Decision #71/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on May 29, 2003 at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 29, 2003.Issue
Whether or not the claimant is entitled to wage loss benefits beyond January 21, 2002.Decision
The claimant is entitled to wage loss benefits from January 21, 2002 to August 20, 2002.Decision: Unanimous
Background
The claimant began employment as a laundry attendant with this employer in 1986. In 1996 the claimant experienced pain in both her wrists and her condition was diagnosed as mild bilateral carpal tunnel syndrome (“CTS”). The Workers Compensation Board (“WCB”) determined that the claimant’s condition was related to her employment duties, which included repetitive lifting and pulling of heavy linen. The claimant received wage loss benefits for her time off work from March 13, 1996 until May 4, 1996.
In January 2000, the claimant informed the WCB that for the past year she had been experiencing recurrent pain in her right and left wrists as well as pain in her elbow and shoulder. She advised that she could no longer do the heavy lifting and pulling of wet linen required for her job in the laundry. A March 13th, 2000 EMG study revealed mild-moderate bilateral CTS. Primary adjudication reinstated wage loss benefits to the claimant effective from January 27, 2000. The claimant has been off work since that time.
Surgery was recommended for treatment of the claimant’s bilateral CTS and on August 21, 2000 and January 24, 2001, the claimant underwent right and left carpal tunnel releases respectively. The claimant attended occupational therapy sessions to improve her grip strength. In April 2001, a WCB medical advisor reviewed the case and recommended that the claimant begin a graduated return to work program. On May 9, 2001, the case manager consulted with the treating physiotherapist who advised that the claimant had increased pinch and grip strength and could perform modified duties such as light folding. The case manager arranged for an examination and assessment to be conducted by a WCB medical advisor.
The WCB medical advisor examined the claimant on May 31, 2001 and noted that the claimant’s symptomatology had improved but that her grip strength testing revealed rather profound weakness. The medical advisor was of the opinion that the claimant could not return to heavy gripping and lifting duties in the laundry department. In a memorandum to the case manager dated June 11, 2001, the WCB medical advisor outlined restrictions for the claimant as follows: 1) no lifting greater than 15 pounds; 2) no vibratory tools; 3) no repetitive forceful gripping and 4) no forceful/prolonged flexion or extension of the wrists.
The claimant was referred to a specialist in hand, wrist and reconstructive surgery who assessed the claimant on September 10, 2001. The specialist was of the opinion that the claimant’s symptomology was consistent with CTS and suggested that the claimant should be managed with modification of activities, the use of supportive wrist bracing and anti-inflammatories. The specialist stated that the claimant should avoid any form of heavy repetitive lifting, gripping, pushing or pulling activities. In a report dated October 4, 2001, the claimant’s treating physician advised that the claimant could return to alternate or modified duties if the restrictions specified by the hand specialist were followed.
Over the next several months, the WCB case manager communicated with the employer to find employment that would meet the claimant’s physical restrictions. In January 2002, the employer advised that a full time messenger position in the Transportation Department was available. According to a memo on file, the WCB case manager called the claimant on January 11, 2002 and advised her that a messenger position was available and that it was within her physical restrictions. The claimant expressed the view that the job required heavy lifting but initially agreed to try the job. According to the case manager, the claimant subsequently called her on January 15, 2002 and advised that she would not accept the position.
By letter dated January 15, 2002, the claimant was informed by the WCB case manager that the position offered had been reviewed and determined to be within the claimant’s physical restrictions and as a result of the claimant’s unwillingness to accept this alternate position, wage loss benefits would be paid to January 21, 2002 inclusive.
On March 14, 2002, the union representative, acting on behalf of the claimant, appealed this decision to the Review Office. In its supporting material, the union included a report dated February 13, 2002 from the hand specialist who had previously examined the claimant. The specialist noted that in reviewing the job description for the position of messenger provided to him by the union representative, it appeared that some of the activities were repetitive in nature and there may be occasions where the claimant is lifting heavy objects and if so, these activities would have to be modified to prevent the claimant’s symptoms from reappearing. The job description provided to the specialist was dated February 20, 1985 and indicated a revision date of June 1, 1992. The union representative also noted that a physical demands analysis of the proposed job had not been performed.
Prior to considering the appeal, the Review Office requested a worksite assessment to determine whether the alternate job of messenger was within the claimant’s restrictions. A WCB rehabilitation specialist conducted an on-site assessment of the messenger position on May 2, 2002, concluding that the job met all of the physical restrictions. In his report, the WCB rehabilitation specialist noted that, for 80% of a shift, the messenger is dealing with paperwork, lab specimens and x-rays weighing less than 5 pounds. He also noted that while the messenger may be asked to deliver oxygen tanks, pumps or infusers which weigh between 10.4 and 19.3 pounds, no lifting is required as they are on wheels and can be rolled. In addition, according to the supervisor, there will be other employees available to provide assistance in lifting heavier items off shelves and providing other assistance when required. The rehabilitation specialist concluded as follows:
“It is my opinion that the job itself is repetitive, however, there are many opportunities to change positions, grips and grasps while carrying out the job. Due to the short lived nature of each component, I cannot say that the components are repetitive in nature. In general, I feel that the job of Messenger is within the above stated restrictions.”
By letter dated August 20, 2002, the WCB case manager advised the union representative of the rehabilitation specialist’s assessment that the messenger position was within the claimant’s restrictions. On November 1, 2002, the union representative requested that the appeal be forwarded to the Review Office. In its accompanying submission, the union representative did not address the worksite assessment conducted by the rehabilitation specialist.
In its decision dated February 7, 2003, the Review Office determined that the claimant was not entitled to wage loss benefits beyond January 21, 2002. The Review Office stated that it was the obligation of every injured worker to try to mitigate the consequences of a compensable injury and noted that the WCB rehabilitation specialist had assessed the alternate position offered to the claimant as falling within her physical restrictions. The Review Office was of the opinion that there was no physical reason why the worker would be unable to attempt to perform the messenger position. On February 17, 2003, the union representative appealed the Review Office’s decision and an oral hearing was convened.
Evidence at Hearing
An oral hearing took place before the Appeal Commission on May 29, 2003. The claimant and her union representative were present. No one appeared on behalf of the employer.
The claimant testified that she had experience working as a messenger in the Transportation Department approximately five or six years ago. She indicated that the job at that time required her to lift heavy objects and that she would be unable to do this given her present limitations. The claimant admitted that she did not have any physical restrictions placed on her job at the time she worked as a messenger. The claimant stated that she did not believe that the job would be modified or any assistance provided to her to ensure that she was not required to exceed her physical restrictions.
At the hearing, both the claimant and her union representative admitted that recently the employer had been placing workers with physical restrictions in modified duty positions within the Transportation Department. The claimant presented no additional evidence to challenge the assessment conducted by the WCB rehabilitation specialist in May 2002 that the alternate job offered to the claimant was within her physical limitations.
Reasons
Section 39(2) of The Workers Compensation Act (the “Act”) provides that wage loss benefits are payable to a worker until the loss of earning capacity ends, as determined by the board.
Section 22 of the Act further provides that where an injured worker “fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable …if the worker…had mitigated the consequences of the accident.”
In determining the issue of payment of wage loss benefits beyond January 21, 2002, the panel also considered whether the claimant failed to mitigate the consequences of her accident by refusing to participate in the alternate work offered by the employer.
The evidence discloses that during a telephone call in January 2002, there was disagreement between the WCB case manager and the claimant about whether the alternate job of messenger was suitable given the claimant’s restrictions. The worker, however, refused to try the position offered. We note at that time, no on-site assessment of the demands of the job had been conducted by the WCB. Subsequently, the Review Office requested the job assessment, which was done in May 2002. By letter dated August 20, 2002, the claimant was advised that the WCB rehabilitation specialist had concluded that the alternate position was within her physical limitations. All of the medical specialists, including the claimant’s treating physician, had concluded that the claimant was able to return to work provided the job did not involve heavy repetitive lifting, gripping, pushing or pulling activities. The job assessment conducted by the rehabilitation specialist took into account all of these physical limitations. The February 13, 2002 assessment by the hand specialist was based on a job description that did not consider modified work duties, that did not specify the weight or nature of the equipment being delivered or provide details relating to the manner in which tasks were performed or refer to the assistance available to employees such as the claimant. No subsequent medical evidence was provided to suggest that the claimant’s limitations had changed or that the alternate job duties described in the on-site assessment did not meet the claimant’s restrictions.
The panel finds that the claimant’s initial refusal to accept the alternate job in January 2002 was reasonable in light of the evidence at hearing of her previous experience in the messenger job. Her concerns that a modified version of this job would not meet her physical restrictions were legitimately held at that time. On this basis, she would be entitled to wage loss benefits until these concerns were addressed through the on-site job assessment.
The panel is of the opinion that the failure of the claimant to try the alternate position of messenger, after being informed by the WCB that the job assessment concluded that it was within her physical restrictions, constituted a failure to mitigate the consequences of her accident. When the claimant was notified of this conclusion by letter dated August 20, 2002, the claimant should have agreed at that time to participate in the alternate work program. The panel therefore concludes that the claimant is only entitled to wage loss benefits from January 21, 2002 to August 20, 2002.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
M. Thow - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of July, 2003