Decision #43/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 9, 2004 at the employer's request. The Panel discussed this appeal on the same day.Issue
Whether or not a compensable loss of earning capacity existed between March 12, 2003 and June 16, 2003 entitling the claimant to payment of wage loss benefits for this period.Decision
That the claimant is not entitled to payment of wage loss benefits for the period between March 12 and June 16, 2003.Decision: Unanimous
Background
The claimant had been employed as a glass fitter for approximately one month. On October 22, 2002, while performing his job duties, the claimant sustained a laceration to his left index finger requiring surgery. The surgery was performed on November 9, 2002. The claim was accepted by The Workers Compensation Board ("WCB") and benefits were paid.On January 14, 2003, a WCB medical advisor reviewed the file and restrictions were placed on the claimant returning to work, which prevented him from doing any repeated gripping or lifting of weights over 10 lbs. with his left hand.
On January 21, 2003, the WCB case manager, plant manager and claimant met at the worksite to review possible light duties available for a return to work plan. It was agreed at that meeting that the claimant would be able to feed glass into an automatic glass-edging machine utilizing one hand and that the job was not repetitive. The employer advised that alternate duties would be available for 8 hours per day and the claimant would return to work on January 22, 2003. The case manager advised that the restrictions would remain in place for four weeks and that they would be reviewed after the claimant's appointment with his surgeon on February 5, 2003. The alternate return to work plan was set out in a letter to the claimant dated January 22, 2003.
On February 5, 2003 the claimant was examined by his surgeon. The surgeon reported that the claimant had good range of motion in his left finger, but there was stiffness in his DIP joint with some decreased sensation. The surgeon was of the view that the claimant would benefit from further surgery on the flexor tendon. The WCB accepted financial responsibility for the procedure. On February 14, 2003, the surgeon determined that surgical intervention should be deferred until the claimant completed physiotherapy sessions.
According to the file documentation, the claimant did not report to work on February 7, 2003 and did not contact his employer. The employer contacted the WCB case manager and advised that he was unable to get in contact with the claimant. The case manager spoke to the claimant on February 7, 2003 and according to the file, the claimant advised that he did not report to work as he felt unable to perform the job functions. The claimant expressed concern that he could not do any repetitive gripping and the case manager advised that from her review of the job duties they did not involve repetitive gripping. The claimant also advised that his surgeon had recommended further surgery on his finger. The case manager advised that she would review any additional medical information and would attend at the job site to review the duties. The case manager also advised the claimant of the importance of working and contacting his employer in the future.
On February 12, 2003, a WCB medical advisor reviewed the file and indicated that there was no change in the restrictions and that the claimant was to continue with modified duties.
In a letter dated February 13, 2003, the WCB case manager advised the claimant that a WCB medical advisor had reviewed the surgeon's report and determined that he was able to perform alternate duties within the restrictions previously outlined. These restrictions would be in place for four more weeks and would be reviewed again on March 12, 2003. The letter noted that the claimant had not been at work since February 6, 2003 and the claimant was advised to contact his employer as soon as possible as alternate duties were still available.
On February 17, 2003, the claimant left a message for the case manager advising that he could not do the job as it was repetitive in nature and he would appeal the decision. The WCB case manager contacted the employer asking for a list of duties available that were not repetitive. On February 17, 2003 the employer provided the case manager with a list of 6 possible light duties that were available and within the claimant's restrictions.
The claimant was examined by his surgeon on February 19, 2003. In his report the surgeon stated as follows:
"He also presents today with concerns of being able to return to light duties and feels that he can't do a full day's work. We have reached a compromise that I think the patient is agreeable to and would be reasonable and that is that he does light duties for half a day at his place of employment and then does par physiotherapy in the afternoon. If he does not receive functional range of motion at that time, then we will consider surgery but given the advice of his therapist, we would recommend that par therapy be undertaken prior to doing any surgical intervention for tenolysis of profundus tendon."On February 19, 2003, the claimant left a message advising the case manager that his surgeon had recommended that he return to work half days while attending physiotherapy in the afternoon. The claimant advised that he had contacted his employer to let them know that he was returning to work on February 24, 2003. The claimant did not show up for work on February 24, 2003 and did not contact the employer.
In a letter to the claimant dated March 3, 2003, the WCB case manager advised that no further compensation would be paid on the basis that the WCB Healthcare Services Division had reviewed the current medical information and it was determined that he was fit to return to full duties on March 12, 2003.
The claimant appealed the case manager's decision and the file was referred to the Review Office for reconsideration.
A report dated April 16, 2003 was received from the claimant's surgeon regarding the claimant's continuing problem with his hand and outlining the option of further surgery. With respect to the claimant's ability to perform light duties, the report stated as follows:
"…The patient was able to tolerate light duties at work but was not able to tolerate his full duties, which involved lifting 80 or 90 pound pieces of glass. He was able to tolerate his light duty functions however. Light duties apparently at the company did not fall within the guidelines, and he was put in a position of over-utilization of his hand."In a memo on file dated April 22, 2003, the case manager advised the WCB medical advisor that she was of the opinion that the alternate duties that had been available to the claimant fell within the restrictions and that they could be performed with one hand if needed.
The WCB medical advisor reviewed the case on May 6, 2003 and agreed that the claimant could continue in the alternate duties. A Functional Capacity Evaluation (FCE) was conducted on May 29, 2003.
The claimant was scheduled for further surgery on June 17, 2003. A WCB medical advisor reviewed the file in light of the FCE results and concluded that the claimant could not perform his full duties. The WCB approved the surgery.
On June 10, 2003, the claimant advised the case manager that he was working for a telemarketing company and that he had been fired by his accident employer.
Surgery was performed and in a follow-up report dated August 13, 2003, the surgeon noted that the claimant had almost full range of motion and improved sensation. The surgeon noted that he concurred with the claimant's indication that he is able to return to his previous occupation at full duties without any workplace limitations.
On August 25, 2003, a worker advisor, on behalf of the claimant, appealed the WCB decisions of January 22, 2003, and February 13, 2003 respecting the ability of the claimant to perform the alternate duties offered by the employer and the WCB decision of March 3, 2003 that the claimant was fit to return to full duties as of March 12, 2003.
On October 3, 2003 the Review Office determined that:
- As of January 24, 2003, the alternate employment offered to the claimant was within his restrictions;
- The claimant was entitled to benefits during the period between March 12, 2003 and June 16, 2003, when wage loss benefits were reinstated following surgery.
With respect to the second finding, the Review Office noted that the medical evidence subsequent to the March 3, 2003 decision indicated that the claimant would not be able to perform his regular employment as of March 12, 2003. In concluding that the claimant was therefore entitled to reimbursement of wages from March 12, 2003 to June 16, 2003, the Review Office stated that the only ground upon which the claimant could be denied wage loss benefits would be if the employer had offered alternate duties during this period and the claimant had turned them down.
In a letter dated October 20, 2003, the employer asked the Review Office to reconsider its decision on the basis that the employer had alternate duties available for the claimant and it was the failure of the claimant to communicate with them that resulted in the company terminating his employment on March 6, 2003.
On November 27, 2003, the employer appealed the Review Office decision that the claimant was entitled to benefits between March 12, 2003 and June 16, 2003. A hearing was convened before the Appeal Commission.
Evidence at Hearing
An oral hearing took place before the Appeal Commission on February 9, 2004. Present at the hearing was the plant manager on behalf of the employer, the claimant and his worker advisor.
It was the employer's position that the company had always been willing to provide alternate duties within the claimant's restrictions and that it was the claimant's actions alone that led to his termination on March 6, 2003.
The plant manager testified that if an employee with only one month's seniority, fails to show up for work and does not contact the employer for more than three days, the union contract requires that the employee be terminated.
The evidence at hearing indicated that the claimant's last day of employment was February 9, 2003. The claimant explained that on that day his finger was throbbing from having to open and close packaging. He complained to his foreman and was sent home to rest.
The claimant was asked to review a list of 6 proposed light duties sent by the employer to the WCB on February 17, 2003. According to the plant manager, these light duties were jobs that were available for the claimant to perform. The claimant admitted that he would have no difficulty at all performing three out of the six duties listed. Of the other three duties that he felt he could not perform, one was the packaging duty that had caused him difficulty. The claimant testified that he never asked the employer if he could switch to other jobs. The claimant testified that he did not talk to the plant manager or anyone else at work regarding his difficulties with his job after February 9, 2003.
According to the evidence tendered at the hearing, the claimant had left two phone messages, on February 19th and February 21st, advising the company that he would be returning to work the following Monday. The plant manager testified that he tried to contact the claimant numerous times by telephone when he failed to show up for work as promised on February 24, 2003. The claimant admitted to the panel that when the plant manager called, he refused to talk to him. The claimant attributed his failure to communicate with the employer due to anger and personal difficulties he was having during this period.
The plant manager testified that at all times, including the period between March 12th and June 16, 2003, the employer had alternate duties that would have been available to the claimant. He also testified that the employer was prepared to follow the recommendation of the claimant's surgeon and accommodate the claimant with half days of alternate duties.
Reasons
The Review Office determined that as of January 24, 2003, the claimant was fit for alternate employment and the alternate duties were within his restrictions. The claimant has not appealed this decision. There has also been no challenge to the determination that the claimant was not fit to return to full duties during the period between March 12, 2003 and June 16, 2003. Rather, the issue for this panel to consider is whether the claimant failed to mitigate the consequences of his accident during that period.Section 22 of The Workers Compensation Act 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."
Also relevant to the Panel's determination is Paragraph B.6 of WCB Policy 43.20.20 dealing with the WCB response to non-cooperation in modified or alternate return to work situations. Sub-paragraphs B.6 (b) and (c) of this policy provide as follows:
The evidence indicates that on January 21, 2003 the claimant, the case manager and the plant manager met at the worksite to review possible light duties available that would meet the claimant's physical restrictions. All of the parties agreed that the alternate duties offered by the employer were within the claimant's restrictions. The claimant participated in the alternate return to work plan until February 9, 2003, when he left work due to difficulties he had in performing one of the light duties available.b) If the worker refuses to participate in modified or alternate work that is initiated by the WCB and consistent with the worker's rehabilitation plan, compensation benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified or alternate work situation.
c) When the employer initiates the modified or alternate work, and there is a disagreement about whether it is suitable for the worker, then the WCB will determine if the work placement is appropriate under this policy. If it is, and the worker refuses to participate after being informed by the WCB, compensation benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified or alternate work situation.
The Panel considered the evidence given by the claimant at the hearing regarding his failure to show up for work after February 9th and failure to communicate with the employer and concludes that the claimant in effect abandoned his employment and any opportunity offered by his employer to perform alternate work duties.
The Panel notes that the claimant admitted that he was able to perform three of the six alternate duties available at the worksite. The claimant admitted that he failed to communicate his difficulty in performing the packaging duties with the plant manager or with anyone at his employment after February 9, 2003. The claimant admitted that at no time did he ask his employer to switch jobs. The claimant was advised in a letter dated February 13, 2003 to contact his employer, as alternate duties were still available. The claimant failed to do so.
The claimant admitted that he was aware that if he failed to show up for work and contact the employer for three days, he would be terminated under union rules, yet he advised his employer that he would return to work on February 24th and then failed to do so and did not contact his employer. The claimant's evidence leads the Panel to conclude that he deliberately refused to communicate with his employer for personal reasons unrelated to his ability to perform the alternate work.
In light of the evidence of the employer that alternate duties would have been available to the claimant throughout the period of March 12th to June 16, 2003, the Panel concludes that the claimant's conduct amounted to a refusal to participate in an alternate work plan thereby failing to mitigate the consequences of his accident. The panel also notes that the claimant sought and obtained full time employment shortly after the termination of his employment with the pre-accident employer.
The claimant is therefore not entitled to wage loss benefits during the period between March 12th and June 16th, 2003. Accordingly, the employer's appeal is allowed.
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 24th day of March, 2004