The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 5, 1999, at the request of the employer.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits.

Decision

That the claimant is entitled to payment of wage loss benefits.

Background

While performing light duties as a result of a February 15, 1999 left elbow compensable accident the claimant injured his right shoulder on April 26, 1999, when he attempted to lift a 40-50 pound bag of shredded bus tickets. According to a union representative, the claimant was using his right hand in order to protect his left elbow at the time. On April 26, 1999, the attending physician diagnosed a right shoulder strain and rotator cuff tendonitis. The physician also felt that the claimant would be unable to work light duties as of April 27, 1999 for one to two weeks.

In a letter to the Workers Compensation Board dated May 3, 1999, the employer's representative commented that the claimant had been advised to seek assistance if he needed to move any article or if he felt it was beyond his capabilities. The employer's representative questioned why the claimant would proceed to lift without seeking assistance. A memorandum dated April 27, 1999, was attached with the letter which indicated that the claimant's supervisor offered the claimant light duties immediately following the incident which would accommodate his latest injury but the claimant refused. The employer representative requested that the WCB determine whether or not the claimant was capable of performing light duties effective the date they were offered on April 27, 1999.

On May 6, 1999, a WCB adjudicator spoke with the claimant by phone who described the job duties he was performing on April 26, 1999 when the accident occurred. The claimant indicated that he did not request assistance to lift the bags because he felt good after the weekend from doing physiotherapy exercises and taking his medication. Other co-workers were busy at the time and he did not want to bother them. The claimant advised that he reported the incident to his supervisor at 9:00 a.m. on April 27, 1999. He told his supervisor that he would not be able to continue with light duties as he was taking medication which made him drowsy and he did not want to be drowsy while working around the shredder.

The supervisor asked him whether he could do light duties if he found light duties that allowed him to do his exercises and lay down if needed. The claimant indicated that he told the supervisor that he would perform the duties if his doctor cleared him to do so. The adjudicator further documented that the employer called him on May 6, 1999, to state that the light duties would have been writing down bus numbers when the buses came in and the claimant was aware of the duties. When the adjudicator told the claimant about the duties, the claimant replied that he was right handed and would have been able to do them but these duties were not offered.

On May 11, 1999, the claimant was advised that his claim for compensation was accepted however no compensation benefits for time loss would be paid. The adjudicator stated, “Under Workers Compensation Board policy, when suitable or alternate work is available and the worker refuses to participate, compensation benefits may be reduced or eliminated by the amount consistent with the amount the worker would have earned in the modified or alternate work situation.” The adjudicator further stated, “…you were aware that suitable light duties were available and the onus was upon you to determine the requirements of those duties and address with your doctor any concerns you had regarding your ability to perform the alternate duties. As such no benefits will be issued.” This decision was appealed by the claimant’s union representative on May 28, 1999. The union representative indicated the following:

• that all information used to deny wage loss was based on supposition. There was no specific alternate duty work/job outlined at the time of or following the meeting with the supervisor. There was only a suggestion that there may be the chance that work may be available which may address any concerns or restrictions that the claimant or his doctor may have.

• without specific identification of actual work and the physical demands of such work, it was both unfair and inappropriate to ask someone to evaluate and decide on a job which was not identified.

In a letter dated July 30, 1999, the employer’s representative provided rebuttal argument to Review Office. The employer’s representative was of the position that appropriate light duties were made available following the accident of April 26, 1999 and with full knowledge, the claimant chose not to avail himself of the opportunity. The objective physical evidence noted at the time of the April 26, 1999, examination would not have precluded the claimant’s participation in a light duty position.

The opinion expressed by the employer’s representative was that the claimant should be accountable for his decision not to even attempt light duties and that the attending physician’s authorization to remain off work was somewhat tainted by the claimant not having disclosed the fact that his employer was prepared to accommodate any restrictions that he might have. Accordingly, Review Office was asked to confirm the initial adjudicative decision.

On August 13, 1999, Review Office determined that the claimant was entitled to payment of wage loss benefits. Review Office indicated that it was clear that no specific offer of light duties was ever made to the worker apart from the supervisor stating that he could accommodate any restrictions the worker might have. Review Office commented that the employer did not give the claimant any specific indication of what the light duties might involve and given the historical information on file, Review Office believed this to be correct. It would therefore be virtually impossible for the worker to attend his physician and get clearance for duties that had not been made known to him.

Review Office also believed that the attending physician was aware that the claimant was working light duties at the time he injured his right shoulder. It was clear to Review Office that the physician felt the worker should no longer undertake light duties and that he should stay home and rest the right shoulder and no doubt the left elbow. The worker acted under the direction of his attending physician in remaining off work and given there was no identifiable light duties, he should not be penalized by withholding wage loss benefits.

On August 18, 1999, the employer’s representative appealed Review Office’s decision and a non-oral file review was arranged. The Appeal Panel considered submissions made by the employer’s representative dated October 21, 1999 and rebuttal argument from the union representative dated October 28, 1999. The Panel considered final comments from the employer’s representative dated November 1, 1999, along with all other file information.

Reasons

The issue in this appeal is whether or not the claimant is entitled to wage loss benefits. The relevant subsections of The Workers Compensation Act (the Act) are subsections 39(2) which provides for wage loss benefits for personal injury by accident arising out of or in the course of employment; as well as section 22 which establishes a duty to mitigate the consequences of an accident upon an injured worker.

In this appeal we reviewed all the evidence on file and the submissions of the employer and worker advocates. We find that the evidence supports a finding, on a balance of probabilities, that the claimant is entitled to the payment of wage loss benefits until May 10, 1999.

The claimant sustained a left elbow injury on February 15, 1999 as a result of which he was working light duties. On April 26, 1999 while performing those light duties the claimant sustained a further injury to his right shoulder when he attempted to lift a bag of shredded bus tickets which weighed approximately 40 to 50 lbs. The claimant has indicated that in attempting to lift the bag he used his right hand predominantly in order to protect his left elbow.

The worker sought medical attention on the day of the incident, April 26, 1999. His attending physician diagnosed a strain of the right shoulder and rotator cuff tendonitis and indicated in a Standard Return to Work Form dated April 26, 1999 that the claimant would be unable to work light duties as of April 27, 1999 for one to two weeks.

The employer has contended that the claimant should not have lifted the bag without assistance as assistance was being provided to the claimant for lifting. While we concur that an injured worker on light duties should exercise due care to stay within his restrictions, in our view, the circumstances of this case do not appear to suggest any "serious and wilful misconduct " as outlined in subsection 4(3) of the Act.

The day following the accident, April 27, 1999, the claimant attended his employer to report the injury. The employer has contended, as recorded in an E-mail dated April 27, 1999, that it was suggested to the claimant that day that they could give him work which would accommodate his latest right shoulder injury as well as the existing injury to the left elbow.

The employer has further contended that the worker failed to mitigate the circumstances of his accident and therefore should not be entitled to benefits. The grounds for the claimant's alleged failure to mitigate raised are firstly, his refusal to accept the generic offer of light duties the day following his injury and secondly, his failure to discuss the possibility of even lighter duties that the employer could offer, with his physician on the day of his injury. We note that the claimant had seen his physician on the day of his second accident which was the day before the generic offer of light duties was made.

A review of the evidence on file reveals that the employer has basically put forward a position that they can accommodate generically. However, we note that at the time the offer was made not even a general description of the tasks was outlined. The file also reveals that the claimant has in effect confirmed what the employer had said. Adjudicative memos to file also confirm what both the employer and the claimant have said, yet contain no details until some time after the initial offer, about the actual light duties being offered to the worker. In our view there was no evidence on file at the time of the offer from which the application of section 22 could be considered. It is unreasonable to apply a mitigation policy without being aware of the nature of the alternate duties and then the worker being afforded an opportunity to mitigate.

In our view it is unreasonable to provide a blanket offer to return an injured worker to work without first having the opportunity to assess the risk factors of this decision which can only be weighed with some knowledge of the duties being suggested. It is our view that the employer should have provided more specific information about the alternate light duty work to the claimant or to the WCB, particularly in the unique circumstances of this case where the injured worker was on light duties from an injury to his left elbow and subsequently sustained a second injury to his right shoulder.

The legislation reveals that there is a duty on the part of injured workers to mitigate the consequences of their injury, but the application of section 22 and the question of mitigation is specific to the circumstances and facts of each case. Therefore while this onus is on the worker, this must be interpreted with what is reasonable based on the facts of each case.

We concur with the Review Office and accept the reasons for their decision dated August 13, 1999 in addition to what has been outlined above.

We find that the claimant is entitled to wage loss benefits with respect to his subsequent shoulder accident sustained April 26, 1999, from April 27, 1999 until May 10, 1999. Therefore the employer's appeal is denied.

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 November, 1999