The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 14, 2001, at the request of the claimant's union representative. The Panel discussed this appeal on August 14, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits following the compensable injury of November 9, 1998.

Decision

That the worker is entitled to wage loss benefits following the compensable injury of November 9, 1998.

Background

On November 9, 1998, the claimant experienced pain in his right elbow while grabbing and pulling bearings at his place of employment. On the same day, the claimant attended his physician for treatment and was diagnosed with a strain to the right elbow and forearm. The doctor considered the claimant to be totally disabled.

Following a telephone conversation with the employer on December 14, 1998, a Workers Compensation Board (WCB) adjudicator noted that on the date of accident, the employer offered the claimant light duties which respected any restrictions set out by his attending physician but the claimant refused modified work. The employer questioned the validity of the November 9th injury as the claimant had been wearing an elbow support at the time of accident.

On December 18, 1998 the claimant provided the WCB with a sworn statement containing the following information:

• at the time of injury, the claimant said he wore a lap strap for preventative reasons only. He indicated that the company encouraged employees to use these to prevent repetitive strain type injuries.
• on the day of accident the claimant said that he told his forearm what had happened and that he was going to see his doctor that evening. The foreman did not mention anything about light duties at this time.
• the claimant said that he told his doctor what had happened at work and the doctor asked him if he could do any light duties. The claimant told the physician that at this point he did not think there were light duties available due to the fact that anyone who was on light duties was not recalled after the lay offs in May and June 1998.
• on November 10, 1998 the claimant went to work with a form prepared by his doctor and he filled out an incident report. As he was leaving work his foreman wanted to know if he could come into work but the foreman did not specifically state what kind of work the claimant was expected to do. The claimant advised his foreman that he became lightheaded from taking the medications and that his doctor had taken him off work completely.
• the next contact with work was on November 17 or 18, 1998 when the foreman called the claimant at home as his doctor's note had expired. Nothing was discussed about light duties.
• the claimant concluded his statement by stating that if his employer had offered him a job in which he did not have to use his right arm he would have accepted it.

A sworn statement was taken from the claimant's supervisor on December 18, 1998 and attached with the statement were his notes that were taken on November 9, and 10, 1998. The notes indicated that on November 9th the claimant reported pain in his right elbow and that he was going to see his doctor that night. On November 10, 1998, the claimant brought in a doctor's report saying no repetitive movement and to stay off work until November 17th. At 12:30 on November 10, 1998, the claimant was offered modified duties in the form of an office sit down job until such time as his condition was okay. The claimant refused the job stating that his doctor had him on Tylenol and anti-inflammatories and he didn't know if he should drive to come to work. The claimant was asked to speak to his physician and see if the modified duties were acceptable. On November 18th the foreman noted that he did not ask the claimant about speaking to the doctor concerning the light duties because by that point it was his opinion the claimant had decided not to work light duties. The supervisor concluded that he could have provided the claimant with some kind of alternate work on November 10, 1998 which would have respected medical restrictions.

In a January 30, 1999 report, the attending physician stated that the claimant was incapable of performing modified work involving the use of his injured right arm. The medications that the claimant was taking for treatment (i.e. Voltaren Sr 75 mg or Naprosyn E 375 mg) were making him sleepy and he was unable to concentrate. The claimant was advised to rest his arm and not to move it, as the movements of the right hand and arm were aggravating the pain in the right elbow.

On February 20, 1999 a WCB medical advisor reviewed the case. He indicated that the above medication prescribed by the attending physician was "not usually known for causing drowsiness (very rare side effect)."

In a February 11, 1999 decision, primary adjudication determined that there was no basis to pay wage loss benefits as the weight of evidence indicated that the claimant was capable of returning to modified work activity and that suitable duties would have been made available. On April 19, 1999 a union representative appealed this decision to Review Office.

On July 2, 1999 Review Office considered the union representative's appeal along with a submission made by an employer representative dated April 19, 1999. Review Office determined that the claim was acceptable, but the claimant was not entitled to wage loss benefits as "the employer was able to provide light duty work in keeping with avoiding use of the right arm and elbow." Review Office took into consideration Section 22 of the Workers Compensation Act (the Act) and was satisfied that the claimant had not mitigated the circumstances of his accident and that he did not intend to return to work following the accident. Review Office noted that modified or light duty work was available to the claimant immediately after the accident and that he chose not to discuss this formally with his physician, but rather, indicated that no such light duty work was available.

On January 6, 2000, the union representative submitted a letter from the claimant's doctor dated November 6, 1999 and asked Review Office to reconsider its decision of July 2, 1999. On March 14, 2000, the employer's representative provided rebuttal argument to the union representative's submission.

In a Review Office decision dated March 24, 2000, it was confirmed that the claim was acceptable as stipulated in the July 2, 1999 decision and that the claimant was not entitled to the payment of wage loss benefits. Review Office indicated that the additional information provided by the attending physician was a summary of his previous reports, which had been considered at length by Review Office in arriving at its earlier decision. Review Office stated that the claim was deemed to be acceptable as the claimant had sustained personal injury both arising out of and in the course of his employment. No benefits were payable to the claimant, however, as the employer was able to accommodate the claimant with alternate work activities.

On March 27, 2001, the Appeal Commission received the union representative's Application to Appeal dated March 5, 2001, appealing the Review Office's decision. On August 14, 2001 an oral hearing was convened.

Reasons

As a consequence of the claimant's compensable injury, a WCB medical advisor assigned the following restrictions: "[A]nd for his right elbow the claimant should be able to do sedentary work with no heavy lifting greater than 5 lbs. No grasping and pushing and no repetitive movements of the right hand and wrist. These restrictions are for 6-8 weeks." We find under the circumstances that these restrictions were not unreasonable.

Evidence was also presented that the claimant worked in a very heavy industrial facility where there was an array of equipment such as lathes, boring mills, forklifts, overhead cranes and various wheel and axle advancement equipment. The suggestion was that the shop was not a place for a person to be who didn't have his full wits about him as this equipment was generally always in operation and being moved around. "It is a place where the company has insisted that anyone working there has to report to their (sic) supervisor when any individual is using any medication that could inhibit or may inhibit an employee's ability to perform their (sic) job safely and productively. A violation of this policy can result in one's dismissal." In other words, working in this site required due care and diligence on the part of a worker.

In treating the claimant's condition, the attending physician prescribed medications such as Voltaren SR 75 mg and Naprosyn E 375 mg. The attending physician reported to the WCB on January 30th, 1999 that the medications being taken by the claimant for his right elbow "were making him drowsy, dizzy and that he was unable to concentrate. He advised Mr. [the claimant] that he should remain off work totally. He [the claimant] was advised to rest his arm and not to move it as the movements of the right hand and right arm were aggravating pain in the right elbow." A WCB medical advisor reported that the claimant's medications were not usually known for causing drowsiness and that this was a very rare side effect.

We find based on the weight of evidence that it was a combination of the effects of the compensable injury and the known medication side effects, which, on a balance of probabilities, kept the claimant out of the work environment and rendered him totally disabled for a period of time. We note that the claimant returned to work on modified or light duties on or about February 15th, 1999 and that he was seeking wage loss benefits for the period November 10, 1998 to February 14, 1999. In conclusion, we are satisfied that the claimant is entitled to wage loss benefits following the compensable injury of November 9th, 1998. Accordingly, the worker's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of September, 2001