The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 17, 2004 at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to wage loss benefits.

Decision

That the claimant is entitled to full wage loss benefits from April 1, 2003 to April 10, 2003 and partial wage loss benefits from April 11, 2003 until the claimant returned to full-time regular duties.

Decision: Unanimous

Background

While working as a grocery clerk on March 30, 2003, the claimant slipped turning on a flight of stairs, striking and injuring his right knee. Pain and swelling in the right knee gradually worsened and the claimant attended at a chiropractor on April 1, 2003. The claimant did not return to work until April 11, 2003. On that day he began part-time desk duties and returned to his regular duties a few weeks later.

According to the Chiropractor's First Report to the Workers Compensation Board ("WCB") dated April 1, 2003, the claimant suffered a patellar contusion, pre-patellar bursitis and mild traumatic synovitis. The report noted that the claimant described the accident as occurring at work. The report stated that the claimant was not capable of alternate or modified duties over the next one to two weeks due to the acuity of the pain and limited range of motion in the right knee. The report also referred to a previous right knee fracture in 2002. Active rehabilitation and physiotherapy treatments were commenced.

In a note dated April 4, 2003, the chiropractor confirmed that the claimant was off work due to a work-related accident and that he was unfit for work of any kind for an approximate duration of 10 days. A possible return date of April 14th was set out in the note. In a further note dated April 10, 2003, the chiropractor wrote that the claimant could return to half time light duties commencing on April 11, 2003. The chiropractor specified return to work restrictions in the following terms:

"1/2 time 4 hrs/d ONLY. Desk job SITTING only. No up & down/in & out of seats - sitting ONLY!!!"

The claimant was examined by his physician on April 8, 2003. In the Doctor's First Report to the WCB dated April 8, 2003, the physician indicated that the claimant could not return to regular duties but was capable of alternate or modified work such as working at a desk provided walking was minimized. The report noted that the claimant had suffered a previous right knee injury in 2002 that may affect recovery. The physician also provided a note and completed the employer's return to work plan form indicating that as of April 8, 2003 the claimant could return to a desk job involving minimal walking. The physician did not indicate in the note or return to work plan whether the claimant could perform these duties on a full or part-time basis.

In a letter to the WCB dated April 4, 2003, the employer's Rehabilitation Claims Specialist disputed that an accident occurred at work indicating concerns respecting the lack of witnesses, the claimant's failure to notify the employer that his injury was work-related on the date of accident, his failure to seek immediate treatment and his failure to return to work on April 1, 2003 after having been offered work at the customer service booth answering phones and helping to control customer lineups.

The WCB case manager discussed the matter with the claimant on April 10, 2003. The claimant maintained that the accident had occurred at work. The claimant explained that he had not reported the knee injury when it occurred as the pain was not that bad at the time but progressively worsened over the next couple of days. The claimant also stated he was willing to work in customer service answering phones as long as it didn't involve a lot of standing. There is no mention in the file notes of any discussion with the claimant as to when he first advised the employer that his injury was work-related or why he had not returned to work in customer service on April 1, 2003.

On April 11, 2003, the WCB case manager contacted the claimant's manager at work. The manager advised that light duties sitting at a desk answering phones had been available since the start of the claim.

The WCB case manager consulted with the WCB medical advisor to determine if the claimant's symptoms were related to the accident or a pre-existing condition. The WCB medical advisor was of the opinion that the claimant's symptoms were likely a result of his pre-existing knee condition and referred to the employer's doubts that an injury occurred at work. The medical advisor nevertheless indicated that the chiropractor's report noted a decrease in range of motion and pain in the right knee area, that the mode of injury suggests a contusion and that knee pain and swelling can increase over the first few days of injury.

The WCB case manager attended at the workplace and spoke to the claimant's assistant manager. The assistant manager advised that the claimant first told him that the injury was work-related on April 3, 2003. The assistant manager was also of the view that it was unlikely the claimant could have turned on the stairs and fallen on his knee given how narrow the stairs were compared to the claimant's size.

In its decision dated May 2, 2003, the WCB denied the claim on the basis that the evidence did not support a finding that the right knee injury was work-related. The WCB case manager referred to the fact that although the employer was made aware of the knee difficulties on March 31, 2003, the claimant did not mention that it was related to an injury at work. The WCB case manager also noted that light duties answering phones were offered on April 1, 2003, and the claimant chose not to attend the duties at that time. The WCB case manager concluded as follows:

"The evidence on file did not support that the claimant's symptoms in his right knee were related to a workplace injury that occurred on March 30, 2003. A cause and effect relationship between the diagnosis and the compensable injury could not be established. It was felt that the claimant's symptoms were due to a pre-existing condition present in the knee from a non-work related injury."

The claimant appealed the decision and the matter was referred to the Review Office. The Review Office referred the matter for further investigation and assessment by the case manager, noting that it was necessary to contact the second assistant store manager, who, according to the Worker's Accident Report, was the person to whom the claimant had reported his injury on March 31, 2003.

The WCB case manager contacted the second assistant manager who stated that she "brought up the incident with him injuring his knee" and that the "claimant stated his knee was bothering him, but no mention of it being work related". The WCB case manager then spoke to the claimant. The file notes indicate that the claimant was asked why he delayed reporting the accident and the claimant replied that he notified the second assistant manager, as the manager and assistant manager were not working at the time. The file notes do not clarify when the claimant first reported that the injury was work-related or why he didn't go to work in customer service on April 1, 2003.

In a letter to the claimant dated October 17, 2003, the case manager upheld the decision refusing the claim stating as follows:

"The claim has been denied based on the fact that a cause and effect relationship could not be established between the medical evidence on file and the accident reported to the employer. The offer of light duties within your restrictions was made on March 31, 2003, for which you agreed to, but chose not to attend. The fact that there is contention to when the accident was first reported to be work related is secondary to the above mentioned information. The new information does not provide for a change in decision on your claim."

The matter was referred to the Review Office for reconsideration. In its decision dated November 7, 2003, the Review Office determined that while the claimant may not have advised the employer until April 3 that his injury was work-related, it was clear that when he first sought treatment on April 1, he informed his chiropractor that he had injured himself at work. In addition, the chiropractor's diagnosis of contusion, bursitis and traumatic synovitis was consistent with the mechanism of injury described by the worker. The Review Office was therefore satisfied that the claimant injured his right knee at work on March 30, 2003.

However, the Review Office determined that the claimant was not entitled to wage loss benefits as he had failed to participate in the light duties offered by the employer. The Review Office concluded as follows:

"With respect to entitlement to wage loss benefits, Review Office was of the opinion that the claimant was capable of modified duties provided by the employer. Review Office noted that the treating chiropractor felt that the claimant would not have been capable of performing work that required a lot of standing or changing positions between sitting and standing. As the employer had confirmed that the claimant could have performed duties that required him only to sit at a desk and answer telephones, Review Office could not accept the claimant's decision to not perform light duties. Thus, no wage loss benefits were payable."

The claimant appealed the Review Office's decision denying his entitlement to wage loss benefits and requested an oral hearing.

Evidence at Hearing

A hearing took place before the Appeal Commission on March 17, 2004. Present at the hearing was the claimant, his union representative and a representative on behalf of the employer.

The claimant's position is that during the period of time of approximately 10 days following his injury he was unable to walk or stand and he could not perform the alternate duties offered in customer service. He was therefore entitled to full wage loss benefits during this period and partial wage loss for the period commencing on April 11 when he started part-time desk duties until he returned to his full-time regular duties.

The employer takes the position that the claimant was capable of performing the customer service duties as of March 31, 2003 as they only involved minimal walking. The employer questioned the opinion of the chiropractor in his first report dated April 1 that "at present, the acuity of pain & range of motion preclude a return to the workplace". The employer argued that the symptoms referred to, of pain, swelling and reduced range of motion, amounted to "mild swelling" and would not support a conclusion that the claimant could not perform alternate duties involving minimal walking. The employer points to the physician's note, return to work plan and first report, all of which indicate that as of April 8 the claimant was able to work if walking was minimized. According to the employer, the claimant could have performed the alternate duties available at the outset.

The employer also argues that the claimant did not advise the assistant manager on March 31, 2003 that he couldn't stand and had they been aware of this, the employer could have modified the customer service duties to accommodate this requirement. As evidence of the availability of sedentary duties, the employer provided a fax sent on April 4, 2003 to the claimant's physician asking if the claimant could perform "sedentary duties (sitting at a desk answering phones, checking orders)", to which no response was received. The employer also points to the notes of the WCB case manager of a conversation with the store manager indicating that they had light duties of sitting at a desk answering phones "since the start of the claim".

The employer further argues that during the time that the claimant returned to work in part-time duties sitting at a desk, he was capable of working full-time. The employer's position is that the chiropractor's restriction of not working more than 4 hours was unfounded and the store manager erred in following this direction when he gave the claimant part-time rather than full-time desk duties. The employer points to the physician's note, first report and return to work plan that do not indicate a restriction of 4 hours per day.

The claimant's evidence was that he was offered duties in customer service on March 31, 2003 and no discussion took place as to the types of duties that would be involved in this job. The claimant explained that he was familiar with the customer service job and that it would have involved standing in the customer service booth where he would serve customers, answer phones and walk back and forth to the cashiers. The claimant testified that he thought he would be able to do these duties when he spoke to the assistant manager on March 31, but the next day his knee was much worse and he didn't think he would be able to perform those duties. He telephoned his employer on April 1 and left a message advising that he would not be able to return to work.

The claimant explained that when he saw his chiropractor on April 1st he was told not to return to work of any kind for approximately 10 days. At this point in time the claimant felt he was unable to perform any duties at work given the pain and difficulty moving his knee. He provided his employer with the Chiropractor's note of April 4, which indicated he was unfit for work with a possible return date of April 14, 2003.

The claimant also explained that as he was unable to get an appointment to see his regular physician until April 8, and was required to provide a physician's note to his employer, he did see another physician on April 1 who provided a note, found on file, stating that the claimant could return to work on April 10, 2003.

The claimant contacted his employer after he had seen his physician on April 8 to advise that he could return to work, provided the job only required sitting. The claimant's evidence was that the manager told him he didn't have a job for him and that he would get back to him. The manager contacted him on April 11 and told him to return to work that day, which the claimant did. The claimant was given a job working part-time in the cash office sitting at a desk organizing invoices. The claimant testified that after a 4-hour shift he would have to go home and put his leg up. He continued daily physiotherapy and after approximately two weeks he felt well enough to return to his full-time regular duties.

Reasons

The determination by the Review Office that the claimant's knee injury on March 30, 2003 was work-related and that the diagnosis of contusion, bursitis and traumatic synovitis was consistent with the mode of injury, is not challenged in this appeal. The claimant is challenging the determination by the Review Office that he was capable of performing modified duties and his refusal to do so disentitled him to wage loss benefits.

Section 4(2) of The Workers Compensation Act (the "Act") provides that a worker injured in a work-related accident is entitled to wage loss benefits for loss of earning capacity "resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens".

In addition, Section 22 of the Act provides that where a 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."

There are two time periods that must be addressed separately in this appeal. The first is the period following the injury until the claimant returned to part-time desk duties on April 11, 2003 and the second is the period of time that the claimant performed part-time duties until he returned to his full-time regular duties.

The panel has considered all of the evidence and submissions of the parties. With respect to the time period from the date of the accident to commencement of part-time duties, the panel concludes that the claimant is entitled to full wage loss benefits for the following reasons:

• The medical evidence on file indicates that during the period from April 1 to April 8 the claimant was unable to return to work of any kind. The panel notes that the medical reports during this period, being the April 1 report of the chiropractor and his subsequent note of April 4, state that the claimant was not fit for alternate duties. There was also a physician's note indicating that the claimant would be able to return to work on April 10, 2003, which supports the chiropractor's opinion of the claimant's condition during this initial period. In the panel's opinion, the chiropractor's assessment that the claimant was unable to return to work due to pain, swelling and decreased range of motion in his knee was reasonable;
  
  
• The panel is of the view that the reports from the claimant's physician dated April 8, 2003, indicating that the claimant can do a desk job with minimal walking, in no way suggest that the claimant was capable of returning to work in modified duties prior to that time. In fact, given the nature of the injury and the claimant's daily physiotherapy treatments, it is reasonable to expect that the claimant's condition would have improved from being unable to walk or stand to the point that by April 8 he was capable of minimal walking;
  
  
• The employer admitted that the job offered to the claimant on March 31 in customer service required some standing and walking. In the panel's view the job offered was not within the claimant's capacity during this period. Regardless of whether there may have been other duties available that involved no walking or standing, such duties were never offered to the claimant. The panel is of the view that as no opportunity was provided to the claimant to consider the suitability of a job that was never offered, there is no basis for finding any failure to cooperate or mitigate the consequences of the accident;
  
  
• The claimant notified the employer either on April 8 or April 9 that his physician was of the opinion he could return to work in a desk job with minimal walking. The employer did not call the claimant back to work until April 11. The employee is therefore entitled to full wage loss benefits until the date that he was provided with alternate duties.

With respect to the time period from April 11, 2003 until the claimant returned to full-time duties, the panel concludes that the claimant is entitled to partial wage loss benefits. The panel is of the view that the restrictions set out in the chiropractor's note of April 10, 2003 limiting the claimant's desk duties to no more than 4 hours per day were reasonable given the injury involved.

The panel notes that there was no medical evidence contradicting the 4-hour shift limitation. The claimant's evidence was that after 4 hours of sitting he had to go home and elevate his leg. While the physician's reports did not specifically address the question of whether the desk duties were to be full or part-time, the panel notes that, in the return to work plan form, the physician ticked off the box limiting periods of sitting to between 2 to 4 hours. The form also indicates that these restrictions should remain in place for the next few weeks. In the panel's opinion the physician's reports do not support a conclusion that the part-time desk duties were not a reasonable limitation during this period.

Accordingly, the panel concludes that, on the balance of probabilities, the weight of the evidence supports a determination that the claimant is entitled to full wage loss benefits following the accident from April 1, 2003 to April 10, 2003 and partial wage loss benefits from April 11, 2003 until his return to full-time regular duties.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of April, 2004