Decision #119/22 - 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 for the period of January 14, 2022 to January 23, 2022. A videoconference hearing was held on October 20, 2022 to consider the employer's appeal.
Whether or not the worker is entitled to wage loss benefits for the period of January 14, 2022 to January 23, 2022.
The worker is entitled to wage loss benefits for the period of January 14, 2022 to January 23, 2022.
The employer provided an Employer’s Incident Report to the WCB on December 29, 2021, indicating the worker injured their back from an incident at work on December 28, 2021 when they slipped off the bumper of a vehicle and fell. The worker submitted a Worker Incident Report to the WCB on January 4, 2022 noting they fell twice at work on December 28, 2021, causing injury to the right back and shoulder/neck area. The worker described the first incident as occurring when they slipped on a slippery surface and the second incident when their foot got caught between the hood and bumper of their vehicle, causing them to fall.
The worker sought medical treatment on December 30, 2021 reporting a painful stiff back and right hip after two falls at work on December 28, 2021. The treating physician noted decreased range of motion in the worker’s low back and neck with a tender right sacroiliac joint area and tight trapezius and provided a diagnosis of back and left hip strain, recommending the worker rest and remain off work. The physician completed a Physical Assessment Report indicating the worker was not capable of returning to work and would be reassessed in a week. At follow-up with the physician on January 6, 2022, the worker reported continued back pain and spasms. The physician recommended further time off work and physiotherapy.
The WCB accepted the worker’s claim on January 10, 2022. On the same date, the worker attended further follow-up with the treating physician reporting back pain and stiffness. The physician noted decreased range of motion in the worker’s back, some paraspinal tightness and a negative straight leg raise test. The physician recorded that the worker was starting physiotherapy on January 13, 2022 and completed a doctor’s note setting out that the worker was to remain off work due to a low back injury and would be reassessed on January 17, 2022.
The employer provided a Modified Work Offer to the worker on January 10, 2022 with sedentary office duties available. The worker accepted the modified work offer, adding a note providing they would do so when their doctor approved.
When the WCB spoke with the worker regarding their claim on January 12, 2022, the worker confirmed the scheduled initial physiotherapy assessment on January 13, 2022 and that they had a further appointment with their physician on January 17, 2022. The worker advised that they felt 75% recovered from the workplace accident and were progressing well. The worker also confirmed they had no issues with their back prior to the December 28, 2021 workplace accident.
The WCB received the Physiotherapy Initial Report from January 13, 2022 on January 20, 2022. The physiotherapist diagnosed back sprain/strain and recommended work restrictions of no driving greater than four hours, no lifting/pulling/pushing greater than 25 pounds and rest stops as needed. At follow-up on January 17, 2022 the treating physician noted paravertebral muscle spasms, mostly on the right side and recommended continued time off work, providing a further doctor’s note indicating the worker should remain off work until January 26, 2022.
On January 20, 2022, the employer advised the WCB of the offer of modified duties and that the worker had refused those duties. When the WCB spoke with the worker on January 21, 2022 to discuss the offer of modified duties, the case manager advised that the restrictions provided by the treating physiotherapist permitted sedentary duties which were considered suitable. The worker advised that their physician recommended they remain off work until January 26, 2022; however, the worker understood that modified duties were available, and would return to work on January 24, 2022. The WCB advised the employer on January 21, 2022 that the worker would return to work on January 24, 2022.
The WCB received a Progress Report from the treating physician on January 25, 2022, noting the worker complained of low back pain stiffness, slightly worse on the right side but the spasms were better now. The physician recommended continuing with modified duties. On February 4, 2022, the treating physiotherapist cleared the worker to return to their full, regular duties. Due to increasing symptoms, the worker was placed on reduced working hours on February 17, 2022, to resume full regular duties again on March 9, 2022. On February 25, 2022, the worker retired from their employment.
On April 4, 2022, the employer’s representative requested reconsideration by Review Office of the WCB’s decision to pay the worker wage loss benefits from January 14, 2022 to January 23, 2022. The representative submitted that the worker was cleared to return to work on modified duties on January 13, 2022; however, due to a delay in reviewing the file, the WCB did not facilitate the return-to-work process until January 20, 2022; therefore, the worker’s wage loss during the period from January 14, 2022 to January 23, 2022 should not be accepted.
On May 31, 2022, Review Office upheld the WCB’s decision that the worker was entitled to wage loss benefits from January 14, 2022 to January 23, 2022. Review Office noted the treating physiotherapist’s report providing the worker’s restrictions was received by the WCB on January 20, 2022 at which time a return to work was arranged. Review Office found that once the appropriate medical information supporting the return to work was received by the WCB, the WCB acted promptly and advised the employer of same. As such, the worker was entitled to wage loss benefits from January 14, 2022 to January 23, 2022.
The employer’s representative filed an appeal with the Appeal Commission and a hearing was arranged for October 20, 2022.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act ("the Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker 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. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Section 22(1) places an onus upon the worker to mitigate the effect of their injury, as follows:
Every worker must
(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and
(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.
The employer was represented in the hearing by an advocate who made submissions on behalf of the employer and provided answers to questions posed by members of the appeal panel.
The employer’s position is that the worker should not be entitled to wage loss benefits for the period of January 14, 2022 – January 23, 2022 as there is evidence that the employer had appropriate sedentary duties available for the worker, with an offer of accommodation made on January 10, 2022 and as such the worker should not have experienced any loss of earning capacity.
The employer’s advocate noted that based upon the January 13, 2022 physiotherapy assessment, the worker was capable of sedentary duties. Once the worker had been assessed by the physiotherapist as capable of a return to work with modified duties, the worker should have done so based upon the employer’s January 10, 2022 offer of such duties as provided to the worker on that date and to the WCB on January 11, 2022.
The employer’s advocate submitted that the worker’s return to work was delayed by the WCB not following up to obtain the physiotherapy report on a timely basis, noting there was no follow up until January 20, 2022 and that the WCB did not follow up with the worker until January 21, 2022. The employer’s advocate stated that in providing wage loss benefits to the worker during this period, the WCB is penalizing the employer for its own delay.
The employer’s advocate confirmed that during the period in question, the worker would have been scheduled to work on January 14 and January 17-21.
The worker did not participate in the appeal.
The question on appeal is focused on the worker’s entitlement to wage loss benefits for the period of January 14 – 23, 2022. For the employer’s appeal to succeed the panel would have to determine that the worker did not sustain a loss of earning capacity during this period, arising out of the compensable workplace injury of December 28, 2021 and as such is not entitled to wage loss benefits. As detailed in the reasons that follow, the panel was not able to make such a finding and the employer’s appeal is therefore denied.
The chronology of events at the outset of this claim is not in dispute. The worker sustained an injury to their left hip and back arising out of two separate falls on December 28, 2021, both arising out of and in the course of employment. The worker reported the incidents to the employer on the same date and to the WCB on December 29, 2021.
The file evidence confirms that the worker first sought medical attention from their family physician on December 30, 2021, who recommended the worker remain off work with follow up scheduled to take place on January 6, 2022. On January 6, 2022, the physician referred the worker to physiotherapy and again recommended the worker remain off work, to be reassessed on January 13, 2022. In fact, the worker was reassessed on January 10, 2022 and the physician again indicated the worker was not capable of alternate or modified work, with follow-up scheduled for January 17, 2022. On January 17, 2022 the physician assessed the worker again, ordering an x-ray and stated the worker was not capable of alternate or modified work, to return to follow-up on January 26, 2022. On January 25, 2022 the physician again assessed the worker and noted them to be capable of “modified duties at the office if this work is available”.
The report from the treating physiotherapist, dated January 20, 2022 indicates that the worker was first assessed by the physiotherapist on January 13, 2022. The physiotherapist provided a diagnosis of back sprain/strain and stated the worker was capable of alternate or modified work, with restrictions of no driving in excess of 4 hours, no lifting/pulling/pushing over 25 pounds and rest stops as needed. The physiotherapist recommended twice weekly treatment for 8 weeks.
The panel noted that the employer made a formal offer of modified work to the worker on January 10, 2022 for duties of answering the phone, computer work, filing and “any other office duty that [the worker] maybe able to do.” The worker signed the offer indicating acceptance but noting “when Dr. approves”. On January 11, 2022 the employer advised the WCB that the worker had medical clearance to remain off work until January 17, 2022 and that the worker had accepted the modified work offer “pending medical clearance”. The signed offer was provided to the WCB with this communication. In their response of January 12, 2022, the WCB adjudicator noted that “restrictions have not been provided by the doctor at this time for light/sedentary duties so it is not expected that the worker return until those are provided.” On January 18, 2022 the employer notified the WCB adjudicator that the worker’s treating physician had provided a further note keeping the worker out of work until January 26, 2022, and noting the physician was made aware of the modified work offer.
Just prior to the first physiotherapy assessment, the worker spoke with the WCB adjudicator on January 12, 2022 and indicated some concerns with return to work for reasons unrelated to the claim. At that time, the adjudicator indicated that they could facilitate the return to work if needed and would follow up with the worker after the physiotherapy assessment report was received. On January 20, 2022, the WCB adjudicator received the physiotherapy assessment report and contacted the employer to inquire whether the employer could make an offer of modified duties to the worker on the basis of the restrictions contained in that report. The employer advised the WCB that an offer of modified duties was made to the worker but they did not accept the offer and requested that the worker’s wage loss benefits be adjusted based on the worker’s “fitness to work as of January 21, 2022”. On January 21, 2022 the WCB adjudicator contacted the worker to confirm that modified duties were available and suitable, noting the worker’s responsibility to mitigate the effects of their injury includes participation in the return to work. The worker advised that their physician had stated they were to remain off work until January 26, 2022 and that they understood they needed a note from the physician to provide to the employer before a return to work. The WCB adjudicator confirmed that was not necessary and the worker agreed to return to work on January 24, 2022.
The panel considered the employer’s submission that the worker, being aware of the availability of modified duties as of January 10, 2022, should have returned to work as soon as cleared by the physiotherapist to do so. In other words, the employer submits the worker was capable of a return to work on modified duties as of January 14, 2022 and therefore the worker did not have any injury-related reason for a loss of earning capacity beyond that date. The panel noted that the worker understood that they required medical clearance from the treating physician in order to return to work, as outlined in their January 21, 2022 conversation with the WCB adjudicator and that when the adjudicator confirmed this was not the case, the worker agreed to return to work on the next scheduled workday, being January 24, 2022. The panel does not find it unreasonable that the worker would have relied upon the advice of their treating physician who was managing the worker’s care on a regular basis following the injury and who had indicated on January 17, 2022 that the worker was to remain off work until reassessed on January 26, 2022. The panel considered that the physician was aware at that time that physiotherapy was ongoing, and that the employer had modified duties available.
The panel further noted that on accepting the worker’s claim on January 12, 2022, the WCB advised the worker to “Follow your healthcare provider’s treatment plan and attend all of your medical appointments” and to “reasonably participate in their recovery and return to work.” There is no evidence here to support a finding that the worker failed to mitigate the effects of their injury by unreasonably delaying their return to work on modified duties.
The panel also noted that when the WCB adjudicator received the physiotherapy report outlining the worker’s capabilities in respect of modified duties on January 20, 2022, they followed up with the employer the same day and by the next day had facilitated the return to work. While the physiotherapy report could conceivably have been submitted sooner, we do not find there to be any undue delay by the WCB in responding to the information when received.
Taking into account the totality of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker did sustain a loss of earning capacity from January 14 – 23 as a result of their compensable workplace injury of December 28, 2021 and therefore the worker is entitled to wage loss benefits for that period. The employer’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of December, 2022