The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 18, 2000, at the request of a union representative, acting on behalf of the claimant. The union representative was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that the claimant was not entitled to wage loss benefits. The Panel discussed this appeal on September 18, 2000, December 11, 2000 and again on January 23, 2001.

Issue

Whether or not the claimant is entitled to wage loss benefits.

Decision

That the claimant is entitled to wage loss benefits to October 4, 1999, inclusive and final.

Background

During the course of his employment as a hog receiver on September 29, 1999, the claimant lifted a hog carcass weighing approximately 150 lbs. when he felt a sharp pain on the right side of his groin. The injury reported by the claimant was a right sided hernia.

A Workers Compensation Board (WCB) adjudicator spoke with the company nurse on October 5, 1999, and the following information was obtained:

• on the date of accident, September 29, 1999, the claimant left work and attended a doctor for treatment. After seeing the doctor, the claimant returned to work and a light duty job was arranged with no lifting greater than 10 pounds, no pulling, pushing or repetitive bending.
• on September 30, 1999, the claimant called at 6:07 a.m. and advised that he was taking the day off work. The foreman gave the claimant a holiday so he would not miss being paid. On October 1, 1999, the claimant called to say he was taking one more day off work but would return to light duties on October 4, 1999.
• the claimant returned to light duties on October 4, 1999 which consisted of "working the foot saw position; uses a joystick in left hand; lines up carcass with a laser jet; provided with a stool so he could sit or stand; no lifting, bending or twisting." The claimant worked until about 9:30 when he indicated that he was having increased pain in his groin and left work to attend his doctor. After seeing the doctor on the afternoon of October 4th the claimant called to say that his doctor was keeping him off work until he saw the specialist on October 12, 1999 and that a truss had been prescribed.

On October 5, 1999, the WCB adjudicator spoke with the claimant and the following information was obtained:

• the claimant had no prior hernia conditions;
• after the lifting incident on September 29, 1999, the claimant said that his doctor told him he could do light duties until he saw a surgeon on October 12, 1999. The claimant said he was instructed not to do any work that involved lifting/bending;
• on October 1, 1999, the claimant said he called work to say he was not coming in as he still had swelling, but would be in on October 4th.
• when he returned to work on October 4th, the light duties involved dropping a hog every 3 seconds to be disassembled. This involved standing on a part that is attached to a table (aluminum and plastic) and it shook. This caused a nervous or butterfly feeling in the claimant's stomach along with increased swelling and pain in the right groin area. The claimant said he saw the nurse and then went to see his doctor. The doctor told him to be off work until he saw the specialist on October 12, 1999.

In a further telephone conversation on October 6, 1999, the company nurse advised the WCB adjudicator that she stood on the stand where the claimant had been working and that there was no vibration whatsoever. The job was videotaped and forwarded to the WCB for review. The company nurse had concerns that no time loss should be paid on the claim as light duties were offered right away to the claimant and that the job was suitable given his injury.

In a report dated October 4, 1999, the attending physician indicated that the claimant was treated on September 29, 1999 and a diagnosis of a right inguinal hernia was made. The physician noted that the claimant had an appointment to see a specialist for an evaluation of his right sided hernia and that he should not work at all until he saw the specialist. The physician further indicated that the claimant went back to work on October 4, 1999 and was not capable of doing any work as the pain was excruciating and he went home. "I have now given him a time relief until his appointment on October 12, 1999".

Following a review of the file information on October 5, 1999, a WCB medical advisor provided the opinion that the sedentary job of using a joystick was an appropriate task for the claimant given the right inguinal hernia diagnosis.

On October 8, 1999, the claimant was provided with written notification from Initial Adjudication that there was no basis to extend wage loss benefits as suitable light duty work was made available to him on September 29, 1999, and that he was capable of performing this job. On November 24, 1999, the claimant's union representative appealed this decision to Review Office. The union representative made reference to medical reports from the treating physician dated October 4, 14 and 25th and from the treating surgeon dated October 26, 1999.

In a decision dated December 17, 1999, Review Office noted that prior to the treating physician making the recommendation to the claimant to stay home, the claimant only worked two hours on October 4, 1999. Review Office believed that despite this advice, the claimant could have performed the job of operating the hind foot cut off saw as it involved virtually no physical activity of any type that would serve to irritate a hernia condition or groin strain. Review Office could not accept the claimant's contention that there was sufficient vibration from hog carcasses dropping onto the conveyor belt to disable him to the extent that he could not have operated the saw.

Review Office pointed out that the claimant did not, in fact, have a hernia condition and that immediately after seeing the surgeon he was discharged for modified duty employment. Review Office concluded that the duties provided by the employer were light in nature and were suitable for the claimant had he chosen to remain on the job. Review Office ultimately determined that the claimant was not entitled to payment of wage loss benefits.

On June 15, 2000, the union representative appealed Review Office's decision and an oral hearing took place on September 18, 2000.

Following the September 18th hearing, the Panel met to discuss the case and requested that additional information be obtained from the claimant's treating physician. A report from the treating physician was later received dated November 6, 2000 and was forwarded to the interested parties for comment.

On December 11, 2000, the Panel met again to discuss the case in light of the treating physician's report dated November 6, 2000 together with a submission from the employer's advocate dated November 20, 2000. Following discussion of the case, the Panel requested further clarification from the treating physician with respect to the job duties that the claimant was performing on October 4, 1999.

In response to the Panel's request, the treating physician submitted a report dated January 9, 2001, which was distributed to the interested parties for comment. On January 23, 2001, the Panel met again to discuss the case in light of the treating physician's report and a final submission from the employer's advocate dated January 22, 2001.

Reasons

The Appeal Panel has unanimously determined that the claimant is entitled to wage loss benefits up to but not including October 4, 1999. It was on October 4, 1999 that the claimant commenced light duty employment and within two hours of such employment he unilaterally removed himself from the workplace claiming that the light duties were irritating his groin condition.

The areas of concern for this Panel relate to whether or not the light duty position provided to the claimant was appropriate given his workplace injury and whether or not there is any medical evidence that supports the claimant's contention that he could not perform those light duties. With regard to this first issue, this Panel has reviewed the evidence of the claimant, the description of the light duties and job area given by the employer and watched a videotape of the actual light duty position being performed by another employee. It is clear that this position was within the job restrictions initially prescribed by the claimant's treating physician. Specifically, the claimant saw his doctor on September 29, 1999 and the notes on his WCB file indicate that he was told he could return to light duty employment while he was waiting to see the surgeon with the following restrictions:

• "no lifting over 10 pounds;
• no pushing/pulling;
• avoid repeated bending"

A review of the videotape indicates that the light duty position offered to the employee did comply with these restrictions. Contrary to a later report by the claimant's treating physician on January 9, 2000, this light duty position did not involve twisting, turning or lifting. The Panel is therefore of the view that the claimant could have performed the job of operating the hind foot cut off saw as it involved none of the restricted activity that might if done, serve to irritate his groin condition.

The second issue of whether or not there was appropriate medical advice authorizing the claimant to remain off work after October 4, 1999 until he saw the surgeon has been clarified by the medical report of the claimant's treating physician dated November 6, 2000. It appears clear from this report that the physician authorized complete time off from the claimant's work duties because he was under the impression that on October 4, 1999 the claimant was "continuing to do relatively heavy labour". This heavy labour was characterized as work that was "extremely heavy" with hog carcasses often weighing greater than 150-200 lbs. having to be pushed. It was likely on the basis of this job description that complete time off from work was authorized by the physician. There does not appear to be any indication in the physician's letter that he had been told that as of October 4, 1999 the claimant was on modified job duties. It also appears that no description of what those modified job duties actually were was provided to the physician.

On the basis of the above two issues, this panel is of the belief that the modified job duties provided to the claimant were appropriate. He appears to have been capable of performing the job of operating the hind foot cut off saw as it involved virtually no physical activity including lifting that would serve to irritate his condition as described at that time. As the claimant's treating physician appears to have been unaware that on October 4, 1999 he was placed into a light duty position and as those exact job duties had not been described to the physician, we cannot give any weight to his recommendation that the claimant remain completely off work.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of February, 2001