The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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 November 3, 2022 to November 25, 2022. A file review was held on June 13, 2023 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period November 3, 2022 to November 25, 2022.

Decision

The worker is entitled to wage loss benefits for the period November 3, 2022 to November 25, 2022.

Background

The worker filed a Worker Incident Report with the WCB on October 31, 2022 reporting an injury to their upper back as the result of an incident at work on October 26, 2022. The worker described attempting to pull an item out of a 300 pound bag when they hurt their upper back. The worker attended for an initial chiropractic assessment on October 27, 2022 indicating pain with repetitive motion and lifting in their mid back and low back areas that worsens when sitting. The chiropractor provided a diagnosis of a thoracic and lumbar spine sprain/strain and recommended light, sedentary duties of lifting limited to 20 pounds, limiting repetitive work of shoulders/arms/mid back movements for 4 weeks. A description of the workplace incident was not provided but a revised report was sent to the WCB on November 7, 2022 that included a description of pull, push and carrying items at work with increased repetition and volume of items. The employer provided an offer of modified duties to the worker, which were accepted on October 28, 2022.

On November 7, 2022, the WCB contacted the worker to discuss this claim. The worker confirmed the mechanism of injury, noting they did a lot of reaching and separating of items, which caused a strain to their upper back. The worker further noted they finished their shift on October 26, 2022 and self-treated that evening with ice. They did not work the following day, sought chiropractic treatment and then reported the injury to their manager. The worker returned to work on October 28, 2022 on light duties at their full hours and noted “It was difficult.” Due to increasing symptoms, the worker sought further medical treatment at a walk-in clinic on November 2, 2022 and was given a note to remain off work on November 3, 2022 and November 4, 2022 and returned to their full regular duties on November 7, 2022. The worker reported currently their back was feeling better and they continued to use pain relievers and muscle relaxants. The worker was advised their claim was accepted.

A Doctor’s First Report for the worker’s attendance at the walk-in clinic on November 2, 2022 was received by the WCB on November 8, 2022. The worker reported their upper back feeling sore and worsening throughout the day on October 26, 2022 after separating heavy items at work. They advised the walk-in clinic nurse practitioner they attended for chiropractic treatment the following day but the treatment did not help and they had been taking over the counter medications since that time. The worker noted they felt pain in their upper middle back area when looking down, with no numbness or tingling sensations and range of motion and strength to limbs reported as normal. On examination, the nurse practitioner found no redness, swelling or deformity, and no signs of muscle wasting in the worker’s shoulder. Range of motion was noted to be full active and passive, biceps tendon and humerus were noted to be normal and no tenderness was found in the glenohumeral joint. The worker’s cervical spine was non-tender on palpitation and range of motion was found to be normal. The worker’s mid-trapezius was found to be tender bilaterally to trigger point upon palpitation but no redness or swelling was noted. A diagnosis of a mid-trapezius strain was provided. The treating nurse practitioner recommended the worker remain off work from November 2, 2022 to November 4, 2022.

Due to experiencing increasing symptoms after returning to work on November 7, 2022, the worker sought further medical treatment on November 9, 2022. The worker reported to the treating physician they had “Recurrent pain with return to work. Attempted to return to work on Nov. 7, 2022. Gradually developed pain in (L) (left) side of upper back again and with radiation to (L) (left) side of neck.” Decreased range of motion, consistent with the previous examination on November 2, 2022 was noted with the treating physician opining “Return to work has aggravated muscle strain injury.” The physician recommended the worker remain off work for 1 week to rest and referred the worker for physiotherapy and massage therapy.

The worker attended for an initial physiotherapy assessment on November 16, 2022. The worker’s complaints were noted to be “…significant central pain to the T4-5-6 region…” on the right, with pain when lifting their arms overhead or deep breathing and coughing. The treating physiotherapist diagnosed “thoracic vertebral restrictions” and a possible dislocated rib but noted the worker was capable of working their regular duties and hours. The worker contacted the WCB on November 17, 2022 to inquire about their wage loss payment and advised they had been given a further medical note to be off work from November 16, 2022 to November 20, 2022. In a further conversation with the WCB on November 18, 2022, the worker advised the employer had offered modified duties but noted they were unable to perform those duties as they involved “…too much repetitive moving, bending, and heavy lifting.” On November 22, 2022, the worker attended for a further physiotherapy appointment and due to increasing and ongoing symptoms, further time off work to December 30, 2022, was recommended for the worker to rest.

On November 23, 2022, the employer contacted the WCB to provide a statement from the worker’s manager regarding the October 26, 2022 workplace accident and to request the WCB investigate why the worker had not returned to work. The employer advised they had modified duties available for the worker and the worker had not provided medical evidence to support why they could not perform the modified duties or return to work. On November 24, 2022, the WCB contacted the worker’s treating physiotherapist to discuss the worker’s claim. The WCB noted on the November 22, 2022 progress report, the physiotherapist indicated the worker was totally disabled. When asked, the physiotherapist confirmed the worker was not totally disabled or bedridden but had been advised that the employer did not have modified duties available. The WCB advised the physiotherapist the employer did in fact have modified duties for the worker, and the worker had been working those duties for a few days before going off work. When asked, the physiotherapist advised restrictions for the worker would include not working overhead and no cervical extension. On the same date, the WCB contacted the worker. The worker advised their treating physiotherapist had told them not to return to work on November 22, 2022 but in speaking with them today, they had discussed possibly returning to work for 4 hours per day on modified duties. The worker advised the WCB the modified duties offered by the employer were causing them a lot of pain as they involved lots of lifting, bending and moving around and they were considering giving their notice to the employer. During a follow-up telephone call on November 25, 2022, the worker confirmed they would be submitting their resignation to the employer that day. The employer confirmed on November 28, 2022, the worker had provided them with a resignation letter on November 25, 2022.

The WCB provided the worker with a formal decision letter on November 28, 2022 advising their entitlement to wage loss benefits ended on November 25, 2022 with their resignation of employment with the employer. On November 29, 2022, the WCB provided the employer with a decision letter advising the worker was entitled to wage loss benefits for the period November 3, 2022 to November 25, 2022.

The employer’s representative requested reconsideration of the WCB’s decision to pay the worker wage loss benefits for the period November 3, 2022 to November 25, 2022 to Review Office on December 15, 2022. The representative submitted the worker had been performing the modified duties offered by the employer from October 28, 2022 to November 2, 2022, with no change to those duties after that time. The representative also submitted that during the period from October 28, 2022 to November 2, 2022 the worker was seen performing her regular duties because she did not like the modified duties assigned. The employer directed the worker to perform the modified duties not her regular duties. Further, the representative noted the medical evidence did not support the worker was totally disabled and the employer continued to have suitable modified duties, which the worker had been performing, available for the worker.

On March 2, 2023, Review Office determined the worker was entitled to wage loss benefits for the period of November 3, 2022 to November 25, 2022. Review Office found the evidence on the worker’s file noted the worker returned to work on November 7, 2022, performing their regular duties but experienced a flare-up of their upper back symptoms on November 9, 2022 and required further time off work to rest. Review Office further found that the modified duties initially offered by the employer were suitable however, due to the worker’s ongoing difficulties, Review Office accepted the medical evidence supported those modified duties were no longer suitable as the worker did not progress in their recovery and was unable to return to work. Review Office accepted the worker resigned from their employer and as such, wage loss benefits were payable up to and including November 25, 2022.

The employer’s representative filed an appeal with the Appeal Commission on April 14, 2023 and a file review was arranged.

Reasons

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.

The WCB has established Board Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) which provides that 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.” In determining a worker’s ability to perform suitable work, the policy requires that the WCB “…compare the worker’s compensable medical restrictions and capabilities to the demands of the work.”

Employer’s Position

The employer’s position is that the worker should not be entitled to wage loss benefits for November 3, 2022 to November 25, 2022 as there is evidence of the employer’s offer of modified work duties that aligned with the worker’s accident-related physical restrictions. As such the worker should not have experienced any loss of earning capacity from November 3, 2022 to November 25, 2022.

The employer’s representative submitted the worker had been performing the modified duties offered by the employer from October 28, 2022 to November 2, 2022, with no change to those duties after that time. The representative also submitted that during the period from October 28, 2022 to November 2, 2022 the worker was seen performing her regular duties because she did not like the modified duties assigned. The employer directed the worker to perform the modified duties not her regular duties. Further, the representative noted the medical evidence did not support the worker was totally disabled and the employer continued to have suitable modified duties, which the worker had been performing, available for the worker.

In sum, the employer’s position is that the evidence does not support a determination that the worker is entitled to wage loss benefits in respect of the period at issue as the worker could engage in modified work and the employer had offered modified duties available to the worker through the period of time in question.

Worker’s Position

The Worker did not participate in the appeal.

Analysis

The issue for determination on this appeal is whether or not the worker is entitled to wage loss benefits for the period November 3, 2022 to November 25, 2022. The panel considered the issue under appeal as outlined in the reasons that follow.

Is the worker entitled to wage loss benefits for the period November 3, 2022 to November 25, 2022?

For the employer’s appeal on this question to succeed the Panel would have to determine that the worker did not sustain a loss of earning capacity from November 3, 2022 to November 25, 2022 arising out of the compensable workplace injury. The Panel was unable to make such a finding for the reasons that follow.

In considering this question, the Panel first considered the offer of modified work made by the employer on October 28, 2022. The Panel noted that the employer maintained the same offer of modified duties to the worker following the workplace accident notwithstanding the worker experienced a continuing aggravation of symptoms and was ultimately forced to take subsequent time off. The worker attempted modified duties beginning on October 28, 2022 and by November 2, 2022 their symptoms had aggravated such that they were forced to take further time off as indicated by their doctor. On November 7, 2022 the worker attempted to return to full duties and by November 9, 2022 was again required by their doctor to take further time off due to the aggravation of symptoms. 

The employer raised a concern regarding the worker attempting regular duties, when they should have been performing modified duties between October 28, 2022 and November 2, 2022. With respect to this position, the Panel noted that given the changing-nature of the worker’s diagnosis, as set out below, it is not possible to know whether the worker’s symptoms were aggravated over this period of time because the modified duties were not in fact appropriate for her injury or because the worker was performing their regular duties, as alleged by the employer. The Panel notes that the worker made multiple attempts to return to their duties each of which were unsuccessful as it resulted in an aggravation of the worker’s symptoms. It is the Panel’s opinion that the worker was in the acute phase of their injury, and was still seeking treatment for the injury, which verified that there was an on-going need for coverage as the injury continued. The injury had not resolved itself at the time of her resignation.

The Panel also considered the evidence as to the worker’s medical and functional status to determine whether the modified duties offered were appropriate. The medical reporting confirms that as of January 3, 2023, approximately 10 weeks post-accident, the worker continued with their physiotherapy and continued to report pain with lifting of the worker’s right arm overhead. This suggests that it is possible that the worker’s injury was more than just a back strain as indicated in the worker’s Chiropractor First Report of October 27, 2022.

The Panel is not satisfied that the modified work offered by the employer beginning on October 28, 2022 was “suitable” with respect to the worker’s injury. While the proposed duties were within the capabilities of the worker as assessed at that time the diagnosis provided to the worker went from trapezius strain on November 2, 2022 to thoracic vertebral restrictions with potential rib dislocation on November 16, 2022 and then to a positive root sign of C5C6 with referred pain to the right thoracic region and irritation of the long thoracic nerve by November 22, 2022. In sum, in the Panel's opinion the changing-nature of the worker’s diagnosis made it difficult for the worker's medical team to determine what modified duties the worker would in fact be capable of performing. For example, notwithstanding the revised diagnosis of November 16, 2022 of thoracic vertebral restrictions with potential rib dislocation, the worker’s physiotherapist indicated that she was able to return to regular duties and hours.

We are therefore satisfied on the basis of the evidence before us and on the standard of a balance of probabilities, the modified duties offered by the employer were not suitable and as such, the worker continued to sustain a loss of earning capacity during that period such that they are entitled to full wage loss benefits.

The employer’s appeal on the question before the panel is therefore denied.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Smith - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of June, 2023