The Appeal CommissionThe Workers Compensation Act of Manitoba

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 therefore find 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