The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 8, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on September 8, 1999.

Issue

Whether or not the claimant is entitled to the payment of wage loss benefits for the period January 16 to February 8, 1999.

Decision

That the claimant is entitled to the payment of wage loss benefits for the period January 16 to February 8, 1999.

Background

On December 22, 1997, the claimant felt right shoulder and chest symptoms in relation to hanging parts on a paint line. When initially seen at an emergency department the claimant was diagnosed with a right shoulder impingement syndrome. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On September 29, 1998, an orthopaedic surgeon reported his clinical examination findings which revealed a marked painful arc and considerable weakness in elevation of the right arm/shoulder. X-rays showed subacromial spurring as well as degenerative changes at the AC joint. Based on these findings, the specialist recommended a right shoulder open decompression and cuff repair. This procedure was accepted as a WCB responsibility. On November 20, 1998, the claimant advised a WCB adjudicator that he would go through with the surgery but wanted to discuss the surgery details with the specialist first.

On December 16, 1998, a WCB adjudicator contacted the specialist's office when it was confirmed that the claimant wished to have surgery done at a hospital. The receptionist indicated that surgery could be booked at the Pan Am Surgical Centre for January 18, 1999, and that she would tentatively schedule the appointment. Later on December 16, 1998, the claimant advised the WCB adjudicator that he preferred to have surgery done at a hospital as he felt safer at a hospital and had never been to the Pan Am Surgery Centre before. The adjudicator advised the claimant of his responsibility to mitigate the effects of his injury and that wage loss benefits would not be authorized beyond January 18, 1999, until the date he underwent surgery. This decision was confirmed in a letter to the claimant dated December 17, 1998.

In early January 1999, the claimant's daughter telephoned the WCB indicating that her father agreed to have surgery on January 18, 1999, but the January 18th date had been filled.

On February 24, 1999, a union representative appealed the decision to suspend benefits to the Review Office stating that the claimant eventually agreed to have the surgery performed at the Pan Am Clinic but due to a number of circumstances (i.e. "not knowing he had to inform the Dr. as soon as surgery date was set, not being able to contact Dr. and not being able to communicate in English well"), he was unable to do so.

In a decision letter dated March 12, 1999, the Review Office stated that the available evidence clearly showed that the date of surgery was delayed by three weeks solely because of a personal choice on the part of the claimant and that this delay was likely to extend the disablement or loss of earning capacity resulting from the work-related accident by a similar amount of time. Review Office indicated that it could not justify charging the employer with the costs incurred as a result of the personal choice of the claimant. Review Office concluded that the earlier decision to suspend wage loss benefits had been made in compliance with the provisions of the Act and/or WCB policy and did not represent an error in judgment or in application of the law.

On June 17, 1999, the union representative appealed the Review Office's decision and an oral hearing was arranged.

Reasons

The issue in this appeal is whether or not the claimant is entitled to the payment of wage loss benefits for the period January 16 to February 8, 1999. The claimant has a compensable right shoulder injury from a workplace accident in 1997 for which the Workers Compensation Board (WCB) has accepted responsibility for surgery. At issue is an apparent delay from an originally proposed right shoulder surgery on January 18, 1999, to the actual surgery date of February 8, 1999, and whether or not the claimant's actions at that time leading to the delay were reasonable or constituted a "practice delaying recovery" under Section 22 of the Workers Compensation Act.

After having reviewed all the evidence in the file and as presented at the hearing, we find on a balance of probabilities that there is an entitlement to the payment of benefits during this period to the claimant.

We note that the claimant agreed to have surgery on his right shoulder on November 20, 1998. In or about December 1998, the claimant was advised by his orthopaedic surgeon that he could have the surgery at a hospital or at a private surgery clinic and that he had a choice as to location. On December 16, 1998, a WCB adjudicator advised the claimant that surgery could be performed by his surgeon on January 18, 1999, at the clinic, and indicated that the claimant initially refused the surgery at the clinic because he knew nothing about the facility and wanted to have the surgery in a hospital because of a concern for his safety. When warned that his benefits could be terminated, the claimant advised that he wished to speak with his union representative to seek advice regarding his right to choose the location for the surgery. This conversation is documented in a WCB adjudicator's memo dated December 16, 1998. A letter from Claims Services dated December 17, 1998 advised the claimant that benefits would be paid until January 15, 1999 and that no further benefits would be paid until such time as the claimant had the proposed surgery as he had delayed his recovery time.

The evidence of the union representative at the hearing was that he spoke to the claimant on Thursday, December 17, 1998 while he was on layoff, and that the representative immediately sought advice from someone familiar with WCB policies regarding medical treatment. He then spoke to the claimant about the WCB's position and the claimant agreed to have the surgery in January at the private clinic as originally proposed. The union representative's evidence was that he called the WCB on Monday, December 21, 1998 on the claimant's behalf, and asked an individual to document to file the claimant's preparedness to proceed with the surgery at the private clinic. While documentation of this telephone call does not appear on file, there is a memo dated January 5, 1999 indicating that the two WCB staff who were dealing with the claimant were both on vacation from December 21, 1998 to January 1, 1999. We accept the evidence of the union representative that the telephone call with the WCB took place. By the time the individuals returned from holidays, the January surgical date was unavailable, and the surgery was scheduled for February 8, 1999 at the private surgery clinic.

The claimant's evidence at the hearing, aided by an interpreter as English is not the claimant's first language, was that his shoulder was very disabling and that he was prepared to have the surgery "tomorrow" once he had made the commitment in November 1998. The claimant indicated that he knew nothing about the private clinic and in fact had never heard of it, and that he considered his surgery to be serious, requiring a general anaesthetic for a surgery that would involve "scraping the shoulder bone." He indicated that his daughter later called the clinic and was able to find out and inform him of the services the clinic generally provided to the surgical community. We note, in this regard, that there is nothing on file which would indicate that the claimant was given any information by WCB about the services of the private clinic as compared to a hospital in order to allay his fears or discuss his specific concerns. We note also there was no suggestion that the claimant be given any time to discuss this with his family physician prior to making his decision, before the decision to suspend benefits was made and communicated to the claimant.

We find that the evidence supports, on a balance of probabilities, the conclusion that the claimant had an honest apprehension about having the surgery at a private clinic, and not a hospital, as well as about his rights under WCB policies regarding how his entitlement to benefits would be affected by the choice of locations. In this regard we note an entry by a WCB adjudicator recorded in a memorandum to file dated December 16, 1998:

" I advised clmt. that a letter will be sent in the near future, and that he can appeal the decision. Clmt. was very upset and indicated that the WCB can't force him to have surgery done outside a hospital. I tried to explain WCB's position, however, clmt. didn't appear to understand."

We also find that the claimant had not provided an outright refusal to have the surgery to the WCB but had advised his adjudicator that he needed to seek external advice, once he was warned about the impact on his benefits. He then acted reasonably promptly in seeking advice from his union regarding his rights and responsibilities, and through his daughter about the services provided by the private clinic. As a result, the claimant advised the WCB within two or three business days, through his union representative, that he would accept the surgery at the private clinic.

On the basis of these findings, and in the specific circumstances of this case, we find the claimant's actions regarding his medical treatment to be reasonable, and not amounting to a practice delaying recovery under Section 22 of the Workers Compensation Act. As such, we would accept the claimant's appeal and provide wage loss benefits for the period January 16 to February 8, 1999.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 16th day of September, 1999