The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 6, 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 is entitled to wage loss benefits for the period November 15 to 19, 2004.

Decision

That the worker is entitled to wage loss benefits for the period November 15 to 19, 2004.

Decision: Unanimous

Background

On November 16, 2004, the worker contacted the call centre at the Workers Compensation Board (WCB) to report injuries that she sustained to both shins, left back and right hip/groin region when a meat rack fell on her while performing her regular duties as a pallet jack driver on November 12, 2004. The worker advised the call centre that she received medical treatment on November 15, 2004 and was prescribed Naproxen and Tylenol for the pain and was to be off work for 5 days and then to try light duty work. The worker indicated that she delayed in seeking medical treatment as she was trying to see her own doctor who was unavailable. Her last day of work was November 15, 2004 after lasting 2.5 hours.

The Employer's Accident Report confirmed that an accident occurred on November 12, 2004 while the worker had been performing her regular duties. The employer noted that the worker was offered alternate/modified work duties in the laundry room on November 12, 2004 whereby she could sit/stand as needed and that ice was available. There was no lifting, bending or twisting required and she could work at her own pace.

File records showed that the worker attempted modified duties in the laundry room on November 15, 2004 but left work to see her physician. When she returned later in the day, the worker provided her employer with a medical certificate which indicated that she was unable to perform the modified duty work and that she would be away from work for five days.

On November 15, 2004, the employer's representative advised the WCB that she had contacted the treating physician. The physician indicated that the worker was fit for the alternate work that had been outlined on the treatment memo but the worker said she had tried the alternate duties and could not perform them. Following a conversation with the physician, the employer advised the worker of what the physician had said and alternate work duties were again offered to the worker. The worker disagreed and walked out of the room.

On November 22, 2004, the worker returned to alternate work duties.

On November 25, 2004, the treating physician confirmed to the WCB that he had spoken with the employer's representative on November 15, 2004. As the worker had sustained bruising to the buttock and groin area, he told the employer's representative that the worker could do a job which did not require prolonged sitting.

On November 29, 2004, a WCB adjudicator advised the worker by phone that she would not be paid wage loss benefits for the period of time that alternate work duties were made available. The worker advised the adjudicator that she could not sit or stand without her buttocks getting numb and that she was black and blue and really sore all the time.

In a letter dated November 29, 2004, the WCB confirmed to the worker that her absence from work between November 15 and 19, 2004 could have been avoided given that the employer had suitable alternate duties that were available within her medical restrictions and because her doctor stated she was fit for alternate work. Based on these factors, it was determined that the WCB would accept responsibility for payments directly related to medical expenses only but not for payment of wage loss benefits.

On March 2, 2005, the worker's union representative appealed the November 29, 2004 decision to Review Office. The union representative noted that "…suffering from pain, caused by a workplace injury, may lead to a temporary cessation of work. This should be considered as a reasonable response to injury and in this case, appears to be reasonable and acceptable, in terms of treating a low back injury."

In a decision dated April 26, 2005, Review Office confirmed that the worker was not entitled to payment of wage loss benefits for the period November 15 to 19, 2004. Review Office referred to section 22 of The Workers Compensation Act (the Act) along with subsection 39(2). Review Office noted that the treating physician confirmed on several occasions that the worker was physically capable of performing the modified duties offered to her by the employer. Review Office was therefore of the view that the worker could have performed the modified duties that were made available between November 15 and 19, 2004 and that she was not entitled to benefits during this time period. On May 16, 2005, the union representative appealed Review Office's decision and an oral hearing was then arranged.

Reasons

The evidence confirms that the worker attempted to perform alternate work duties made available to her by the employer on November 15, 2004. We find that the worker's symptoms, complaints and crush insult were consistent with the mechanism of injury.

At the hearing, we found the worker to be an extremely credible witness, in particular, with respect to her description of the physical consequences of the injury (very extensive bruising). We accept her evidence that while performing these alternate work duties her pain became intensely aggravated to the point where she required medical attention. After reviewing the proposed modified/alternative duties offered by the employer, the treating physician took the worker off work with restrictions for a five day period. He advised the employer on their medical report form that "she should avoid prolonged sitting, she should be able to perform above duties in another week and then review". According to the evidence, this form was presented to the employer on November 15, 2004.

Although the employer disagreed with the treating physician's assessment, we nevertheless find based on the weight of evidence that the worker was unable to perform the alternate work duties and that she is therefore entitled to wage loss benefits for the period November 15 to 19, 2004. Hence the worker'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 8th day of November, 2005