The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 30, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker should have been required to return to work in a modified duty capacity effective January 27, 2004.

Decision

That the worker should not have been required to return to work in a modified duty capacity effective January 27, 2004.

Background

During the course of his employment as a tool & die maker on January 19, 2004, the worker reported an injury when a metal disc was dropped onto his right hand. On the same day of accident, the worker sought medical treatment and was diagnosed with a “crush injury”. The Workers Compensation Board (WCB) accepted responsibility for the claim and benefits were paid accordingly.

In a progress report dated January 21, 2004, the treating physician noted that the worker complained of throbbing in his third finger with bleeding through the dressing. Objective findings included swelling in the third finger, greater than the fourth finger. There was minimal bleeding with monitoring of any possible infection.

On January 26, 2004, the WCB wrote to the treating physician to advise that the accident employer “may be able to accommodate him in a light duty position or graduated return to work program”. The treating physician was asked to provide the WCB with current restrictions, work capabilities and the effective date.

In a progress report dated January 26, 2004, the treating physician indicated that the worker’s fourth finger was improving, there was decreased swelling with the third finger and the laceration was healing but oozing. The treating physician felt the worker was not capable of modified or alternate work.

In a medical certificate dated January 28, 2004, the treating physician advised the WCB that he would be reviewing the worker’s condition on February 2, 2004 and would consider light duties depending on that appointment. The treating physician indicated that the worker, at present, should remain off work.

On Monday, February 2, 2004, the treating physician filled out the employer’s “Physician’s Evaluation of Employee Fitness” form which indicated that the worker was fit for medium type work and “Needs help to lift heavy objects next few wks.”.

The employer subsequently informed the WCB that the worker had participated in a ski race on Saturday, January 31, 2004. The employer expressed concerns about the worker’s ability to participate in a ski race but yet could not perform modified duties until February 3, 2004. The employer noted that clerical office duties had been offered to the worker on January 21, 2004.

In March 2004, several discussions took place between a WCB adjudicator and the worker concerning his participation in the ski race and the employer’s offer of clerical office duties. The worker’s position was that he could not recall that clerical office work offered to him and that he did not have to use his injured hand to downhill ski.

On March 24, 2004, the treating physician advised a WCB medical advisor that he was not aware that modified duties were being offered to the worker. He agreed, however, that working the Xerox machine, as long as the worker was able to avoid direct and repetitive activity with the affected second and third finger, would have been reasonable modified duties. The medical advisor noted that the worker did have a significant injury but there was no reason why he could not have returned to modified duties a couple of days post compensable injury.

In a decision dated March 31, 2004, the WCB determined that the worker was capable of resuming employment in an alternate work program by January 27, 2004 and that he was not entitled to further benefits beyond that date. The WCB concluded that by participating in the ski competition on January 31, 2004, the worker showed that he was able to use his injured hand to some extent and that he definitely would have been able to perform office clerical work that was offered to him by his employer. On December 12, 2004, the worker appealed this decision to Review Office. On March 1, 2005, the employer’s advocate submitted rebuttal arguments to Review Office.

On March 10, 2005, Review Office agreed that the worker was capable of resuming modified duties effective January 27, 2004 based on the medical evidence on file which included the comments made by his treating physician on March 24, 2004. On April 28, 2005, the worker appealed Review Office’s decision and an oral hearing was arranged.

Reasons

Chairperson MacNeil and Commissioner Day:

As the background notes indicate, the worker suffered a crush type injury on January 14, 2004 when a metal disc was dropped on his right hand. According to the treating physician’s progress report faxed to the WCB on January 28, 2004 and dated January 26, 2004, the laceration on the worker’s third and fourth fingers was healing but still oozing. In the opinion of the treating physician, the worker’s recovery was not satisfactory and the worker was not capable of alternate or modified work at this time.

The worker’s next appointment with the treating physician was on January 28, 2004. In response to the claim adjudicator advising that “the employer may be able to accommodate him [i.e., the worker] in a light duty position or graduated return to work program”, the treating physician provided the following hand written note dated January 28, 2004, in which he stated:

“I will be reviewing Mr. [the worker] on Monday Feb 2/04 & will consider L.D. [light duty] depending on that appointment. At present should remain off.” (Emphasis ours)

The treating physician next examined the worker on February 2, 2004 as scheduled. At this time, he completed the employer’s “Physician’s Evaluation of Employee Fitness” form and indicated that the worker could return to work within certain restrictions on February 3, 2004. The restrictions included “Medium work. Lifting 22.5 kg. (50 lbs) maximum with frequent lifting and/or carrying objects weighing up to 11.25 kg. (25 lbs)” and “Needs help to lift heavy objects next few wks.”

After having taken into consideration all of the evidence, we find the preponderance of medical evidence clearly establishes that the worker should not have been required to return to work in a modified duty capacity effective January 27, 2004. Accordingly, the worker’s appeal is hereby allowed. We note that the worker did in fact return to work on Tuesday, February 3, 2004 as suggested by his treating physician.

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 14th day of October, 2005

Commissioner's Dissent

• The worker indicated that he was a longtime employee with the accident employer, was fully aware of the employer’s established modified return to work program, and was specifically aware of the clerical duties available to injured workers.
• The worker’s evidence was that he did give his attending physician the employer’s return to work forms shortly after his workplace injury that allowed the physician to note his physical restrictions. The worker did not, however, advise the physician about the availability of alternate duties or of his conversations with the accident employer’s disability coordinator. This is confirmed by a WCB medical advisor’s March 24, 2004 note on file about a telephone conversation he had with the attending physician. The physician states that the worker would have been capable, within a couple days of the accident, of returning to clerical duties, as long as the job duties did not involve repetitive use or contact with the worker’s injured fingers. The physician also indicated that the worker did not inform him of the availability of modified duties.
• The worker skied competitively on Saturday, January 31, 2004, finishing second in his race. While the worker dismissed this incident at the hearing as being irrelevant, I find that he was certainly not totally disabled at that time, nor likely in the days preceding, given the cumbersome nature of downhill ski equipment, which would include activities associated with transporting, carrying, equipping, and unequipping of same. As well, the worker would also be dressing, waxing, equipping, undressing, getting on and off lifts, plus the actual activity of skiing -- activities that would have been associated with a downhill ski competition. At the hearing, the worker remembered no specific accommodations being made by him that day for his injury, with the exception of wearing a mitt and skiing with one pole. Given the nature of the activity as outlined above, I find it highly probable that the worker was using his right hand much more that weekend than he had suggested at the hearing.
• I also note with concern that the worker initially denied skiing that weekend and as well the WCB adjudicator’s memos of March 9 and 11, 2004, in which the worker asks the adjudicator not to mention the skiing to his attending physician. A later note from the WCB medical advisor indicates that the worker’s physician was not informed by the worker on a timely basis about his skiing activities nor, as indicated earlier, the availability of modified duties.
• The physician, in his reports to the WCB, advised that the worker was unable to perform light duties. I find, however, that these reports were based on inaccurate information provided (or, more accurately, withheld) by the worker to him. Based on the adjudicator’s memo of March 24, 2004, it is apparent that the attending physician would in fact have cleared the worker had he had this information from the worker.

Based on this evidence, I find that the worker’s compensable restriction would not have precluded him from returning to work on January 27, 2004. The accident employer had made a reasonable offer of appropriate modified duties which would have paid the worker his pre-accident wages as of that date. As such, the worker, while still injured, would not have been suffering a loss of earning capacity as of that date, and no wage loss benefits would be payable thereafter. I find that the worker was medically able to return to work in a modified duty capacity effective January 27, 2004, and should have done so. I would therefore deny the worker’s appeal.

A. Finkel, Commissioner

Signed at Winnipeg, this 20^th day of October, 2005.