Decision #120/05 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 31, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on May 31, 2005 and again on June 21, 2005.

Issue

Whether or not the worker is entitled to the payment of wage loss benefits between November 23, 1998 and May 25, 1999.

Decision

That the worker is not entitled to the payment of wage loss benefits between November 23, 1998 and May 25, 1999.

Decision: Unanimous

Background

In 1996, the worker filed a claim with the Workers Compensation Board (WCB) for elbow and wrist difficulties that he related to the repetitive nature of his employment activities as a butcher. The reported diagnoses on file included bilateral medial and lateral epicondylitis, myofascial activity in the right triceps and both forearm extensors, and a right wrist extensor tendonitis (according to a WCB medical advisor's memorandum dated October 30, 1998). The worker has been assigned permanent restrictions to avoid repetitive use of both hands/wrists, gripping and pulling with both hands, heavy lifting in excess of 20 pounds and to avoid use of high speed vibratory tools.

In December 1998 and February and April 1999, the WCB determined that the worker was capable of performing the modified duty position of straightening/aligning hogs that was offered to him by the accident employer. On May 7, 1999, Review Office confirmed that the worker was capable of performing the modified duties that were offered to him by his employer and that he was not entitled to wage loss benefits beyond November 23, 1998.

On May 25, 1999, the WCB reinstated the worker's wage loss benefits as the accident employer terminated his employment. A referral was then made to the WCB's vocational rehabilitation branch to assist the worker in a retraining program.

In a letter to Review Office dated March 18, 2003, the worker stated:
"The following is a description of what happened:
  1. I suffered repetitive strain injuries to both my arms and wrists.
  2. I was put on a different job.
  3. The injuries wouldn't allow me to perform the "different job" and I refused the position.
  4. I went off work Feb 4/99.
  5. My employment was terminated, due to the employer being unable to accommodate the restrictions (see pages 3+4).
  6. I was covered by WCB injury benefits starting May 25/99.
  7. I was then put on Vocational rehabilitation benefits and into a retraining program after a few weeks.

It has bothered me ever since my employment ended May 25/99 that I have never been covered for the period between Feb 4/99 to May 25/99.

In lieu of the accident employer stating very clearly 'we are unable to accommodate these restrictions' (pages 3 + 4) would this not verify the accident employer was not able to accommodate my restrictions. (note: the restrictions/physical condition had not changed during the period of time concerned).

Therefore, I am owed for 78 unpaid working days from Feb 4/99 to May 25/99 and am entitled to be reimbursed for the money that was lost over that period of time."

In a further letter dated April 7, 2003, the worker clarified that the issue he wanted Review Office to deal with was his entitlement to benefits from November 23, 1998 to May 25, 1999. The worker noted that his physical restrictions did not change over the period of time in question nor did the difficulty of any positions with the accident employer. He stated that the WCB did not provide any reasoning as to why he would not be covered between November 1998 and May 1999.

On April 25, 2003, Review Office determined that the worker was not entitled to payment of wage loss benefits between November 12, 1998 and May 25, 1999. Review Office confirmed its previous decision of May 7, 1999 and stated "…the work offered to the worker was appropriate for his stated restrictions and was within those restrictions. The fact the worker did not wish to continue performing the work would not entitle him to further benefits." Review Office pointed out that the worker's benefits were reinstated on May 25, 1999 because the employer had severed the employment relationship with the worker and this created a different scenario as the modified duty work was no longer available to the worker and this entitled him to further benefits and a rehabilitation program. In September 2004, the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 22 of The Workers Compensation Act (the Act) provides, in part, that an injured worker's compensation may be reduced where the worker fails to mitigate the consequences of his accident. In the particular case at hand, the worker advanced the argument that while he was working at a "so-called light position" between November 23, 1998 and February 4, 1999 he should be entitled to wage loss benefits for the reduction in hours from 40 to 37 i.e., 3 hours per week.

The evidence confirms that the employer had extra hours of work available, however, the worker did not avail himself of the opportunity to work these hours once he completed his line work. We find that the worker failed to mitigate the consequences of his accident and therefore he is not entitled to wage loss benefits for his lost hours over the above referred to period.

With respect to the worker's alleged entitlement to wage loss benefits from February 5, 1999 to May 25, 1999, the weight of evidence does not support the worker's contention that his compensable medical condition in conjunction with the imposed restrictions prevented his performing the light duty job of aligning hogs. We find that the worker's refusal to perform this light duty job was not justified medically and as a consequence his refusal again resulted in a failure to mitigate.

In support of this conclusion, we have carefully reviewed the videotape evidence in conjunction with the worker's own description of the light duty job. Even accepting the worker's allegations of increased volume and higher line speed, we nevertheless find that the light duty job of aligning the hogs was, on a balance of probabilities, within his medical restrictions and could be performed with either hand and with a minimal amount of touching or pushing. Therefore, the worker is not entitled to wage loss benefits from February 5, 1999 to May 25, 1999.

The worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of July, 2005

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