The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 17, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 17, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits for the period January 10, 2002 to January 25, 2002 inclusive.

Decision

That the worker is entitled to wage loss benefits for January 10 and January 11, 2002, but not for January 12 to January 25, 2002, inclusive.

Decision: Unanimous

Background

In January 2002, the claimant submitted an application for compensation benefits with respect to a right shoulder injury that occurred at work on January 8, 2002, during the course of his employment as a hog loader.

The Employer’s Accident Report dated January 10, 2002, indicated that the claimant felt a sharp pain in his right shoulder while pushing hogs on January 8, 2002. The next shift, he could not lift his arm up over his head. The employer noted that the claimant was offered light duties in the laundry area on January 9, 2002 and that this offer was reissued to him again on January 10, 2002.

Medical information received from the attending physician dated January 10, 2002, diagnosed the claimant with bursitis of the right shoulder. The physician determined that the claimant was capable of alternate or modified work, i.e. working in the laundry area starting January 14, 2002. A certificate dated January 10, 2002 indicated that the claimant was off until further notice.

In e-mail correspondence to the WCB dated January 11, 2002, the employer indicated that the claimant went to see his doctor on January 10, 2002 and that he provided the employer with a note stating he would be off work until further notice. The claimant said that according to his doctor, he was able to perform light duties partial days, but the foreman told him nothing was available. This comment was clarified with the claimant’s foreman. He stated that the claimant had been offered a one handed position working in the laundry area from 4:00 – 12:30 on January 9, 2002. This offer was allegedly made with a union representative present. The employer indicated that it called the claimant and left a message on his answering machine on January 10, 2002 stating that if the doctor wanted him to work partial days, then he could work in the laundry from 4:00 – 8:00 p.m. The claimant called early on January 11, 2002 and advised that he had received the message and that he would think about the offer and let them know by January 14th if he would take it. The employer took exception to the payment of any time/wage loss benefits if in fact the doctor did say that the claimant could work light duties at ½ days.

In a memo to file dated February 27, 2002, a Workers Compensation Board (WCB) adjudicator documented a telephone conversation that she had had with the claimant concerning the modified duties that were offered to him by his employer. In brief, the claimant provided the following information:

• on January 9, 2002, he was offered light duties in the laundry area for the start of his shift on January 10, 2002 at 1:30 p.m.. The claimant indicated that they were having a meeting about his shifts changing to days effective January 14, 2002, and the claimant thought he would try light duties on January 10th so that he would not lose out on his day shifts the following week.
• on January 10, 2002, the claimant saw his doctor at 10:30 a.m.. The claimant advised his doctor that light duties were available in the laundry area. The doctor told him that this was not a good idea but it was up to him if he wanted to try. The doctor told the claimant to take a week off and come back on January 14, 2002 for follow-up. The claimant told the doctor that he wanted to try light duties because he wanted to work days starting January 14, 2002.
• on January 10, 2002, the claimant went to work at 1:30 p.m. and reported to his production supervisor. The production supervisor told the claimant that he was useless. He instructed the claimant to go and sit down in the loading dock office while he organized some light duties. The claimant sat there for 5 minutes and left. The claimant said his shoulder was throbbing and he was stressed out about the way he had been treated. He then went to see his physician for a second time.
• when seen by his doctor the second time, the claimant told the doctor that his shoulder was sore and that he couldn’t take it, i.e. he could not take the stress of being treated like he was by his employer. The claimant told the WCB adjudicator that this was what prevented him from trying the light duties offered to him. The claimant denied telling his doctor that light duties were not available. The doctor gave him a medical note authorizing him to be off work until further notice.
• the claimant advised that he took the medical note to the company nurse and told her that he had been treated badly by the production supervisor. The claimant informed the nurse that his doctor did not recommend light duties and then he left.
• after he got home, the claimant noted that the company nurse left a message for him between 2:30 and 3:00 p.m. on January 10, 2002, indicating that they had light duties available starting at 4:00 p.m. The claimant called the company nurse back on January 11, 2002 and said that he got the message from the previous day and that he would let her know about light duties on January 14th.
• when he saw his doctor on January 14th, the claimant could not recall whether he had advised the doctor that his employer had light duties available for him. The claimant received another note from his doctor advising him to be off work until further notice.

In a letter dated February 6, 2002, the attending physician answered several questions posed by a WCB adjudicator. The claimant was seen on January 10, 2002. He advised that light duties were available in the laundry area and that he wanted to try these. When he came back later in the day, the claimant advised that his foreman told him he was useless and that he should go sit in the loading dock office and that there were no light duties available. “Therefore, he indicated to me that no light duties were available. He continued to undergo rehabilitation with indications that he could not perform modified work as none was available. The rationale was he is not capable of doing them if the duties aren’t there which is what Mr. [the claimant] told me.”

On March 6, 2002, primary adjudication advised the claimant that his claim was acceptable, however, he was not entitled to payment of wage loss benefits as he had failed to mitigate the consequences of his accident. Primary adjudication referred to sections 39(2) and 22 of The Workers Compensation Act (the Act) in its decision. It felt that suitable modified duties, which were within his physical capabilities, and as confirmed by his physician, had been made available to the claimant by the employer. “As well, your physician confirmed that he was under the impression based on your conversation with him that suitable employment was not available and therefore recommended time off from work.” On April 10, 2002, this decision was appealed by the claimant’s union representative to Review Office.

In a decision dated May 3, 2002, Review Office confirmed that the claimant was not entitled to payment of wage loss benefits from January 10 to January 25, 2002. Review Office noted that the claimant had decided to leave the workplace without attempting light duties because of the employer’s verbal treatment towards him. Review Office pointed out that the employer’s verbal treatment towards its employee was not a compensation matter and had no bearing on the issue. What was relevant, according to Review Office, was whether or not there were suitable light duties (which there were) and the reason why the claimant chose not to perform them. In this case, it was not because of the injury.

The evidence showed that the claimant purposely informed his physician that no light duties were available at work and that he failed to inform him of the employer’s offer. As a result of the claimant’s own actions, the physician suggested that the claimant remain off work. Review Office felt that the claimant failed to mitigate the consequences of his accident by not remaining at work and performing the duties offered to him by his employer and that the loss of earning capacity was not related to the compensable injury.

On June 6, 2002, the claimant’s union representative appealed Review Office’s decision and an oral hearing was arranged.

Reasons

Both the worker and the employer presented a great deal of oral evidence at the hearing with respect to the employer’s light duty program. It became readily apparent to the Panel that there was a great deal of confusion on the part of all the parties as to the exact process for implementing the light duty program in the laundry. We find based on
the evidence that the claimant is entitled to wage loss benefits for January 10th and 11th only.

The evidence further confirms that this confusing situation was subsequently clarified by January 14th, 2002. The claimant, however, for whatever reason decided not to participate. Inasmuch as the claimant has neglected to mitigate the consequences of his accident in accordance with section 22 of the Act by participating in the light duty program, he is therefore not entitled to wage loss benefits for the period from January 12 to January 25, 2002 inclusive.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of November, 2002