Public Decisions | The Appeal Commission

Decision #76/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 23, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 23, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 21, 2001.

Decision

The worker is entitled to wage loss benefits beyond August 21, 2001.

Decision: Unanimous

Background

On July 17, 2001, the claimant experienced a gradual numbness in her left thumb, a strain in her arm and shooting pains from her left wrist to elbow during the course of her employment as a "deboner". The diagnosis rendered by the attending chiropractor was a left extensor strain/distal radial capitate sprain.

In a telephone conversation with a Workers Compensation Board (WCB) adjudicator on August 28, 2001, the claimant stated that she had been working for the employer since 1997. For the past 4-5 months she was deboning chicken with a knife. The claimant is right-handed. She used her right hand to hold the knife when working.

The claimant stated that June 2001 was the first time she began to experience left thumb/wrist difficulties and had pain on and off since then. On July 17th her left thumb got really sore and she told her supervisor and sought chiropractic treatment. On July 18, 2001, she began performing modified duties, which consisted of packing chicken parts onto trays and padding trays. On August 21, 2001, she discontinued modified duties as she had been told by her chiropractor to remain off work. The claimant hoped to return to work by August 31, 2001 or September 4, 2001. The claimant was claiming lost hours to attend her chiropractor, wage loss and chiropractic treatment.

On August 29, 2001, a WCB adjudicator spoke with the claimant's foreman. He stated that the claimant was offered light duties on August 22, 2001 which involved sitting in a chair and counting, with no use of the injured limb. The claimant refused the modified duties because her doctor advised her to sit at home.

On September 13, 2001, a WCB medical advisor reviewed the file information and was of the opinion that the claimant would have been able to perform right- handed duties beyond August 22, 2001 based on the diagnosis.

On September 19, 2001, primary adjudication accepted responsibility for the claimant's left hand and arm difficulties of July 17, 2001, but determined that the claimant was only entitled to partial wage loss benefits for the hours she missed to attend her chiropractor. The claimant was not entitled to full wage loss benefits effective August 22, 2001, as it was felt that suitable modified duties were made available to her (i.e. no use of the left arm and hand), but she chose not to participate. This decision was based on the opinion expressed by the attending chiropractor on July 18, 2001 and August 28, 2001, who felt that the claimant was capable of alternate or modified duties and the opinion expressed by a WCB medical advisor on September 13, 2001.

In a submission dated November 28, 2001, the claimant's union representative appealed the above decision to Review Office. The union representative contended that the modified duties offered to the claimant by her employer were inappropriate and that the WCB did not investigate or confirm what the offered work was or whether or not it was appropriate for the claimant. The union representative pointed out that the August 28, 2001 chiropractic report indicated that the claimant could perform alternate work, but she should not be involved with de-boning, padding trays and pin feathers.

On January 7, 2002, an advocate for the employer agreed with primary adjudication that suitable modified duties were made available to the claimant and that they had been approved by a WCB medical consultant. The advocate indicated that the claimant was offered modified duties on August 22, 2001, which involved the usage of her right hand. The duties of padding trays was an extremely light position and could easily be done with one hand. The advocate noted that a WCB case management team had observed this job task and confirmed that it was suitable work in this type of circumstance.

In a decision of January 11, 2002, Review Office concluded that the claimant was not entitled to wage loss benefits commencing August 22, 2001, based on the following rationale:

Review Office believed that the modified work made available to the claimant, i.e. padding trays and placing chicken parts onto the padded trays) was within her capabilities and would place no further harm to the claimant.
On August 22, 2001, the claimant's foreman advised that the claimant was offered light duties of sitting in a chair and counting. Review Office noted that these duties required no use of the injured limb.
The claimant's injury was to the non-dominant hand. The claimant could have easily performed the duties with her dominant right hand with no involvement of the left hand/wrist.
On August 22, 2001, the claimant informed her adjudicator that when the claimant's wrist/thumb started to bother her in the past, she would let someone know and was then permitted to do something else. This suggested to Review Office that the employer was very accommodating.

On February 14, 2002, the claimant's union representative appealed Review Office's decision and an oral hearing was requested.

Reasons

The evidence confirms that prior to the filing of her claim, the worker had been performing modified duties because of the problems with her left thumb and arm. We accept the claimant's evidence that while performing the modified duties her symptoms became exacerbated because some of the tasks required the use of both hands.

It would appear that it was only when the claimant's condition worsened to the point where she could no longer stand the pain anymore that she went to see her health care provider on August 21st, 2001. The evidence further suggests that no modifications were ever made by management in this case to convert this modified work from a two handed job to a one handed job. Nor were there any modifications/adaptations offered to the claimant by management after the claimant's symptoms increased.

We find that the claimant is entitled to wage loss benefits beyond August 21, 2001. In this regard, we note that the claimant is looking for wage loss benefits for a one-week period only.

Panel Members

R. W. MacNeil, Presiding Officer
A.Finkel, Commissioner
B.Malazdrewich, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 24th day of June, 2002

Back