Decision #124/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits beyond June 17, 2019. A teleconference hearing was held on October 19, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after June 17, 2019.
The worker is entitled to wage loss benefits after June 17, 2019.
On May 28, 2019, the worker filed a Worker Incident Report with the WCB, reporting an injury to his right shoulder as the result of an incident at work on May 23, 2019. The worker advised he was unloading bags, weighing approximately 40 kilograms, and when he grabbed a bag then went to put it down, he felt a tear that "…sounded like a rip or tear in my shoulder." The worker noted he did not have any shoulder pain prior to the incident.
On May 27, 2019, the worker sought medical treatment from his family physician. The worker reported complaints of right shoulder pain that increased with movement. On examination, the physician recorded tenderness over the worker's right anterior shoulder and biceps tendon, decreased range of motion, and pain with flexion and all movements. The physician diagnosed the worker with a right shoulder strain with impingement, and recommended rest and physiotherapy.
The worker attended an initial physiotherapy assessment on May 29, 2019, reporting constant throbbing and sharp shooting pain in his right shoulder, with numbness and tingling, and the feeling of no strength in his arm. The physiotherapist noted all movements were limited by pain and weakness, found tenderness over the biceps tendons, and queried a bicep vs. rotator cuff strain/sprain.
The employer provided the WCB with the Employer's Accident Report on May 28, 2019. On June 5, 2019, the WCB spoke with the employer, who noted the worker had not reported the incident to them and had not been in contact since he left work on May 23, 2019. On June 10, 2019, the WCB spoke with the worker, who advised he was unloading bags of concrete at approximately 11:00 am when the incident occurred but that he did not think anything of it until around 4:00 pm that day, when he felt increasing symptoms and advised his supervisor he had injured his shoulder and was leaving for the day. The worker advised the WCB he delayed seeking medical treatment as he was waiting to see his family physician. The worker further advised that he had not been in contact with the employer as he was following his physician's advice to rest and remain off work.
On June 11, 2019, the WCB spoke with some of the worker's coworkers who were working when the May 23, 2019 incident occurred. The coworkers advised they did not witness the incident, but the worker had been unloading bags that day, and he reported to one coworker that he had hurt his shoulder. Also on June 11, 2019, the employer confirmed that the worker would have been moving bags of cement to a trailer as they were moving job sites that day. The employer further confirmed they had one-handed modified duties available for the worker as of June 12, 2019. The WCB advised the worker that his claim was accepted and that the employer had modified duties available starting June 12, 2019.
On June 17, 2019, the worker contacted the WCB to advise his shoulder was sore and he would not be attending work that day, but would be seeking medical treatment. The WCB received a report from the worker's treating physician that same day, which noted no change to the worker's complaints, and recorded findings of tenderness and decreased range of motion. The physician continued to recommend physiotherapy and to note the worker was capable of modified duties.
On June 18, 2019, the employer advised the WCB that the worker did not show up for work or call in that day. On June 19, 2019, the employer advised the WCB that the worker had called in to indicate his shoulder was too sore to work that day. On June 19, 2019, the WCB advised the worker that as his treating family physician confirmed he was capable of modified duties and his employer had modified duties available for him, he was not entitled to wage loss benefits after June 17, 2019.
A June 25, 2019 report from the worker's family physician recorded the worker's complaints of no improvement in symptoms, with the pain now travelling into his neck. The physician referred the worker to a sports medicine physician and recommended physiotherapy. It was noted that the worker continued to be able to work modified duties.
On July 29, 2019, the WCB received a physiotherapy discharge report based on the worker's appointment on June 21, 2019, which noted the worker's reporting of minimal improvement, constant sharp throbbing, shooting pain in his right shoulder, and numbness and tingling. The physiotherapist noted all movements in the right shoulder were limited by pain, tenderness and muscle atrophy to the anterior deltoid. The physiotherapist further noted the worker was working sedentary duties and was discharged from treatment as he was no longer attending physiotherapy.
At an August 1, 2019 follow-up appointment, the worker's family physician referred the worker for an MRI to rule out a rotator cuff injury. In a discussion with the WCB on August 8, 2019, the worker's family physician confirmed the worker was fit for modified duties consisting of sedentary/desk duties.
On August 9, 2019, the employer requested reconsideration of the WCB's decision to accept the worker's claim. The employer noted the worker had not reported an incident to the employer and had not sought medical treatment until four days after the alleged incident on May 23, 2019. The employer noted a shoulder impingement, as reported on the worker's file, was often a degenerative condition, and questioned whether the worker had a pre-existing condition and whether his shoulder difficulties were related to his employment.
On August 20, 2019, the worker underwent an MRI of his right shoulder, which showed a "High-grade partial articular tear at the insertional supraspinatus tendon. There is also articular tearing of the non insertional supraspinatus tendon and is not entirely certain if these are in fact in communication with one another" and "Mild acromioclavicular joint osteoarthritis."
On August 22, 2019, the worker requested that Review Office reconsider the WCB's decision to end his entitlement to wage loss benefits. The worker submitted that due to symptoms of headache, neck ache and shoulder pain, he could not work even the modified duties after the incident. The worker further advised he had been seen by a specialist who noted he had a pinched nerve in his neck.
On August 28, 2019, the WCB received a copy of the August 21, 2019 report from the worker's appointment with the sports medicine physician. The sports medicine physician examined the worker and found positive Spurlings and impingement tests, and diagnosed the worker with cervical radicular pain and rotator cuff tear/strain. The physician recommended a pain injection for the worker, which was given at that appointment.
On September 4, 2019, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's diagnosis with respect to the May 23, 2019 workplace accident was a right shoulder strain, with a natural history of recovery within four to six weeks. Based on the medical information on file, the WCB medical advisor opined that the worker's current diagnosis was of a "…possible cervical nerve root irritation and right shoulder degenerative supraspinatus tendinosis with partial tearing."
The WCB medical advisor went on to opine that the medical evidence did not support the worker's current presentation was medically related to the workplace accident. With respect to the right shoulder, the medical advisor noted that immediate and severe symptoms would be anticipated following a tear, not initially minor symptoms which worsened five hours later. The WCB medical advisor further noted the medical reporting indicated the worker had near full right shoulder range of motion less than one month after the accident, and opined that the right supraspinatus tear was not likely medically accounted for in respect of the May 23, 2019 workplace activities.
With respect to the neck, the WCB medical advisor noted that the first mention of the neck and pain going into the neck was in the June 25, 2019 physician's report, over one month after the accident. The medical advisor also opined that the mechanism of injury would not likely result in any cervical spine structural lesions and was not medically accounted for in respect of the workplace activities.
On September 5, 2019, the WCB advised the worker that based on an additional review of his file, they were unable to accept further responsibility for his claim, and that there was no change to the decision he was not entitled to further wage loss benefits.
On November 22, 2019, Review Office determined that the worker's claim was acceptable and there was no entitlement to wage loss benefits beyond June 17, 2019. Review Office accepted and relied on the opinion of the WCB medical advisor that the worker's compensable injury with respect to the workplace accident was a strain injury. Review Office noted that the treating medical professionals were unanimous that the worker was capable of working modified duties, and determined that the worker's loss of earning capacity ended when the employer demonstrated they were capable of accommodating his restrictions.
On June 6, 2022, the worker filed an appeal with the Appeal Commission and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. 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) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 22(1) of the Act provides that every worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, and co-operate with the WCB in developing and implementing programs for returning to work, rehabilitation or disability management.
Subsection 39(2) of the Act states 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 (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.
WCB Policy 18.104.22.168, Co-operation and Mitigation in Recovery (the "Co-operation and Mitigation Policy"), elaborates on the responsibilities of workers and the WCB in ensuring compliance with section 22 of the Act. The Policy notes 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, including by participating reasonably in their return to work, rehabilitation, disability management and other programs.
The worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that he continued to suffer from the effects of his workplace accident after June 17, 2019 and is entitled to wage loss benefits beyond that date.
The worker noted that there was initially some confusion as to whether the claim was accepted and whether his position with the employer was terminated. The claim was ultimately accepted, and he was told that he was to report to work for light duties on Wednesday, June 12, 2019. He did report for work that day, and worked from June 12 to June 14, 2019. The worker noted the duties he was performing, however, were not light duties, but involved working in the office, carrying boxes and unloading filing cabinets and all kinds of manual tasks.
The worker stated that he was in agony and not sleeping well over the weekend, so he went back to see his doctor who told him he should stay home if he felt he was not fit for duty and was in pain and having headaches. The worker said he followed his doctor's advice, then all of sudden his benefits were cut off. The worker said he did not abandon his work, but phoned in each day to let the employer know he was not coming in that day. The worker noted his employment was terminated a week later, after which he did not have a job to go back to. The worker indicated that he has been struggling and has continued to suffer from his workplace injury since then.
The employer was represented by an advocate, who made a submission at the hearing and responded to questions from the panel.
The employer's representative advised that the employer agreed with the WCB and Review Office decisions, and was requesting that those decisions be upheld.
The representative noted that they were not challenging the validity of the accident or whether the claim was acceptable. The employer believed, however, that the worker was no longer suffering the effects of the workplace accident or a loss of earning capacity as a result of the accident by the date his wage loss benefits ended.
The representative submitted that the medical evidence showed the worker was fit for modified duties. The employer confirmed they could accommodate the worker and made modified duties available for him. The worker returned to work on modified duties on June 12, 2019, and completed three days of light duties, then stopped and did not return to work after that. Updated medical evidence confirmed, however, that the worker remained capable of working modified duties with the same restrictions as before. The representative submitted that the worker essentially abandoned his job, and that there was therefore no ongoing loss of earning capacity beyond June 17, 2019, and his appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after June 17, 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond June 17, 2019 as a result of his May 23, 2019 workplace incident and injury. The panel is able to make that finding, for the reasons that follow.
The panel notes that the worker's claim has been accepted for a right shoulder strain. The panel is satisfied that the medical evidence indicates that the worker continued to have restrictions and had not materially recovered from his compensable injury by June 18, 2019, when his benefits were ended, or by June 24, 2019, when his employment was terminated.
The panel must therefore consider the worker's actions within the context of the Act, and in particular, the worker's duty under section 22 of the Act to participate and co-operate in his return to work, given that loss of earnings benefits are payable to an injured worker provided he is co-operating in a return to work.
Based on our review of the evidence, the panel is not satisfied that the worker failed or refused to reasonably participate or co-operate in the return to work process.
The evidence shows that the worker was told his claim was accepted on June 11, 2019, and that he was to return to work on June 12, 2019 for modified duties. The worker attended at work and worked on modified duties for the rest of the week, from June 12 to June 14, 2019. Then, on June 17, 2019, he called both the WCB and the employer to advise that he would not be at work that day and was going to see a doctor.
Information on file shows that the worker or his spouse called the employer each day between Monday, June 17 and Friday, June 21, and on Monday, June 24, 2019 to advise that the worker would not be into work as his shoulder was too sore to work or he was not feeling well.
The WCB spoke to the worker on June 18, 2019 to complete a Worker Assessment form. It is noted on that form that the worker indicated he did not return to work that day or call in, and the WCB told him he needed to contact the employer immediately. File information indicates that the worker did contact the employer that day, as advised. The notes on the form do not indicate that the worker was warned or advised that in the circumstances, if he did not return to work, given his employer had modified duties available and his doctor said he was fit for modified duties, he would be in violation of the Act or Policy and his wage loss benefits could be terminated.
The Co-operation and Mitigation Policy sets out various responsibilities of the WCB, which include that the WCB must advise an injured worker of their responsibilities under section 22 of the Act and Policy, and explain what those responsibilities mean in the individual circumstances of the worker's claim. They must also advise the worker of the possible consequences of a failure to comply with section 22 and their responsibilities, including the reduction or suspension of compensation. The Policy also provides that before reducing or suspending the worker's compensation, the WCB will provide the worker with a reasonable opportunity to comply with their obligations. The panel is not satisfied that this occurred in this case.
In this regard, the panel notes that by letter dated June 18, 2019, the WCB advised the worker that he was not entitled to wage loss benefits after June 17, 2019. The panel notes that while the letter is dated June 18, 2019, it appears from information on file that it was not sent until at least June 19, 2019, and it is unclear whether the worker would have even received that letter by the time his employment was terminated by the employer.
The worker has indicated he was following the advice of his physician in not going to work when his shoulder was too sore or he did not feel fit to work. It is not clear whether the worker would have attended at work, or what he would have done, if he had been provided with further information or guidance with respect to the return to work process and the possible consequences of not returning to work in this situation. In any event, the panel is not satisfied that a failure to attend for modified duties in the circumstances, after one or two days' absence, constitutes a refusal to participate or co-operate meriting an immediate termination of wage loss benefits without notice.
The evidence shows that the worker's employment was then terminated by the employer on Monday, June 24, 2019, in part for the stated reason of failing to report for work. The panel notes that once the worker's employment was terminated, he no longer had a reasonable ability or opportunity to mitigate the effects of his compensable injury or loss of earning capacity.
The panel acknowledges that it is not the function of the Appeal Commission or this panel to determine whether the termination of the worker's employment was justified or appropriate. The panel is limited to reviewing the facts of the case to determine whether the worker's loss of earning capacity was causally related to his May 23, 2019 workplace accident.
In the circumstances, the panel is unable to find that the worker's actions or conduct were of such a nature or extent as to frustrate the return to work process or break the chain of causation between the worker's compensable injury and his loss of earning capacity. The panel is not satisfied, therefore, that the worker contravened or failed to comply with his obligations under that process. Accordingly, the panel is satisfied that the worker's loss of earning capacity was causally related to his May 23, 2019 workplace accident.
The panel has already found that as of June 17, 2019, the worker had not yet materially recovered from the effects of his workplace accident. After the termination of his employment, the worker was therefore at a disadvantage in terms of being able to seek alternate employment and earn income at this pre-accident rate or earnings or to mitigate the effects of his compensable injury.
As a result, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond June 17, 2019 as a result of his May 23, 2019 workplace incident and injury. The panel therefore finds that the worker is entitled to wage loss benefits after June 17, 2019, and returns the file to the WCB for further adjudication with respect to the extent of such entitlement.
The worker's appeal is allowed.
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 16th day of December, 2022