The Appeal CommissionThe Workers Compensation Act of Manitoba

Commissioner Day’s Dissent:

I am satisfied that from my complete review of the file along with the oral evidence presented at the Appeal Commission hearing by the worker, the union representative, and the employer representative that the worker was not offered suitable alternate duty work until January 7, 2005 and that he is entitled to wage loss benefits for his absence from work between December 9, 2004 and January 7, 2005.

Evidence of the Worker:

The worker has worked for this employer for the past 14 years and has always performed duties in the bench electric department. His evidence was that when he has been on alternate and or modified duties, he has only worked in his own department.

The worker took a note from his family physician to the employer on or around December 9, 2004. On receipt of this note the employer required the worker to have a health assessment form completed by the physician. The worker provided evidence that this was a new form to him and he did have his physician complete it. The worker stated that he reviewed his job in the bench electric department with the physician and their discussion concluded there was no duties there that could be performed with the use of one arm. The physician then completed the form and took the worker off work for 21 days. The worker said that his physician reviewed the duties listed on the assessment form and concluded they were not suitable.

Upon return of this form to the employer on December 16, 2004, the worker has stated to the adjudicator, the review officer, and to the Panel that when he met with the health and safety (HS) representative he was not offered one handed duties.

The adjudicator suggested a return to work in December. The worker felt strongly that there was no one armed duties available. He wanted the adjudicator to attend the work site with him to verify this information; however was advised that this was not necessary.

The worker continued with his physiotherapy treatment and made no further contact with the employer until early in January. It was following this contact that the employer’s foreman called him with an offer to return to alternate work. He responded to this offer and worked at a job that was outside his restrictions the first day back. He sought assistance of his union representative to change duties and was then offered the job working with the MSDS information. He remained at this work until he was cleared by his physician to return to regular duties. The worker’s evidence at the hearing was that had he known that the MSDS job existed he would have taken it in December if offered. He took this job immediately when it was offered to him in January and was able to comfortably perform it until he returned to his regular work in the bench electric department.

Evidence of the Union Representative:

The union representative confirmed that he attended a meeting with the employer’s HS representative on January 6, 2005 and the HS representative confirmed that he had not offered the worker any alternate duties in December 2004.

Evidence of the Employer:

The employer was represented by the HS Officer. His evidence was that the assessment form provided to the worker listed the available one armed jobs that the worker could have performed. He said there is always a pool of jobs available. He acknowledged that he relies on the department supervisor to contact the worker and accommodate alternate duties within their own department.

He stated that on December 9, 2004 when the worker provided him with his physician’s note regarding the absence from work, he requested the worker have the health assessment form completed. He also told the worker that the employer could accommodate him. He acknowledged that no specific job was offered as the worker had expressed his desire to follow his doctor’s orders and remain off work for the 21 days. His next contact with the worker was on January 4, 2005 when the worker was in contact with him.

Medical Evidence:

On December 10, 2004, the physician prescribed physiotherapy, NSAID’s, and analgesics for the worker. The physician placed a “question mark” beside the question of “Is the Worker capable of Alternate or modified work?” He placed restrictions on sitting and the use of the left upper limb for 2 weeks.

On December 16, 2004, the physician completed the Health assessment form as requested by the employer. He commented “now disabled left upper limb therefore one armed employee and no suitable duties as seen above. The employee is unfit for any work (regular or modified) for 21 days.”

On December 17, 2004, this same physician forwarded a progress report to the WCB that stated the worker is capable of alternate or modified work and under restrictions noted “R One Arm Work”.

On January 6, 2005, the physician stated worker may be considered for one R arm work. The doctor imposed a standing restriction and no use of the left arm.

File evidence:

On December 13, 2004, the adjudicator spoke to the employer HS representative who advised that ‘l/duty one handed is available [employer] not sure if worker is coming in today to pick up paperwork, if claimant is, [employer] will offer one handed duty.”

On December 16, 2004, the adjudicator spoke to the worker. The worker advised that the HS representative didn’t offer one handed duty on December 13, 2004. The worker did not believe his employer has one handed duty and asked the adjudicator to go to the employer with him when the adjudicator advised the employer had one handed duties. The worker agreed to discuss a return to work at one handed duty with doctor and indicated he does not want to stay at home. The adjudicator advised the worker he should return to work December 17, 2004 to light duty.

On December 17, 2004, the adjudicator, in a note to the file stated “Dr. called. On the previous 2 appts. 9/12/04 and 16/12/04 clmt has been advised by Dr. to go back to work to l/duty.”

On May 27, 2005 the Review Officer met with the adjudicator and noted the following “I met with [adjudicator] to discuss his notes and what transpired during his conversations with the worker on December 16 & 17. He stated that he did not discuss the bench electric department with the worker or the employer and the employer did not specifically state which duties were available.

The worker did ask him to attend the worksite with him but the adjudicator did not think that this was necessary, because he had previously viewed the one handed duties and was comfortable that suitable one-handed duties were available.”

Analysis:

This is a situation where the intention of a return to work program appears to have a good foundation of returning a worker to employment within his or her restrictions.

Unfortunately, communication in this case was incomplete with no one party being completely at fault. The worker unfortunately has suffered a wage loss because of the miscommunication. If the specific MSDS job had been offered to him in December 2004, I am satisfied he would have accepted it. His actions demonstrate that he took the job when it was offered to him in January 2005 and gladly continued with it until he returned to regular duties with the employer.

In my opinion the following would have assisted in a resolution of this matter:

1. The employer ensuring that the worker understood that one handed jobs were available outside his actual department.
2. The employer providing a specific job offer to the worker.
3. The WCB adjudicator attending the worksite with the worker and the employer to facilitate an actual one handed job offer since this was obviously in dispute in the worker’s mind.
4. The WCB adjudicator clearing up the contradiction in the medical reports on December 16 & 17, 2004. In this case the worker believed the doctor wanted him off work as there were no jobs in his department.

Further, in arriving at my decision I considered the following:

• This is a worker who was unfamiliar with the new health assessment form and had never used it before.
• The worker had worked alternate and modified work for the employer but never outside his department. I am satisfied he was not aware of duties outside his department he could perform.
• The worker clearly demonstrated he was willing to work alternate duties when offered. He was actually working modified duties when he went off work for 3 days in early December 2004.
• There is no file confirmation or clarification on the medical progress report submitted by the physician on December 10, 2004 when he recommended the worker to go back to light duty.
• The worker co-operated with both the employer and the WCB in taking the appropriate health assessment form to his physician and accepting alternate work in January 2005 when an actual job offer was made.
• The worker is consistent in his information and evidence to his adjudicator, the Review Office and to our Panel that no alternate work was offered to him until January 2005.
• There is no clear evidence that the employer’s HS officer made a specific job offer in December 2004. As a matter of fact, the WCB file noted that on December 16, 2004 the employer brought in a supervisor from the worker’s work area and there was no one handed duties available in his department. The Review Office representative further confirmed this information following a conversation with the WCB adjudicator where they state “The employer did not specifically state which job duties were available.” The union representative who testified at the hearing also indicated that the employer’s HS representative had confirmed to him that no specific job offer was made to the worker in December 2004.
• The health assessment form is a tool to assist in defining a specific job and the completed form does not constitute a job or a job offer. Jobs that are checked off on this form may or may not exist for injured workers (example; watching safety video tapes).