The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 28, 2000, at the request of the claimant. The Panel discussed this appeal on November 28, 2000.

Issue

Whether or not the claimant is entitled to wage loss benefits from March 15, 2000 to March 22, 2000 inclusive.

Decision

That the claimant is not entitled to wage loss benefits from March 15, 2000 to March 22, 2000 inclusive.

Background

On February 28, 2000, the claimant was attempting to shackle a hog when the hog started kicking and struck the middle finger of his left hand. The claimant was diagnosed with a chip fracture and cellulitis of his left middle finger. The claim was accepted as a Workers Compensation Board (WCB) responsibility and the claimant commenced receiving wage loss benefits effective March 1, 2000. On March 13, 2000, a WCB medical advisor determined that the claimant could perform modified duties.

During a telephone conversation with employer on March 14, 2000, a WCB adjudicator documented that there were light duties available for the claimant counting hogs. The employer stated that the job of counting hogs would only require the claimant to stand and he would not be using his hand at all.

The adjudicator then contacted the claimant about the offer of light duties. The claimant indicated that he could not do the job because of problems with his left heel, which was not related to a compensable injury. After speaking with the employer, the adjudicator advised the claimant that he could sit to do the light duty job. The claimant replied that he was told by his doctor to stay off work as he wanted to know what was wrong with his heel before he went back to work. The adjudicator advised the claimant that she could see no reason why he could not go into work as he could keep off his heel and did not have to use his hand to do the job. The claimant was informed that it was his decision as to whether or not he went to work but if he didn't, the WCB would not pay his benefits. On March 20, 2000, the claimant was advised in writing that benefits would be paid to March 14, 2000 inclusive, based on the rationale that light duties were available that were within his current capabilities.

In memo dated March 31, 2000, the adjudicator documented that according to the claimant, the light duties he went back to do involved more than just sitting counting hogs. His employer provided him with a stool but he also had to keep on his feet to keep the hogs moving through the chute, using a stick. The claimant said there was no way he could have done it with the splint on his hand. He had the splint off now and was managing okay.

Primary adjudication subsequently obtained statements from the claimant and the employer's lead hand and foreman on April 7, 2000. On April 10, 2000, a statement was also obtained from the employer's nurse.

In a submission to Review Office dated July 18, 2000, a union representative argued that the alternate light duties offered to the claimant in March 2000 were inappropriate and that the claimant was entitled to wage loss benefits for the period of time after March 14, 2000 when he was unable to perform the offered light duties.

On August 4, 2000, Review Office determined the claimant was not entitled to wage loss benefits from March 15, 2000 to March 22, 2000 inclusive. Review Office noted that file evidence suggested that the claimant was successfully reintegrated back into the workforce after injuring his left knee on November 1, 1999. After injuring his left hand on February 28, 2000, the employer offered him work that did not require the use of his injured hand. The claimant indicated that he was also limited in the duties that he could perform because of problems that he was experiencing with his left heel which was eventually found to be due to a non-compensable heel spur. The modified work offered by the employer successfully accommodated the claimant in connection with his compensable injury and even allowed him to work with his non-compensable heel problems. Review Office concluded that the employer had reasonably accommodated the claimant with safe alternate work effective March 15, 2000. On August 16, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Appeal Panel met, on November 28, 2000 to conduct a hearing of the claimant's appeal of the Review Office decision in this claim.

The Appeal Panel is of the opinion that the decision of the WCB Review Office was correct and that the claimant is not entitled to the payment of wage loss benefits for the period from March 15, 2000 to March 22, 2000, inclusive.

The key issue in determining this appeal is whether or not the claimant has met the requirements of WCB Policy 43.20.20.01, which calls upon a claimant to mitigate the costs of a claim by accepting alternative duties, wherever possible and reasonable. Specifically, in this case, was it reasonable for the claimant to refuse the alternative duties offered by the employer?

We note that the employer offered at least two different types of alternative duties to the claimant. One position involved tasks in the laundry room. Given his long experience with the company, the claimant was aware that this job was already being performed by a person who had done it for some time. Thus, he believed there would be no job for him to do.

The other duties offered involved counting hogs. Again, given his experience, the claimant was aware that this job, of itself, did not exist. Normally, counting hogs also involved moving them into and through chutes, often requiring the person to go inside the pens with the hogs.

In our deliberations, we came to the conclusion that the employer should have done a better job in communicating the nature of the alternative duties offered. Given the claimant's many years in the employ of this firm, it was reasonable for him to believe that no such job existed, or that it would involve disrupting another, long-time employee. There was no 'meeting of the minds' of the parties: the employer had one concept in mind; the employee another. The claimant was unaware, for example, that the hog counting duties, as proposed, would involve two persons. We feel that, in such situations, the onus should be on the employer to ensure that clear communications are given, and understood.

In examining the appropriateness of an offer of light or alternate duties, we must also consider whether the offer was within the physical restrictions that arose out of the claimant's compensable injury. We note that the claimant's February 29th injury was a chip fracture to his left middle finger, which was placed in an aluminum splint. An orthopaedic specialist who examined the claimant on March 13th confirmed the good progress of the claimant's finger. The splint was removed on March 17th.

Subsequent to his injury on February 29th and prior to the termination of benefits on March 14th, an intervening event occurred which the panel has concluded significantly influenced the claimant's decision in respect of the alternative duties. On March 8th, he suffered serious pain to one heel, subsequently found to be a bone spur and which we find was ultimately unrelated to any compensable injury. The claimant was determined not to return to work until the cause of this heel problem was ascertained.

While we are mindful of the fact that the claimant had a justifiable medical reason for his absence from work and that it was not unreasonable for him to refuse the alternative duties, as he understood them, we must note that this medical condition was not related to the compensable injury.

In coming to our decision, we came to the conclusion that, because of his heel problem, the claimant never really turned his mind to considering whether or not he was able to perform the tasks offered, in respect of his compensable injury. We find that the refusal of light duties was made due to a non-compensable injury that occurred on March 8, 2000, which led to the claimant being unable to mitigate the costs of his claim.

We conclude that, on a balance of probabilities, the evidence considered does not support the claimant's appeal. Therefore, it is not allowed.

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