Decision #77/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits beyond January 25, 2019 and his average earnings are correct. A videoconference hearing was held on January 25, 2022 to consider the worker's appeal.
1. Whether or not the worker is entitled to wage loss and medical aid benefits after January 25, 2019; and
2. Whether or not the worker's average earnings have been correctly calculated.
1. The worker is not entitled to wage loss and medical aid benefits after January 25, 2019; and
2. The worker's average earnings have been correctly calculated.
The WCB received an Employer's Incident Report on October 3, 2018, reporting the worker injured his chest at work the previous day, when he tripped on a scaffold rack and fell while carrying a heavy item which then landed on his chest. The worker was taken to a local nursing station and examined by a nurse practitioner, who noted the worker's complaints of pain with deep breathing, laughing, coughing and twisting of his torso. The nurse practitioner reported findings of a 3 cm abrasion to the worker's right lateral chest wall, no subcutaneous emphysema or crepitus, and clear chest and air testing. The nurse practitioner diagnosed the worker with a chest wall contusion, and recommended light duties and that the worker follow-up with his own physician.
On October 9, 2018, the worker attended a walk-in clinic, where he reported having injured his right ribs at work a week earlier, when he was walking backwards and tripped and the item he was carrying poked into his ribs, resulting in pain with movement and breathing. The treating physician noted the worker's chest was "clear, good air entry, no distress, has fading bruise along anterior lower rib cage," and that the worker's anterior lower rib cage was tender to palpation. An x-ray was taken of the worker's anterior right rib cage, which showed a normal result, and the physician diagnosed the worker with a rib contusion and recommended light duties for one week. On October 11, 2018, the WCB advised the worker that his claim was accepted.
On October 22, 2018, the WCB spoke with the worker to gather further information regarding his claim. The worker confirmed the mechanism of injury and noted his ribs were feeling "…slightly better but most movements still elicit pain." The worker further advised that his treating physician had recommended light duties, but his employer had advised there were no suitable light duties available and he had not returned to work.
The worker spoke with the WCB again on October 31, 2018, and advised he had not been contacted by the employer regarding returning to work. As the worker indicated he was attending a follow-up appointment with the treating physician the next day, the WCB requested he discuss updated capabilities with the physician. The worker further advised the WCB that he had forgotten to mention that he had landed on his tailbone when he fell on October 2, 2018, and had a "…sharp pain that went away pretty quick, but now it comes every once in a while with certain movements" and he was concerned that the pain had not gone away yet. The worker also advised the WCB he had concerns with how his wage loss payments would be calculated due to issues from a previous WCB claim, and he was advised to speak to a WCB payment assessor for further information.
On November 6, 2018, the worker was seen for a follow-up appointment with the treating physician. The worker reported that he fell back and landed on his tailbone at the same time as he injured his ribs at work. He advised the physician that his rib still hurt but felt better; that he did not have constant pain, but had "…sharp pain getting out of bed…pain in tailbone and lower back." On examination, the treating physician noted tenderness in the sacral area and mild tenderness on the worker's tailbone, with normal range of motion and some discomfort in the back, and mild tenderness on the right lateral rib cage, but no bruising or swelling. An x-ray of the worker's sacrum and coccyx showed no fractures, and the physician diagnosed the worker with a rib strain and lower back strain. The physician recommended a graduated return to work and that the worker avoid heavy lifting, carrying and repetitive movement for two weeks. On November 7, 2018, the WCB advised the employer of the worker's restrictions.
On November 12, 2018, the worker was seen by a sports medicine physician, who placed the worker off work for two weeks and referred the worker for physiotherapy. On November 16, 2018, the employer advised that they could accommodate the worker within the restrictions the WCB had provided on November 7, 2018.
On November 19, 2018, the worker attended an initial physiotherapy assessment. After examining the worker and noting his complaint of constant aching in the right lower back/pelvis area with intermittent sharp pain, the physiotherapist diagnosed the worker with a sacroiliac joint sprain and recommended restrictions of no lifting greater than 20 pounds; no prolonged positioning for greater than 20 minutes; and no repetitive forward bending.
On November 26, 2018, the worker attended a follow-up appointment with the treating sports medicine physician, who provided restrictions of unable to lift, push, pull, bend, twist, kneel, crawl, stoop, sit or stand without being able to rest for pain as needed. On November 30, 2018, the WCB received a report from the worker's treating physiotherapist noting abnormal pain behaviours and requesting the WCB have the worker attend for a call-in examination.
On November 30, 2018, the worker provided the WCB with a copy of his paystub and spoke with a WCB sector manager. The worker requested his benefit rate be reviewed based on the wage information he provided. The WCB sector manager advised the worker that the information provided would be sent to a WCB payment assessor for review. The worker further advised that his treating sports medicine physician had recommended he slow down and discontinue physiotherapy treatment, but he continued to attend for treatment as his physiotherapist had told him his WCB benefits might be affected if he stopped attending. The worker also indicated that he would be willing to attend a call-in examination at the WCB. On December 3, 2018, the worker's benefit rate was reviewed by a WCB payment assessor and an adjustment was issued.
On January 3, 2019, the worker attended a call-in examination with a WCB medical advisor. Following his examination of the worker, the medical advisor opined that based on the initially reported mechanism of injury, the initial diagnosis was a chest contusion. The medical advisor further opined that while the reported mechanism of injury could potentially have accounted for a back injury, the evidence for this was less compelling. The medical advisor noted that the worker did not seek further medical attention until one week after the workplace accident, at which time there was no report of a significant injury aside from the chest injury, and it was not until the worker submitted a Worker Incident Report on December 6, 2018, that he indicated a low back injury.
The WCB medical advisor further opined that the worker's current diagnosis was non-specific low back pain, with the significant possibility of an "…underlying, non-injury-related condition." The medical advisor opined that the worker's current diagnosis was not medically accounted for in relation to the workplace accident, noting the typical natural history for a sprain/strain or contusion injury was for gradual recovery over several days to several weeks, and it was now three months post-accident with no significant evidence of improvement.
On January 18, 2019, the WCB spoke to the worker and advised that they were unable to accept responsibility for any further wage loss or medical expenses associated with his claim beyond January 25, 2019. By letter dated January 21, 2019, the WCB confirmed that advice, noting that the claim was accepted for a right rib injury only based on the worker's reports, and there was no mention of a back or tailbone injury in the month following the incident. The WCB confirmed that they had determined he should have recovered from the effects of any rib injuries that occurred at work on October 2, 2018 and that no responsibility was accepted for difficulties with the worker's back or tailbone.
On March 15, 2019, the WCB was provided with additional information, including a letter from a union representative dated January 24, 2019, indicating the worker's hours and rate of pay for the work with the employer, and a copy of an Incident Investigation Witness Statement dated October 2, 2019 which was completed by the worker. The WCB requested chart notes from the worker's treating healthcare provider which were received on March 27, 2019. On March 28, 2019, the WCB advised the worker that the submitted information had been reviewed, but there would be no change to the decision that he was not entitled to benefits after January 25, 2019 and no responsibility would be accepted for back or tailbone difficulties.
On April 12, 2019, a WCB payment assessor reviewed the worker's average earnings based on the payment information which had been received from the worker's union representative, and an adjustment was made to the worker's average earnings.
On May 7, 2019, the worker requested that Review Office reconsider the WCB's decision to end entitlement to wage loss and medical aid benefits. The worker also requested that Review Office reconsider the calculation of his average earnings. The worker submitted additional information in support of his requests for reconsideration, including copies of the information submitted on March 15, 2019, a February 28, 2019 letter from his treating sports medicine physician, a statement from his superintendent regarding the workplace accident, and a detailed chronology of the events on and after the October 2, 2018, with diagrams of the workplace.
On June 11, 2019, Review Office determined that the worker was not entitled to wage loss and medical aid benefits beyond January 25, 2019, and that his average earnings were correct. Review Office found that the accepted compensable injury as a result of the workplace accident was a chest wall contusion, which had resolved prior to the WCB ending the worker's benefits on January 25, 2019. Review Office found that the evidence did not support that the worker suffered a back or tailbone injury at the time of the accident. With respect to the worker's average earnings, Review Office found that the April 12, 2019 calculation was an accurate reflection of his earning capacity, and that there were no errors in the calculations.
On September 7, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for January 25, 2022.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 19, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies of the WCB's Board of Directors. The Act and regulations in effect on the date of the October 2, 2018 incident are applicable.
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 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
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.
Subsection 45(1) of the Act deals with the calculation of average earnings, and reads in part as follows:
45(1) The board shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just…
Methods for calculating average earnings are set out in WCB Policy 188.8.131.52, Average Earnings (the "Policy"). The Policy directs that in establishing a worker's average earnings under section 45 of the Act, the WCB will use formulas that incorporate regular earnings at the time of accident, average yearly earnings, or probable yearly earning capacity. The Policy stipulates that the WCB will use the formula which best represents the worker's loss of earnings.
"Regular Earnings" are defined in the Policy as:
…the amount of earnings a worker normally receives as remuneration in the occupation(s) in which he or she was employed at the time of injury. Regular earnings are based on the normal payment schedule (daily, weekly, monthly, annually, etc.) converted to a weekly amount…
Regular earnings do not normally include overtime, special reimbursements for employment expenses or bonuses that are not regularly paid.
"Average Yearly Earnings" are defined as including:
…any remuneration that the worker received as a result of employment or employment-insurance benefits. To determine a worker's true loss of earnings, the WCB will generally use documentable employment data from any consecutive 12-month period during the one or two years before the compensable accident. If the WCB determines that this calculation does not produce an accurate reflection of a worker's loss or earnings, it will generally use documentable employment data from a 12-month period during, or an average of, a longer period of up to five years.
"Probable Yearly Earning Capacity" is defined as:
…the worker's projected earnings for the next twelve months. It is based on the worker's regular earnings at the time of accident as applied to the worker's established work pattern. Consistent with section 45 of the Act…, the probable yearly earning capacity must be based on the worker's earnings before the accident, but may be based on "income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just."
The worker was represented by a worker advisor. The worker advisor and the worker made a joint submission at the hearing and responded to questions from the panel.
The worker's position was that he is entitled to wage loss benefits and medical aid beyond January 25, 2019, as he had not yet recovered from the effects of the October 2, 2018 workplace accident, and that he is entitled to an adjustment to his wage loss benefits, as the average earnings as calculated did not reflect his true loss of earnings.
The worker's representative submitted that the evidence shows that the worker not only injured his ribs and chest area, but also his back and tailbone as a result of his workplace accident. The representative noted that the statement the worker provided to the employer on October 2, 2018 confirmed he fell backwards into a seated position at the time of the accident, and experienced pain in his side and back as well as his chest. The representative submitted that such a mechanism of injury is well-known to cause a piriformis muscle injury and tailbone injury. It was submitted that based on the description of the accident, the worker's back and tailbone were areas of contact, and were identified on the Worker Incident Report dated December 5, 2018 as areas the worker injured in his fall.
The worker's representative submitted that the medical evidence also supports that the worker's suffered a back and tailbone injury in the accident, and that this injury was reported to his treatment providers. It was noted that although it was not documented in the initial report from the nurse practitioner he saw on October 2, 2018, the worker stated he reported he injured his tailbone and back when he fell, but the nurse practitioner was primarily focused on the most immediate concern, his breathing and ribs.
It was submitted that on his return home, the worker needed to rest and continued to be physically limited, and given his fatigue, limited mobility and the more acute chest/rib injury, the pain and limitations to his tailbone, back and sacral areas was less apparent initially. The representative noted that there was no evidence of any intervening incident.
The worker's representative noted the worker attended a walk-in clinic on October 9, 2018. In a subsequent letter dated March 4, 2019, the walk-in clinic physician confirmed that the low back and tailbone were injured in the worker's backwards fall, but that he was more concerned with the worker's ribs initially. It was submitted that this shows that the physician was aware of the tailbone and back injury on October 9, 2018, and explains why it was not initially mentioned in his chart note.
The worker's representative submitted that the treating sports medicine physician also confirmed the mechanism of injury of a fall backwards in his October 29, 2019 letter and documented resulting pain to the lumbosacral spine, right sacroiliac joint and piriformis muscle adjacent the right sacroiliac joint. The representative submitted that this was again consistent with the description of the accident and area of contact, and the sports medicine physician opined that the worker had been consistent with his reports of pain predominantly to the right side of his lower back, right sacroiliac joint and right-sided rib pain since the onset of his condition.
The worker's representative noted that the worker also saw a physician with an interest in occupational health medicine on October 17 and November 6, 2019, who opined in December 12, 2019 letter that the worker's current and ongoing complaint was of right sacral pelvic/buttock musculoskeletal pain, primarily due to the right piriformis, and that this was a direct result of the blunt heavy impact when the worker landed in a seated position in his October 2, 2018 work injury.
In summary, the worker's representative submitted that the medical and other evidence supports that a relationship exists between the mechanism of injury as reported on October 2, 2018 and the current diagnosis. The representative submitted that the worker has not recovered from the October 2, 2018 injury and has not been able to return to regular employment, and the WCB is responsible for benefits beyond January 25, 2019.
With respect to the calculation of the worker's average earnings, the worker stated that he believed the amount as calculated by the WCB should have been higher than what it was. The worker submitted that the WCB erred by basing its calculations on his average earnings over the previous five years. He noted that he worked as an apprentice for the first four of those years, and missed time for training and a previous injury. The worker stated that six months prior to his injury, he obtained the highest level of training in his field, as a red seal tradesperson, and the calculation should have been based on his current earnings.
The worker further submitted that the WCB relied on information which was inaccurate and did not reflect what he would have earned on the project going forward. The worker submitted that the WCB should request documentation from the employer with respect to other journeymen who worked the exact same shift as he would have worked to see what they made in the period following his injury.
The worker also submitted that the WCB's average earnings calculation did not reflect or include a retention bonus of 13% which he would have been entitled to under the contract with the employer, and which should automatically been given to him, and did not take into account time and a half or double time for extra hours worked.
Finally, it was submitted that the workers had temporarily accepted to work and were working an alternate schedule with reduced hours at the time he was injured, which was not reflective of what the worker should actually have been earning. The worker submitted that the other workers went back to their normal shift and full hours in early January 2019, which should have been taken into account in the calculation of his average earnings.
The employer was represented by legal counsel and by its project director. The employer's legal counsel provided a written submission in advance of the hearing and made a brief oral submission at the hearing. Counsel and the project director also both responded to questions from the panel.
The employer's position was that they agreed with Review Office's June 11, 2019 decision overall, and were attending the hearing primarily on a watching brief and to answer any questions the panel might have.
Legal counsel advised that they supported that the worker's claim was correctly closed on January 25, 2019, and that there was no error in the calculation of wage loss benefits the worker received, which calculation was based on WCB policies. Accordingly, it was submitted that the appeal on both the worker's entitlement to wage loss benefits past January 25, 2019 and the calculation of the worker's wage loss benefits should be dismissed.
Issue 1: Whether or not the worker is entitled to wage loss and medical aid benefits after January 25, 2019.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer from the effects of his October 2, 2018 workplace accident and injury beyond January 25, 2019. For the reasons that follow, the panel is unable to make that finding.
The worker described the October 2, 2018 incident in detail at the hearing. Based on the description of the incident on file and at the hearing, the panel accepts that the worker may have experienced a more significant fall than was originally thought. The panel finds, however, that there is a lack of evidence to support that the worker suffered a more significant injury than has been accepted on this claim or that he had not recovered from the effects of the workplace incident by the time his benefits ended on January 25, 2019.
The panel notes that early medical information focuses on the worker's rib and chest, and the evidence indicates that the worker fell primarily on his ribs. At the hearing, the worker described how he "smashed my ribs and then landed in a seated position" with the braces of top of him. The worker's claim was accepted for rib/chest contusions. There is no dispute that by the end of 2018, the worker's ribs were no longer sore, and the worker no longer had difficulty breathing or chest wall impairments.
The worker has claimed that he also suffered an injury to his back and tailbone as a result of the October 2, 2018 workplace incident. The panel acknowledges that the worker indicated in the Incident Investigation Witness Statement he completed on October 2, 2018 that he "fell backwards…in a seated position" and that "my ribs and back are in quite a bit of pain and I have a very very sore side and back." The panel notes, however, that there is a lack of any further reference to back or tailbone difficulties in the medical or other evidence on file until October 31, 2018, when the worker told the WCB case manager that "his bruising has improved a lot and he just gets pain with specific twisting movements. He also forgot to mention that when he landed on his tailbone, he had a sharp pain that went away pretty quick, but now it comes every once in a while with certain movements. He is only concerned because it hasn't gone away yet."
The medical reports are similarly silent with respect to a back or tailbone issue until November 6, 2018, when the worker advised his treating physician that he also fell back and landed on his tailbone on October 2, 2018 and had "pain in tailbone and lower back." The physician noted findings of "tender sacral and mild tender on tailbone. ROM [range of motion] is normal with some discomfort in back. "
The panel has difficulty understanding how a back or tailbone injury would not have manifested itself until five or six weeks after the workplace incident. The panel is of the view that while such a delay in reporting or seeking medical attention for a back or tailbone injury or difficulties is in itself not fatal in this case, it cannot be ignored.
The panel further notes that there is a significant increase in the worker's reported symptoms between October 31, 2018 when the worker indicated that he was only concerned because the pain with certain movements had not gone away yet, and November 19, 2018 when the worker attended an initial assessment with the physiotherapist and described his pain as being 10 out of 10. The panel notes that there is a lack of any explanation as to why there would have been such a further dramatic or significant increase in the worker's symptoms over such a relatively short additional period of time.
The panel acknowledges the references to various subsequent medical reports, where it is indicated that the worker's back difficulties had been reported earlier, or were consistently reported, but is unable to place weight on such reports, and prefers the evidence that is close in time to the workplace accident as being more reliable.
The panel notes that a number of different diagnoses were queried in the various medical reports with respect to the worker's back and tailbone difficulties, with some of them being essentially ruled out with further testing, and no specific diagnosis for the worker's difficulties being identified.
The panel finds that in the absence of a specific diagnosis which could be weighed and considered in terms of its connection with the October 2, 2018 workplace incident, we are unable to find that the worker's ongoing difficulties are related to that incident.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not continue to suffer from the effects of his October 2, 2018 workplace accident and injury beyond January 25, 2019. The panel therefore finds that the worker is not entitled to wage loss and medical aid benefits after January 25, 2019.
The worker's appeal on this issue is dismissed.
Issue 2: Whether or not the worker's average earnings have been correctly calculated.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the method used by the WCB to establish the worker's average earnings did not best represent the worker's actual loss of earnings or that the worker's average earnings were incorrectly calculated. For the reasons that follow, the panel is unable to make these findings.
As indicated previously, the Policy directs that the method to be used to estimate a worker's average earnings will be based on the formula that best represents the worker's actual loss of earnings.
While the worker argued that his average earnings were calculated based on the previous five years of employment, the evidence indicates that this was not the case. Rather, the average earnings were calculated using the probable yearly earnings formula, to determine the worker's projected earnings based on his actual earnings at the time of the accident, extending back to when he earned his Red Seal. The details of that calculation were set out in the WCB's May 9, 2019 letter to the worker, where it was noted that the WCB took into account the actual earnings from the employer starting in mid-March 2018, when the worker received his Red Seal.
The panel is satisfied that the WCB's use of the probable yearly earnings formula to establish the worker's average earnings best reflected the worker's earning capacity, and recognized the change in his circumstances when he received his Red Seal.
The panel is further satisfied that use of the alternate formulas of regular earnings at the time of the accident or average yearly earnings would not have been appropriate in this case.
The panel is also satisfied that the worker's average earnings were correctly calculated in accordance with the probable yearly earning capacity formula. While the worker argued that the WCB's calculation did not include the 13% retention bonus to which he would have been entitled, the evidence indicates that the retention bonus was paid on the regular paycheck, and was therefore included in the average earnings calculation which was based on the worker's paycheck. The panel notes that payments for time and a half and double time were also indicated on the paychecks and thus included in the average earnings calculation.
The worker further argued that he was working on the alternate schedule with reduced hours at the time he was injured, which was not reflective of what he should actually have been earning. In response to questions from the panel, the employer's representative advised that the alternate schedule or rotation started in May or June 2018, depending on the crew, and lasted until the workers came back to work in January 2019, at which time they returned to the regular rotation. The employer's representative acknowledged that the period of time the worker was on the alternate rotation would have resulted in a lower earning potential than prior to May 2018.
The panel notes that the worker's earnings from mid-March 2018 to the date of accident reflected the two rotation schedules, where the worker was on a regular rotation for part of the time and the alternate rotation for part of the time. In the circumstances, the panel is satisfied that the calculation of the worker's probable yearly earning capacity based on the worker's actual earnings, including earnings on the regular rotation and the alternate rotation, represented an accurate estimate of the worker's earning capacity through to January 25, 2019.
Based on the foregoing, the panel finds, on a balance of probabilities, that the method used by the WCB to establish the worker's average earnings best represented the worker's actual loss of earnings and that the worker's average earnings were not incorrectly calculated. The panel therefore finds that the worker's average earnings have been correctly calculated.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of July, 2022