The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 19, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 19, 2001.

Issue

Whether or not the worker is entitled to full wage loss benefits from November 3, 2000 to November 17, 2000 inclusive.

Decision

That the worker is not entitled to full wage loss benefits from November 3, 2000 to November 17, 2000 inclusive.

Background

While performing the duties of a shipper/receiver on September 15, 2000, the claimant was thrown from a power jigger machine landing on his right buttock, left shoulder and upper arm region. The diagnosis rendered by the attending physician on September 16, 2000 was a sprained shoulder and possible AC (acromioclavicular) separation. The claimant was considered totally disabled. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on September 18, 2000.

Subsequent medical information revealed that a referral was made for the claimant to attend physiotherapy treatments for his left shoulder difficulties.

At the end of October 2000, a WCB adjudicator was in contact with the employer to advise that the claimant was capable of right hand duties only. On November 1, 1999, the employer called the WCB to indicate that a job was available in the DC area using a scanner to scan product and that the claimant would not have to use his left arm.

In a letter dated November 2, 2000, the claimant was advised that modified duties were available in the DC area effective November 3, 2000, starting at four hour shifts per day beginning at 8:00 a.m. The WCB would pay full wage loss benefits to November 2, 2000 and effective November 3, 2000, he would be paid partial wage loss benefits.

On November 3, 2000, the claimant spoke to a WCB adjudicator indicating that he saw his doctor this morning and was told that he was not to return to work. The claimant indicated that his health came first and that if the WCB didn't pay him that was fine.

On November 16, 2000, an orthopaedic surgeon noted that the claimant could only abduct his shoulder from 70 to 80 degrees and that physiotherapy treatments did not seem to change the situation very much. The orthopaedic surgeon diagnosed the claimant with a left shoulder rotator cuff tear and recommendations were made for an MRI scan or a CT arthrography examination. The claimant also talked about going back to work on light duties only using his right hand and not lifting anything heavy. The surgeon felt that the claimant should try going back to work on half days, about 4 hours every day. The surgeon also commented that if the claimant was going to have surgery done to his left shoulder, he was better off to have a supple shoulder than a stiff one. Effective November 20th, the claimant commenced modified duties starting at 4 hours per day.

On December 12, 2000, a union representative disagreed with the WCB's decision of November 2, 2000. The union representative indicated that the claimant had been advised from the first visit to his doctor to lay off work entirely. The doctor's first report and all the progress reports indicated that the claimant was totally disabled for an unknown period of time. At the very least the claimant was told to remain off work until he was assessed by the orthopaedic surgeon. The union representative argued that the claimant did not have a medical approval to return to work on November 2, 2000.

Prior to considering the appeal, Review Office wrote to the claimant's physician for clarification of his opinion regarding the claimant's capability to perform the modified duties offered by the employer. In a response dated January 19, 2001, the physician indicated that he had no recollection and had no entry in his chart notes from the claimant's visit on November 3, 2000 to indicate that light duties were made available to the claimant. At the time, the claimant was not capable of performing his prior job. When he was seen on November 13, 2000, the claimant informed the physician of the light duties. The light duty job was discussed and it was agreed that he would be able to do this job for four hours per day.

In a decision of January 19, 2001, Review Office stated that it was apparent that the claimant was without medical support for his contention that he was incapable of returning to modified duties on November 3, 2000. He did not mention the modified duties to his doctor when he saw him on November 3, 2000. It seemed obvious to Review Office that the claimant would have been capable of performing duties that did not require him to use his injured arm in any fashion. Review Office therefore confirmed that the claimant was not entitled to wage loss benefits from November 3, 2000 to November 17, 2000 inclusive.

On January 22, 2001, a MRI of the left shoulder showed a large tear involving the supraspinatous tendon and on March 12, 2001 surgery was carried out to repair the tear. On February 6, 2001, the union representative appealed Review Office's decision of January 19, 2001 and an oral hearing was scheduled.

Reasons

Throughout the history of this file, the claimant had been continually advised by his medical advisors to keep his injured left shoulder mobile. The evidence further confirms that suitably modified alternate duties had been offered to the claimant during the period in question. However, the claimant did not take advantage of this opportunity because he was labouring under the misconception that both his physiotherapist and treating physician had advised him to stay off work.

Section 22 of the Act allows the WCB to reduce the amount of compensation otherwise payable to a worker where he or she "fails in the opinion of the board to mitigate the consequences of the accident." The weight of evidence does not support the claimant's contention that he was to stay off work entirely. In a letter to the Review Office dated January 19th, 2001 the treating physician advised as follows:

"In response to your letter of January 10, 2001, I have no recollection and have no entry in my chart notes from Mr. [the claimant's] visit of November 3, 2000 to indicate that light duties were made available to him. At that time, he was not capable of performing his prior job.

When he saw me on November 13, 2000 he informed me of his light duties. We discussed the job and agreed that he would be able to do this job for four hours per day."

We find based on a preponderance of evidence that the claimant could have, in all probability, performed the light duties, which had been offered by the employer for four hours per day. Therefore, we further find that the claimant is not entitled to full wage loss benefits during the period of November 3, 2000 to November 17, 2000 inclusive. We note that the claimant did receive partial wage throughout this period. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of August, 2001