The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 23, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 23, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond February 3, 2000.

Decision

That the claimant is entitled to payment of wage loss benefits beyond February 3, 2000.

Background

During the course of his employment as a meat cutter on February 2, 2000, the claimant indicated that he injured his right shoulder while attempting to place a beef trim into a grinder that was located above his head.

A Doctor's First Report dated February 2, 2000, showed that the claimant's right shoulder condition was diagnosed as bursitis and that the claimant was totally disabled effective February 2, 2000. In a subsequent progress report of February 7, 2000, the physician stated that the claimant was capable of medium work effective February 8, 2000.

On March 1, 2000, a Workers Compensation Board (WCB) adjudicator contacted the claimant by phone for additional information concerning his claim. The claimant indicated that he injured his right shoulder 6 months ago and that his shoulder was fine prior to his shift on February 2, 2000. The claimant stated that he immediately sought treatment on February 2, 2000 and that his doctor advised him to remain totally off work for one week. The claimant said he missed February 3, 4, 5 and 7 from work due to his injury.

In a letter dated March 2, 2000, a Rehabilitation Claims Specialist with the employer indicated that the claimant was transferred to Selkirk from his current job location in Winnipeg. On the date of the alleged accident, the Rehabilitation Claims Specialist indicated that the claimant left the store without taking the necessary return to work package to be completed by his doctor. On Thursday morning, the manager contacted the claimant to advise him that he had modified duties available that did not involve having to use his injured arm. The duties included facing shelves and showing customers to products on the sales floor. The claimant advised the manager that he had a chiropractor appointment at 2:00 p.m. and the manager asked the claimant to come in after the appointment. The claimant later called the manager at 3:00 p.m. to state he was not coming in as he could not drive to Selkirk with one arm. The next day the claimant was scheduled to attend a training seminar at head office which he did. It appeared to the Rehabilitation Claims Specialist that the claimant had the capacity to drive a vehicle as he attended this session.

On March 7, 2000, a WCB adjudicator spoke with the claimant. The claimant said that his wife drove him to and from the seminar on February 4, 2000 and that she could not drive him to work on the dates he missed because she worked. The adjudicator contacted the attending physician by phone on March 8, 2000. The physician stated that it would have been reasonable for the claimant to drive a vehicle as long as it was not a truck. According to the physician, the claimant did not mention light duties.

In correspondence from the employer's Rehabilitation Claims Specialist dated April 3, 2000, it was noted that there was a Beaver Bus that traveled on a regular daily schedule from Winnipeg to Selkirk and back and that the bus stopped approximately block way from the store. It was the employer's position that if the only reason the claimant could not work was because he could not drive, he could have taken the bus to Selkirk.

On April 17, 2000, primary adjudication advised the claimant that the WCB was accepting responsibility for his claim and that benefits would be paid for February 3, 2000 only. Primary adjudication concluded that it was reasonable for the WCB to pay benefits for February 3, 2000 as the claimant did not see his physician until the p.m. of February 3, 2000. As the medical evidence suggested the claimant was capable of driving a vehicle and he proved that he was capable of performing light duties effective February 4, 2000, no benefits would be paid beyond February 3, 2000. On June 19, 2000, a union representative appealed this decision to Review Office stating, in part, the following:

• the claimant was advised to remain off work for a period of one week;
• the claimant was not responsible for requesting a return to work package from his employer;
• the physician did raise the issue of light duties;
• the claimant was not equipped with the knowledge about light duty work and the considerations therein, in order to raise it himself with his attending physician;
• the claimant was unable to work because of his shoulder injury, not because he could not drive.

In a Review Office decision dated July 14, 2000, it was determined that the claimant was not entitled to payment of wage loss benefits beyond February 3, 2000. Review Office noted the claimant was injured on February 2, 2000, was absent from work on February 3rd and attended a seminar on February 4th. The claimant did not work the following day and was not scheduled to work February 6 or 7, having returned to work on February 8th. The issue was then one day time loss.

Review Office stated that the claimant was offered light duty work immediately following the accident. He had been with the employer since 1989 and had a number of prior claims and was aware of the availability of light duty work. Review Office indicated that the claimant did not inform his physician of the availability of light work and the physician indicated that although the claimant injured his shoulder, that he could have driven his vehicle provided he was not driving a large delivery truck. Review Office finally stated that it could not accept the premise that the claimant was unable to attend the job site as there was alternate transportation available in the form of public transportation.

On August 16, 2000, the union representative appealed the Review Office's decision and an oral hearing was arranged.

Reasons

The Appeal Panel met, on November 23, 2000, to conduct a hearing of the claimant's appeal of the Review Office decision in this claim.

The Appeal Panel is of the unanimous opinion that the decision of the WCB Review Office was not correct and that the claimant is entitled to the payment of wage loss benefits beyond February 3, 2000.

We note that the claimant saw a medical doctor on the same day as the injury. This doctor determined that the claimant would be totally disabled from work for a period of one week, and advised the claimant of this.

We further note that, subsequent to seeing his doctor again on February 7, the claimant returned to work on the 8th.

We are of the view that it was not unreasonable for the claimant to have relied on the initial advice of his doctor, that he was to remain off work for one week and to have declined the employer's initial offer of light duties for that reason.

Therefore, the appeal is allowed.

In respect of the implementation of this appeal decision, we note that there is some discrepancy as to the days involved. The employer maintains that the claimant was scheduled not to work on February 6 & 7 and, thus, is not entitled to wage loss benefits for those days. The claimant states this is not so, as he never had two days off in a row.

We are advised that the employer has scheduling records for that period, and we leave it to initial adjudication to determine which position is correct.

The claimant is definitely entitled to wage loss benefits for February 5th and, if information supports it, for February 6th and/or 7th.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of December, 2000