Decision #135/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to full wage loss benefits after February 5, 2021. A videoconference hearing was held on September 22, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to full wage loss benefits after February 5, 2021.
That the worker is not entitled to full wage loss benefits after February 5, 2021.
On January 15, 2021, the worker filed a Worker Incident Report with the WCB, reporting that on January 14, 2021:
I was walking along the sidewalk in front of our building…when I slipped on some ice.
I fell forward and landed on my left knee really hard.
There was immediate swelling on my left knee. My left shin is feeling numb and very sore to touch.
There is some bruising as well.
This morning when I woke up my lower and mid back are very achy and sore…
On January 14, 2021, the worker sought medical attention from a chiropractor and from his family physician. The Chiropractor First Report noted the worker's reporting of falling "…straight onto left knee and chin" on an icy sidewalk in front of his building at work. The worker complained of sharp pain in his knee, with pain on weight bearing, and low back pain, radiating into his buttock and leg and worse when sitting. The chiropractor provided a diagnosis of infrapatellar bursitis, with a suspected fracture of the tibial tuberosity of the left knee, and subluxation of the L5-S1 and L5 disc prolapse with respect of the worker's low back. The worker's family physician diagnosed the worker with left knee pain and sent him for an x-ray of his left knee.
On January 15, 2021, the worker was seen by a physician at a walk-in clinic. On examination, the physician noted full range of motion, tenderness to proximal tibia and a small effusion. The physician diagnosed the worker with knee trauma, and noted that the x-ray of his left knee showed "no obvious fracture". The physician recommended the worker remain off work until January 21, 2021, then return to sedentary duties for one to two weeks. He also referred the worker for an MRI of his left knee.
At a follow-up appointment with his family physician on January 20, 2021, the physician recommended the worker remain off work for an additional week. At a further follow-up appointment with his family physician on January 28, 2021, the worker reported increased symptoms with an increased level of activity. The physician queried a meniscal tear and recommended the worker remain off work for a further two weeks or at least until the MRI was completed.
The worker's file was reviewed by a WCB medical advisor on February 3, 2021. The medical advisor opined that the initial diagnosis for the workplace accident was left knee contusion/sprain and low back strain, with the worker's current symptoms being mostly related to the left knee. The medical advisor noted that the left knee contusion/sprain and low back strain were medically accounted for in relation to the mechanism of injury the worker reported, and normal recovery from those injuries would be from two to six weeks. The medical advisor further opined that the worker was not totally disabled, and would be fit for sedentary duties, to be reviewed in two weeks.
On February 3, 2021, the WCB advised the employer of the worker's temporary restrictions of sedentary duties. The employer contacted the WCB later that day and advised that they had offered modified duties to the worker to accommodate a return to work, and the worker had refused those duties.
The WCB spoke with the worker on February 4, 2021, and discussed the accommodated duties offered by the employer. The WCB noted that in addition to the modified duties, the employer had offered to support a gradual return to work plan starting February 8, 2021, and advised the worker that he was expected to at least make an effort to participate, failing which he would not be entitled to further wage loss benefits from the WCB. The worker advised that his treating healthcare providers recommended he remain off work, but the WCB noted the medical reports on file indicated the worker was capable of sedentary duties.
On February 5, 2021, the WCB's Compensation Services provided the worker with a letter confirming their conversations on February 3 and 4, 2021, and that based on the worker's decision not to participate in suitable duties offered by his employer, his entitlement to wage loss benefits would end effective February 5, 2021.
On February 8, 2021, the worker requested that Review Office reconsider Compensation Services' decision to end his entitlement to full wage loss benefits, noting his family physician and treating chiropractor indicated he was to remain off work until the MRI was completed. The worker stated he had mentioned to his employer that he was willing to do modified duties from home. He said he was not refusing to work, but was following the advice of his treating healthcare providers. That same day, the employer confirmed to the WCB that the worker working from home was not an available option.
On February 10, 2021, the WCB received a copy of a Chiropractor's Progress Report from the worker's treating chiropractor, which listed several examination dates, the most recent of which was February 2, 2021, and indicated a change in diagnosis to a lumbar L5 disc prolapse and suspected left tibia fracture. The chiropractor recommended in the report that the worker could only return to work if he was able to sit without any weightbearing.
On February 12, 2021, the worker's family physician indicated that the worker was not capable of modified work unless he could be accommodated to work from home, and that he was awaiting the MRI.
On February 20, 2021, the worker underwent the MRI on his left knee, which indicated a low grade sprain of the proximal medial collateral ligament and no evidence for a meniscal tear or cruciate ligament injury. The worker returned to work on modified duties on March 1, 2021.
On April 8, 2021, Review Office determined that the worker was not entitled to full wage loss benefits after February 5, 2021. Review Office noted the medical information indicated the worker was capable of sedentary duties. Review Office further noted that diagnostic imaging did not demonstrate a fracture or tear in the left knee, and the findings were consistent with a low grade sprain. Review Office found the employer was able to offer suitable modified duties to the worker; that the evidence did not support the worker was totally disabled; and that the physical requirements for the work accommodation were minimal (sedentary in nature) and no different from the activities of daily living. Review Office concluded there was no entitlement to full wage loss benefits after February 5, 2021 (with the exception of the wage loss benefits paid for time loss for medical appointments), as the worker's loss of earning capacity was the result of the worker declining suitable accommodated work.
On May 10, 2021, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act 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:
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, 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 was self-represented and was assisted by his spouse at the hearing. The worker's position was that he was following the recommendations of his treating healthcare providers in remaining off work pending his scheduled MRI, and should be entitled to full wage loss benefits beyond February 5, 2021.
The worker submitted that in arriving at their decision on this issue, the WCB did not consider all of the medical notes and documentation from his treating healthcare providers. The worker noted that the WCB referred to the initial reports from the walk-in clinic physician and the treating chiropractor, but the follow-up reports from his family physician and his chiropractor were not taken into consideration.
The worker submitted that his family physician and treating chiropractor both recommended he remain off work at least until the MRI was completed, to ensure no further damage was done to his knee. The worker said he was following their advice in staying off work, and was not prepared to go against what they were telling him to do. The worker noted that the WCB medical advisor who was saying he was capable of sedentary duties did not contact him or his physician, who was saying the opposite. The worker said it was very clear what his family physician wanted him to do. The worker noted he returned to work on modified duties on March 1, 2021, after the MRI was completed and his family physician had cleared him to return to work.
The worker noted that he did his best to speed up the process of getting the MRI. He called and had his name put on a cancellation list, and was even willing to travel a fair distance and have the MRI done in the middle of the night. He was not willing, however, to go against the advice of his physician.
The worker further submitted that he offered to work from home, but was told that this was not possible. The worker noted that at the follow-up visit with his family physician on February 12, 2021, his physician continued to recommend he remain off work, but suggested he could work from home if this could be accommodated. The worker said he was not sure why his employer said that working at home was not an option. He noted that when he actually went back to work on March 1, 2021, all of the work he was asked to do was work he could have done at home.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to full wage loss benefits after February 5, 2021. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after February 5, 2021 as a result of his January 14, 2021 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a left knee contusion/sprain and low back strain suffered at work on January 14, 2021.
Based on the information on file and as presented at the hearing, the panel is satisfied that the worker was not totally disabled as a result of that injury. The panel notes that the evidence shows that the worker was willing and able to work from home, although the employer indicated that this was not possible.
The worker focused in particular on the advice he received from his family physician and treating chiropractor, and stated that he was not prepared to go to work against what his treating healthcare practitioners had recommended. The worker thus stated at the hearing that "…my biggest problem was going back to work when my doctor wanted me to wait for the MRI results, and reinjure my knee even further…that's what his concern was, too. He wanted to wait until the MRI was done to see what was actually going on before I go back to work. That's why he wanted me to work from home."
The panel acknowledges the worker's position in this regard, but is unable to find that the evidence indicates that the work which was being offered or the conditions in the workplace would have exacerbated or caused further injury to the worker. Rather, the panel is of the view that such concerns were speculative or preventative in nature, and were not a sufficient basis for refusing to participate in the proposed return to work program.
The panel places weight on and accepts the temporary restriction of sedentary duties which was recommended by the WCB medical advisor on February 3, 2021 as being appropriate in relation to the compensable injury. Based on our review of the evidence on file, the panel is satisfied that the duties which the employer proposed were sedentary in nature and within the restrictions outlined by the WCB medical advisor.
The panel is also satisfied that the worker was capable of performing those duties as at February 5, 2021. The panel further finds that the employer was prepared to accommodate the worker with a modified return to work, and made significant efforts to address various issues or concerns he had raised.
In this regard, the panel notes that the worker referred to numerous factors or reasons in the course of the file which prevented him from returning to the workplace at the time. The panel reviewed such factors with the worker in some detail at the hearing, but is generally not satisfied that these had not been or would not have been reasonably addressed, or would have reasonably prevented him from returning to work doing sedentary duties.
The worker indicated at the hearing, for example, that he could not drive but had to have others drive him places. He subsequently clarified that he could drive with his right foot, but when he got into the vehicle, his left leg would press against the door panel due to an inability to fully bend his leg and would cause him considerable pain. The panel notes that the worker advised at the hearing that the workplace is between 12 to 15 minutes from his home. The evidence showed that he was able to travel to various appointments, which were significantly further away than the workplace.
The worker also referred to several problems with logistics or distances within the workplace, including that there was a step up into any office in which the employer had said he could work, that the bathroom was some distance away, and that the floor was often wet which posed a risk for injury. The panel notes that the evidence shows that the employer suggested various different possible ways to address any such issues, which the worker had indicated he would consider.
The panel finds it significant that the worker was able to return to work and perform the same modified duties as had been previously offered as soon as the MRI was completed, and was not prevented from doing so by various logistical issues he had previously raised. The worker indicated that certain things were still quite challenging, such as going up a step to get into the office he was working in when he returned to work, particularly for the first few weeks, but the evidence indicates that the worker was nevertheless able to manage to perform those duties.
The worker also indicated at the hearing that when he returned to work at the beginning of March 2021, his spouse drove him to work for the first couple of days, but that after that he drove himself, although he noted that he still had difficulty driving.
The panel notes that the Policy requires that the worker reasonably participate in any return to work program. While the modified duties which the worker was offered by the employer may not have been what he would have preferred, the panel is satisfied that the duties were suitable and he was capable of doing them as of February 5, 2021. The worker did not, however, even attempt to perform those duties starting February 8, 2021 or in the days that followed.
In conclusion, the panel acknowledges that the worker had ongoing pain and left foot difficulties, but is satisfied that the worker's loss of earning capacity after February 5, 2021 was due to his declining to participate in a return to work program and was not as a result of his compensable injury.
The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity after February 5, 2021 as a result of his January 14, 2021 workplace accident, and the worker is not entitled to full wage loss benefits after February 5, 2021.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of November, 2021