Decision #27/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 23, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 23, 2002.Issue
Whether or not the worker is entitled to wage loss benefits beyond December 12, 2000.Decision
That the worker is entitled to wage loss benefits beyond December 12, 2000.Decision: Unanimous
Background
On December 8, 2000, the claimant was piling a dozen cases of beer from a lower pallet to a high pallet when he felt a sharp pain in his right wrist. The claimant thought that he pulled a muscle and that it would go away over the weekend. The claimant tried to work on Monday, December 11, 2000, but his wrist was hurting and he left.During a telephone conversation on January 16, 2001, an advocate for the employer advised a Workers Compensation Board (WCB) adjudicator that she had many concerns with the time loss associated with the claim. The claimant was offered light duties (i.e. clerical work, counting empty bottles, answering phones, etc.) on December 12, 2000 but he refused them saying that his doctor advised him to be totally off work. As the claimant's injury was only to his right wrist the advocate questioned how the claimant could be totally disabled from working light duties.
Later the same day, the claimant advised a WCB adjudicator that he had discussed the light duties with his doctor at the time he had his OFA (Occupational Fitness Assessment) report filled out and that the doctor wanted him to be totally off work. In a further phone conversation on January 19, 2001, the claimant commented that he may have been able to go back to work but he did not want to cause further injury or go against his doctor's orders. The claimant stated he phoned the WCB on December 13, 2000 and was advised that he should follow his doctor's orders and remain off work.
On January 19, 2001, the attending physician confirmed that he did discuss light duties with the claimant. The physician stated that a lot of the time when his patients go back to modified duties they end up doing jobs that do not meet restrictions. The physician advised the claimant that it was his choice as to whether or not he should go back to work. As the claimant felt he could not perform the modified duties, the physician filled out the WCB and employer OFA reports indicating that the claimant should be totally off work.
In a decision dated January 22, 2001 the claimant was advised that his claim had been accepted for medical costs only and that he was not entitled to wage loss benefits. It was the WCB's position, based on Section 4(2) of The Workers Compensation Act (the Act), that the claimant was capable of performing the modified duties offered to him by his employer on December 12, 2000 and therefore he did not experience a loss of earning capacity. On January 29, 2001 the claimant appealed this decision to Review Office.
On March 30, 2001, Review Office considered the claimant's appeal along with a submission from the employer's advocate dated March 26, 2001. Review Office determined the following:
- that wage loss benefits were to be issued for any time loss incurred on December 11, 2000 as well as the full shift of December 12, 2000; and
- that there was no loss of earning capacity as of December 13, 2000.
Review Office noted that primary adjudication accepted responsibility for the claimant's absence from work on the partial shift of December 11, 2000 and the full shift of December 12, 2000. As the modified duties were not offered to the claimant until December 12, 2000 with an expectation of a return to work on December 13, 2000 at 10:00 a.m., a loss of earning capacity existed on these two days and it was the WCB's responsibility. On October 12, 2001, a union representative appealed Review Office's decision and an oral hearing was arranged.
Reasons
The Appeal Panel heard the case of this claimant who injured his right wrist on December 8, 2000 while moving items from a lower pallet to a higher pallet. He initially felt it was a muscle pull that would go away over the weekend and therefore did not report it to his employer.The claimant returned to work the following Monday, December 11, 2000 and was only able to complete a partial shift. He sought medical attention and formally reported the injury to the employer that day. As the background indicates this case then focuses on the issues surrounding the employer's offer of a return to modified work and the claimant's decline of the offer based on the instructions of his physician.
The claimant has appealed that he should be entitled to wage loss benefits beyond December 12, 2000. For this appeal to be successful, we would have to determine he suffered a loss of earning capacity beyond that date. We are satisfied that the claimant did suffer a loss of earning capacity. It would appear the loss of earning capacity ended when he returned to full duties in January 2001.
In coming to our conclusion, we reviewed the file contents, heard evidence from the claimant and heard submissions from the employer and union representatives.
The claimant's evidence at the hearing was that his treating physician had instructed him to remain off work and give his wrist a rest. He also advised the Panel that his physician had prescribed a medication that produced some short-term side effects. The physician had responded to two occupational fitness assessment forms from the employer and concluded on both forms the claimant was unable to work. The claimant contacted the Board to clarify his status regarding the instruction to remain off work and according to his evidence was instructed to follow the advice of his doctor.
The Panel reviewed the treating physician's reports of December 12, 18 and 29, 2000 and noted reference was made to tenderness at the dorsal aspect. None of the reports indicated the claimant was capable of alternate or modified work. On December 29, 2000, the physician referred the claimant for orthopedic follow-up based on his complaints of pain in the right wrist. On this report, a trial return to work for January 2, 2001 is indicated.
We note the physician provided further clarification on April 24, 2001 when he stated "This verifies that, regardless of interpretation on December 13, 2000 I informed the above-named he was unable to work, even at modified duties, until further assessment."
We therefore conclude that the evidence of the claimant and his treating physician is not inconsistent. We accept the claimant's evidence that he and his physician thoroughly reviewed the modified duties offered by the employer with the physician concluding that the claimant should remain off work. We find this is not a matter of the claimant having a preference of when he should return to work but rather following his physician's advice. We note that his wrist steadily improved and allowed him a full return to work by January 2, 2001.
The employer outlined its position that modified duties that respected the worker's restrictions were in order and there was not total disability or loss of earning capacity. They offered the claimant modified duties and felt there was no reason he could not perform them as of December 13, 2000. They introduced issues of motivation or voluntary participation in the return to work program. We found there was no basis to make such a finding as the worker was acting upon instructions from his treating physician and the WCB.
The Panel finds, on a balance of probabilities, that the worker had a loss of earning capacity after December 12, 2000 and is entitled to wage loss benefits beyond this date. The appeal is allowed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of February, 2002