worker with transportation to work. A copy of the Modified Work Agreement was also provided noting the employer was able to accommodate the worker with modified duties 4 hours per day from July 7, 2020 to July 21, 2020. On July 7, 2020, the WCB advised the worker if she was unable to find transportation into work, she would only be paid for 4 hours of partial wage loss in accordance with her restrictions.
The WCB spoke with the employer on July 16, 2020 who confirmed they continued to have suitable modified duties available for the worker, however, she had not attended work for the 4 hours of accommodated duties. Further, the employer confirmed the worker was hired on a term basis from June 1, 2020 to July 17, 2020 and would be laid off on that date with other co-workers. The employer further advised the WCB they would be appealing the decision to accept the worker’s claim and pay wage loss. On the same date, the WCB provided the employer with written confirmation of acceptance of the worker’s claim as it had been established the worker sustained an accident arising out of and in the course of their employment. On July 20, 2020, the WCB advised the worker her entitlement to wage loss benefits ended as of July 17, 2020, when their term position ended.
The employer’s representative requested reconsideration of the WCB’s decision to Review Office on August 10, 2020. In their submission, the representative noted the concern of the employer that a specific accident occurred and the WCB’s decision to pay wage loss. The employer’s representative noted the worker did not report an accident to the employer or any of their co-workers and further, the worker advised she did not notice any pain while at work on June 18, 2020 and completed their shift that day. The representative went on to note that the WCB did not investigate any possible non-work related activities that may have caused the worker’s back pain. It was noted the worker’s mode of transportation was a more likely cause of injury then the worker performing their regular job duties. Further, the employer’s representative noted disagreement with the WCB paying the worker wage loss benefits as the employer notified the worker shortly after the incident that modified duties were available and the worker did not make adequate attempts to participate in the graduated return to work plan developed by the worker’s treating physiotherapist.
On August 20, 2020, Review Office determined the worker’s claim was acceptable and the worker was entitled to wage loss benefits. Review Office accepted the worker’s evidence that she was able to self-treat her symptoms until she was unable to work as of June 19, 2020 and sought medical treatment on June 23, 2020. Further, Review Office accepted the worker’s treating healthcare providers' advice the worker was totally disabled from work for two weeks. Review Office acknowledged the employer had an established return to work program, but the worker was following the direction of her treating physician and physiotherapist and remained off work. After the treating physiotherapist provided restrictions on July 3, 2020, the employer was able to accommodate the worker, however, the worker did not participate in the return to work plan and Review Office noted the worker’s wage loss benefits were ended on July 17, 2020 when the worker’s employment was scheduled to end. As such, Review Office determined the worker sustained an accident arising out of or in the course of her employment and there was entitlement to wage loss benefits.
The employer’s representative filed an appeal with the Appeal Commission on August 26, 2020. A file review was arranged for April 1, 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's Board of Directors.
The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.
When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury or medical aid as required to cure and provide relief from injury arising out of a compensable accident or other compensation as provided for under the Act.
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 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.
Section 37 of the Act states; 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.
WCB Board Policy 44.05, Arising Out of and in the Course of Employment provides assistance on determining whether an accident arose out of or in the course of employment. The Policy states:
Generally, an injury or illness is said to have ‘arisen out of employment’ if the activity giving rise to it is causally connected to the employment – that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred ‘in the course of employment,’ an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to the employment.
In other words, the injury must in some way be connected to the nature, conditions, or obligations of employment and while the worker was performing work duties or an activity incidental to employment.
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 worker did not participate in the appeal.
The employer was represented by an advocate who provided a written submission.
The employer’s position is that the worker should not be entitled to wage loss benefits as there was no loss of earning capacity and they question whether the circumstances of the claim meet the definition of an accident under the Act.
The submission included rationale that, in part, an accident did not occur because it was not reported on the date of the accident. (June 18, 2020). The delay in reporting and seeking medical treatment should be weighed within the context of the worker’s duties. It also provides that there may have been other non-compensable causes for her reported back pain.
The employer offered the worker modified duties on June 19, 2020 and made extra efforts to accommodate the injured worker. Because the worker did not participate in their modified return to work program, loss of earning capacity should not be a consideration by WCB.
The submission cites issues with the adequacy of self-treatment of the injury. The provision of varying accounts of the accident mechanism brings the question of the validity of the occurrence of a workplace accident into question.
The panel must determine whether or not the claim is acceptable; and whether or not the worker is entitled to wage loss benefits.
In order to grant the employer’s appeal to reject the acceptance of the claim and entitlement to wage loss benefits provided to the worker, the panel must find that an accident did not occur in accordance with the definition of an accident under the Act or that the worker did not have a loss of earning capacity as a result of an accident. The panel considered the evidence, and on the balance of probabilities, determined that an accident did occur during the course of employment and that there was a loss of earning capacity as outlined in the reasons that follow.
The WCB accepted the worker’s claim with respect to an injury to her lower back resulting from an accident in the workplace on June 18, 2020. The worker’s claim outlines that the injury occurred when she was in the routine process of opening bales utilizing a slashing/cutting process and moving them off the pile. The panel accepts the mechanism of injury occurred during the course of employment based on the worker’s reporting of the injury and subsequent medical opinions.
The Worker Incident Report describes the injury.
“I was slashing bails (sic), cutting the bags and pulling them off the pile of other bales on the skids. I switched from using my right arm to then using my left arm, that’s when I felt a pain run through my back, I didn’t think anything of it because at the time it didn’t hurt as bad. That’s why I didn’t report it immediately to my supervisor [name]. The next morning (Friday) I woke up and could hardly walk and stand up straight. That is when I texted my supervisor to inform him of the incident. “
The panel notes that the Employer's Incident Report is very detailed and that the worker provided a consistent message on the mechanism of injury.
The delayed reporting of the injury was not construed or interpreted as an intentional delay, as the onset of symptoms were consistent with a strain-type injury of the lower back. The worker reported significant pain the morning following the accident. Self-treatment on June 19, 2020 as well as over the weekend was deemed reasonable by the panel. An intended medical appointment set for Monday was deferred to June 23, 2020 due to transportation issues.
Notice of the accident to the employer was provided June 19, 2020. The panel accepts that this was reasonable based on the presentation of symptoms. The panel considered alternate causal mechanisms as suggested by the employer’s representative but was unable to place sufficient weight on this concept in the absence of evidence to support this theory.
The panel acknowledges the employer’s presentation of a modified return to work program on June 19, 2020. However, the panel deemed it reasonable to not work during the acute period of the injury. This is supported by medical reports dated June 23, 2020 and June 30, 2020. On June 23, the Doctor First report indicates off work for two weeks and a deferral to a physiotherapist to guide return to work. The June 30 physiotherapy report indicates a two-week total disability period.
On the basis of evidence contained in the worker’s WCB claim file, the panel is satisfied, on a balance of probabilities, that the worker sustained a lower back injury as a result of a compensable workplace accident of June 18, 2020. The panel is further satisfied that, as a result of the back injury, the worker experienced a loss of earning capacity.
Therefore, the worker’s claim is acceptable, and she is entitled to wage loss benefits. The employer’s appeal is denied.
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of April, 2021