The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 9, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed the appeal on September 9, 1999.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits after September 17, 1998.

Decision

That the claimant is entitled to payment of wage loss benefits from September 18, 1998 to September 23, 1998, inclusive.

Background

On September 14, 1998, the claimant reported that he was standing between a compressor and a truck when he noticed a motor vehicle was about to hit the truck. He jumped out of the way so that he wouldn't get squashed between the compressor and the truck. The claimant fell to the ground and sustained injuries to his left shoulder, lower back and left neck as a result of the incident.

A doctor's first report, dated September 23, 1998, noted that the claimant had initially been seen on September 15, 1998, presenting with tenderness in the left trapezius, pain when raising his left arm and swelling in the right medial three fingers.

The diagnosis was a strain of the left neck, shoulder and lower back. The attached return to work form indicated that the claimant was capable of sedentary work. Restrictions outlined were to avoid lifting, stooping, squatting, bending, prolonged sitting over 15 minutes, climbing and prolonged standing and these were to be in place for 10 days.

In a letter to the WCB, dated September 22, 1998, the employer's representative objected to the provision of any wage loss benefits being paid to the claimant. A memorandum was attached with the submission, dated September 17, 1998, which stated that a light duty position had been offered to the claimant which was in keeping with his restrictions. The job involved "parking lot security - monitoring area. Ability to walk, sit or stand as necessary". The memo indicated the claimant was quite adamant that he would not be reporting to this position and that he could do nothing but lie on the couch and rest. The claimant later called to apologize for his refusal indicating that he had requested and was granted prior to his injury an early lay-off for September 25, 1998, which would allow him to attend to his "fishing" business and wanted to be back in shape by then. The claimant pointed out that he lived out of town and would not drive for an hour to the light duty position.

The employer's representative received a telephone call from the attending physician with respect to the offer of light duties. At this time, the physician suggested that the claimant would require an ambulance to convey him to work each day given his out of town residence and his restriction of no prolonged sitting greater than 15 minutes. The employer's representative noted that the claimant was seen by the doctor on September 15, 1998, during the acute phase of his injury, and was not aware of an ambulance being required.

On November 9, 1998, the claimant advised a WCB adjudicator that on the date of accident he stayed at his sister's house in Winnipeg so that he could attend his doctor's office the next day. After driving to and from the doctor's office, which was only a short distance away from his sister's house, the claimant was in considerable pain. Later that night he drove 1 hours to get home, and was unable to do anything other than to lay down. The claimant stated that he was unable to drive the 1 1/4 hours back to the city to perform the light duties that had been offered by the employer.

On December 7, 1998, Claims Services determined that responsibility would be accepted for medical treatment and that wage loss benefits would be paid to September 17, 1998, inclusive and final. The claimant was advised that there were no clinical findings to support total disability beyond September 17, 1998, and that the light duty position offered by the employer as of September 17, 1998, was in keeping with his restrictions. On January 21, 1999, a union representative appealed this decision contending that the claimant was not fit to perform the requested duties. This contention was based on the claimant's physical condition together with the recommendations of the treating physician. In support, the union representative quoted the following paragraph from a January 19, 1999, medical report authored by the attending physician:

"You have asked for my opinion as to whether Mr. [the claimant] was fit to undertake the duties of a parking lot security position for eight hours a day along with traveling time as of September 18, 1998. Given the nature of his injury to his neck, left shoulder, lower back and right hand I do not think it was reasonable for his employer or the WCB to expect him to come into work and perform the above said duties. I advised Mr. [the claimant] to rest and to avoid the aforestated duties, which in my estimation precluded attending the workplace. I support Mr. [the claimant's] decision not to report to work at the parking lot."

On April 9, 1999, the union representative’s appeal was considered by Review Office in conjunction with a rebuttal submission received from the employer’s representative, dated February 22, 1999. The Review Office denied the appeal based on the following rationale:

Review Office concluded, based on the above, that the worker was not entitled to payment of wage loss benefits after September 17, 1998. On April 29, 1999, the union representative appealed Review Office’s decision and requested an oral hearing.

Reasons

As the background notes indicate, the claimant was injured while in the course of his employment. Following an examination by his treating physician, the claimant was advised to rest and to refrain from attempting any work duties. The treating physician imposed restrictions on the claimant.

"I put restrictions on what he was not capable of doing. I restricted him from lifting, stooping, squatting, bending and prolonged standing. I anticipated the duration of these restrictions to be ten days."

The claimant was again reassessed by his treating physician on September 23rd, 1998. At this time the Doctor gave clearance for the claimant to return to work on the following day as the injuries had sufficiently subsided.

Based on the weight of evidence, we are satisfied that the claimant was not, on a balance of probabilities, physically capable of performing the light duties offered to him.

Accordingly, we find that the claimant is therefore entitled to the payment of wage loss benefits for the period of September 18th to 23rd 1998.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of October, 1999