The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 12, 2005, at the employer's request.

Issue

Whether or not the worker was entitled to wage loss benefits for the period September 24, 2004 to September 30, 2004, inclusive.

Decision

That the worker was not entitled to wage loss benefits for the period September 24, 2004 to September 30, 2004, inclusive.

Decision: Unanimous

Background

On September 21, 2004, the worker attended the offices of the Workers Compensation Board (WCB) to file a claim for a left wrist injury that occurred during the course of his employment as a parts picker.

A Doctor's First Report noted that the worker was examined on September 21, 2004 with complaints of left wrist pain from "loading crates of steel - it imbalanced forcing wrist in to (sic) hyperextension." The diagnosis rendered was left wrist tenosynovitis. The physician felt that the worker was disabled from work including modified duties.

Subsequently, the accident employer offered light office duty work to the worker which was to commence on September 24, 2004. The worker, however, refused to accept the modified duties based on a Physical Abilities Assessment Form #601 that was completed by his treating physician which stated that the worker was totally disabled for two weeks.

During a telephone conversation with the worker on September 29, 2004, a WCB adjudicator accepted the claim and authorized payment of wage loss benefits to the worker from September 21, 2004 to his return to work date of October 3, 2004.

On January 12, 2005, the employer appealed the WCB's decision to pay wage loss benefits to the worker between September 21 and September 30, 2004. In subsequent correspondence dated March 17, 2005, the employer outlined its position that the diagnosis of tenosynovitis would not classify the worker as being totally disabled and that "physically safe and suitable modified work duties" were offered to the worker on September 24, 2004. The employer expressed concerns that the WCB did not investigate the modified duties offered to the worker nor did they contact the treating physician to ascertain why the worker was unable to perform the modified duties.

On March 30, 2005, Review Office upheld the decision that the worker was entitled to payment of wage loss benefits from September 21, 2004 to September 30, 2004. Review Office noted that the attending physician, who was clearly aware of the company's ability to provide modified duty work, opted to have the worker remain at home and not to resume employment, even on modified or light duties. It was clear to Review Office that the physician considered the worker's injury to be of such severity that he was incapable of the employment offered by the company. Review Office confirmed that the worker was entitled to benefits for the period in question and that he did sustain a loss of earning capacity from the accident. In April 2005, the employer appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As the background notes indicate, the worker sustained a compensable injury, which was diagnosed as left wrist tenosynovitis. The record reflects that the worker is left hand dominant. The treating physician based on his examination and diagnosis considered the worker to be totally disabled for "two weeks".

The evidence discloses that the employer offered modified work duties to the worker. The duties offered were as follows: "Light duties that could include placing reference call, photocopying or filing. You will be able to sit/stand, as you feel necessary, take breaks as required, and no heavy lifting/pulling or repetitive bending will be involved."

The evidence is not entirely clear as to whether or not the treating physician was fully informed of the foregoing modified duties when he concluded that the worker was totally disabled. Nevertheless, we find that the worker was not, on a balance of probabilities, totally disabled and that the worker's injury would not have precluded him from performing the said duties. Interestingly enough, there is a memo on file recording a telephone conversation between the worker and a WCB employee on September 21, 2004 wherein the worker advised that "he has been working nights for years and does not want to have to do light duties, such as office work, and switch to days." In our view, these duties were well within the worker's capabilities, and his refusal was unwarranted.

In conclusion, we further find that the worker was not entitled to wage loss benefits for the period September 24, 2004 to September 30, 2004 inclusive. Accordingly, the employer's appeal is hereby allowed.

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 31st day of August, 2005