The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits beyond April 16, 2021. A hearing was held on May 24, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 16, 2021.

Decision

The worker is entitled to wage loss benefits after April 16, 2021.

Background

On February 3, 2021, the worker filed a Worker Incident Report with the WCB, reporting an injury to his lower back that occurred at work on January 28, 2021 and was reported to his employer the same day. The worker stated that he slipped twice while working on a roof, once in the morning and once in the afternoon, then experienced discomfort in his back. The worker noted the pain persisted over the following weekend and he sought medical treatment on February 1, 2021.

The worker was seen by his treating family physician on February 1, 2021, and reported falling while on a roof carrying heavy plywood and experiencing pain in his lower back, limited mobility, pain with bumps in the road, and pain more with sitting, standing and walking, with no radiation to his legs. The physician examined the worker and found he had limited mobility, especially flexion, a tender lumbar region and normal neurologic examination. An x-ray of the lumbar spine taken that day noted mild facet arthropathy at the L4-5 and L5-S1 region, with no fractures being identified. The physician diagnosed the worker with a muscular strain.

The worker contacted the WCB on February 4, 2021 to discuss his claim. The worker confirmed the mechanism of injury, noting he slipped while on a roof on January 28, 2021 and by the end of his shift, was having discomfort in his back. The following day, he went into the office at work and reported the injury. The worker noted he worked his shift that day but was having difficulty performing some of his job duties and mentioned his difficulties to a co-worker. The pain did not improve over the weekend while he was not working, and the following Monday, the worker drove into work and advised he was seeking medical. The worker advised his treating physician prescribed muscle relaxant medication and told him to rest and remain off work for the rest of the week. The worker noted he was still experiencing pain, worse when driving, and could only sit for about 10 minutes. With respect to modified duties, the worker noted he received a telephone call asking if he had a computer, and he said no. A union representative then contacted the worker saying it had been reported he refused modified duties, but the worker advised he did not, that he said he did not have a computer and was not aware he was being asked to do safety training on a computer. The WCB advised the worker his claim was accepted.

On February 8, 2021, the worker attended a follow-up appointment with his treating family physician, noting ongoing pain in his lower back, limited mobility, increased pain with walking and standing, and an inability to climb a ladder. The physician found the worker's range of motion was limited due to pain, and mild tenderness in his lower back. Restrictions of sedentary work, no lifting, pushing or pulling, and no ladders were recommended for a duration of 3 to 4 weeks. The WCB provided the restrictions to the employer on February 9, 2021.

On February 9, 2021, the employer filed an Employer's Accident Report with the WCB. The employer noted the worker had advised his supervisor on January 28, 2021 that he was experiencing some back discomfort, but did not report a specific incident that occurred, just noted the roof surface was slippery. The employer further noted the worker completed his shift that day and the following day, without incident or report of worsening pain, then advised the employer on February 1, 2021 that he was seeking medical treatment because of ongoing pain. The employer also noted the worker reported feeling sharp pain in his back when moving and cutting plywood on January 28, 2021, which was not mentioned in the worker's report to the WCB. The employer advised that modified duties were verbally offered to the worker on January 28, 2021 after he reported his back difficulties, to prevent worsening of symptoms, then a formal offer of modified duties was made after the worker sought medical treatment. It was noted the worker was cleared to return to work on February 8, 2021, but the employer had advised all workers not to come to work that day due to extreme cold.

The worker attended an initial physiotherapy assessment on February 11, 2021, reporting lower back pain and decreased range of motion after slipping and falling 3 times over a period of 3 days. Decreased flexion and extension were noted on testing, and the physiotherapist diagnosed the worker with a right sacroiliac strain with nerve compression and queried a disc protrusion. On February 23, 2021, the worker contacted the WCB to provide an update. The worker advised he had been off work since February 11, 2021 due to ongoing difficulties and pain. The worker noted he worked for 4 days from February 8 to 11, 2021 performing modified duties while outside in cold weather. The worker advised he was unable to stand outside in cold temperatures, and his treating family physician had told him this was one of his restrictions. The WCB reviewed the medical information and advised that this was not a restriction that had been indicated. The worker noted he was experiencing low back pain on February 11, 2021 at a level of 8/10, which had remained at that level since then, and he had been pretty much bed ridden since going off work.

The WCB received a medical chart note from the worker's family physician with respect to a virtual appointment on February 22, 2021, where it was noted that due to ongoing back pain, the worker was unable to stand or walk for any distance, and was therefore not able to work. A referral was made for an MRI of the worker's lumbosacral spine. The worker underwent the lumbar spine MRI on March 5, 2021, which showed "Multilevel degenerative changes…No significant spinal canal narrowing. Disc material approaches the bases of the L5 nerve roots bilaterally at L4-L5."

At a follow-up appointment with the family physician on March 8, 2021, the worker's restrictions were updated to include no long time standing in cold weather, less walking, no stairs, no ladders, no kneeling or bending, pushing or pulling or carrying more than 10 pounds. The WCB provided the updated restrictions to the employer on March 10, 2021. The worker returned to work on March 24, 2021 with further updated restrictions of no lifting greater than 10 pounds, no pulling greater than 25 pounds, and no stairs or ladders.

On March 29, 2021, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's current diagnosis was a disc protrusion at the L4-L5 level, which was medically accounted for in relation to the workplace accident. The medical advisor further noted that the February 1, 2021 x-ray and March 5, 2021 MRI indicated multilevel degenerative changes, which were likely contributing to a delay in recovery from the compensable injury, and noted the pre-existing degenerative changes were anatomically adjacent and intimate to the L4-L5 disc protrusion. Recommended restrictions were limiting repetitive weighted bending or twisting of the low back; limiting lifting or carrying to 10 pounds; limiting pushing or pulling to 25 pounds; avoiding ladder climbing; and limiting prolonged sitting or standing with the ability to take micro breaks, to be reviewed in 2 to 4 weeks. It was noted that the medical evidence on file did not support a restriction in relation to cold exposure. On March 31, 2021, the updated restrictions were provided to the employer.

On April 22, 2021, the worker left a voicemail message with his WCB case manager, advising he had been off work all week due to ongoing back difficulties. In another message left with his case manager on April 30, 2021, the worker advised he had been off work since April 16, 2021 and was awaiting an appointment with a specialist. On May 3, 2021, the WCB case manager spoke to the worker to gather further information. The worker advised he had been working 5 shifts of 10 hours long of modified duties when he returned to work, and his back had stayed much the same, but may have become worse after the stair climbing restriction was removed. After his shift on April 16, 2021, he noticed worsening symptoms in his back, and contacted the employer the following Monday to advise of his difficulties, then texted them a few times, but no one from work contacted him back. The worker advised that since being off work, his symptoms were worse at night, but he had not sought any medical treatment.

On May 4, 2021, the worker attended an appointment with a sports medicine physician. On examining the worker, the physician noted mild pain on extension, tilt pain in the worker's lumbar spine, a negative slump test with pain radiating to the worker's right leg and slight radiation to the left calf during straight leg raise testing. The sports medicine physician diagnosed the worker with a lumbar disc protrusion and recommended continued physiotherapy. The physician noted the worker was capable of working modified duties.

On May 8, 2021, the worker contacted the WCB and left a voicemail message advising he was feeling a lot better and would be returning to work on May 10, 2021.

On May 12, 2021, the WCB received a physiotherapy progress report for an April 12, 2021 appointment. It was noted that the worker had reported worsening pain and decreased range of motion, and the physiotherapist noted findings of decreased active range of motion, decreased flexion and positive straight leg raise and slump testing. The physiotherapist recommended continued restrictions for a further two weeks. In a further follow-up report from May 3, 2021, the physiotherapist noted the worker's report of being unable to sit/stand or walk for longer than 5 minutes without tingling/radiating to both his legs. Active range of motion and other testing was noted to be the same as before. The physiotherapist indicated that as the worker stated he was unable to sit or stand for longer than 5 minutes without increased pain, she was unable to determine when the worker was able to return to his regular duties.

On May 14, 2021, the employer advised the WCB by email that the worker had not returned to work and had not contacted them. In a discussion with the WCB on May 25, 2021, the worker advised he had experienced worsening symptoms since his May 12, 2021 message but had not sought further medical treatment or physiotherapy or been in contact with the employer.

On June 2, 2021, the worker's file was again reviewed by the WCB medical advisor. The medical advisor opined that the medical information on file did not clearly document a specific deterioration/ worsening of the worker's low back symptoms, and noted that "Individuals with discogenic low back pain will have periods of low back pain with improvement of symptoms." The medical advisor noted that it was anticipated that the symptoms would show improvement over a period of 3 to 6 months. The medical advisor noted the worker's treating physiotherapist indicated on May 3, 2021 that the worker's recovery was not satisfactory but did not note a clear reason for this, given the symptoms appeared to be following the natural progression of recovery. Restrictions of limiting prolonged sitting or standing with the ability to take micro breaks and limiting lifting or carrying to 5 pounds were recommended, to be reviewed in 2 to 4 weeks.

On June 3, 2021, the WCB spoke with the employer. The employer confirmed the modified duties they arranged for the worker did not involve any lifting other than a possible 5 to 20 pounds, which could be done by another person, if required. The employer advised they had been attempting to contact the worker but had been unable to reach him. On the same date, the WCB advised the worker he was not entitled to wage loss benefits after April 16, 2021. The WCB noted that the worker had returned to modified work on March 24, 2021 and continued to April 16, 2021, but had not returned to work since then. The WCB noted the employer had offered suitable accommodated duties, and the medical evidence on file did not confirm a deterioration in his condition which would support an inability to continue working modified duties.

On June 28, 2021, the worker requested that Review Office reconsider the WCB's decision. In his submission, the worker noted the employer did not follow the restrictions set out by his treating healthcare providers, which led to an increase in his low back symptoms and the worker going off work.

On August 24, 2021, Review Office determined that the worker was not entitled to further wage loss benefits. Review Office found the worker did not fulfill his responsibilities to mitigate his loss of earning capacity or need for medical treatment. Review Office further found the medical evidence on file did not support the worker's low back difficulties worsened or that the worker was unable to perform the modified duties offered by the employer. Review Office therefore found that the worker was not entitled to further wage loss benefits as of April 16, 2021, when he went off work.

The worker appealed the Review Office decision to the Appeal Commission on November 29, 2022, and an oral hearing was arranged.

Reasons

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 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.

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. The Policy describes suitable modified or alternate work 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. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

WCB Policy 44.10.30.60, 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.

Section B of the Co-operation and Mitigation Policy notes, with respect to the WCB Responsibilities, the WCB must assist the injured worker in mitigating the effects of a workplace injury by help to identify and address impediments to the worker's safe return to health and work, and must advise the worker of the possible consequences of a failure to comply with section 22 and his or her responsibilities under the Policy, including the suspension of compensation.

Worker's Position

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 did not return to work after April 16, 2021 because the employer was not following the work restrictions which had been provided as a result of his compensable injury, and is entitled to wage loss benefits for his loss of earning capacity beyond that date.

The worker noted that he had returned to work on March 24, 2021 with restrictions which included walking, sitting and standing time limits. For the first several days, he was located at the south end of the building, which was close to the washroom and other conveniences, and he was provided with a chair. The employer subsequently moved him to a different location at the far north end of the building, which was further away from these conveniences, and he had to walk a distance of approximately 1200 yards several times a day to go to the washroom, the lunch room or the break room. In addition, although he managed to find a chair the first morning he was there, the chair disappeared when he went for lunch that day, leaving him without a place to sit. He went up on the roof a few times, where work was being done, but had to stand the whole time while up there, and his back continued to get worse.

The worker said he told his supervisor at sign-out on Friday, April 16, 2021 that he might not be coming back as his back was getting worse. On April 19, 2021, he phoned the office and advised that he was not going to come back.

On April 22, 2021, the worker called the WCB and left a voicemail message advising that he had been off work all week due to his back, but the WCB did not contact him after that until May 3, 2021. When the case manager got back to him and asked what was going on, he indicated that there was a problem with the work restrictions which included that he was not able to sit, not having been provided with a chair, and they involved extra walking.

In conclusion, the worker submitted that he had a right to refuse to perform the modified duties the employer had offered where the employer was not following his restrictions, and his appeal should be granted.

Employer's Position

The employer was represented by its Corporate Safety and Compliance Manager, who participated in the hearing by videoconference.

The employer's position was that they agreed with the Review Office decision that the worker is not entitled to wage loss benefits after April 16, 2021, and the worker's appeal should be dismissed.

The employer's representative noted they took no position with respect to the medical information on file, and deferred to the WCB who made any decisions on pre-existing issues, current issues, and whether the worker was capable doing modified work or regular work. The representative noted he did not have the ability to go back and forth with respect to conversations involving specific individuals on job sites or specific days. He submitted that issues or concerns they had as an employer were raised and addressed with the WCB through the claim itself, and they did not have much to add beyond what was likely probably already on the record.

The representative submitted that the employer had modified duties in place, which were offered to the worker, but he removed himself from the modified duties and his employment on April 16, 2021 when he told them he would not be coming back to work. The representative stated that the worker's claim was essentially handed off to the WCB after that, to be managed by the WCB going forward. The representative noted that the claim was allowed as a sprain-strain injury, which usually has a 6 to 8 week recovery period, and discussions with the case manager after April 16, 2021 primarily related to issues such as the status and duration of the claim and any updated medical information which the WCB received.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after April 16, 2021. 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 April 16, 2021 as a result of his January 28, 2021 workplace accident. The panel is able to make that finding, for the reasons that follow.

The worker has an accepted claim for a low back injury. The employer's representative indicated the claim was accepted as a sprain-strain injury which would typically have a 6 to 8 week recovery period. The panel notes, however, that on March 29, 2021, the worker's file was reviewed by a WCB medical advisor, who opined that the worker's current diagnosis was a disc protrusion at the L4-L5 level, which was medically accounted for in relation to the workplace accident, and a disc protrusion at the L4-L5 was accepted as a compensable diagnosis as per the medical advisor's opinion. The panel understands that this is a more significant injury, with a typically longer recovery period as noted by the WCB medical advisor.

The worker has indicated he went off work on April 16, 2021 as the employer was not complying with the restrictions that were regularly being provided with respect to his compensable injury. The worker indicated that as a result, his symptoms were not improving, or perhaps getting worse. The worker said he asked his foreman a couple of times if he could be transferred back to the south side, which would have reduced the walking he was required to do.

The worker confirmed at the hearing that he spoke to his foreman on Friday, April 16, 2021, indicating that he might not be back at work, and to the employer's office on Monday, April 19, 2021. In response to questions at the hearing, the worker said that he told both of them that he was not coming back to work unless the employer followed his restrictions, but the employer did not get back to him to indicate that they were going to accommodate him in any way. The worker noted that he never said he was never coming back. He did not attempt to contact the employer again after that, however, as he did not think he should have to in the circumstances and had left it in their court.

Information on file indicates the worker also initiated contact with his WCB case manager by leaving a voicemail message on April 22, 2021, advising that he had been off work all week due to his back, but the WCB did not contact him until May 3, 2021. The worker indicated at the hearing that when finally he spoke with the case manager, he told her the employer was refusing to follow the work restrictions. The panel notes that this does not appear to be referred to in the memorandum to file of that conversation.

Regardless of that, the panel would have expected that the WCB would have sought further information or clarification from the worker as to why he was off work, including inquiring into the suitability of the duties the worker was performing when he went off work. This is particularly so, given notes to file dated April 30 and May 3, 2021 indicate that the employer had advised the WCB case manager that they were unsure why the worker was off work and that they would be checking with the foreman.

The panel notes that the Return to Work Policy provides that the WCB will become involved when there is a dispute between an employer and worker with respect to modified duties and a return to work. In this situation, the panel would again have expected the WCB to take steps to pursue this matter further, and to sit down with the parties and sort out what was happening.

In conclusion, based on our review the evidence and the submissions of the parties, the panel is of the view that there was an almost total breakdown in communications. In the circumstances, the panel is not satisfied that the evidence establishes that the worker refused to participate in suitable work. As a result, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond April 16, 2021 as a result of his January 28, 2021 workplace accident. The panel therefore finds that the worker is entitled to wage loss benefits after April 16, 2021.

The worker's appeal is allowed.

Panel Members

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 21st day of July, 2023