Decision #59/99 - Type: Workers Compensation
An Appeal Panel hearing was held on March 29, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 29, 1999.
Whether the claimant was fit to return to light duties effective July 20, 1998; and
Whether the claimant is entitled to payment of wage loss benefits beyond July 19, 1998.
That the claimant was fit to return to light duties effective July 20, 1998; and
That the claimant is not entitled to payment of wage loss benefits beyond July 19, 1998.
The claimant was employed an Instructor Guard 2 when he slipped and landed with his left elbow on a concrete ledge on June 23, 1998. The same day the claimant attended a walk-in clinic for treatment and was diagnosed with a left elbow contusion.
On June 30, 1998, the claimant was examined by his family physician who noted steady pain in the left shoulder with decreased strength as well as mild pain in the left hand and elbow. The diagnosis was reported as left shoulder strain and the physician indicated that the claimant should commence mobilization exercises and could return to work on July 13, 1998. On July 16, 1998, a Workers Compensation Board (WCB) medical advisor reviewed the file and documented that the claimant was capable of light duties and outlined restrictions for the left arm and shoulder.
File records show that the employer was able to accommodate the claimant with light duties based on the restrictions which were outlined by the WCB medical advisor on July 16, 1998.
On July 17, 1998, the claimant contacted a WCB adjudicator stating that he was called by his employer regarding light duties. The claimant stated that he was advised by his attending physician that he may have nerve and muscle damage in the rotator cuff area and that he was authorized not to return to work until July 27, 1998. Later the same day the adjudicator called the claimant to advise that he received the attending physician's report however he would not be changing the restrictions and expected the claimant to start work with the restrictions as outlined. The claimant was paid wage loss benefits from June 24, 1998, to July 19, 1998 inclusive.
The next medical information dated July 20, 1998, noted objective findings of tenderness in the left rotator cuff, decreased strength in the shoulder and grip, and altered sensation over the left ulnar/median nerve. The physician indicated the claimant was disabled from regular work activities and should avoid using the left arm.
On July 23, 1998, the claimant wrote the WCB expressing his belief that "I was cut off too early." The claimant stated he did not return to work on July 20th as his physician told him not to return to work until July 27th. The claimant went on to indicate that the day after he attempted light duties, i.e. July 28th, his physiotherapist noticed a significant change in his condition and suggested that he see his physician and maybe try returning to work part-time.
In a decision letter dated October 5, 1998, Claims Services determined that the claimant was capable of performing modified duties beginning July 17, 1998, based on the comments expressed by a WCB medical advisor who reviewed the case on September 29, 1998.
On November 27, 1998, the Review Office considered the claimant's appeal of July 23, 1998, along with a submission from the employer dated November 10, 1998. The Review Office determined that the claimant was fit to return to light duties effective July 20, 1998, and that he was not entitled to wage loss benefits beyond July 19, 1998. The Review Office based its decision on Sections 4(1) and 22 of the Workers Compensation Act.
With respect to the left shoulder difficulties, the Review Office was of the opinion that there was a relationship between the left elbow and shoulder injury to the compensable accident of June 23, 1998. However, he was not considered disabled as a result. On January 11, 1999, the claimant appealed the Review Office's decision and requested an oral hearing.
The issues in this appeal are whether the claimant was fit to return to light duties effective July 20, 1998; and whether the claimant is entitled to the payment of wage loss benefits beyond July 19, 1998.
The relevant subsection of The Workers Compensation Act (the Act) are subsection 39(2) which provides for the duration of wage loss benefits and subsections 60(1) and 60(2) which deal with the jurisdiction of the Workers Compensation Board (WCB).
Subsection 60(2) states in part:
60(2) Without hereby limiting the generality of subsection (1), it is declared that the exclusive jurisdiction of the board extends to determining
- (c) the existence and degree of disability by reason of any injury;
(e) the loss of earning capacity resulting from an accident;
Subsection 39(2) states:
Duration of wage loss benefits
39(2) Subject to subsection (3) wage loss benefits are payable until
- (a) the loss of earning capacity ends, as determined by the board; or
(b) the worker attains the age of 65 years
We reviewed all the evidence on file and given at the hearing. We find that the weight of the evidence, on a balance of probabilities, supports a finding that the light duties offered to the claimant effective July 20, 1998 were within the claimant's restrictions given the nature of the compensable injury involving the left elbow and shoulder. In reaching this conclusion we place weight on the following evidence:
- in a report dated June 30, 1998 an attending physician diagnoses left shoulder strain and indicates that the claimant's restrictions to current work capability were that he was unable to use the left arm and that he could return to work on July 13, 1998;
- in a report dated July 10, 1998 a second attending physician indicates that the claimant was disabled from regular work but was capable of sedentary work;
- a WCB medical advisor reviewed the file and indicates in a memorandum to file dated July 16, 1998 that the claimant was capable of light duties as outlined with no repetitive lifting with the left arm and that the claimant should not lift weights greater than 15 lbs. above the shoulder level for two weeks;
- in a memorandum to file dated July 17, 1998 a WCB adjudicator records that he informed the claimant that based on a report from an attending physician the work restrictions would not be changed and that the claimant was expected to start work within the restrictions outlined;
- in a report dated July 20, 1998 an attending physician indicates that the claimant was disabled from regular work and that activities which should be avoided at that time was that the claimant could not use left arm;
- a WCB medical advisor indicates in a memorandum dated September 29, 1998 that she agreed with the first medical advisor's opinion of July 16 that the claimant was capable of light duties (as per noted restrictions.) She states:
" I base this opinion on the A/P's report of July 20th noting objective findings of 1) full ROM shoulder and hand 2) some decreased strength (4/5) shoulder and grip 3) altered sensation over (L) ulnar/median nerve. These findings would not preclude having returned to the cashier job that had been offered in July."
- file information and evidence given at the hearing outlined the nature of the light duties offered to the claimant by the employer as that of a clerical assistant at the pool front desk including answering phones, filling in forms and applications for swimming lessons and putting paper wrist bands on children/adults who had paid to go on the water slide;
We find that the evidence on a balance of probabilities supports a finding that the claimant was capable of participating in the light duties offered by the employer effective July 20, 1998. It is our view that all of the evidence has to be weighed in light of the nature of the light duties offered. We find that the duties as revealed from the file information and described for us at the hearing were within the claimant's restrictions as of July 20, 1998. The claimant is therefore not entitled to the payment of wage loss benefits beyond July 19, 1998. Therefore the claimant's appeal on both issues is denied.
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 15th day of April, 1999