The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 15, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 15, 2001.

Issue

Whether or not the worker is entitled to payment of wage loss benefits for the period November 9 to November 23, 2000, inclusive.

Decision

That the worker is entitled to payment of wage loss benefits for the period November 9 to November 23, 2000.

Background

While employed as a store keeper/labourer on October 18, 2000, the claimant fell down a 6 step flight of stairs when he lost his footing while taking an empty barrel outside. On the same day of the accident, the claimant attended a local hospital for treatment and was diagnosed with fractured right ribs. On October 23, 2000, the attending physician diagnosed the claimant with a contusion to the rib cage and questionable fracture of the ribcage. The Workers Compensation Board (WCB) accepted the claim and time loss benefits were issued to the claimant. In an October 30, 2000 progress report, the attending physician stated that claimant was capable of performing office work but no manual labour.

Upon speaking with the employer on November 6, 2000, a WCB adjudicator noted that light duties were available for the claimant, which involved working in the receiving department where the claimant would be watching staff moving loads and taking supplies. The claimant would be able to sit, walk around and move freely. The adjudicator then contacted the claimant to advise him of the available light duties and that wage loss benefits would be paid up to his return to work date of November 8, 2000 and final.

Subsequent file records showed that the claimant returned to light duties on November 8, 2000. He only worked for two hours and then went home because it was too painful to stand or sit. On November 23, 2000, the claimant returned to modified duties for four hours and also worked modified duties between November 26 to 30, 2000.

In a memo to primary adjudication dated December 13, 2000 a WCB medical advisor stated that in his opinion, the claimant was capable of performing the light duties that had been provided by the employer. With respect to recovery norms for fractured ribs, the medical advisor indicated that it can take up to 4 to 6 weeks for healing to occur. The same time frame would be for a low back strain or contusion. He further stated that the claimant should remain on light duties until the end of December and should be able to return to full duties by early in the new year.

On January 4, 2001, primary adjudication advised the claimant that the modified duties provided by his employer were within his work restrictions and that his absence from work between November 8 - 23, 2000 could have been avoided. It was therefore determined that no wage loss benefits were payable for that time period and that benefits would be reinstated as of November 24, 2000 if and when the claimant returned to work on a modified duty basis.

In April, 2001, a union representative provided a report that he had received from the claimant's attending physician dated March 28, 2001. In his report, the attending physician made the following comments:

"A serious attempt by Mr. [the claimant] was made for him to return-to-work prior to his period of total disability of November 9, 2000, to November 22, 2000. The fact that Mr. [the claimant] could not do any alternate work, including office duties, does in no way indicated (sic) that Mr. [the claimant] was faking in (sic) to any degree. He was in considerable distress and pain during the above period and was taking a large amount of analgesics at that time in an attempt to try and quell whatever discomfort was emanating from his right rib cage and back area."

Following consultation with a WCB medical advisor, primary adjudication wrote to the union representative on April 20, 2001. Primary adjudication stated, ".there was no medical evidence offered to change our opinion indicating that Mr. [the claimant] was capable of the modified duty job that was available for him. Furthermore, the WCB Medical Advisor offered the opinion that the medications mentioned on file by the attending physician would not have prevented Mr. [the claimant] from performing the modified duties." Primary adjudication therefore confirmed its earlier decision that the claimant was not entitled to wage loss benefits between November 9th to 23, 2000.

On May 4, 2001, Review Office determined that the claimant was not entitled to wage loss benefits between November 8 to November 23, 2000 based on the following comments:

• there was insufficient evidence to support the claimant's contention that he was unable to participate in the alternate employment duties provided by his employer.
• when considering the extent of injuries incurred by the worker, Review Office was unsatisfied that there was a level of impairment supported with objective medical evidence that prevented the worker from participating in the sedentary alternate employment that was offered to him during the period in question.

In June 2001, the union representative submitted to the Appeal Commission an Application to Appeal the decision rendered by Review Office. On November 15, 2001, an oral hearing was convened.

Reasons

As the background notes indicate, the claimant, while at work, fractured his 8th and 9th right ribs after falling down a flight of six stairs on October 18, 2000. According to the evidence, the claimant attempted a return to work on November 8th, 2000, but after just only two hours he was forced to stop working because he was in too much pain. The treating physician examined the claimant on the following day. In his progress report, the doctor noted that the claimant presented with shortness of breath and chest pain. In addition to his pain, the claimant was experiencing trouble breathing. Objective findings included a decrease in air exchange in both lungs.

The claimant again attended his doctor on November 22, 2000, at which time the physician considered the claimant capable of alternate or modified work with the following restrictions: no manual labour and to try 2-4 hours per day. In contrast, the employer anticipated the claimant would perform the modified duties that were offered on a full-time basis.

Q. Was it anticipated that this gentleman would be working eight hours or was he on a modified time schedule; come in, work two, three hours? What was the deal there?

A. I don't think that there were any time restrictions in his return to work from the attending physician, from the WCB, it was basically a physical abilities restriction that we were dealing with, so it wasn't a graduated return to work, it was a return to work to suitable duties full-time.

Q. So your understanding is that he was to do supervisory duties for eight hours?

A. Right.

The WCB medical advisor, who reviewed the file, considered that the claimant "would have been able to perform sedentary duties in time period stated - subjective pain was only reason given for the claimant to not be working." It should be noted, however, this same medical advisor had also recorded on file that a "fractured rib can take 4-6 weeks for healing to occur." Only three weeks had elapsed when the claimant attempted a return to work on November 8th, 2000.

Review Office dismissed the claimant's appeal on the basis there was a lack of objective medical evidence to suggest that the extent of the claimant's injuries prevented his participating in the sedentary alternate employment duties offered during the period November 8 to November 23, 2000. The Worker's Compensation Act (the Act) does not prescribe that an injured worker's entitlement to benefits is dependent solely on the existence of objective medical evidence.

After having considered all of the evidence, we find that the claimant was not, on a balance of probabilities, capable of performing the alternate duties that were offered on a full-time basis. The claimant attempted a return to work but was unable to continue due to the pain of his fractured ribs, which had not yet completely healed. Accordingly, we further find that the worker is entitled to payment of wage loss benefits for the period November 9 to November 23, 2000 inclusive.

Panel Members

R. W. MacNeil, Presiding Officer
G. Overgaard, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of December, 2001