Decision #103/00 - Type: Workers Compensation
An Appeal Panel hearing was held on October 19, 2000, at the request of the employer. The Panel discussed this appeal on October 19, 2000.
Whether or not the claimant is entitled to wage loss benefits from June 15, 1999 to the date she returned to work on July 12, 1999.
That the claimant was entitled to wage loss benefits from June 15, 1999 to the date she returned to work on July 12, 1999.
On June 23, 1999, the claimant submitted an application for compensation benefits indicating that she was handling parcels of different weights and sizes and sorting them to their respective monotainers. The parcel volume was high and she was working alone. The claimant stated that she began having pain in her left hand and thumb as she was sorting parcels. The injury date was recorded as May 25, 1999, and was reported to the employer on June 9, 1999. The claimant indicated that she felt the pain would go away but over a two week period the pain became worse and she sought medical advice.
A Doctor's First Report dated June 10, 1999, diagnosed the claimant's condition as left thumb and hand tendonitis secondary to repetitive strain. A second Doctor's First Report dated June 24, 1999, diagnosed the claimant's condition as de Quervain's tenosynovitis.
In a letter dated June 21, 1999, the employer confirmed that the claimant reported symptoms to her left hand and thumb on June 9, 1999. The claimant indicated that her symptoms began on May 25, 1999 without any specific accident or incident to explain the onset of symptoms or how these symptoms were related to her employment duties. Despite the origin of symptoms, the employer indicated that the claimant was offered modified duties both verbally by her supervisor and in writing. To date, the claimant had not returned to the modified duties that were offered to her. Attached with the submission were the following documents:
- A green card completed by the claimant dated June 9;
- A written statement of injury completed by the claimant on June 15;
- The supervisor's written statement completed on June 16 which stated that the claimant was verbally offered modified duties and was asked to discuss the duties with her doctor.
- A written offer of modified duties provided to the claimant on June 14 and completed by the attending physician on June 17; and
- An OFA completed by the attending physician.
On June 29, 1999, the employer submitted statements from the claimant's immediate supervisor as well as the supervisor that witnessed the verbal and specific offer of modified duties. The employer noted that the claimant was specifically offered modified duties performing light letter mail sortation with her unaffected right dominant hand and that several other modified duty options were also available with the use of only one hand. The employer noted that the claimant had not returned to the workplace to perform either her regular duty or the offer of modified duty. The employer indicated that the claimant had been absent from the workplace since June 11.
A statement dated July 8, 1999 was obtained from the claimant. The claimant described the work duties which led to her left wrist difficulties. The claimant advised that after seeing a doctor on June 8th she went to work and filled out a green card and that when she handed it to the supervisor, light or modified duties were not offered to her. The claimant indicated that when she saw her family physician on June 10, she was told that she had tendonitis and was told to stay off work and to attend physiotherapy.
The claimant indicated that on June 14, 1999, her supervisor asked her to come down to work and fill out some forms. After completing the forms on June 15, 1999, the supervisor suggested that she speak to her doctor about sorting letters with her right hand. She would have to hold them between her body and her left wrist as opposed to using her left hand. The claimant said that at no time did her supervisor ever provide her with any type of work that was strictly using her right hand only. The claimant indicated that she brought this to her doctor's attention and was told that the modified or light duties that were suggested were not acceptable as they all involved the use of her left hand.
The claimant indicated that her left wrist and thumb are improving and that she wears a wrist brace at all times. When last seen by her doctor on July 5, 1999, it was suggested that she try to return to work at modified duties full time on July 12, 1999.
In a statement dated July 28, 1999, the claimant's supervisor indicated that on June 9, 1999, the claimant completed a green card and no light duties were offered at this time as it did not appear that the claimant would be off work. It did not appear to be too serious at the time and the claimant was vague in her description of her injury/accident. She returned to work on the 10th and completed her shift. No mention was made of any ongoing complaints. On June 11th the claimant did not show up for work. The normal procedure was to call in however no message was left at the PIC line. The operations manager then sent out a letter on Monday morning (June 14, 1999) regarding the claimant's absence from work and a written offer of modified duties was given. When the claimant called in to explain her situation she was instructed to come in to complete a SAIR (Supervisor's Accident Investigation Report). After the SAIR report was completed, a verbal offer was made for light duties not involving the use of her left hand. The supervisor indicated that he also demonstrated how this task could be achieved. The claimant responded by saying she was concerned how she would hold the mail while sorting. He advised her that she could cradle the mail under her left forearm.
After considering all the evidence, it was determined by Rehabilitation and Compensation Services on August 6, 1999, that a relationship between the development of the claimant's left hand tenosynovitis and the mechanisms of the work activities had been established. The claim was accepted as a WCB responsibility. It was also determined that there was no objective clinical evidence to support the claimant's inability to perform the modified duties that were offered to her on June 15, 1999. As a result, the claimant was advised that she was not entitled to wage loss benefits after June 15, 1999, in respect of the work related accident.
On November 17, 1999, a submission was received from a union representative who contended that the modified duties offered by the employer were not suitable for the claimant to return to work on June 16, 1999. The union representative requested Review Office to reconsider the previous decision and to take into account medical evidence provided by the attending physician dated November 3, 1999.
On November 3, 1999, the attending physician noted that the claimant was examined on June 17, 1999 and she was unable to use her left hand at all. The physician stated that the claimant presented and showed her the duties of a mail sorter using her left hand. This would entail holding a bundle of letters in the left hand that weighed at times a few pounds, and using the right hand only to sort these letters into cases. A bundle of larger letters would be supported on the left forearm with a fair amount of pressure from the weight of the larger envelopes on the inflamed forearm flexors. The physician indicated that these tasks would be extremely difficult for her to perform simply using one hand. The physician believed the claimant would be at risk of developing tendonitis with the right forearm and wrist due to the fact that she would be over compensating for the left and would inevitably be performing the same duties in a chronic repetitive nature.
A submission was received from the employer dated January 25, 2000. The employer concluded that the objective medical evidence did not support total disability and that the claimant could have participated in performing modified duties. The employer supported the adjudicative decision to limit wage loss entitlement as noted in the August 6, 1999 decision.
On March 17, 2000, the Review Office determined that the claimant was entitled to payment of wage loss benefits from June 15, 1999 to the date she returned to work on July 12, 1999. Review Office concluded that the modified duties offered to the claimant and as demonstrated by her supervisor were not suitable for to the claimant to return to work on June 16, 1999 and this was supported by the medical report received from the claimant's attending physician.
On June 19, 2000, the employer appealed Review Office's decision that the claimant was entitled to wage loss benefits and an oral hearing was convened.
There was no argument in this case as to the acceptability of the claim. The compensable injury suffered on May 25, 1999 and reported on June 9, 1999 is accepted by both parties. The key issue in determining this appeal was whether or not the alternative/modified duties offered by the employer to the claimant were duties which she could perform, given the injury.
As noted above, on June 15, the claimant went to the workplace for the purpose of filling in some forms relevant to her WCB claim. After completing those forms, her supervisor briefly discussed with her some modified duties which he felt she would be able to perform, without affecting her injured left hand. The claimant's immediate reaction was to state that she did not think she could do this job without using her left hand. The supervisor demonstrated how she might do this job and asked her to discuss these duties with her doctor.
In her testimony before the Panel, the claimant stated that, while she had sorted mail in the past, it was a long time ago and she was not at all familiar with how the job is done today. She stated that she assumed that the general practice would be similar. In her mind, that meant holding fairly large bundles of letters in her left hand, while she sorted them with her right. It was under this assumption that she described the proposed sorting duties to her doctor on June 17, 1999. At that time, her doctor signed the employer's form stating that she (the doctor) disagreed with the proposal that the claimant was capable of performing the modified duties.
The doctor had prescribed a fairly aggressive course of physiotherapy and acupuncture for the claimant, with no immediate return to the repetitive tasks associated with the claimant's regular job or the proposed modified duties. This treatment was ultimately successful, as the claimant was able to return to work by July 12, 1999; and she reports that she has not had any recurrence of the problem with her left hand and wrist.
In his testimony before the Panel, the claimant's supervisor described his recollection of the events when he discussed modified duties with the claimant. He believed that what he was proposing as modified duties was quite reasonable, that these duties - the lightest job in the plant - would not adversely affect the claimant's hand. He also believed that the claimant was aware of what the proposed task entailed and, further, that she was aware that she could perform this task using only her right hand, if she desired.
The Panel concludes that the weight of the evidence presented to us supports - on a balance of probabilities - that the claimant was not able to perform the duties, as she understood them to be, and is, therefore, entitled to wage loss benefits for the period in question.
In coming to this decision, we found the testimony of both the claimant and her supervisor to be credible. We conclude, however, that there was a lack of proper communication between the supervisor and the claimant and between the employer and the claimant.
In explaining the proposed duties to the claimant, the supervisor did so in his office. The claimant had never been in the area where sorting takes place and, thus, was unfamiliar with the space and the nature of the work. We also note that the supervisor was aware of the claimant's reticence to do the job as required, as he had described it, but did not take any further steps, such as a visit to the workplace to deal with the claimant's concerns.
In its letter offering modified duties to the claimant, the employer was not at all clear in what it was proposing. The letter listed a number of possible modified tasks, but did not specify what was proposed for the claimant. Nor did the letter make clear that the claimant could perform the task using only her right hand.
Based on this unclear communication, we find that claimant had a reasonable apprehension about the task proposed for her. We find that it was not unreasonable for her to hold such a position. Further based on this, her doctor concluded that to perform such tasks would delay her recovery and recommended that the claimant stay off work until July 12.
We note WCB Policy 43.20.20, which states that it is inappropriate to place a worker into modified duties unless it is established that this supports the worker's overall long-term rehabilitation. Given that the only medical evidence presented in this case was that of the claimant's doctor, which recommended against modified duties, we conclude - on a balance of probabilities - that the claimant was right in declining to work during the period in question.
Therefore, the employer's appeal is denied.
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of October, 2000