Decision #108/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on August 28, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to wage loss benefits for the period April 15, 2001 to May 15, 2001.

Decision

The worker is not entitled to wage loss benefits for the period April 15, 2001 to May 15, 2001.

Decision: Unanimous

Background

On April 22, 2000, the claimant experienced pain in his lower back during the course of his employment as a drift miner. The diagnosis rendered by the attending physician was a lower back and sacroiliac joint sprain. The Workers Compensation Board (WCB) accepted the claim as a no time loss injury. On May 13, 2000, the claimant suffered a recurrence of back pain from lifting a can of paint at work. For complete details surrounding the history of each case, please refer to Appeal Panel Decision No. 155/01 dated December 13, 2001 for further information. It was ultimately the Panel's decision that the claimant had not recovered from the effects of his compensable back injuries of April 22 and May 13, 2000.

In a memo to file dated February 25, 2002, a WCB case manager documented that he met with the claimant and his union representative to discuss a number of issues related to the claim. At this meeting, the claimant advised that he was claiming four weeks of time loss benefits for the period April 15, 2001 to May 15, 2001 in which he was recuperating from toe surgery that was unrelated to his compensable injuries. The claimant mentioned that his benefit insurance carrier decided not to pay for his time loss (related to the toe surgery) so the claimant believed that the WCB was responsible. The claimant also believed that his accident employer would not have been able to accommodate him with duties relative to his back injury anyway.

The case manager made reference to an employer letter dated May 22, 2001which was addressed to the claimant. (This letter outlined discussions that took place between the employer and the claimant between April 22, 2000 and May 15, 2001. At a meeting held on February 28, 2001, the claimant advised his employer that he had an operation done to his toes on March 27, 2001 that would keep him off work for another 6 to 8 weeks. The employer indicated that they asked the claimant to supply medical evidence as well as what restrictions he had with regards to work because of that operation. The reason being was so the employer could accommodate the claimant with light duty for his toe condition if his back problem was resolved.)

The case manager noted that in April 2001, the employer asked the claimant for a doctor's note outlining restrictions for his back even though the WCB felt he had recovered at that time. The claimant instead provided a note from his doctor stating that he could perform his regular duties. The employer was therefore willing to accommodate the claimant in regular duties if this suited the claimant at that time.

In a decision dated February 25, 2002, the case manager denied the claimant's request for wage loss benefits during the period April 15, 2001 to May 15, 2001. The case manager noted that the accident employer had accommodated the claimant with alternate positions several times in the past two years and that the letter from the employer dated May 22, 2001 detailed numerous accommodations and reasonable efforts they had taken to accommodate the claimant. The case manager's position was as follows:
  • if the claimant did not have the non-occupational toe surgery, the employer would have accommodated him for his back injury.

  • if the claimant provided a note outlining restrictions from his doctor with regard to both his back injury and toe surgery, the employer would likely have accommodated the claimant.
In an appeal submission to Review Office dated April 8, 2002, a worker advisor pointed out that contrary to the decision letter dated February 25, 2002, "the claimant was not offered any employment with his accident employer. The employer had no plans on recalling this claimant back as stated in correspondence dated May 22, 2001 on page 4 of that letter. Which reads in part: "We could possibly accommodate you with light duty for your toe condition if your back problems was resolved." Which in the case of this claimant his appeal with the board was still in progress at that time and the employer had no way of knowing that the claim would be accepted."

The worker advisor contended that the claimant was disabled and restricted as a result of his related back injury which had now been accepted by the WCB. "The fact that he also had toe surgery did not make his back injury any worse or better. He was restricted before and after this toe surgery and remains so at this date."

On May 24, 2002, Review Office indicated that it was clear from the evidence that the claimant's time loss from work on April 15th to May 15, 2001 was not a result of his compensable back injuries. It was the result of his convalescence from his non-compensable bilateral toe surgical procedure performed March 27, 2001.

In June 2002, the worker advisor appealed Review Office's decision dated May 24, 2002. On July 23, 2002, the worker advisor provided the Appeal Commission with a further submission for consideration. On August 28, 2002, a non-oral file review was held at the Appeal Commission.

Reasons

This case involves a miner who injured his back in two, separate workplace accidents in April and May 2000. His claim was accepted, initially as a no-time-loss injury. Ultimately, benefits were paid.

An earlier decision by The Appeal Commission extended benefits for these injuries. The current appeal to the Commission deals only with whether or not benefits are to be paid for a specific period in 2001.

For his appeal to be successful, the Panel would have to determine that the reason he was unable to work during this period, April 15 - May 15, 2001, was due to the workplace injuries of April and May 2000. We were not able to make that determination.

In coming to our decision, the Panel conducted a careful review of the claims file.

As noted above in the "background" section, the claimant was unable to work for a number of weeks in April and May owing to surgery for a non-work related medical problem. It was only after the company's private insurer rejected his claim for the time loss due to this operation that he asked the Board to give him wage losses for this period. It was his position that he would have been disabled from work due to his back injury, even if he hadn't had the operation on his toes.

We do not agree with that position. We note that the employer had provided the claimant with alternative duties throughout the period from the time of the injury until the toe operation. His own doctor had indicated that he was sufficiently recovered from his back injury to return to work on April 16, 2001. We believe that, but for the toe operation, the employer would have been able to accommodate him during the period under consideration in this appeal.

In support of its decision, Review Office made reference to the following evidence:
  • medical report dated April 26, 2001 - the attending physician stated, "can return to work when healed and there is no pain in his toes";

  • medical report dated August 22, 2001 - the physician indicated that the claimant would normally require eight weeks off physical work related to the bilateral toes surgeries performed March 27, 2001 (i.e. up to May 27, 2001).

  • on April 10, 2001, the family physician noted that the claimant's back was examined and it was decided that he could return to normal duties as of April 16, 2001 with no restrictions.

  • the claimant informed his employer on April 16, 2001 that his toe problem would be keeping him off work for 6 to 8 weeks and that he was ready to come back to work as soon as his toes healed up.

  • the claimant contacted his employer on May 8, 2001, to report that he was still off with his toes and was expected to take 8 weeks to recover and that as soon as his toes had healed he expected to return to normal duties.

  • the discussion which took place between the case manager and the claimant on February 25th. The only reason the claimant was requesting wage loss benefits was because his insurance benefit carrier determined that he was not entitled to benefits for his bilateral toe problems so the WCB should be held responsible.

  • the claimant was not mitigating his recovery as he chose only to return the authorization form from his doctor with respect to his toe problems and chose not to return the authorization form from his doctor allowing them to have a discussion about the claimant's "back".

  • the employer had a two year history of accommodating the claimant with light duties and alternate work.
Review Office believed that claimant's loss of earning capacity between April 15th and May 15, 2001 was not the result of his compensable back injuries of 2000 but was related to the claimant's bilateral toe surgeries.

We agree.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of September, 2002

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