Decision #108/22 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to full wage loss benefits for the period of February 13, 2022 to March 21, 2022. A videoconference hearing was held on September 8, 2022 to consider the employer's appeal.
Whether or not the worker is entitled to full wage loss benefits for the period of February 13, 2022 to March 21, 2022.
The worker is entitled to full wage loss benefits for the period of February 13, 2022 to March 21, 2022.
On February 15, 2022, the worker filed a Worker Incident Report with the WCB reporting an injury to his middle back and hands as the result of an incident at work on February 12, 2022. The worker described that as he was walking around a vehicle doing a check "There was black ice and I slipped and fell on the ice onto the ground. I put my hands out to brace the fall and hurt them. I also hurt my back."
The worker sought medical attention at a local emergency department on February 12, 2022. He reported a "…mechanical slip and fall…" at work, falling on his right buttock. He reported he did not hit his head, have a loss of consciousness, vomiting, headache, or any neurological symptoms. He was able to stand up and ambulate immediately after the incident without significant pain, but had experienced worsening symptoms in his right lower back since then, with "dull achy spasms" and no radicular symptoms. The attending emergency physician opined that the worker had "Most likely muscle strain…versus mild SI (sacroiliac) injury." The physician prescribed muscle relaxants, and recommended physiotherapy and five days off work, then a return to duties as tolerated.
The worker attended an initial physiotherapy assessment on February 15, 2022, complaining of severe lower back pain and stiffness. The physiotherapist noted reduced range of motion in the worker's lumbar spine and painful grip in both of the worker's hands. The physiotherapist provided a diagnosis of a lumbar paraspinal strain and bilateral wrist sprain, and recommended the worker remain off work.
On February 18, 2022, the employer provided the WCB with a copy of a February 14, 2022 Modified Work Offer which was signed by the worker, and indicated sedentary office duties to begin February 15, 2022. The employer also provided a copy of a note from the worker's family physician and a Physical Assessment Report dated February 14, 2022, which indicated the worker was not capable of returning to modified duties.
At a follow-up appointment with his family physician on February 19, 2022, the worker reported continued pain, swelling, inability to sit or walk for long, and wrist pain in the snuff box area of his hand. The physician noted findings of tenderness in the snuff box area of the worker's hand and in the worker's right hip, and an antalgic gait with his right leg. The physician recommended continued use of anti-inflammatories, icing, and physiotherapy, as well as further time off work.
In a discussion with the WCB on February 23, 2022, the worker provided details of the medical treatment he had sought. He said the employer had offered modified duties but he had not returned to work due to pain in his back and hand and his physician's recommendation. The worker's claim was accepted by the WCB on the same date.
On February 28, 2022, the employer contacted the WCB to request information on the worker's ability to perform the modified duties that had been offered. The employer noted the medical provided by the worker's treating healthcare providers did not list any restrictions for the worker, and requested the WCB contact the worker's treatment providers for clarification, as the employer believed the sedentary modified duties which were previously offered were acceptable.
On March 17, 2022, the WCB spoke with the worker, who advised he felt his back symptoms were 50% improved but his left hand/wrist pain was 8/10 and his family physician was referring him to a specialist for his wrist.
On March 19, 2022, the worker's family physician provided a Physical Assessment Report, indicating the worker was capable of returning to modified duties, and providing restrictions for the worker, including a maximum of four hours of work per day. On March 31, 2022, the worker confirmed he had returned to work on March 22, 2022, with reduced hours and modified duties as per his restrictions.
On April 4, 2022, the employer's representative requested that Review Office reconsider the WCB's decision that the worker was entitled to full wage loss benefits from February 13 to March 21, 2022. The representative submitted the employer had offered the worker modified work on February 13, 2022, which could have been adjusted as needed for the worker. The employer further submitted there was a lack of objective medical evidence confirming the worker was totally disabled from all types of work for more than four weeks due to a relatively minor incident, and it was reasonable to expect the worker would have been fit for modified duties much sooner than March 21, 2022.
On June 2, 2022, Review Office upheld the WCB's decision and found the worker was entitled to full wage loss benefits from February 13 to March 21, 2022. Review Office acknowledged the employer had modified duties available for the worker, but found the worker was medically unable to participate in the modified work duties during this period of time given his limitations and symptoms.
On June 13, 2022, 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 and policies of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident 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) states 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 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 work with the accident employer. The Policy describes suitable modified or alternate work, in part, 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…
The employer was represented by an advocate, who made a submission at the hearing and responded to questions from members of the panel.
The employer's position was that the worker was not completely disabled from all types of employment from February 19, 2022 to March 21, 2022, and could have returned to modified work sooner if the WCB had acted in a more timely fashion.
The employer's advocate submitted that the employer had sedentary duties available to the worker which could have been adjusted and done at the worker's pace, with rest breaks as needed. These duties were detailed in the Modified Work Offer dated February 14, 2022, and were actually accepted by the worker, but he did not return to work. The advocate noted that after that, the worker saw his doctor, who provided a note saying that the worker was totally disabled from working.
The employer's advocate submitted that there is a lack of objective medical evidence confirming the worker was completely disabled from all types of employment for a period of over four weeks due to a slip and fall incident. The advocate submitted that if the WCB had become involved upfront and reached out to the worker's medical provider closer to the time of the accident to address the actual duties that were available, the worker could have returned to modified work by February 19, 2022, resulting in a reduction in his time loss and wage loss benefits. The advocate therefore asked that the issuance of those benefits be reconsidered.
The worker did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to full wage loss benefits for the period of February 13, 2022 to March 21, 2022. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports the worker was capable of returning to work and performing the modified duties which were offered by the employer during this period of time. The panel is unable to make that finding, for the reasons that follow.
The evidence shows that the employer provided a Modified Work Offer to the worker within a very short time of one or two days after the accident. The employer's advocate acknowledged at the hearing that the worker signed the Modified Work Offer before he saw his family physician, who then provided a medical note and a Physical Assessment Report indicating the worker was totally disabled and unable to return to work on modified duties.
The panel is satisfied that the worker sought medical attention in a timely manner. The worker was first seen by his family physician on February 14, 2022, being two days after the workplace accident. The worker was taken off work by his family physician at that time, and continued to seek treatment from his family physician and treating physiotherapist on a regular basis after that.
While the employer's advocate characterized the worker's injuries as minor, the panel is of the view that the medical and other evidence on file indicates that the worker's injuries were of a more significant nature than that. The panel notes that the medical reports from the treatment providers through to March 19, 2022 documented ongoing symptoms and limitations with respect to the worker's back and both wrists, including limitations with respect to sitting, standing and walking, tenderness and swelling in the worker's back and wrists, and reduced grip strength in both wrists which limited the use of both hands, and that the worker was unable to return to work on modified duties.
The panel finds it was reasonable that the worker remained off work as advised by his treating family physician up until the Physical Assessment Report of March 19, 2022, in which the physician outlined restrictions and indicated the worker could return to work on modified duties and reduced hours. The evidence shows that the worker returned to work on modified duties, with restrictions, as soon as he was cleared to do so by his treating family physician.
The panel notes that the employer's advocate confirmed at the hearing that it was fair to say that their position on the appeal was that the WCB should have acted in a more timely manner, which would have mitigated the time loss. In response to questioning from the panel as to why the worker would not be entitled to benefits in these circumstances, the advocate stated that they were not necessarily asking that the wage loss benefits which the worker received over this period of time be taken back from the worker, noting they did not believe the worker did anything in this case that he was not counseled to do by his doctor.
When it was put to the advocate that cost relief was not an issue on the appeal, the advocate acknowledged that cost relief had not been raised on the file. The advocate went on to state that that they were approaching this matter more on the basis that it "could be an administrative error on the part of WCB for issuing wage loss benefits when they could have done more to mitigate those costs," adding that the employer was not really asking for cost relief, but for "those costs to be removed" from the claim costs.
The panel acknowledges the employer's position, but is satisfied that as questions of cost relief or the removal of costs from the claim file have not been raised previously or considered by initial adjudication or the Review Office, we have no jurisdiction to address such matters at this time.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker was not capable of returning to work and performing the modified duties offered between February 13 and March 21, 2022 as a result of his February 12, 2022 workplace accident. The panel finds that the worker therefore suffered a complete loss of earning capacity, and is entitled to full wage loss benefits for the period of February 13, 2022 to March 21, 2022.
The employer's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of November, 2022