Decision #164/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 4, 2004, at the employer's request.

Issue

Whether or not the worker was entitled to wage loss benefits from October 28 to November 7, 2003.

Decision

That the worker was entitled to wage loss benefits from October 28 to November 7, 2003.

Decision: Unanimous

Background

On October 27, 2003, the claimant slipped and fell twice on icy steps while in the course of her employment activities. The accident was reported to the employer on the same day.

On October 28, 2003, the attending physician diagnosed the claimant with back pain, a right ankle sprain and a left arm bruise. Treatment consisted of medication, ice and a tensor bandage. The physician documented that the claimant was totally disabled and could possibly return to work in a week's time, i.e. November 4, 2003.

In a progress report dated October 31, 2003, the physician documented that the worker was capable of alternate or modified work effective November 4, 2003.

On November 4, 2003, the employer's representative advised the WCB that the claimant remained absent from the work place in spite of medical information which specified that she could return to light duties on November 4, 2003.

In a memo to file dated December 1, 2003, a WCB adjudicator documented a telephone conversation that she had with the treating physician. The treating physician advised the adjudicator that he extended the claimant's time loss to November 9, 2003 as she was still limping. On December 1, 2003, the WCB advised the employer that the medical evidence supported the claimant's need to remain off work and that wage loss benefits would be paid from October 28, 2003 to November 7, 2003 inclusive.

In a submission to Review Office dated May 21, 2004, the employer's representative disagreed with the WCB's decision with respect to the duration of wage loss benefits extended on the claim. The employer was of the view that light duty or alternate work was offered and was available to the worker that would have respected the physical limitations outlined in an occupational fitness assessment form dated October 31, 2003.

On May 28, 2004, Review Office confirmed that the claimant was entitled to payment of wage loss benefits from October 28 to November 7, 2003. Review Office referred to the medical evidence on file, stating that the claimant's physician changed his mind and extended the claimant's period of disability to November 10, 2003 as her recovery had not progressed as rapidly as he initially thought. On July 6, 2004, the employer's representative appealed Review Office's decision to the Appeal Commission and a non-oral file review was arranged.

Reasons

As the background notes indicate, the employer challenges the worker’s entitlement to the payment of wage loss benefits over the period of October 28 to November 7, 2003. After having thoroughly reviewed all of the file material, we concur with the following findings of fact made by Review Office:

“The medical information initially showed the worker would be capable of modified work effective November 4, 2003. This would have meant the worker was entitled to payment of benefits at least until that date. However, on November 4, 2003, the attending physician changed his mind. He extended the period of disability for the worker until November 10, 2003 as her recovery had not progressed as rapidly as he initially thought.”

It should be noted that there was no contrary medical evidence either presented or on file to suggest that the attending physician was incorrect in his opinion. Therefore, based on the weight of evidence we find that the worker was entitled to wage loss benefits from October 28 to November 7, 2003. Accordingly, the employer’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of November, 2004

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