Decision #87/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on April 7, 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 from December 22, 2003 to January 7, 2004; and
Whether or not the worker is entitled to wage loss benefits after January 22, 2004.
Decision
That the worker is entitled to wage loss benefits from December 22, 2003 to January 7, 2004; and
That the worker is entitled to wage loss benefits after January 22, 2004.
Background
In November 2003, the worker filed a claim with the Workers Compensation Board (WCB) for left arm pain and numbness that he related to his work activities which entailed pulling and gripping ribs on a daily basis. The WCB accepted the claim on the basis of a “left elbow epicondylitis” condition and benefits were paid accordingly.
Subsequent file information revealed that the family physician authorized the worker back to work at light duties with restrictions respecting his left arm. In December 2003, the worker returned to modified duties in packaging and general light clean up.
The worker underwent nerve conduction studies on December 9, 2003. The results revealed “…mild left median mononeuropathy at or distal to the wrist (i.e. CTS)” (carpal tunnel syndrome).
On December 22, 2003, the worker advised his employer that he was unable to move his left arm nor could he perform alternate duties. He stated that his doctor was on holidays and that he was on a waiting list.
On December 23, 2003, the employer advised the WCB that the worker was twice offered one-handed duties in the laundry room. On December 29, 2003, the worker returned to work performing floor clean up and had no complaints with his job, according to the employer.
A report was received from the family physician dated January 8, 2004. It stated that the worker was fit for light duty only, with minimal use of his left arm/hand for two months. It further stated that the worker was absent from work on December 22 – 24, 2003 and January 5 and 6, 2004.
On January 15, 2004, the worker advised his case manager that his doctor had taken him off work for a further four weeks. He reported pain in his left hand, up his arm to the elbow.
On January 15, 2004, the family physician indicated that the worker would be incapacitated for a period of four weeks and that the worker was required to be absent from duty from January 12, 2004 to the present.
On January 22, 2004, the WCB determined that no wage loss benefits were payable to the worker between December 22, 2003 and January 8, 2004 as he was off work without medical authorization to do so. It was felt that the modified duties that were assigned to him by his employer did not involve any repetitive use of his arms and were well within his physical capabilities. The WCB also determined that the worker was not entitled to receive wage loss benefits after January 22, 2004 as his employer would be offering him an alternate/modified duty position effective January 23, 2004, which respected his physical limitations, i.e. general light cleanup on the production floor.
After speaking with the worker on January 23, 2004, the employer advised the WCB that the worker refused to work as he was going to abide by his doctor’s advice and not return to work.
On May 27, 2004, the worker advised the WCB that he was receiving EI sick benefits and then would be collecting regular benefits. The worker advised the WCB that he had received a termination letter from his employer which was still being negotiated with his union/employer.
In an appeal submission to Review Office dated June 3, 2004, a union representative presented argument that the worker was entitled to wage loss benefits between December 22, 2003 and January 7, 2004 as well as beyond January 22, 2004. Included with the submission was a report from the family physician dated May 12, 2004. As the report had not been reviewed by the case manager, Review Office referred the case back to primary adjudication to consider the new information and provide a written decision to the union representative.
In the May 12, 2004 report, the family physician commented that the worker was suffering from left CTS associated with pain over the carpal area radiating to the fingers. He was also suffering from left elbow pain radiating to the forearm and the lateral area. As of May 5, 2004, the physician stated that the worker could return to light duties on May 24 with restrictions of no pulling, lifting or grasping for 4 to 6 weeks.
On July 19, 2004, primary adjudication determined that the new information did not alter its previous decision. The case was then referred back to Review Office to consider the union representative’s appeal.
On October 18, 2004, Review Office determined that the worker was not entitled to payment of wage loss benefits between December 22, 2003 and January 7, 2004. Review Office noted that the worker did not seek medical attention during this time period and was of the view that the job duties available to the worker could have been performed with the avoidance of his injured left elbow. With respect to wage loss benefits after January 22, 2004, Review Office found that the employer still had suitable modified duties available that respected the worker’s left elbow condition and that the worker did not avail himself of those duties and therefore did not mitigate the consequences of his accident. Based on these factors, Review Office felt that the worker was not entitled to wage loss benefits beyond January 22, 2004. On December 17, 2004, the union representative appealed Review Office’s decision and an oral hearing was arranged.
Reasons
Chairperson MacNeil and Commissioner Day:
As the background notes indicate, Review Office denied the worker’s appeal on the basis that “the employer still had suitable modified duties available for the worker that would have respected the left elbow condition. The worker did not avail himself of these duties and, therefore, did not mitigate the consequences of this accident.”
The return to work plan set up for the worker became somewhat confounded as a consequence of various labour relations issues. There was a tremendous amount of miscommunication between the parties which resulted in considerable acrimony. The worker, according to his treating physicians, was not capable of performing several light duty tasks being offered by the employer. The medical evidence supports the worker’s ongoing left elbow problems throughout the time period involved and beyond.
We found the worker to be an extremely credible witness and have no hesitation in accepting his version of the evidence. During the course of presenting his evidence, the worker very deliberately recounted the various modified jobs that he had been assigned and the different supervisors that he interacted with regarding each job. Additionally, he advised the Panel about his regular contact with the employer’s occupational health department as well as his treating healthcare professionals. The worker described in detail all of the modified duties that were assigned to him and particularized why he was unable to perform the majority of these duties with only one hand.
Initially, the employer offered modified duties requiring only the use of one hand putting liners inside boxes. The worker began to have difficulties with this job as it required the use of both hands. After speaking with his supervisor, the worker was offered a job in the box room, where putting a box occasionally down a chute was all that was required. However, after a brief period of time, the worker was taken off this job and put on cleanup.
Cleanup involved picking up “strings from the boxes, plastic on the floor, garbage, whatever was on the floor”. This task eventually led to his being given a plastic shovel and instructed to “go around, pick up meat and pick up scrap off the floor, scraps, whatever that was sitting on the floor”. The worker testified that he had concerns about performing this job because it required the use of two hands. His supervisors and foremen nevertheless told him to do the job regardless.
“And I was constantly told to go underneath the racks, pick up the loins or bring the loins out, pick up whatever was in garbage. And you had to put them onto acid tables, which they re-wash the meat down and then it’s gone back into the process again.
Throughout the day it’s just a constant thing. You have to move buckets that stand – garbage pails that stand so high and you’ve got full meat, you have to move them, move the rack to get all the scraps that [the supervisor’s] talking about because it’s in the pathway. I have to move all that stuff with this hand to get it there and then use the shovel with both hands to pick it up because it wasn’t a one-hand job. All the scraps that went onto the floor and that, part of my job was to clean it up.”
The worker further testified that he was afraid to tell his supervisors that he had serious reservations about having to do these tasks, which did not respect his restrictions. Out of all of the various jobs that he had to do, the only one, which truly required the use of only one hand, was the box room job where he periodically put boxes down a chute.
Interestingly enough, the worker’s supervisor testified at the hearing that the job of cleaning up the floor is now a full time position and no longer designated as a light/modified/alternate duty. “I mean its part of our activity to try and bring awareness to health and safety in the facility.”
Based on the preponderance of evidence, we find that the worker is entitled to wage loss benefits from December 22, 2003 to January 7, 2004. The worker attempted to seek medical attention during this period but unfortunately his treating physician was away on vacation. Regarding the period after January 22, 2004, it was the worker’s evidence that while his treating physician cleared him to work in the laundry room in January 2004, this position was never actually made available to him. The worker’s only contact with the employer at this time was a request by the employer’s health nurse to phone her frequently and let her know how everything was going while he was off work. Throughout the many phone calls to the nurse, no modified job offer was ever made to the worker. The employer’s representative was unable to establish for the Panel that a suitable modified job had been actually offered to the worker.
We thereforefind that suitable modified work respecting the worker’s restrictions was not made available to him by the employer after January 22, 2004. Accordingly, the worker is also entitled to wage loss benefits after January 22, 2004.
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 24th day of May, 2005
Commissioner's Dissent
Commissioner Finkel’s dissent:
The worker in this case is seeking the restoration of wage loss benefits for two periods of time: from December 22, 2003 to January 7, 2004, and subsequent to January 22, 2004. The worker had suffered an injury his left arm earlier in 2003, and the WCB ultimately accepted that the worker’s medical diagnosis of epicondylitis was work-related. From the evidence on file and presented at the hearing, the WCB acknowledged that the worker had not physically recovered from his injury in the time periods noted above, and was unable to return to his pre-accident job duties. However, the issue of his entitlement to wage loss benefits turns on whether the employer had offered reasonable modified duties to the worker in those periods of time, or alternatively, whether his absences during that time or his declining to do those modified duties were justified.
Subsection 39(2) of The Workers Compensation Act (the Act) provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends. This does not always mean that the worker is fully recovered; a worker may, for example, work in alternate or modified duties with an employer at their pre-accident wage, and if they do so, there will be no loss of earning capacity (as calculated under subsection 40(1) of the Act).
Section 22 of the Act does place a positive obligation on an injured worker to mitigate the consequences of a workplace accident, including the financial costs such as wage loss benefits. In cases such as this, a worker who is still hurt would be required to participate in a return to work program to alternate or modified duties that respect his medical restrictions. If the worker fails to do so, the Workers Compensation Board has the right to reduce or suspend the worker’s wage loss benefits.
In this particular case, the WCB in its earlier decisions has taken the position that the worker’s absences from work were not medically supportable and that the modified or alternate duties offered by the employer to the worker did in fact respect the worker’s compensable medical restrictions. Thus the worker would not have had a loss of earning capacity had he fulfilled his obligation to mitigate the costs of his claim. The employer and their advocate advanced a similar argument at the hearing, while the worker and his advocate argued the contrary position – that the alternate duties did not respect his medical restrictions.
After considering all the evidence on the file and presented at the hearing, I find on a balance of probabilities that the alternate duties offered did respect the worker’s medical restrictions and that the worker’s declining of alternate job duties and his absences in December 2003 and January 2004, and beyond were not warranted. As such, I find that the worker would not be entitled to wage loss benefits for these periods.
I should note, at the outset, that I found the worker to be a relatively poor historian with respect to dates and the chronology of events, his recollections of which jobs were done when, which dates he worked and was absent, why he was absent, and as to the timing and contents of his communications with various individuals at work. This became apparent during the hearing, as the advocate and employer read in evidence from the written logs of their occupational health nurse, attendance records, and dated notes of telephone calls and messages between the worker and the employer, as well as various memos prepared by WCB staff documenting conversations throughout this period of time. I note that there were considerable discrepancies between these various documents or sources, and the worker’s evidence at the hearing.
In considering how to weigh the evidence, I note that these notes were made contemporaneously and on a timely basis by multiple parties, and are internally consistent as to content and the recitation of events at that time (over one year ago). As such, I have preferred to place greater weight on these other sources of information as well as the employer’s witness in making my findings of fact.
Dealing with the first issue, the evidence discloses that the worker had a series of absences from December 22, 2003 to January 7, 2004. He stated at the hearing that his arm was too sore on certain days, and thus he was unable to do the alternate duties. I note from the medical evidence that the worker’s attending physician had been agreeing in general with his participation in modified duties in late 2003, stating that the worker could work provided there was minimal use of his left (dominant) arm.
The worker’s evidence at the hearing was that through November and into December 2003, he had worked alternate duties in two different box areas. Prior to December 22, 2003 he had been provided with job duties requiring him to walk the plant with a plastic shovel and push fallen scraps out of pathways. The job was described by a supervisor who was called as a witness at the hearing by the employer. The worker states that the job was heavier than that described by the supervisor, and that he was told to and in fact did move heavy pieces of meat that had fallen, and that this was beyond his restrictions. The supervisor stated that this was not part of the job duties, and that there had been no instructions to that effect.
In weighing this evidence, I note that the worker acknowledged at the hearing that the supervisor and in particular the occupational health nurse asked him a number of times how the position was working out, and that he had responded that he was okay with those job duties. This is consistent with a December 29, 2003 case manager’s memo of a conversation with the occupational health nurse, and with the written log of the occupational health nurse. I also note that the number of days actually worked by the worker was quite low, with a considerable number of days away during that period because of holidays and weekends. I find that this is inconsistent with the notion of accumulative or repetitive duties that would have justified the work absences in that period. Based on this analysis, I find that the worker’s job duties were in fact within his restrictions, and that there is no medical evidence to suggest that he was unable to perform those duties at that time.
As to the work absences beyond January 22, 2004, the worker acknowledged that he had been offered alternate duties in the laundry area in mid-January (also noted in a case manager’s memo dated January 15, 2004). At that time, the worker was off work. At the hearing, the worker’s evidence was that he was in fact physically capable of performing those alternate duties in the laundry area at that time. As well, both his attending physician (on January 8, 2004) and his physiotherapist (in a case manager’s memo dated January 22, 2004) note that the worker could do alternate duties at that time, as long as there was minimal use of the left arm. The worker, however, did not respond to the employer’s job offer or show up to work, even after being advised of his responsibility to do so by his case manager in a letter dated January 22, 2004. That letter indicated that the employer was offering an alternate/modified duty position performing general light cleanup on the production floor effective January 23, 2004. In not showing up for work, I find that the worker failed to mitigate the financial impacts of his compensable injury. As the evidence discloses that the worker would have been receiving his pre-accident earnings while in alternate duties, this suggests that the worker would not have suffered a loss of earning capacity in his alternate duty position.
For these reasons, I find, on a balance of probabilities, that the worker is not entitled to wage loss benefits for the two time periods being appealed, and I would deny the worker’s appeal on both issues.
A. Finkel, Commissioner
Signed at Winnipeg, this 31st day of May, 2005.