Decision #12/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 15, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 15, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits for the period October 31, 2001 to November 30, 2001.

Decision

That the claimant is only entitled to wage loss benefits as of November 23, 2001 to November 30, 2001 inclusive.

Decision: Unanimous

Background

On July 17, 2001, the claimant submitted an application for compensation benefits with the date of accident being July 17, 2001. On this date, the claimant indicated that her right arm was always sore from her shoulder to her hand and that her ribs, chest and back were sore as well. She had a throat infection and chronic pain. The accident report from the employer indicated that the claimant's right shoulder became sore while "deboning" product.

On July 20, 2001, the attending physician stated that the claimant was unable to work between July 17, 2001 and July 27, 2001 for medical reasons. The diagnosis rendered was right acute rotator tendinitis. On July 27, 2001, the attending physician outlined restrictions of no heavy lifting, no repetitive motion of the hands/arms against pressure. Permanent light duties were recommended. The claimant then returned to light duties effective July 30, 2001.

On November 7, 2001 the employer contacted the Workers Compensation Board (WCB) to indicate that the claimant had been working modified duties until October 30, 2001 and that she came to work with a note stating that she would need to be placed on permanent modified duties. The claimant was then offered modified duties consisting of general office cleanup (i.e. light sweeping and emptying desk garbage cans) with modified hours. It was agreed to by all parties that the claimant would start work on November 5, 2001 as she wanted a few days to rest before commencing work. The claimant, however, did not show up for work as planned and when they were finally able to reach her by phone, the claimant advised that she was not planning on a returning to work until she felt better.

Between November 8, 2001 and March 5, 2002, numerous discussions took place between the WCB and the employer as to the type of modified duties that were offered to the claimant on October 31, 2001. The claimant was also contacted to obtain her version of the job duties that the employer offered to her and why she refused to perform the modified duties.

On March 5, 2002, primary adjudication determined that the claimant suffered an accident arising out of and in the course of her employment. However, it was determined that the claimant was not entitled to benefits for the period October 31, 2001 to December 1, 2001, as the claimant refused to perform the modified duties that were offered to her by her employer and therefore did not mitigate the consequences of her injury. In reaching this decision, primary adjudication provided the following comments:
  • the attending physician authorized the claimant to return to modified duties of paper shredding and light office cleaning which involved less carrying, standing, lifting and bending. On October 31st the employer offered the claimant duties that involved cleaning offices starting at four hours a day. The claimant refused these duties but was then offered the opportunity to begin on November 5, 2001. When finally reached on November 7, 2001, the claimant said she was unable to come in and perform the modified duties as agreed upon and that she was going to stay home until she was feeling better.

  • information obtained from the attending physicians confirmed that the claimant did not seek medical attention between October 17 and November 23, 2001 regarding her right shoulder or right arm. On November 23, 2001, the attending physician advised the claimant that she should remain totally off work until January 1, 2002.
On March 22, 2002, a union representative appealed the above decision to Review Office. The union representative was of the position that the claimant was entitled to wage loss benefits as the claimant agreed to perform the type of work that her doctor told her she could safely perform but this was not the work she was sent to do. It was felt that the employer was responsible for her time loss and the WCB was required to pay the wage loss benefits.

On October 11, 2002, Review Office considered the above appeal and determined that the claimant was not entitled to wage loss benefits between October 31, 2001 to November 30, 2001. Review Office acknowledged that the claimant was occasionally asked to work outside her restrictions when she originally returned to light duties in July 2001. However, a meeting did take place on October 31, 2001 at which time the claimant was offered light cleaning duties in the office area. The claimant contended that after this meeting she was informed by a supervisor to return to the plant to work. This allegation was denied by the employer. Subsequently, the claimant informed the employer that she would not be back to work until she was better.

Review Office felt that both the employer and the worker had obligations which must be kept for modified return to work programs to be successful. It was apparent that the claimant determined on her own volition not to return to the modified duty position made available by the employer rather than expressing any concerns which she may have had to the employer. Review Office believed that the claimant failed to mitigate the effects of her injury and should not be entitled to benefits during the period in question. On October 31, 2002, the union representative appealed Review Office's decision and an oral hearing was requested.

Reasons

This case involves a worker, who incurred injuries to her right shoulder, determined to be acute rotator tendinitis. On July 17, 2001, she filed an application for compensation, which was accepted and benefits paid accordingly.

At issue in this appeal is whether or not she is entitled to wage loss benefits for a specific period, that being October 31, 2001 to November 30, 2001. The resolution of this issue came down to whether or not she was capable of performing the alternate duties offered by the accident employer during this period.

For her appeal to succeed, the Panel would have to determine that the alternate duties offered exceeded her restrictions. We have concluded that, for most of that period, the duties were within her restrictions and, thus, she could have performed them. However, for the period from November 23 - 30, she was unable to do any work and should receive wage loss benefits.

In coming to our conclusion, we conducted a thorough review of the claim file, as well as holding an oral hearing, at which we heard testimony from the claimant, her representative and representatives of the employer.

Prior to October 31, 2001, the worker had been working at modified duties in the processing plant of her employer. On that date, she asked for lighter duties, claiming that she was unable to continue at the duties in the plant. She was offered lighter duties doing clean-up in the office. She was to begin these on November 5th. However, she did not report to work on the 5th, later stating that she would not return to work until she felt better.

She maintains that, after the meeting, her supervisor from the plant instructed her to return to her duties there. She refused these, as she was not capable of performing them. The employer's position is that this was not so, as the plant supervisor had no more authority over her and was aware of this. While she may have misunderstood some comments from the supervisor, due to her limited skills in English, we are of the view that there was never any question of her returning to duties that she could not perform.

The duties in the office were clearly within her restrictions, as set out in the medical information on file. The decision not to report to work on November 5th and subsequent days was hers and not owing to her compensable injury.

We note, from the medical file, that she was seen by her doctor on November 23, 2001, at which time her doctor found her to be unable to perform any duties, including alternate or modified ones. The doctor gave her a 'sicknote' stating she was unable to work from December 1, 2001 to January 1, 2002. It was, in part, based on this note that her wage loss benefits were recommenced on December 1st.

We are of the view that, since the date of examination was November 23 and she was found unfit to work on that date, she should have been eligible for wage loss benefits from that date.

So, we conclude that she is not entitled to wage loss benefits for the period October 31, 2001 to November 22, 2001, but is entitled to them for the period November 23, 2001 to November 30, 2001.

Accordingly, the appeal is allowed in part.

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 4th day of February, 2003

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