Decision #148/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on September 11, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 11, 2002.Issue
Whether or not the worker is entitled to full wage loss benefits for September 21 and September 24 to 28, 2001.Decision
That the worker is entitled to full wage loss benefits from September 24th to September 28, 2001 inclusive and final.Decision: Unanimous
Background
On September 13, 2001, the claimant was trimming weeds in a ditch with a weed eater when he slipped and fell landing on his back. On the day of accident, there was dew on the ground and the claimant was using the weed eater on an angle.Medical attention was sought on September 17, 2001. The diagnosis reported by the attending physician was a right thoracolumbar strain. In a Return to Work form dated September 17, 2001, the physician stated that the claimant was capable of performing sedentary duties (i.e. to avoid lifting over 10 pounds, occasional lifting/carrying of small articles, some occasional walking or standing) for two weeks effective September 18, 2001. On September 21, 2001, the claimant commenced modified duties.
E-mail correspondence from the employer dated October 3, 2001, indicated that the claimant worked 1 ½ hours on September 21st but left work to attend dental and medical appointments. The employer further stated, "He was advised to return to work after each appointment but he did not return that day. On Monday, September 24th, a female contacted the office advising that Mr. [the claimant] was sick (his back hurt) and would not be in that day. Tuesday, September 25th, we did not hear from Mr. [the claimant]. Wednesday, September 26th Mr. [the claimant] attended the offices in the afternoon to collect a Return to Work form and advised that he had reinjured himself doing his light duties and could not work all week. We had advised him at that time that he was being laid off effective September 26th."
A second Return to Work form was completed by the attending physician on September 24, 2001. The physician noted that the claimant was made to clean windows on September 21st which did not come under sedentary work. The restrictions outlined on this form were the same as were outlined on September 17th.
On October 5, 2001, a Workers Compensation Board (WCB) adjudicator spoke with the claimant and the following information was obtained:
- when the claimant returned to work on September 21, 2001, he was asked to wash windows using a 15 foot ladder. He worked between 8 and 10 a.m. and then left for his appointment. The claimant was able to complete 3 windows in two hours. The claimant attended his physiotherapy session and was scheduled to see his doctor at 1:15 p.m. The claimant did not return to work that day nor did he call anyone at work.
- on September 24, 2001, the claimant's room-mate called the employer to tell them that he was not coming in because he had hurt his back climbing the ladder. The reason he got his room mate to call was because he could not get out of bed. The claimant advised that he went to see his doctor on September 25th. When he went to work on September 26th, he was told that he was being laid off due to absenteeism.
In a telephone conversation with a WCB adjudicator on October 16, 2001, the claimant indicated that he was not given an extension for the squeegee and was told that a ladder was with the other equipment. The claimant indicated that people in the office saw him use the ladder.
On October 22, 2001, the employer's representative advised a WCB adjudicator that the claimant was instructed where the ladder was if he needed it. The ladder, however, never left the washroom area as the squeegee was sufficient enough to reach the windows.
Following consultation with a WCB medical advisor on October 23, 2001, the claimant was advised on October 24, 2001, that it was the opinion of Rehabilitation and Compensation Services that the job of washing windows with a squeegee fell within his physical capabilities. The claimant was, therefore, not entitled to receive wage loss benefits from September 21 to September 24, 2001 as the employer had suitable work available.
On January 23, 2002, a union representative appealed the above decision to Review Office on behalf of the claimant. The union representative submitted a doctor's report for consideration dated January 11, 2002 and contended that the claimant was entitled to benefits from September 21 to September 28, 2001 inclusive. In the event that benefits were not granted during this period, a Medical Review Panel (MRP) was requested.
The January 11, 2002 report from the attending physician stated that when the claimant was seen on September 21, 2001, the claimant advised that he had been offered work cleaning 15 foot windows on a ladder and that the work aggravated his pain. The physician stated that washing windows was not within the claimant's work restrictions whether he used a ladder or an extension squeegee. When seen on September 24th, the claimant's situation was unchanged from the previous examination of September 17th in that he had tenderness over the right lower thoracic paraspinal muscles, pain with full flexion. The physician confirmed that on a balance of probabilities, the work offered to the claimant on September 21st was not within his physical capabilities and did not come under the definition of sedentary work and that this aggravated his condition.
In a submission dated March 11, 2001, the employer contended that the objective physical findings noted on medical reports would not have precluded the claimant from performing the duties that were provided to him on September 21, 2001. The employer was further of the view that the physician's letter of January 11, 2001, fell short of satisfying the definition outlined in Section 67(1) of The Workers Compensation Act (the Act) and that a MRP should not be convened.
In a decision dated March 22, 2001, Review Office found it reasonable to provide the claimant with payment of partial wage loss benefits for the time that he missed work on September 21 and September 24 to attend doctor appointments related to his injury. The claimant was not entitled to receive wage loss benefits to attend a dental appointment, as this was not related to the claim.
Review Office felt that the claimant was not entitled to payment of additional wage loss benefits on September 24 and September 25, 2001. Review Office noted there was contradictory testimony on file from both the claimant and employer as to whether or not the claimant used or needed a ladder to wash windows. Review Office believed it was more important to look at medical evidence to determine whether or not the claimant could have resumed the light duty work based on his physical condition.
Review Office commented that there were no changes in medical findings between September 17 and September 24th. The only thing that changed was that the attending physician instructed the claimant on September 24th to remain off work primarily because he felt that the duties being offered (based on the worker's own description) were outside of the definition of sedentary duties. Review Office believed that if the findings were the same on September 17 and September 24th, that the claimant could have continued to work at the duties offered to him if he chose to do so. Review Office felt there was some evidence to indicate that the worker may not have accurately described his work duties to his physician on September 21st.
In a separate letter dated April 23, 2002, Review Office determined that a MRP would not be convened. Review Office noted that the exact nature of the claimant's light duty work was in contention and that this was strictly an adjudicative manner. While the doctor offered his opinion based on the claimant's version, Review Office did not accept this version as being an accurate reflection of the facts. On May 10, 2002, the union representative appealed Review Office's decision of March 22, 2001 and requested an oral hearing.
On June 3, 2002 Review Office clarified its decision of March 22, 2001. Review Office added that the claimant was not entitled to payment for lost earning capacity on September 26, 27 and 28, 2001. The reasoning for this decision was the same as was outlined on March 22, 2001.
An oral hearing was held at the Appeal Commission on September 11, 2002. Following the hearing and discussion, the Panel requested that a WCB rehabilitation specialist attend the employer's work site to observe the "window washing" position that was offered to the claimant. This assessment was later carried out and the WCB's rehabilitation specialist's report dated October 22, 2002 was forwarded to all interest parties for comment along with a video tape of the work site visit. On November 15, 2002, the Panel met to render its final decision and took into consideration a submission from the employer's representative dated November 6, 2002.
Reasons
This case involved a worker who was injured as a result of a 'slip and fall' while at work. He suffered a strain to the right thoracolumbar region. His claim for compensation was accepted and benefits were paid accordingly.At issue in this appeal is whether or not the claimant is entitled to wage loss benefits for September 21 and September 24 to 28, 2001. For the appeal to succeed, the Panel would have to determine that the alternative duties offered by his employer were not within the restrictions listed by his attending physician. We did come to that determination.
In coming to our decision, we conducted a thorough review of the claim file, as well as conducting an oral hearing at which we heard testimony from the claimant and representatives of his union and employer. Subsequent to the hearing, we requested that a board Rehabilitation Specialist conduct a worksite assessment to determine whether or not the alternative duties were within the restrictions.
We note the following:
- His doctor, at the time of the claimant's first visit on September 17, stated that the worker was restricted to sedentary duties for a period of two weeks. He signed the employer's return to work form, which defined sedentary duties as "10 pounds maximum lifting, occasional lift/carry of small articles, some occasional walking or standing may be required."
- There were no alternative duties available for September 18, 19, 20.
- The claimant returned to work on the 21st. The duties offered were to wash large windows, both inside and out.
- He worked for a couple of hours on the 21st, then left to attend to two appointments, one of which was related to the injury, the other not.
- He did not return to work on Monday, the 24th or on subsequent days.
In the end, Review Office allowed him partial wage loss benefits for the time he attended a physician, but found that he had refused alternative duties on the subsequent days.
We came to our conclusion by way of information that was not available to the Review Office. The Rehabilitation Specialist, who conducted the worksite assessment at our request, concluded that the duties offered were not within the specified restrictions.
He was asked to determine whether or not the assigned duties were within the restrictions. He noted that it was not relevant to his decision whether or not the claimant had used a ladder or a squeegee with an extension handle.
He concluded that the task of filling, lifting and carrying the bucket of water, on its own exceeded the restrictions. He found that a five-gallon pail (as was provided) would, if full, weigh 42 pounds; if filled with three gallons, the weight would be 26 pounds. The lift in and out of the sink involved lifting the pail above waist height.
On this basis alone, he found that the alternative duties did not meet the restrictions.
Based on this assessment of the workplace, we conclude that the alternate duties offered were not appropriate and that the worker was fully entitled to refuse to do them.
In respect of September 21st, we agree with the decision of Review Office that the claimant was entitled to partial wage loss benefits for that day.
In respect of September 24 to 28, we find that he is entitled to full wage loss benefits for those days.
The appeal is allowed as set out above.
Panel Members
T. Sargeant, Presiding OfficerP. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of December, 2002