Decision #72/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to wage loss benefits beyond March 8, 2020. A teleconference hearing was held on April 8, 2021 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits after March 8, 2020.
That the worker is entitled to wage loss benefits after March 8, 2020.
On September 6, 2019, the employer reported to the WCB that the worker injured his right knee at work on September 1, 2019 when his right foot caught a step as he was exiting a piece of equipment and he banged his knee. In his Worker Incident Report submitted September 12, 2019, the worker reported that when he stepped down from the equipment, his left foot twisted and his right knee buckled.
On September 3, 2019, the worker sought medical attention from his family physician, who noted the worker was unable to weight bear and was in a lot of pain. The physician diagnosed the worker with a grade 2 sprain/strain and recommended he remain off work and use crutches. The worker was also seen by an orthopedic specialist on September 3, 2019, who noted the worker reported he twisted his right knee and had trouble weight-bearing on the knee since then. The specialist noted the worker had a definite effusion and medial joint line tenderness and that an x-ray indicated normal findings. The specialist queried a medial meniscus tear and referred the worker for an MRI.
On September 8, 2019, the worker's family physician provided a Functional Abilities Form (FAF) indicating the worker was unable to drive/walk/stand/climb steps and recommended he perform mainly sedentary duties. On September 13, 2019, the employer advised the WCB that they had offered the worker modified duties at their worksite starting September 16, 2019. On September 17, 2019, the employer advised the WCB that the worker declined to attend the employer's worksite.
On September 20, 2019, the WCB contacted the worker to discuss the claim. The worker confirmed the mechanism of injury as set out in his report, and clarified that as he was stepping down, he put his left foot down, his right foot got caught between two steps, and his right leg/knee twisted/buckled. The worker further advised that he lived far away from the employer's worksite, and had to drive approximately five hours to get to the worksite. He said the employer had provided him with online training which he was doing at home, but was asking that he attend at the jobsite on September 23, 2019. The worker said he would be unable to do so as he was unable to drive, given the condition of his right knee, and was currently using crutches. The worker also indicated there were approximately 20 to 30 stairs to get to the employer's office and he could not climb stairs. The WCB advised the worker that his claim had been accepted. On September 30, 2019, the employer clarified there were no stairs involved in the modified duties they had for the worker.
On October 2, 2019, the worker saw his family physician, who noted he continued to have difficulties with his right knee and had fallen while using the crutches, causing further injury to his knee. The physician again noted the worker was unable to drive and that transportation to the employer's worksite was a barrier to his returning to work.
On October 31, 2019, the worker underwent an MRI of his right knee. The findings on the MRI were a complex tear of the medial meniscus; mild medial chondral degeneration; prior low-grade sprain of the proximal fibulocollateral ligament; and trace edema and convexity of the suprapatellar fat pad could be due to an element of mild fat pad impingement. On November 7, 2019, the worker's file was reviewed by a WCB orthopedic consultant, who opined that the September 1, 2019 workplace accident likely caused a tear of the medial meniscus of the right knee. The consultant opined that the horizontal component of the medial meniscal tear shown on the MRI was typical of degenerative pathology, but the complex tear of the mid portion of the medial meniscus was probably new, as it was associated with para-meniscal edema. The consultant further opined that a complex tear of the medial meniscus was likely to continue to be a cause of knee pain and instability unless surgically corrected.
On November 14, 2019, the employer provided the WCB with a list of modified duties that would be available for the worker. Also on November 14, 2019, the WCB orthopedic consultant recommended restrictions, pending orthopedic assessment, of no kneeling, squatting or crawling; use of cane as required; no prolonged standing or walking, more than 15 minutes; and no ladders and no repetitive stairs. It was noted that the worker's ability to drive had yet to be specifically assessed by an orthopedic examination.
In a December 2, 2019 letter, the worker's orthopedic specialist recommended arthroscopic right knee surgery, noting there was a four to five month waiting list. On December 10, 2019, the WCB advised the worker's orthopedic specialist that the surgery was approved. On December 10, 2019, the worker's family physician advised that the worker was unable to attend work pending surgery, which might not be available for six months.
On February 26, 2020, the WCB discussed a gradual return to work plan with the worker. The WCB advised the worker that the employer had light duties available and would have someone provide transportation. The worker advised he would be willing to start the graduated return to work plan on March 6, 2020. On March 3, 2020, the worker advised the WCB that his surgery was scheduled for April 1, 2020. On March 6, 2020, the employer provided the WCB with details of the proposed accommodation for the worker. On March 8, 2020, the worker's family physician wrote to the WCB, listing her concerns with the proposed return to work plan for the worker.
On March 11, 2020, the employer wrote to the WCB, expressing concerns with and providing a chronology of the worker's failure to participate in the return to work plan. On March 13, 2020, the WCB advised the worker that his wage loss benefits were suspended due to his failure to participate in the return to work program. On March 17, 2020, the WCB provided the worker with an updated letter confirming that his wage loss benefits were suspended as they had determined he was capable of participating in the accommodations offered by his employer within the restrictions noted by the WCB orthopedic consultant on November 14, 2019.
On March 17, 2020, the worker's family physician provided the WCB with a Physicians Progress Report indicating restrictions of no lifting, pushing pulling, stairs or ladders and no walking more than 20 metres. On March 18, 2020, the family physician contacted the WCB to advise that due to the COVID-19 pandemic, the worker's scheduled surgery had been cancelled. On March 20, 2020, the family physician advised that the worker could return to light duties, as outlined in her March 17, 2020 report, but still did not condone the worker driving. On April 3, 2020, the WCB advised the worker that they had confirmed the employer had addressed all barriers to his return to work in a safe environment and his benefits remained suspended effective March 9, 2020.
On April 16, 2020, the worker requested that Review Office reconsider the WCB's decision to suspend his wage loss benefits as of March 8, 2020. The worker noted his treating healthcare providers supported he was not able to drive and he continued to need support for his activities of daily living, leaving him unable to participate in the return to work program. On May 4 and May 5, 2020, the worker provided further submissions to Review Office, including photographs of the employer's worksite and the living accommodations offered to the worker. On June 4, 2020, the employer provided a submission in support of the WCB's decision to suspend the worker's wage loss benefits, and the worker provided a response to that submission on June 22, 2020.
On June 22, 2020, Review Office determined that there was entitlement to wage loss benefits beyond March 8, 2020. Review Office noted the evidence on file showed the worker's family physician did not support the modified duty accommodation arranged by the employer and had advised the worker to remain off work until he recovered from the proposed surgery. Review Office further noted that the family physician wrote on March 20, 2020 that as a result of the cancellation of the worker's pre-operation clinic and the surgery itself, the worker might return to light duties and outlined restrictions. Review Office found, however, that the employer was not able to accommodate the "no stairs" restriction, that the walking restrictions were very restrictive and that the worker required crutches to ambulate, which would make it difficult for the worker to live independently. Review Office therefore determined that the worker continued to have a loss of earning capacity and was entitled to wage loss benefits beyond March 8, 2020.
On October 1, 2020, the employer appealed the Review Office decision to the Appeal Commission and a teleconference 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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states, in part:
22(1) Every worker must
(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
(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 (the "Return to Work Policy"), 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 126.96.36.199, Co-operation and Mitigation in Recovery (the "Co-operation and Mitigation Policy"), elaborates on the responsibility of both workers and the WCB in ensuring compliance with section 22 of the Act.
The employer was represented by its HR Generalist and its HR Director. The employer's HR Generalist made an oral submission at the hearing, and the employer representatives both responded to questions from the panel.
The employer's position was that they disagreed with the Review Office decision, as the worker refused to cooperate in a return to work plan and did not adhere to subsection 22(1) of the Act.
The employer's representative stated that the return to work plan was developed in conjunction with the WCB case manager and the worker, but the worker decided at the last moment to decline the offer which he had accepted. The representative submitted that the worker was able to perform alternate work, and in deciding not to participate in the return to work plan, he was in breach of the Co-operation and Mitigation Policy.
The employer's representative submitted that the employer fully complied with the Return to Work Policy. The employer provided the case manager with a list of modified duties in November 2019 to see if a graduated return to work plan could be established. The employer recognized that transportation was going to be a challenge, given the worker lived over 500 kilometers from the worksite, and therefore did not make an offer of alternate work at that time. A graduated return to work plan was initiated in February 2020 once the employer was able to secure transportation for the worker. The offer of alternate work was finalized and accepted by all parties on March 2020, but was then declined by the worker at the last moment.
The employer's representative referred to several areas of disagreement with the Review Office decision. The representative noted that one of the concerns which Review Office identified was that the apartment which the worker usually had would have required him to walk up 10 to 12 stairs. The representative noted, however, that the employer had arranged for the worker to have an apartment on the main floor, and he would only be required to navigate three steps to reach that level. While the worker had also indicated he would be working in an upstairs office, where he would have to go up more than 10 stairs, the representative submitted that the office where he would be working was located on the ground level. It was submitted that the worker was never expected to use more than three steps up and down while participating in the return to work plan and that this was clearly communicated to the worker.
The employer's representative noted Review Office's reference to the statement by the worker's family physician that if the worker was to return to work in an alternative capacity, it would be prudent to put him in a position where he would not sustain another injury. The representative submitted that the worker was never going to be in a position where he might aggravate his injury or re-injure himself. The alternate duties could be done while sitting, and the worker was to be working in a lunchroom area designated for him only, so he was safe from injury.
Review Office had also noted the family physician had suggested three factors limiting the worker's return to work: his upcoming surgery, the stair situation and that he was only trained for truck driving. The representative submitted, however, that everyone was aware that surgery was pending, and the worker was going to receive transportation home a few days prior to the surgery to prepare for it. With respect to the worker not being trained for anything else, the representative submitted that the worker was offered and accepted suitable work, which required little training and that he would have had the support of the manager to help him.
The employer's representative noted that Review Office also mentioned the family doctor did not support the modified duty accommodation from March 9 to 19, 2020 on the basis that the worker was totally disabled, but wrote on March 20, 2020, that in view of the cancellation of the surgery, the worker might return to light duties. The representative submitted that it did not make sense that the worker was totally disabled and could not return to work on March 9, 2020 when the surgery was scheduled for April 1, 2020, then was suddenly not totally disabled when the surgery was cancelled.
In closing, the employer's representative submitted that for the above reasons and for those outlined in their earlier request for reconsideration, the employer did not agree that the worker was entitled to benefits beyond March 8, 2020. The representative submitted that the specifics reported by the worker, including those about the stairs and the work area were inaccurate. The worker was well aware of the details regarding the apartment and where he would be working, and accepted the offer. The worker was not totally disabled and could have participated in the return to work plan from March 9, 2020 and through to the date of surgery.
The worker was self-represented. The worker's position was that the return to work plan was not suitable and the employer's appeal should be dismissed.
The worker submitted that his injury should never have happened. He was hired as a truck driver, and was injured operating equipment for which he never received training.
The worker submitted that when he had lived at the worksite before, he had to go up and down nine stairs, and did not understand how that would have changed. He noted that he had never been at a place at the worksite where there were only three stairs.
The worker acknowledged that the employer offered to pick him up and take him to the worksite, but said that given the way he had been treated following his injury, he did not feel he could trust that offer or the employer. The worker indicated that if anything had happened, he would have been left alone at the worksite, with no vehicle.
The worker said he did not think he would have been working in a safe environment with the return to work plan. The worker noted that it did not matter if they were going to put him in the lunchroom or whatever, with the fumes, the gas, the pandemic and the way things go there, he did not want to be part of it.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after March 8, 2020. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's loss of earning capacity beyond March 8, 2020 was not related to his September 1, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The return to work offer which was set to commence on March 6, 2020, provided that the worker would be working at the employer's worksite, more than 500 km from his residence. The worker would be picked up from his home by one of the employees and driven to the worksite, leaving on March 7, 2020. At the worksite, the worker would be working modified duties, performing sedentary work in the office during the day, from Monday through Friday.
The panel acknowledges the employer's efforts to accommodate the worker, and is of the view that the employer's attempts to accommodate the worker were commendable. The employer identified modified duties of a sedentary nature, and made arrangements for the worker to be transported to the worksite by another employee. Overall, however, the panel is satisfied that the arrangements, particularly the living arrangements and accommodation, as described, were not practical or reasonable given the worker's injury.
The panel notes that the remote location of the worksite causes increased issues with respect to mobility and the practical aspects of daily living. Based on our review of the evidence, the panel is not satisfied that the accommodation was properly assessed at the time. The worker was to be at the worksite for an extended block of time of at least one week. In this situation, he would be required to live independently in an apartment by himself. His ability to live independently, however, had been greatly diminished as a result of his injury.
The panel is satisfied that the apartment where the worker would be living was to be on the main floor of the building, and the worker did not have to go up a flight of nine or ten stairs to get to the apartment as had been the case with his previous apartment. The evidence shows, however, that the worker would have had to walk down at least three steps to get to main floor and his apartment which, in the panel's view, was not consistent with his restrictions and created a safety hazard for the worker, who was on crutches.
The panel notes the advice of the WCB orthopedic consultant that the complex tear of the worker's medical meniscus was likely to continue to be a cause of knee pain and instability unless or until surgically repaired. Information on file shows that the worker had experienced problems with stability and had fallen several times while using crutches.
The panel questioned the worker and the employer's representatives at the hearing as to what consideration, if any, was given to various other daily activities, including how the worker would have attended to such matters as grocery shopping and laundry. The employer's representative indicated that they were not familiar with the living quarters, but that the manager was offering to help if needed and there were a few people who would be willing to help drive the worker places. The representative indicated she believed they had also indicated in their discussions that the worker could call cabs when he needed transport, but the worker said he did not recall any such discussions. The worker indicated that there was a laundry room on the main floor of the residence, but he did not know how he would carry his laundry there when he was on crutches. The worker said that others had been helping him at home and attending to such matters since his injury.
When asked about other matters such as showering, the worker said he had "a hard time getting in and out of the shower, where it's so slippery" and that his spouse was always there at home and would help him get it and out of the shower since his injury.
The panel notes that we do not accept that the worker was totally disabled at this time. The panel finds, however, that the return to work program, as described, was not suitable in the circumstances.
The panel also notes that in their closing submission at the hearing, the employer's representative stated that much of what the worker had raised at the hearing came as a surprise to them and had not been brought up during the development of the plan. The panel acknowledges the employer's submission that if they had known about all of this, they could have worked with it and addressed the areas of concern. Unfortunately, this did not happen.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's loss of earning capacity beyond March 8, 2020 was related to his September 1, 2019 workplace accident. The panel therefore finds that the worker is entitled to wage loss benefits after March 8, 2020.
The employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, 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 June, 2021