The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 25, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on January 25, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits for the period August 3 to August 4, 2000.

Decision

That the worker is entitled to wage loss benefits for August 3, 2000 only.

Decision: Unanimous

Background

While performing the duties of a cadmium stripper on August 1, 2000, the claimant injured his lower back when he bent over to pick up a bundle of cadmium strips. The claimant indicated on his application for benefits that he thought his back would get better but it kept getting worse so he reported the accident to his employer.

On September 20, 2000 a Workers Compensation Board (WCB) adjudicator contacted the employer by phone. The employer indicated that it was not contesting that an injury occurred to the claimant but was concerned about his time loss from work. The employer felt the claimant could have performed light or modified duties. The employer provided the following information to the adjudicator:

• at the time of his injury, the claimant was working in the modified duty workshop. He went again to work on August 2, 2000 but left early as he was having difficulties. The claimant requested vacation time for August 3rd and 4th, 2000.
  
  
• when the claimant left work on August 2nd he went to a medical clinic and came back with a note around 4:45 p.m. stating that his doctor suggested he stay off work until after the long weekend. The claimant was advised that his request for vacation on August 3rd and 4th was denied. The claimant was asked whether the modified duties were a problem and he said no. The claimant was told that the duty supervisor would contact him.
  
  
• from August 3 to August 7, 2000 the employer tried on numerous occasions to reach the claimant, but he was not around and did not call work until August 8, 2000.

On September 20, 2000 the WCB adjudicator spoke with the claimant. The following information was obtained:

• the claimant had been working in the modified duty shop on August 1st and 2nd 2000. On August 2nd his back was hurting so he went to see his doctor who advised him to stay off work for a couple of days and to come back and see him on Tuesday, August 8, 2000.
  
  
• after seeing his doctor on August 2nd, the claimant went back to the modified duty shop and gave his supervisor a note from his doctor authorizing time off work. The supervisor asked the claimant for permission to contact his doctor. The claimant said yes but he wanted to be there.
  
  
• on August 3rd the supervisor called the claimant to say that if he came back to work in the modified duty shop he would get paid for 8 hours. The claimant said that he couldn't come back to work and that he was following his doctor's advice. The claimant told his supervisor that he was taking painkillers that put him right out.
  
  
• the supervisor called the claimant's doctor without his permission and told the doctor about some kind of modified duty job and asked the doctor if the claimant could perform these duties. The claimant acknowledged that the employer had been trying to reach him from August 3, 2000 but he had gone to the lake where he rested all weekend.

Medical information on file consisted of a report from the attending physician dated September 27, 2000. He stated that the claimant was seen on August 2, 2000 with a history of low back strain after stripping zinc the day before. Examination showed that the claimant walked with a stoop. Forward flexion was good and backward flexion was painful. The claimant was prescribed analgesic muscle relaxant medications and was advised to stay off work for a couple of days. The physician indicated that he received a letter the following day from the employer regarding the type of modified work that the claimant might be able to carry out with his injured back. "It was my opinion that he would be fit to carry out the modified work listed in the letter." The physician went on to indicate that he did not discuss the modified work with the claimant and that he next saw the claimant on August 8, 2000 when he was feeling much better.

On October 3, 2000 the claimant informed a WCB adjudicator that he did not discuss the modified duties with his physician as the physician had been practicing in town for years and was aware of the employer's modified duty program. The claimant was of the view that his doctor should have advised him if he was capable of performing modified duties.

In a decision letter dated October 6, 2000 primary adjudication advised the claimant that his claim for compensation was acceptable but that he was not entitled to wage loss benefits for August 3rd or 4th, 2000. This decision was based on the claimant's awareness of the modified duties available and the opinion expressed by his physician who felt the claimant was capable of performing the light duties. On October 2, 2001 a worker advisor appealed the decision to Review Office.

On October 19, 2001 Review Office noted that section 22 of the Workers Compensation Act (the Act) speaks of the consequences of a worker's failure to mitigate the effects of an accident. In this particular case, Review Office indicated that the claimant deliberately omitted to tell his physician of the modified duty program in which he was involved. Due to the doctor's ignorance of this fact, he authorized the claimant to remain off work for a couple of days. When the doctor was made aware of the nature of the modified duties on August 3rd he immediately stated that the claimant was fit to perform the duties. This led Review Office to conclude that the doctor would not have authorized the worker to remain off work for a couple of days on August 2nd had he been made aware of the type of duties available for the claimant. Review Office did not feel the claimant had suffered a loss of earning capacity by reason of his August 1st accident and was therefore not eligible to receive wage loss benefits for August 3rd or 4th, 2000. In November 2001, the worker advisor appealed Review Office's decision and a non-oral file review was scheduled.

Reasons

According to the evidence, the treating physician examined the claimant on August 2nd, 2000. He prescribed analgesic muscle relaxant medication and also advised the claimant to stay off work for a couple of days. The next day (the 3rd) the employer, with the claimant's verbal consent, contacted the treating physician by letter and enquired as to whether in his opinion the claimant would be capable of performing certain light duty tasks? The treating physician responded by stating that the claimant was "fit for modified work as described above."

The evidence is not entirely clear as to when and at what time the physician actually communicated his response back to the employer i.e. on the 3rd or 4th. Regardless of this uncertainty, the evidence does confirm that the employer had attempted on both days to inform the claimant about light duty tasks being available. The claimant did not reply to the various messages, which were left on his answering machine. As it turned out, the claimant was unavailable for this return to work opportunity because he had left town and had gone to the lake with his family.

In our view, the claimant would, on a balance of probabilities, have been capable of performing the modified work duties, which were being offered by the employer. However, the evidence is less than convincing as to exactly when on August 3rd the medical determination was made that the claimant was capable of returning to work. We also note that the claimant by his own volition had made himself unavailable for a return to work on August 4th, 2000. Accordingly, the claimant is only entitled to wage loss benefits for August 3rd 2000 but not August 4th, 2000.

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 20th day of February, 2002