Decision #02/22 - 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 effective August 26, 2019. A videoconference hearing was held on November 10, 2021 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits effective August 26, 2019.
That the worker is not entitled to wage loss benefits effective August 26, 2019.
On August 26, 2019, the WCB received an Employer's Accident Report indicating the worker injured his right ankle at work on August 25, 2019. The report noted the worker was performing his job duties and while doing so, "…stepped in a hole and rolled his right ankle and fell to the ground." The worker was taken to the local nursing station where he was diagnosed with an ankle sprain.
The worker was then taken to a local hospital for x-rays to rule out a fracture. The August 25, 2019 Emergency Treatment Record from the local hospital noted the worker was complaining of right ankle pain after he stepped in a hole and twisted his ankle at work and was subsequently unable to weight bear. The emergency department physician noted decreased flexion and extension at the right ankle due to pain with swelling over the lateral malleolus and anterior calcaneofibular ligament. An x-ray taken at that time did not show any fracture or dislocation. The physician diagnosed a right ankle sprain, and the worker was provided with a back slab and crutches. Pain and anti-inflammatory medications were prescribed, and it was recommended that the worker rest, elevate and ice his ankle. The physician referred the worker for physiotherapy and outlined restrictions of walking with crutches, weight bearing as tolerated, no bending, twisting, squatting or kneeling, and no driving. A Functional Abilities Form ("FAF") was completed noting restrictions of no walking long distances (with crutches), and that the worker was capable of sedentary work.
The worker contacted the WCB on August 26, 2019 to discuss the claim with his WCB adjudicator. The worker advised the WCB that he was in a lot of pain and needed to elevate his foot. The worker noted his concerns with modified work and his recovery, and advised he believed he would recover better at his home. Later that same day, the employer advised the WCB that the worker had said he would be returning home and would not be participating in the modified duties. On August 27, 2019, the employer provided the WCB with a list of the modified duties they had available for the worker and confirmed they could accommodate him.
On August 28, 2019, the WCB's Compensation Services advised the worker that his claim was accepted for a right ankle strain, but no wage loss benefits would be issued as there was no medical evidence to support he was fully disabled from working and the employer was able to accommodate him with modified duties within his restrictions.
On September 5, 2019, the worker was seen by a walk-in clinic physician. The worker reported having twisted his right ankle at work, and the physician noted swelling and decreased range of motion in the right ankle. The physician diagnosed the worker with an ankle sprain and recommended he remain off work until September 13, 2019.
On September 6, 2019, the worker was seen at minor injury clinic. The worker reported to the attending physician that he suffered a right ankle injury on July 19, 2019, then again on August 25, 2019, at which time he twisted his ankle inward when he stepped in a hole. The worker reported bruises, pain to his ankle on the lateral side, and that he was unable to walk but had no tingling or numbness in his foot. After examining the worker, the physician noted swelling in the lateral side of the worker's right ankle, tenderness on the anterior talofibular (ATF) ligament, and decreased active range of motion in the ankle. The worker was diagnosed with a grade 1 ankle sprain, and a brace was prescribed along with anti-inflammatory medication. Rest, ice and elevation, as well as physiotherapy were recommended.
On September 12, 2019, the worker was seen by a family physician, who recommended the worker remain off work as he had "limited painful range of motion."
On October 1, 2019, the worker attended an initial physiotherapy assessment. The physiotherapist noted the worker reported intermittent pain to his right ankle, sharp with certain movements and throbbing at night, and difficulty going down stairs, but gradual improvement in his functioning. On completion of the assessment, the physiotherapist diagnosed the worker with a grade 2 right ankle sprain affecting the calcaneofibular and post talofibular ligaments, and recommended restrictions of limited standing and walking, very limited walking on uneven ground, and no climbing, jumping, crouching, or kneeling for the next four weeks. On October 7, 2019, the WCB advised the employer of the worker's restrictions.
On October 11, 2019, the worker's representative requested that Review Office reconsider Compensation Services' decision that the worker was not entitled to wage loss benefits, and submitted additional information on October 14, 2019. As new information had been provided, Review Office returned the worker's file to Compensation Services for further review.
On October 16, 2019, the employer confirmed to the WCB that modified duties remained available and they could accommodate the worker within his restrictions. A description of the duties was provided. At a follow-up appointment with the treating family physician on October 30, 2019, the worker was referred for an MRI. The worker also attended a follow-up appointment with his physiotherapist on October 30, 2019, where he reported he had rolled his ankle approximately 10 days previously, which caused extreme pain, and he had swelling for about one week and mild bruising. The worker noted that since that time he had very limited mobility and increased pain to the right posterior lateral ankle. The physiotherapist updated the worker's diagnosis to a possible grade 3 ankle sprain affecting the calcaneofibular and post talofibular ligaments, and provided restrictions of limited standing and walking; very limited walking on uneven ground; use of brace outside of home; and no climbing, jumping, crouching or kneeling for four weeks.
On November 19, 2019, the worker underwent an MRI on his right ankle which indicated "High-grade strains of the anterior talofibular and calcaneofibular with less severe of the deep deltoid" and "Focal chondromalacia of the anterior central tibial plafond with small bone bruise in the lateral taler doma". The worker's file and the MRI were reviewed by a WCB orthopedic consultant on November 27, 2019. The consultant opined that the worker's current diagnosis was "…an unhealed essentially complete tear of the lateral ligament of the right ankle at the anterior talo-fibular (ATFL) component" which was supported by the findings on the November 19, 2019 MRI and noted to be the likely cause of the worker's ankle instability. The WCB orthopedic consultant further opined that the ATFL tear was probably the result of the August 25, 2019 workplace injury; that the worker's recovery from same was not satisfactory; and that surgical reconstruction of the ATFL ligament should be considered. The consultant indicated that the diagnosis would not cause total disability, and recommended restrictions, to be reviewed in three months, of: limited walking and standing, no more than 20 minutes without ability to rest; limited walking on uneven ground, no more than 5 minutes; no climbing, running or jumping; no repetitive crouching or kneeling.
On December 3, 2019, the worker's WCB case manager had a telephone discussion with the worker and his representative. The worker provided the WCB with a medical and status update, noting the pain in his right ankle would wake him up at night at times and he was currently limited to 2 to 3 hours of standing/walking at a time due to pain and swelling. The worker set out his concerns with the modified duties offered by the employer, including concerns with respect to the meaningless nature of the tasks, the distances he would have to walk, barriers with respect to crutches, and stairs he have to go up and down. The worker also provided the WCB with the name and contact information for a co-worker who witnessed the difficulties the worker was having after the workplace accident. The worker further referred to the October 30, 2019 incident he had reported to his physiotherapist, where he twisted his ankle and it gave out due to the instability. The worker confirmed he would be willing to participate in modified duties if the employer was able to provide him with proper accommodation.
On December 3, 2019, a worksite review was completed by the WCB with respect to the modified duties offered to the worker. Photographs of the areas where the worker would have been performing the modified duties offered by the employer were obtained, along with photographs of the locations for the dining and bathroom areas.
On December 4, 2019, the WCB contacted the co-worker, who confirmed he noticed the worker having difficulty getting around after the August 25, 2019 workplace accident. The co-worker advised that he assisted the worker with carrying meals and that it would take the worker twice as long to get from one place to another. The co-worker also provided the WCB with a description of the area where the worker was working when the workplace accident occurred. On December 10, 2019, the worker's representative provided a rebuttal with respect to the worksite review.
On December 12, 2019, the employer provided the WCB with a copy of a Notice of Layoff for the worker effective December 19, 2019 due to "Reduction of crew". By letter dated December 18, 2019, and revised December 20, 2019, Compensation Services advised the worker that a further review of his file had been conducted, but there would be no change to the decision he was not entitled to wage loss benefits effective August 26, 2019.
On January 3, 2020, the worker was seen by an orthopedic specialist. The specialist opined that the worker had "…sustained a high grade ankle sprain, for which he has been treated appropriately in a nonoperative manner…" The orthopedic specialist recommended the worker wean himself from the brace and continue with physiotherapy and stability exercises, noting it was reasonable for the worker to return to work in the near future on modified duties.
On January 15, 2020, the employer advised the WCB that they could accommodate the worker within his restrictions immediately. The worker and the worker's representative were advised of this on the same date. The worker continued to attend for physiotherapy and appointments with his treating family physician. On June 17, 2020, the worker's treating family physician provided restrictions of light duty, limited hours, no excessive walking, climbing stairs or heavy lifting. On June 18, 2020, after a discussion with the worker's family physician to clarify the restrictions, the WCB advised the worker and the employer of the temporary restrictions of sedentary duties, no excessive walking, no climbing stairs and no heavy lifting.
On June 19, 2020, the employer provided the WCB with a modified work offer to provide to the worker, and the WCB forwarded that offer to the worker and his representative. On June 22, 2020, the worker advised that he would not be returning to work for the employer. On June 23, 2020, Compensation Services advised the worker that the earlier decisions that he was not entitled to wage loss benefits remained unchanged, as the worker had declined the modified duties offered by the employer.
On July 15, 2020, during discussions with the WCB regarding the worker's possible return to work, the employer indicated that despite a reduction in their workforce at the site where the worker was working, they were still able to accommodate him within his restrictions.
On August 17, 2020, the worker's representative requested that Review Office reconsider the WCB's decision to deny entitlement to wage loss benefits. On August 25, 2020, Review Office returned the worker's file to Compensation Services for further investigation.
On September 2, 2020, the WCB's orthopedic provided a further opinion to the worker's file. The consultant confirmed his opinion of April 10, 2020 that the August 25, 2019 workplace injury "…caused a complete tear of the lateral ligament of the right ankle," and opined that "This diagnosis would be expected to cause instability of the ankle when walking. There is no potential for healing of the ligament when the torn portions are separated, as is demonstrated by MRI. Even after surgical intervention by lateral ligament reconstruction, some instability often persists." The consultant recommended restrictions of no walking over uneven surfaces; no standing or walking more than 15 minutes without opportunity to sit; no ladders or working at heights; no repetitive stairs; and no heavy lifting and carrying, more than 30 pounds, noting that the restrictions would be long-term, and that within those restrictions there was not a medical need to specify reduced hours.
On October 30, 2020, after gathering additional information from the worker, his representative and the employer, Compensation Services advised the worker that no wage loss benefits were due from August 26, 2019 to June 14, 2020, but that he was entitled to partial wage loss benefits for the period of June 15 to October 2, 2020. Compensation Services determined that suitable modified duties were offered beginning August 26, 2019 and the employer was willing and able to accommodate the worker's concerns to provide a safe return to work.
Compensation Services advised that based on calculations of what the employer would have paid the worker for the modified duties, the worker would not be entitled to wage loss benefits for the period of August 26 to December 18, 2019; from December 19, 2019 to January 5, 2020, the employer had their cyclical winter shutdown and wage loss benefits would not have been payable; from January 6 to March 17, 2020, calculations again showed that wage loss benefits would not be payable; and from March 18 to June 14, 2020, the employer's job site was temporarily shut down due to the Covid-19 pandemic, and as such, wage loss benefits would not be payable. The worker was further advised that effective June 15, 2020, suitable modified duties were available, but as his work schedule had changed, he was entitled to partial wage loss benefits.
Updated work schedule information was subsequently provided by the employer, and on November 2, 2020, Compensation Services advised the worker that he was not entitled to partial wage loss benefits from June 15 to October 2, 2020 as previously indicated, and that the October 30, 2020 cheque which had been issued was in error, as the change in the work schedule was due to Covid-19, as opposed to his injury, and affected all workers.
On November 20, 2020, the worker's representative requested that Review Office reconsider several Compensation Services' decisions. On November 24, 2020, Review Office acknowledged receipt of the worker's representative's request to reconsider the worker's entitlement to wage loss benefits effective August 26, 2019.
On January 27, 2021, Review Office determined that there was entitlement to wage loss benefits effective August 26, 2019. Review Office noted that there were several decision points with important elements/variables to be considered and provided decisions relating to those different points in chronological order. Review Office found that based on the medical information on file, the worker was not fit for work between August 26, 2019 and September 30, 2019 as the evidence supported he was totally disabled, and as such, was entitled to wage loss benefits for this period of time.
For the period from October 1 to December 3, 2019, Review Office agreed with the information provided by the worker's representative and found that while the employer provided modified duties, a worksite assessment had not been completed. Review Office found that while the worker may have refused to participate in the modified duties, those duties had not been properly assessed and it was reasonable for the worker to refuse.
With respect to the period from December 3 to 19, 2019, Review Office determined that the accommodated duties as a whole were outside the worker's capabilities and presented several risk factors, and the worker was therefore also entitled to wage loss benefits for that period of time. As such, the worker was entitled to wage loss benefits for that period as well.
Review Office further found that effective December 20, 2019, the employer had provided the worker with a notice of layoff which terminated the employment relationship between the worker and the employer, and the worker therefore had a loss of earning capacity and was also entitled to wage loss benefits as of that date.
On June 9, 2021, the employer 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 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.
The employer was represented by its labour relations officer, who participated in the hearing by teleconference. The employer's representative filed a written submission in advance of the hearing, and made an oral submission to the panel. The representative also responded to questions from members of the panel.
The employer's position was that appropriate modified duties were made available to the worker and continued to be available, but he refused modified duties and is therefore not entitled to wage loss benefits from August 26, 2019 forward.
The employer's representative noted that they did not dispute that the worker was injured on August 25, 2019, but did dispute his entitlement to wage loss benefits. The representative submitted that the worker was offered modified duties following his injury, but refused them and returned home, driving his own vehicle several hours to get there.
The employer's representative submitted that the employer remained in regular contact with the worker's WCB case manager with respect to modified duties following the worker's injury. The employer arranged for modified duties to be readily available and to remain so based on the medical information and current restrictions provided by the WCB to accommodate the worker's injury. It was submitted that the employer tried to remove any barriers which were identified and continued to do everything an employer should do under the Act to enable the worker to productively work and maintain his employment.
The employer's representative stated that the worker was temporarily laid-off in December 2019 for the seasonal winter shutdown, as was 90% of the employer's workforce, with only a skeleton staff remaining for preservation of the site. The representative indicated that the worker would have been one of the first to be brought back based on the terms of the project agreement. The representative submitted that this was not a permanent layoff, and the employer informed the WCB when the worker was laid off, when he would be recalled, and that modified duties based on his current restrictions remained available.
The worker was represented by an advocate, who provided a written submission in advance of the hearing. The worker and his advocate, both of whom participated in the hearing by videoconference, made an oral submission at the hearing and responded to questions from members of the panel.
The worker's position was that Review Office provided a very thorough and rational analysis of the issues and their decision should be upheld.
The worker's advocate submitted that while the employer and the WCB continually stated that the worker refused modified duties, that characterization is unfair and inaccurate. The worker's advocate submitted that refusing something is vastly different from being unable to do it. In this case, the worker did not refuse modified duties. Rather, he knew that he would be unable to do them.
The worker was working at a remote location. He tried to navigate life at the site the evening of his injury and the next morning, but struggled to do so. The advocate noted that there was a lot of walking at the site, which he simply could not do, nor could he do such things as stand or walk to the cafeteria to get a meal. With one exception, the employer did not provide assistance in the evening, and the worker had a terrible night. He was given no opportunity to rest, and was required to attend a meeting the next morning. He struggled to get there on his own, again with no assistance being available or provided.
The worker's advocate noted that the worker felt his injury was much more serious than the emergency department physician had indicated in her report and in the FAF, and that he needed to go to a larger centre and seek further advice. The advocate noted that he had the right to seek a second opinion, as this was going to affect everything in his life, not just his work. The worker did everything he could to facilitate immediate care. Far from doing nothing, the worker saw four different medical providers between August 26 and September 12, 2019 at his own expense and "got the ball rolling."
The worker's advocate acknowledged that modified duties were continuously offered, but submitted this did not really mean anything if he could not do them. The advocate noted that the WCB often just dismissed the treating physician's progress reports, and she could not understand how they could just absolutely refuse to consider his evidence and deny that the worker was truly injured.
The worker's advocate further submitted that the jobsite analysis which was eventually done was very simplistic, and was not an accurate assessment of what the worker would have to navigate and do to survive daily life at the site. The analysis was done at the last minute, and the worker was not represented in that process. The advocate noted that she and the worker provided a detailed rebuttal, which noted among other things a vast difference in the distances involved.
The worker's advocate submitted that information on file unequivocally indicates that the worker was permanently laid off in December 2019. The advocate noted that while the employer had since changed their story, their current position could not be explained.
The worker also emphasized in his presentation that the injury he sustained was very serious, and further assessment was required, including by a specialist. The worker said that it was just not possible to do what was being asked of him, given the type of injury he had, without causing himself further damage or injury.
The issue before the panel is whether or not the worker is entitled to wage loss benefits effective August 26, 2019. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a loss of earning capacity effective August 26, 2019 as a result of his August 25, 2019 workplace accident. The panel is able to make that finding, for the reasons that follow.
There is no dispute that a workplace incident occurred on August 25, 2019 and that the worker suffered an ankle injury as a result. The accepted diagnosis on the claim is a complete tear of the lateral ligament of the right ankle.
The issue before the panel relates to the worker's entitlement to wage loss benefits as a result of his right ankle injury.
The panel acknowledges that the original diagnosis of the worker's right ankle injury did not properly reflect the extent of the injury. Medical information on file shows that the injury is more serious than was initially diagnosed.
Having said that, the panel is satisfied that the worker was not totally disabled following his injury. The worker has relied on the reports of his family physician that he first saw on September 12, 2019. The family physician provided a number of reports on and after that date, indicating that the worker was not capable of modified or alternate work. The panel is unable to attach much weight to those reports. The panel finds that the physician's recommendations in this regard are not supported by clinical findings, and are not consistent with other medical reports on file.
The evidence provided at the hearing indicated that the worker left the worksite the morning of August 27, 2019 and drove three hours to a friend's home. Shortly thereafter, he had a relative drive him to another city, detouring first to visit family who were two hours away, then continuing on a further five hours to their destination.
In addition, when asked whether they were suggesting the worker was totally disabled, the advocate stated "Well, from working. From doing that type of work, yes." When asked what type of work, the advocate stated: "The camp life at [site] in modified duties…it's not the same thing as sitting on a chair at home and being able to go to the toilet just down the hall or get something from the refrigerator. There's huge distances involved in navigating camp life which adds to it."
The panel reviewed the restrictions which were provided on August 25, 2019 by the emergency department physician with the worker. When asked about the indication that the worker could do sedentary duties, the worker stated that he could not, noting that "Like any doctor said to the degree of my sprain I should have been bedridden for at least…ten days." Asked whether he was suggesting that because of his ankle injury he could not sit, the worker stated "No, not in that office what they wanted me to do...I just wanted to lay in bed that next morning. I didn't even want to be there because they wanted to make me do all these things, and I was in so much pain and I knew something was totally wrong…I needed to get another opinion as soon as I could…There's no way I could have lived in that environment, just no way."
The employer offered the worker modified duties immediately after the injury, and continued to confirm that modified or alternate duties were available when the WCB provided the employer with updated medical information and restrictions. The panel notes that the employer has a robust return to work program. The panel notes that the discussions with the worker with respect to modified work on August 26, 2019 were in the early stages, and that certain suggestions had been made to assist the worker, such as moving him to a room which was closer. The panel is satisfied that the employer would have made arrangements and worked to accommodate the worker's needs and restrictions, but did not have the opportunity to do so or to flush out a more detailed plan or duties before the worker decided to leave the site.
It is clear to the panel, based on our review of all of the evidence, that when the worker left the worksite on August 26, 2019, he had no intention of returning to the site to work or of accepting modified or alternate work with the employer.
When asked what he had to say about modifications to the environment, such as providing him with a room which was closer or in a better location, the worker indicated that this would not have made much difference and added that:
If they would have offered to wheel me in a wheelchair every day, I might have thought about it. But when I couldn't even go in a, walk myself with crutches, there was no offering of any wheelchair whatsoever.
If they would have offered for the first, like, week or two until I would have got on my feet, I would have done it, and then I would have told them, look I need a second opinion, let me get it, you know.
But they didn't even offer me a wheelchair for those days to help me, or anybody to wheel me around, so it was, it was just not happening for me. It just was too much.
Asked about the layoff in December 2019 and whether he would have gone back to work if recalled, the worker said "No." When asked why not, he said "Because I didn't want to go back to that company. [Company name] is not the most friendliest workplace environment to work for."
When asked what was prohibiting him from going back to work tomorrow, the worker similarly stated:
I don't want to go…I don't want to work back there. It's that simple.
They didn't help me out for my injury, they didn't modify me, they didn't accompany (sic) properly. They didn't do anything for me in the right direction. They couldn't even wheel me, wheel me around the next morning.
They had to wake me up and make me go to a meeting, and just to get upset. No, it wasn't, it was, it's not the work environment I want to be in. It's toxic….
By letter dated August 28, 2019, Compensation Services advised the worker that his claim was accepted for a right ankle strain, but no wage loss benefits would be issued as the medical evidence did not support he was fully disabled from working and the employer was able to accommodate him with modified duties within his restrictions. After that, the worker did not talk with the WCB until September 18, 2019, when he called to ask when he would be getting paid. The worker further noted at that time that he did not believe he would have been capable of performing modified duties given the nature of his injury and that he wasn't even given a few days to rest when he was initially injured.
The panel notes that the worker's advocate repeatedly advised the WCB and the employer after that and throughout the course of the file that all correspondence was to go through the advocate, and neither the WCB nor employer was to contact the worker directly. Such restrictions unfortunately appear to have complicated the process and impeded the WCB's and the employer's ability to arrange for or address any possible concerns with respect to modified duties and proposed accommodations. The panel is of the view that while there may have been some shortcoming in the WCB's attempts to administer the file, this has to be taken in the context of the worker's refusal to participate in the return to work process, and the insistence that the WCB deal with the worker's advocate alone and that neither the WCB nor the employer communicate with the worker.
The panel would also note that we have considered the evidence with respect to the worker's lay-off in December 2019, and are satisfied that the lay-off was temporary, as part of a seasonal lay-off and not because of the worker's injury. The panel notes that the employer made contact with the WCB in early January to confirm that modified duties were available within the worker's restrictions, and that they remained willing and able to accommodate him at that time.
In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity effective August 26, 2019 as a result of his August 25, 2019 workplace accident. The panel therefore finds that the worker is not entitled to wage loss benefits effective August 26, 2019.
The employer's appeal is allowed.
M. L. Harrison, Presiding Officer
J. MacKay, 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 January, 2022