Decision #149/01 - Type: Workers Compensation
Preamble
A non-oral file review was held on November 6, 2001, at the claimant's request.
Issue
Whether or not the worker is entitled to wage loss benefits.
Decision
That the worker is not entitled to wage loss benefits.
Background
While employed as a sales associate on May 7, 2001, the claimant indicated that she developed left lower abdominal pain when performing the following activity,
- "I was picking up approximately 20 packages of panties, maybe two to five at a time and finding the correct slot to hang them on. While walking 3 to 5 minutes later, at the end of my shift I felt stabbing pain in my L. lower abdominal area. I called 'ouch' in pain, and bent forward because of the pain."
The claimant stated that her supervisor immediately saw that she was in pain and that she went to see a doctor the next day.
Medical reports on file were noted as follows:
- May 8 2001 - the attending physician reported "non work related accident/incident reported on presentation." Objective findings were tenderness in the left inguinal region - non specific muscloskeletal with suprapelvic discomfort. The physician felt the claimant could return to regular duties on May 8, 2001. He also stated in his report, "patient thought she may have "overdone it" at work - causal strain - no objective findings to support any injury."
- A hospital emergency report dated May 11, 2001 noted a diagnosis of abdominal pain NYD (not yet diagnosed). The claimant was instructed to see her own physician if her condition worsened.
- The claimant attended a second physician for treatment on May 16, 2001. The claimant's description of accident stated, "bending down, developed sharp lower abdominal pain". The doctor stated that the claimant could return to work on May 23, 2001 and was to avoid repetitive bending, twisting, and prolonged standing.
In a memo dated May 30, 2001, the employer stated that the claimant left the store on May 7, 2001 complaining of lower abdominal pain. The claimant sought medical attention on May 8, 2001 and was advised that she had a bladder infection. The claimant then saw another physician on May 11, 2001 and was diagnosed with a muscle strain, possibly the abdomen. The claimant was off work for the infection until the 23rd of May. On May 16, the claimant reported that she injured herself on the 7th while picking up underwear from the floor. The employer indicated that the claimant had been offered a position as a fitting room associate, which would meet all standard low back restrictions, but the claimant declined the offer.
On June 19, 2001, the WCB advised the claimant in writing that it would not be accepting responsibility for her claim as the evidence did not establish that an injury had occurred at work. On August 13, 2001, the claimant appealed this decision to Review Office.
On August 17, 2001 Review Office determined that the claim was acceptable, however no wage loss benefits were payable to the claimant. With regard to the acceptability of the claim, Review Office believed that a muscular strain was the most probable diagnosis for the claimant's symptoms and further believed that the work duties she had performed on May 7, 2001 resulted in the muscular strain in her abdominal region.
With regard to its decision to deny wage loss benefits to the claimant, Review Office noted that the claimant's own physician found that she was capable of performing modified work with certain restrictions. As the employer had duties available which would have respected these restrictions, this would have eliminated any loss of earning capacity caused by the compensable injury. On September 7, 2001, the claimant appealed the Review Office's decision and a non-oral file review was arranged.
Reasons
According to the attending physician's first report forwarded to the WCB, there was no indication of any disabling injury, which resulted in a loss of earning capacity on the part of the claimant. In fact, the doctor reported that the claimant could return to her regular work duties on the day following her accident. The claimant was examined by a second physician on May 16th, 2001and in his/her opinion the claimant was capable of alternate or modified work with restrictions. These restrictions were to avoid repetitive bending, twisting and prolonged standing.
We accept the employer's evidence that there was an open-ended offer made to the claimant with respect to modified job duties. It was apparent as well that these duties were clearly within the restrictions outlined by the second treating physician. Inasmuch as there was no loss of earning capacity, the claimant is therefore not entitled to any wage loss benefits. Accordingly, the claimant's appeal is hereby dismissed.
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 4th day of December, 2001