The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 21, 2005, at the request of a union representative, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 20, 2004.

Decision

That the worker is not entitled to wage loss benefits beyond August 20, 2004.

Decision: Unanimous

Background

On August 4, 2004, the worker was placing a 4 x 6 window into a frame when he experienced pain in his right collar bone. The worker sought immediate medical attention and was diagnosed with a right ACL joint injury and a pectoralis major/minor muscle injury. The claim for compensation was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the worker for three days of time loss. On August 10, 2004, the worker returned to modified duties but stopped work on August 13, 2004 due to pain.

In an e-mail message dated August 18, 2004, the employer advised the WCB that the worker brought in a note from his doctor that stated he should do sedentary work until his follow-up appointment on August 24, 2004. Later that day, the employer advised the WCB that light duties were available for the worker that required minimal use of his right arm.

On August 19, 2004, the employer advised the WCB that the worker was given a number of jobs to perform but he claimed he was unable to do them. On August 20, 2004, the worker came to work with a doctor's note authorizing total disability. The employer felt this was inappropriate as they had a number of jobs for the worker which could be performed with one hand.

On August 20, 2004, a WCB adjudicator tried to contact the worker by phone to advise him that modified duties were available but was unsuccessful. A letter was then couriered to the worker on August 20, 2004. The worker was advised that his case had been reviewed by a WCB healthcare advisor who concluded that one-handed modified work duties would be appropriate. As the employer had suitable modified duties available, the WCB would not accept responsibility for any time loss beyond August 20, 2004.

In a memo to file dated August 23, 2004, a WCB adjudicator recorded a discussion that she had with the worker regarding his claim. The worker claimed that he could not perform modified duties and that his doctor authorized him to be off work from August 16 to 30, 2004.

On August 30, 2004, the WCB case manager attended the worksite to review the appropriateness of the modified duties that were offered to the worker. The case manager's findings at this visit are contained in a memo to file dated August 30, 2004.

In a decision dated August 31, 2004, the WCB case manager advised the worker that, in his opinion, the modified duties that were offered to him by his employer were appropriate for his restrictions. Based on this determination, no change would be made to the WCB's earlier decision of August 20, 2004.

On September 9, 2004, the worker appealed the WCB's decision of August 20, 2004. The worker felt that the decision should be overturned as he was in a lot of pain and couldn't work. He noted that his attending physician and orthopaedic specialist both advised him not to go back to work until August 31, 2004.

In a decision dated September 29, 2004, Review Office determined that the worker was not entitled to wage loss benefits after August 20, 2004. The information on file confirmed to Review Office that the employer provided numerous light duty alternatives for the worker which required essentially no use of the worker's injured right shoulder. Following review of all the evidence, Review Office concluded that the worker was capable of alternate duties provided by the employer and as such, was not entitled to benefits after August 20, 2004. On October 14, 2004, the worker's union representative appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The Panel was asked to determine whether the worker is entitled to wage loss benefits beyond August 20, 2004. File information indicates the worker returned to work on August 31, 2004. For the worker's appeal to be successful we must find that the worker experienced a loss of earning capacity due to his workplace injury. In other words we must find that the worker was not able to work due to his workplace injury. We were not able to reach this conclusion. We found that the worker was fit for suitable modified duties during the period in question.

Worker's Position

The worker's position as noted in his Appeal of Claims Decision form is that his doctor ordered him to stay off work and the WCB ordered him back to work. The worker contended that he was totally disabled and could not perform modified light duties. He provided medical reports in support of his position.

Applicable Law and Policy

Subsection 39(1) of The Workers Compensation Act provides that wage loss benefits are payable where an injury to a worker results in a loss of earning capacity after the day of accident. In determining whether a worker has a loss of earning capacity, the worker's medical condition is considered. The Panel must consider whether the worker is capable of working and whether there are suitable duties for the worker.

The Board of Directors of the WCB has made Policy 43.20.20 which deals with return to work for workers who are considered fit for modified duties.

Analysis

As noted above, the worker has contended that he was not fit for any duties and should remain off work for the period from August 20 to August 30, 2004.

The issue before the Panel revolves around whether the worker was fit for modified duties or whether he was totally disabled. Several medical reports were provided dealing with the worker's medical status and his ability to perform modified duties during the period in question including:

-on August 6, 2004 his treating physician completed a Return to Work Assessment indicating that the worker could return to work with restrictions.

-on August 17, 2004 his treating physician completed another Return to Work Assessment indicating that the worker could return to sedentary work only. On this date he also completed a WCB Doctor's Progress Report indicating that the worker was not capable of alternate work and should be off from August 16 to 30, 2004.

-on August 20, 2004 the treating physician provided a hand written note indicating that the worker could not work "even in modified duties" from August 16 to 30, 2004. He also completed a Return to Work Assessment on this date indicating the worker should be off from August 16 to 30.

-on August 24, 2004 an orthopaedic surgeon completed a Return to Work Assessment indicating that the worker could return to modified duties on August 31, 2004. He also provided a narrative report confirming that he advised the worker he could return to work on August 31, 2004 with restrictions but also stated that "He may do full work with his left upper extremity".

-on August 24, 2004 the worker's treating physician completed a WCB Doctor's Progress Report indicating that the worker was capable of alternate or modified duties.

-on August 20, 2004 a WCB healthcare advisor reviewed the file and concluded that objective findings suggest the worker should be capable of left handed modified duties.

After considering all the medical reports we find on a balance of probabilities, that the worker was fit for modified duties involving his left hand subject to the restrictions noted by the physicians. In our opinion, there were no medical findings provided in the various reports that support the position that the worker could not perform suitable modified duties.

We also find that the duties offered by the employer were appropriate. The WCB adjudicator attended the worksite, albeit on August 30, 2004, to review the modified duties and concluded that the duties that were offered were appropriate for the worker's restrictions. Having considered the description of the duties and worker's restrictions, we find that the modified duties were appropriate.

The worker's appeal is accordingly declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of June, 2005