The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is capable of modified duties and a graduated return to work effective August 24, 2020. A hearing was held by teleconference on February 2, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is capable of modified duties and a graduated return to work effective August 24, 2020.

Decision

That the worker is capable of modified duties and a graduated return to work effective August 24, 2020.

Background

The worker filed a Worker Incident Report with the WCB on January 31, 2019, indicating he injured his neck, right shoulder, mid back, left lower leg and the back of his head in an incident at work on January 30, 2019. The worker described the incident as:

I fell off of a belt loader and hit the ground. I landed on my back when I fell. The pilot and another co-worker picked me up. They took me back into the building and I finished working my shift.

The worker attended at a local emergency department on January 30, 2019 complaining of head and neck pain. The worker reported to the emergency department physician that he "Immediately felt stunned like he had his bell rung but did not lose consciousness. Now only complains of headache and some mild right-sided neck pain." A CT scan of the worker's brain was reported to be normal, while a neck x-ray indicated "…vertebral body fractures of C5 and C6." The attending physician noted tenderness to the right paraspinal muscles on the worker's neck, no bony tenderness in the worker's cervical spine, no signs of bruising or swelling to the scalp, and some increased pain to the worker's neck with movement of his right arm. The worker was placed in a cervical collar and transferred to a larger trauma centre for further assessment. Repeat x-rays and a CT scan of the worker's cervical spine showed no acute fractures and the worker was discharged with a diagnosis of soft tissue injury.

On February 1, 2019, the worker sought treatment from his family physician, who noted a small abrasion on the worker's right lower leg and a normal neurological examination. The family physician diagnosed the worker with a face and neck injury, recommended the worker remain off work for two weeks and continue wearing the cervical collar, and referred the worker to a sports medicine physician.

The worker saw the sports medicine physician on February 5, 2019, and reported a bilateral headache with photophobia, dizziness and nausea mostly when in the car, mild insomnia and headache at night, a sore right shoulder and left medial pain. The sports medicine physician examined the worker and noted mild tenderness in the worker's spine at C7, decreased range of motion in the worker's right shoulder, but no motor or sensory deficits. The physician diagnosed the worker with post-concussion symptoms, a cervical injury with marked tightness, right trapezius strain, right shoulder contusion and left tibial hematoma.

The employer submitted an Employer's Incident Report to the WCB on February 6, 2019, confirming the worker's report of the workplace accident. The employer also confirmed that modified duties were available for the worker. On February 8, 2019, the worker advised the WCB that he was experiencing pain to his head, neck, upper back and right shoulder, and continued to experience headaches since January 30, 2019, with light sensitivity and nausea. The worker's claim was accepted by the WCB and payment of benefits commenced.

The worker was referred for physiotherapy and attended an initial physiotherapy assessment on February 22, 2019. The worker reported pain in his neck, right shoulder, upper back and left leg with painful movements, difficulty sleeping, and an inability to walk or raise his right arm without pain. The physiotherapist provided a diagnosis of concussion, with cervicogenic dizziness, left lower leg contusion, right supraspinal strain, myofascial neck and upper back pain, and recommended the worker remain off work.

At a follow-up appointment on March 6, 2019, the treating sports medicine physician noted that the worker continued to experience concussion symptoms, with headache, dizziness and tinnitus in his left ear. The sports medicine physician provided diagnoses of concussion, right shoulder contusion, right sided neck strain, and left ankle strain, and queried a rotator cuff tear. The physician referred the worker to an Ear, Nose and Throat (ENT) specialist and a concussion program. On March 15, 2019, the worker underwent an MRI of his right shoulder, which indicated a high-grade partial thickness articular sided tear at the overlap of the supraspinatus and infraspinatus tendons; long biceps tendinosis, medial subluxation, and possible longitudinal split tear; and mild hypertrophic acromioclavicular joint osteoarthritis.

On March 22, 2019, the worker attended a call-in examination with a WCB medical advisor. The medical advisor opined that the worker met the WCB criteria for the diagnosis of a concussion based on the reported mechanism of injury and the worker's report of a brief loss of consciousness. The medical advisor further recommended that the WCB expedite a consult with an orthopedic surgeon with regard to the worker's right shoulder and confirmed the diagnosis of the worker's neck injury as a strain. The medical advisor noted that he discussed the benefits of a return to work with the worker, as well as the negative health consequences of a prolonged absence from work. The medical advisor opined that a "…return to sedentary type occupational activity, graduated over a period of two to four weeks would likely have a favorable risk/benefit profile in terms of overall recovery related to concussion, and would not present a material risk related to concussion, neck strain or [the worker's] shoulder injury."

On April 1, 2019, the WCB advised the employer that the worker was fit to return to work on a graduated basis, with temporary restrictions of sedentary duties. On April 3, 2019, the worker's treating family physician discussed the WCB medical advisor's opinion with the worker, including the recommendation for a graduated return to work and noted that the worker was agreeable to this.

On April 9, 2019, the worker was seen by an orthopedic surgeon, who confirmed the diagnosis of a right shoulder partial thickness rotator cuff tear and recommended continued conservative measures as the worker reported his symptoms had improved with such measures. On June 27, 2019, the worker was seen by a neurologist, who opined that the worker's symptoms were most consistent with post-concussive syndrome related to the fall at work on January 30, 2019. The neurologist opined that the worker was also suffering from neck pain and cervicogenic headaches related to a whiplash injury from the January 30, 2019 fall. The neurologist recommended the worker continue with his physiotherapy treatment. On July 16, 2019, the worker attended a follow-up appointment with his physiotherapist, and updated restrictions were provided. On July 17, 2019, the WCB advised the employer that the worker's temporary restrictions were 2 to 3 hours per day on a trial basis; no lifting greater than 15 pounds more than 10 meters in distance; and no pushing or pulling greater than 20 pounds more than 5 meters in distance.

On July 19, 2019, the employer provided the worker with an offer of modified duties, which was also copied to the WCB. As the worker disputed his ability to physically perform the modified duties, the WCB asked the WCB medical advisor to review the worker's file. On August 20, 2019, the WCB medical advisor opined that the medical evidence substantiated the worker had improved since his March 22, 2019 call-in examination with respect to his right shoulder functions and reported symptoms of headache and neck pain. The medical advisor agreed with the restrictions provided by the worker's treating physiotherapist on July 16, 2019, and opined that the worker's participation in physiotherapy and the medical reports from his treating healthcare providers did not support the worker was totally disabled. The medical advisor recommended a gradual return to work, with restrictions. On September 4, 2019, the WCB provided the worker and the employer with the updated restrictions of 2 to 3 hours per day; sedentary to light activity with no repetitive use of the right upper arm; and no lifting, pushing or pulling greater than 20 pounds outside the body envelope.

On September 19, 2019, the employer provided the worker with an updated modified duties offer, and on September 26, 2019, the worker returned to work on a graduated basis with modified duties. On October 11, 2019, the worker saw his treating family physician, who reported concerns with the worker increasing his hours at work based on the graduated return to work program. On October 18, 2019, the WCB medical advisor discussed the report with the worker's family physician, and in a letter dated October 21, 2019, confirmed their agreement with respect to the risk of prolonged absence from the workplace and its potential for a negative impact on recovery. The advisor further confirmed that the physician had discussed this with the worker, and that a further examination of the worker would be conducted by the WCB.

On November 7, 2019, the worker attended a call-in examination with a WCB medical advisor. Following that examination, the medical advisor opined that the worker continued to be capable of performing modified duties at the increased hours noted in the graduated return to work plan, and made further treatment recommendations. On November 28, 2019, the worker's family physician reported to the WCB that due to an increase in the worker's headaches while attempting his return to work, the physician was recommending the worker be placed off work for 4 to 6 weeks, then be reassessed. On December 5, 2019, the WCB medical advisor reviewed this information and opined that "I would continue to support participation in the light duties at limited hours as previously. Total disability is not accounted for in relation to likely effects of the ci (compensable injury) of now nine months prior."

On December 20, 2019, the worker's family physician provided the WCB with a progress report, indicating his opinion that the worker's reported headache symptoms, including blurred vision, balance issues and tinnitus, along with his right shoulder difficulties, limited his ability to return to work. The physician stated that "Given his high levels of pain, his functional limitations his examination findings and radiological finds, I do not recommend he go for any more neck manipulation, physiotherapy or go back to work until this has been clarified."

On December 23, 2019, the WCB medical advisor reviewed the worker's file again and noted his opinion that the worker was not totally disabled and his continued participation in light duties would be safe and appropriate. The WCB provided the worker with a decision letter on the same date, indicating the medical information on his file supported he was able to work three hours per day, and his wage loss benefits would therefore be reduced based on his working those three hours. The WCB met with the worker and his representative on January 13, 2020 to discuss the worker's claim. Following that meeting, the worker's file was reviewed by another WCB medical advisor, and on January 15, 2020, the WCB advised the worker that there would be no change to the decision that he was capable of working modified duties as previously outlined.

On February 3, 2020, the worker underwent a right shoulder arthroscopy with debridement; subacromial decompression/acromioplasty; biceps tenodesis; and rotator cuff repair, and was placed back on full wage loss benefits.

On March 17, 2020, the worker requested that Review Office reconsider the WCB's decision to reduce his wage loss benefits, noting his treating healthcare provider supported his inability to perform light duties. On April 29, 2020, Review Office determined that the worker was not entitled to full wage loss benefits from November 27, 2019 to February 2, 2020 as the modified duties which the employer made available were suitable and within his work capabilities, and he was capable of working those modified duties three hours per day during that period of time.

The worker continued to receive treatment from his family physician, orthopedic surgeon and a physiotherapist following the February 3, 2020 right shoulder surgery, with some of the treatment being delayed due to the global pandemic. Early in July 2020, the WCB began discussing a graduated return to work plan with the worker. The worker's file was reviewed by the WCB medical advisor who suggested provisional restrictions of no heavy lifting or push/pull with the right arm greater than 10 pounds; and avoid use of the right arm above shoulder level or outside of the body envelope; starting with 4 hours per day.

On July 23, 2020, the treating orthopedic surgeon cleared the worker to return to work. On August 11, 2020, the employer provided the worker and the WCB with a copy of the modified duties offer. On August 12, 2020, the worker's file and the modified duties offer were reviewed by the WCB medical advisor, who recommended restrictions with respect to the worker's right shoulder of no heavy lifting or push/pull with the right arm greater than 10 pounds and avoid use of the right arm above shoulder level or outside of the body envelope, and restrictions with respect to the worker's other reported difficulties of avoid sustained awkward neck postures and avoid work at height. The medical advisor further recommended that the worker start a return to work at 4 hours of modified duties, with the plan to be reviewed in 2 weeks for gradually progressing the work hours.

In a discussion with the WCB on August 18, 2020, the worker noted his concerns regarding a return to work due to his ongoing symptoms. On August 19, 2020, the employer sent a revised modified duties offer to the worker with a start date of August 24, 2020. On August 24, 2020, the worker advised the WCB that he could not return to work as he felt his symptoms were too severe, and was waiting to see his treating healthcare providers. On August 25, 2020, the WCB advised the worker his wage loss benefits would be reduced as of August 24, 2020 based on the 4 hours per day he was considered capable of working. On August 28, 2020, the worker's family physician provided the WCB with a report and note indicating the worker should remain off work due to his work-related injuries.

The WCB received a report from the worker's current treating neurologist for an appointment on September 14, 2020. The neurologist recommended certain treatments, and that the worker remain off work for a further eight weeks since his headaches were not controlled. On November 18, 2020, the WCB medical advisor spoke with the worker's family physician to discuss the worker's current status and capabilities. The medical advisor noted disagreement with the physician's opinion that the worker was totally disabled and should remain off work, and on the same date, the family physician provided a progress report to the WCB confirming he did not think the worker could return to work in any meaningful capacity and advising he would be contacting the drivers' licensing department regarding the worker's ability to drive safely.

On November 24, 2020, the worker's file was reviewed by the WCB medical advisor. The medical advisor opined that there was no change to the previous accepted diagnosis and no evidence of a new diagnosis. The medical advisor noted that an October 5, 2020 physician's report indicated that the worker's right shoulder strength and range of motion were almost normal, suggesting recovery from the injury and from surgery was nearly complete. The medical advisor also noted that a June 29, 2020 report from the worker's treating neurologist provided a possible diagnosis of benign paroxysmal positional vertigo, but the medical evidence for this condition was not compelling. The WCB medical advisor opined that the worker continued to be able to perform modified duties, and noted this issue was discussed with the worker's treating physician, who disagreed. The medical advisor suggested that in an effort to facilitate the worker's return to work, current restrictions could include initially limiting the worker to light/sedentary duties and outlined more specific restrictions that could be included.

On November 25, 2020, the WCB advised the worker that they had determined he was capable of working modified duties, with restrictions of light/sedentary duties; limit heavy lifting or push/pull with the right arm to 20 pounds; avoid sustained awkward neck postures; and avoid work on ladders or at height on reduced hours. The WCB further advised that given the time the worker had been away from the workplace, it was recommended he return on a graduated schedule of:

• December 7, 2020 to December 18, 2020 work 4 hours per day modified duties 

• December 21, 2020 to January 1, 2021 work 5 hours per day modified duties 

• January 4, 2021 to January 15, 2021 work 6 hours per day modified duties 

• January 18, 2021 to January 29, 2021 work 7 hours per day modified duties 

• February 1, 2021 resume regular hours.

On December 3, 2020, the WCB medical advisor spoke with the worker's treating neurologist to discuss the neurologist's reports, including his opinion that the worker was unable to work even light duties and limited hours. Following that discussion and a further review of the worker's file, the WCB medical advisor opined that the treatment which had been proposed by the neurologist was appropriate. The medical advisor further opined that the assertion of total disability had not been well substantiated and was based only on the subjective reporting of symptoms, and noted he continued to support a graduated return to work with light duties.

On January 18, 2021, a worker advisor requested on behalf of the worker that Review Office reconsider the WCB's decision. The representative argued that the worker had not recovered from his post-concussion symptoms and migraine headaches, which was supported by evidence provided by his treating healthcare providers, and was therefore not able to return to work, even on a graduated basis on modified duties.

On February 26, 2021, Review Office determined that the worker was capable of modified duties and a graduated return to work effective August 24, 2020. Review found that the worker was not totally disabled and was capable of attempting the modified duties offered by the employer, which were determined to be appropriate. Review Office found that there was no contraindication to an attempted return to work in August 2020. Review Office further found that the evidence showed the worker progressed in his recovery to a point he was functionally capable of the listed modified duties offered by the employer at the suggested four hours per day, that any adjustment needed thereafter of the duties or work durations would have been considered by the employer based on the worker's reported capabilities, and that his loss of earning capacity was correctly reduced based on the graduated return to work plan.

On July 14, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

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 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.

Section 37 of the Act outlines the compensation which is payable to workers, as follows:

37 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 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 44.10.30.60, Co-operation and Mitigation in Recovery (the "Co-operation Policy"), addresses the obligation to co-operate and mitigate 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.

Part B of the Co-operation Policy, which addresses Return to Work and Other Programs, further states, in part, that:

An injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs The worker's responsibilities include the following:

a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker's recovery;

…

e) Reasonably participating in all programs that the WCB believes will encourage a timely and sustainable return to health and work.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing, and made an oral presentation to the panel. The worker responded to questions from his representative, and the worker and his representative responded to questions from members of the panel.

The worker's position was that the file evidence supports he had not recovered enough from his workplace injuries to return to work in August 2020, and his appeal should be granted.

The worker's representative stated that the worker's entire treatment team is of the opinion that the worker was unable to perform modified duties due to his post-concussion syndrome. The representative submitted that it is reasonable for the worker to follow the medical advice of his entire team who is advising that he cannot return to work until more treatment is received.

The worker's representative noted that the treating neurologist has indicated that the continued symptoms which are preventing the worker from returning to work are the result of his having been under-treated and inappropriately treated for his post-concussion syndrome. The representative submitted that the neurologist's explanation of the worker having been under-treated for the first year as the reason for his severe continued symptoms is reasonable.

The worker's representative noted that the only medical professional indicating the worker can return to work is the WCB medical advisor. The representative asked that the panel place more weight on the opinions of the 2 treating neurologists than on the WCB general medical advisor's opinion, noting that the neurologists are specialists in post-traumatic headaches and have treated the worker longer and examined him more than the WCB medical advisor.

The worker's representative also noted that the worker continued to be referred to new treatments and new specialists to seek out relief from his recovery, and submitted that these referrals and new treatments are further evidence of his lack of recovery.

It was submitted that the failure of the worker's return to work program earlier in the file is evidence that the worker could not perform tasks in the work environment in question with post-concussion syndrome. The worker's representative submitted that the restrictions which were in place in August 2020 did not address the worker's symptoms of dizziness, light and sound sensitivities which resulted in the aggravation of his post-concussion syndrome migraines and ultimately his previous failed return to work program.

The worker's representative referred to and relied on a May 10, 2021 letter from the treating neurologist, which was provided in advance of the hearing, and in which the neurologist opined that the worker "…has not able to return to work in any capacity between August 2020 and present time, because of no improvement in his daily headache and dizziness" and further stated that he had "…no doubt that all [the worker's] neurological symptoms (headache, dizziness, neck pain, photo-and phonophobia) are related to his workplace accident."

Employer's Position

The employer was represented by an advocate, who made an oral submission to the panel, referring as well to their March 11, 2021 submission on file. The advocate also responded to questions from members of the panel.

The employer's position was that the worker was and remained capable of modified duties and of engaging in a graduated return to work, but declined to do so, and his appeal should be denied.

The employer's advocate submitted that suitable modified duties were offered to the worker and remained available, and the worker had a reasonable opportunity and obligation to attempt the proffered duties.

With respect to the level of the worker's disability, the advocate noted the dichotomy between the opinions of the WCB medical advisor and the treating neurologist. The advocate placed weight on the December 8, 2020 memo from the WCB medical advisor which summarized his December 3, 2020 discussion with the treating neurologist and the advisor's independent review of the medical reporting. The advocate noted, in particular, that the neurologist admitted to the medical advisor that he had not done a functional assessment to adequately determine the worker's level of function, that the worker's presentation at two call-in examinations at the WCB were not consistent with a finding of total disability, that prior assessments and medical opinions had endorsed a return to work, and that the neurologist's assessment of October 9, 2020 noted a normal examination outside of the subjective complaints and the neurologist had not noted any change in those findings in subsequent reports.

The advocate submitted that the findings of an independent living assessment in December 2020 support the WCB medical advisor's opinion that while the worker may remain symptomatic, there is a base level of functioning that is consistent with a capacity to engage in a graduated return to work program which recognizes his limitations.

The advocate also submitted that reports from the worker's current physiotherapist between February 2021 and dated April 2021, based on a functional assessment of the worker, provide further evidence that the worker remains capable of returning to work in some capacity.

Analysis

The issue before the panel is whether or not the worker is capable of modified duties and a graduated return to work effective August 24, 2020. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker is not capable of participating in modified work duties as of August 24, 2020. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel is satisfied that the worker is not totally disabled, and is capable of modified duties and of commencing a graduated return to work as of August 24, 2020.

The panel notes that the worker suffered several injuries as a result of his January 30, 2019 workplace accident. Information on file indicates that the primary medical issues as at August, 2020, when the worker was said to be capable of a graduated return to work, concerned the worker's continued headaches, blurred vision with light sensitivity and some remaining right shoulder issues. In the course of the hearing, the worker indicated that he is happy with his shoulder, and the worker advisor confirmed that the current concern is "mostly the concussion, the post-concussion syndrome symptoms that are still bothering him."

The panel notes that the modified duties which were communicated to the worker on August 19, 2020 are listed as:

General Description of Duties: 

• Calling customers to update / verify addresses 

• Calling customers to collect ROD payments over the phone 

• Training Recurrency / Safety / SkillSoft) (computer-based work) 

• Gatekeeping duties (checking in and disinfecting equipment, printing courier timecards check sliding clear) 

• General filing and sorting AWBs

Restrictions as outlined by the WCB medical advisor on August 12, 2020, which include restrictions relating to the right shoulder, are:

• Avoid sustained awkward neck postures 

• Avoid work at height 

• No heavy lifting or push/pull with the right arm greater than ten pounds 

• Avoid use of the right arm above shoulder level or outside of the body envelope 

• Commence with half days, to be reviewed after the initial two weeks with plan for gradually progressing the worker hours at modified duties.

The panel reviewed the list of modified duties with the worker at the hearing. While the worker indicated that he was performing some of these duties at the previous trial return to work in September to November 2019, the panel is satisfied that there were differences in these duties. The panel is further satisfied that the duties as listed above are within the worker's restrictions as at August 2020, and were suitable and appropriate.

The evidence shows that the worker made no attempt to return to work in August 2020. The worker had previously stated, and reiterated at the hearing, that he "did not refuse" to return to work, but that he "…told them that my medical professionals and specialists advised me not to go." The panel acknowledges the worker's position in this regard, but is of the view that his failure to participate or attempt to participate in those duties was tantamount to a refusal.

The employer's advocate indicated at the hearing that the return to work is a somewhat fluid process, that the list of duties which was provided was a starting point, and accommodations would be provided according to the progression of a worker. The worker indicated at the hearing that on his previous attempt at the trial return to work in September 2019, he would suggest things that he would try to do, and that his manager did try to accommodate him for the most part. 

Under section 22 of the Act and the Co-operation Policy, the worker is obliged to reasonably participate in any return to work program that the WCB considers necessary and any program the WCB believes will encourage a timely and sustainable return to health and work.

The panel notes that the WCB medical advisors repeatedly make reference to an early return to work being an essential component of the rehabilitation from an injury. In the notes of the worker's call-in examination on March 22, 2019, the WCB medical advisor thus reported that:

I discussed with [the worker] that return to work in a restricted capacity which is both safe and appropriate to the clinical condition has been showed to benefit recovery. The negative health consequences of prolonged absence from occupational activity are often underappreciated.

As it related to concussion, even if symptoms worsen to some degree as a result of return to work (RTW) while symptomatic, and this worsening of symptoms prolongs recovery from concussion to some degree, the risk associated with total disability likely exceeds any risk associated with early RTW and may prolong recovery to a greater degree than that which might be attributed to symptom exacerbation related to RTW. When considered in the context of the known negative health consequences of worklessness, an early RTW while still symptomatic from concussion would nonetheless have a positive risk/benefit profile.

On July 17, 2020, the WCB medical advisor again noted that:

As has been stated previously, time off work and resting at home has been completely ineffective in improving [the worker's] head and neck related symptoms or perceived functional limitations. It has also been previously noted that a return to work duties and the work environment is an essential component of the rehabilitation from injury. 

… 

The reported persistence of a degree of chronic headaches should not preclude return to work.

The panel is satisfied that there is a lack of clinical evidence to support that the worker would not have been capable of attempting a return to modified duties as proposed. The panel is further satisfied that there is no contraindication to an attempted return to work in August 2020. In the circumstances, the panel places little weight on the opinion of the treating neurologist that the worker is unable to return to work in any capacity as of August 24, 2020 and between August 2020 and current.

In conclusion, the panel finds, on a balance of probabilities, that the worker is capable of participating in modified work duties as of August 24, 2020. The panel therefore finds that the worker is capable of modified duties and a graduated return to work effective August 24, 2020.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of April, 2022