The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 30, 2002, at the employer’s request. The Panel discussed this appeal on September 30, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits from January 18, 2001 to October 1, 2001.

Decision

That the worker was entitled to wage loss benefits from January 18, 2001 to October 1, 2001.

Decision: Unanimous

Background

On March 14, 1995, the claimant was climbing an aluminum ladder to gain access to the opening of a grain bin when the ladder slipped and he fell approximately 7 feet onto an icy surface. Subsequent medical information revealed that the claimant injured his right elbow and was treated by an orthopaedic specialist. The claimant underwent two surgical procedures to repair his elbow which included an open reduction and internal fixation on March 15, 1995 and a capsulotomy with arthroplasty of the elbow on September 22, 1995.

On March 26, 1996, the case was referred to the Workers Compensation Board’s (WCB’s) Vocational Rehabilitation Branch as it was determined that the claimant was fit for modified duties in relation to his compensable injury. Permanent restrictions were outlined for the claimant to avoid work with the right arm above the head and to avoid ladder climbing. In May 1996, the accident employer provided the claimant with an Assistant Elevator Manager position that accommodated his work restrictions.

On January 22, 2001, the treating orthopaedic specialist advised the WCB that the claimant was seen in his office on January 17, 2001. The claimant indicated that he was continuing to work but was having increasing difficulty which he related to his right elbow injury. Examination findings revealed gross synovial swelling. The operation scar was tender. There was 35 degrees extension lag and 15 degrees flexion lag. Supination and pronation were noted to be restricted at least 15 degrees. There was pain on stress. The specialist noted that a January 18, 2001, x-ray revealed post-traumatic osteoarthritis with contracture. Based on the claimant’s continuation of elbow symptoms, a referral was made to the Elbow Clinic at the Health Sciences Centre (HSC).

A report from HSC dated April 10, 2001, noted that the claimant had ongoing pain, such that he had become virtually one handed utilizing only his left hand. Range of motion of the right elbow was 50 – 105 degrees with 75 degrees of supination and 80 degrees of pronation. The claimant showed positive Tinel’s sign over his ulnar nerve with diminished sensation in the ulnar distribution. His elbow was stable to examination. X-rays were noted to show moderately severe post-traumatic arthritis. Considering the claimant’s age, it was felt that a distraction-interposition arthroplasty of his right elbow should be undertaken. This was discussed with the claimant and he wished to proceed with the procedure. On May 4, 2001, a WCB medical advisor authorized the costs associated with the proposed procedure as WCB responsibility.

In a facsimile dated June 15, 2001, the employer’s occupational health specialist advised the WCB that the claimant had been offered light duties from the start but that he had been off work since January 18, 2001. The occupational health specialist asked whether the WCB would be approving wage loss benefits.

During a July 6, 2001 telephone conversation, the claimant advised a WCB adjudicator that his employer had offered him light duties but his doctor felt that he was unable to perform them. The claimant stated his arm was sore and that anything he did tended to make it worse. The claimant advised that he was awaiting a surgery date.

Following consultation with a WCB medical advisor on July 6, 2001, the claimant was informed by primary adjudication that he was considered capable of working with certain restrictions related to his right arm and elbow. The claimant was also informed that WCB benefits would be paid based upon his return to work on July 23, 2001 and his participation in the return to work plan.

On July 26, 2001, a WCB adjudicator spoke with the employer’s occupational health specialist. It was noted that the claimant showed up for work with a sling that was preformed and padded. The claimant worked until 2:30 p.m. The duties he performed were answering phones, meeting with farmers regarding business plans for delivery, working in fish bowl, etc. The occupational health specialist indicated that the claimant said he was surprised at how much he could do and how much there was for him to do. It was noted that the company had enough work to accommodate the claimant.

On July 30, 2001, the claimant attended the offices of the WCB and spoke with a case manager. The claimant indicated that he was supposed to be working light duties but found that they were outside of his capabilities and he was unable to do them. The claimant felt he was pressured into having to work. He advised that his doctor felt that he was unable to do the work.

In a letter dated July 21, 2001, the treating physician noted that the claimant was examined on July 30, 2001. The claimant was found to have significant disability to his right elbow. “He had very limited movement, and even subtle movements causing him a significant amounts (sic) of pain. He is unable to hold his elbow up, due to the amount of pain caused by it, and is supporting it with a sling a lot of the time. Also, because of the chronic pain and disability and lack of being able to do anything useful, he is having a great deal of emotional difficulty. This is exacerbated by the stress he is feeling with regard to settling his claims, and with the struggle he is having with regard to work.” The treating physician agreed with the recommendations made by HSC that the claimant was functionally unable to perform any useful work.

The case was reviewed by a WCB medical advisor on August 15, 2001. The medical advisor was of the opinion that the claimant’s primary difficulties appeared to be pain related. He stated that the duties that the claimant was asked to perform at the workplace were appropriate and within his listed restrictions. The claimant was then advised in writing that the WCB considered him to be capable of performing the modified duties that were offered by his employer. “As you have voluntarily chosen to stop work, and it is our position the medical information does not support this; we are unable to pay you any further benefits.” On September 24, 2001, a union representative appealed this decision to the WCB’s Review Office.

In the interim, the claimant spoke to his WCB case manager to advise that he underwent surgery on October 2, 2001 and was in the hospital until October 9, 2001. The case manager in turn reinstated the claimant’s benefits effective October 2, 2001 as a recurrence.

In a decision dated December 14, 2001, Review Office stated that the claimant should have been more proactive in reporting his recurrent time loss from work. However, Review Office noted that it was the consensus opinion of the worker’s treating physicians that his condition was worsening and that he should have been totally off work while awaiting surgery. Review Office concluded therefore that the claimant was entitled to wage loss benefits from January 18, 2001 to October 1, 2001, less any time actually worked.

On May 1, 2002, the employer appealed Review Office’s decision and requested an oral hearing. The employer was of the view that “modified duties were offered to employee on several occasions, no medical objective evidence to support he cannot perform any type of modified duties offered.” On September 30, 2002, an oral hearing was held at the Appeal Commission to consider the employer’s appeal.

Reasons

The worker in this case suffered a serious injury to his elbow as a result of a work-place accident in March 1995. His claim for compensation was accepted, at that time, and benefits were paid accordingly. He returned to work following treatment, which included two surgeries.

Almost five years later, in January 2001, he experienced recurring problems with his elbow, which led to an inability to perform his work duties. While the board accepted responsibility for the necessary medical treatment, he was denied wage loss benefits, as it was felt he was able to perform the alternate duties offered by his accident employer.

His appeal to the Review Office was successful and he was paid wage loss benefits for the period in question, January 18, 2001 to October 1, 2001. The employer appealed that decision to the Commission.

For the appeal to be successful, the Panel would have had to determine that the alternate duties offered were within the worker's restrictions and that he was capable of performing them. We were not able to make that determination.

In coming to our decision, we made a careful review of the claim file, and held an oral hearing at which we heard testimony and argument from the employer's representative and from the claimant and his union representative.

We took particular note of the following findings:

• January 22, 2001 -- letter from orthopaedic surgeon to the board -- noted that the claimant had been seen on January 17. Further noted his belief that the worker may well require a total elbow arthroplasty. Referred to HSC Elbow Clinic.
  
  
• April 10, 2001 -- letter from orthopaedic surgeon at Elbow Clinic -- noted that the worker has become virtually one-handed. Further noted that the patient required a distraction-interposition arthroplasty.
  
  
• April 18, 2001 -- "Return to Work Plan" signed by Elbow Clinic surgeon, noted: "Considering his pain and inability to stand or sit for even one hour without requiring rest and his inability to use his right arm for any activities, none of the modified duties seem appropriate." (His emphasis.)
  
  
• July 31, 2001 -- letter from family physician to employer: "At this point in time, I would agree with [the surgeon's] recommendations previously, that he is functionally unable to perform any useful work, and I would see him remaining in that category, until has definitive surgery performed."
  
  
• In coming to its initial decision not to pay wage loss benefits, the adjudicator relied on the recommendations of a board medical advisor, who felt the claimant was capable of working at the alternative duties, as they were within his listed restrictions. These restrictions had been determined by a review of the file and not by an examination of the claimant.

With respect to the last point, we are of the view that, while medical opinions based on a file review are very often an appropriate tool upon which to base an adjudicative decision, this is not such a case. In this case, there was definitive opinion from his treating physicians that he was not capable of performing the alternate duties. This should have been afforded considerable weight by both the medical advisor and the adjudicator.

We have given such weight to the opinions of his treating physicians and come to the conclusion that he was not capable of performing the alternate duties from the time he booked off work in January until his operation in October.

We would note that the claimant and/or his physicians would have helped his case if this information had been provided to the board in a more timely manner. It was not until three months after he stopped working that his treating surgeon provided a written statement as to the patient's inability to work. Nonetheless, the lack of timeliness does not equate to a denial of benefits.

We support the decision of the Review Office and conclude that the claimant is entitled to wage loss for the period at issue.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 29th day of October, 2002