Decision #65/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on March 24, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 24 and March 25, 1999.

Issue

Whether the claimant is entitled to payment of wage loss benefits from May 27, 1997 to December 16, 1997, due to the effects of his work related accident of March 25, 1996.

Decision

That the claimant is entitled to payment of wage loss benefits from May 27, 1997 to December 16, 1997, due to the effects of his work related accident of March 25, 1996.

Background

While employed as an electrical engineer on March 25, 1996, the claimant was standing on an underground locomotive when he slipped and fell to the ground. As a result of the accident, the claimant fractured his left radius and strained his right elbow which was later diagnosed as a cubital tunnel syndrome. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits commenced March 26, 1996.

On June 11, 1996, an orthopaedic surgeon noted that the claimant's left wrist was continuing to show improvement and that follow-up x-rays showed the fracture was healed. The right elbow, however, revealed osteoarthritic changes which accounted for restricted elbow movement and the claimant exhibited signs of an ulnar nerve neuropraxia. Surgery was contemplated pending the results of repeat nerve conduction studies.

In August 1996, the employer contacted the WCB offering the claimant light duties which they felt utilized his mental abilities. The employer stated the light duties consisted of sitting and looking at maps and providing ideas/suggestions. A complete job description was forwarded by fax on August 30, 1996.

On September 16, 1996, a WCB adjudicator called the claimant to advise him that his employer was able to provide light duties for the remainder of the week. The claimant advised the adjudicator that he would have to drive 150 miles to get to his place of employment. The claimant also felt that he could possibly cause further injury to his injured hand as the road was bumpy and he would have to use two hands to drive. Later that same day the claimant stated his doctor did not feel it would be a good idea to return to light duties (the claimant did not return to light duties and underwent an anterior transposition of the ulnar nerve right elbow on September 23, 1996, which was accepted as a WCB responsibility).

Following surgery, the orthopaedic surgeon reported that the claimant's condition did not improve and ordered repeat nerve conduction studies and an examination by a neurologist.

On December 6, 1996, a WCB adjudicator discussed the case with a WCB medical advisor as the employer was still offering light duties to the claimant, which would utilize his mental abilities. The medical advisor provided the adjudicator with his opinion that the claimant could return to work as long as he did not need to use the injured hand. Arrangements were made for the claimant to return to light duties on December 10, 1996 and for a home therapy exercise program.

Subsequent medical reports were received from the treating neurologist dated January 2, 1997, the orthopaedic surgeon dated February 11, 1997, and from the family doctor dated February 21, 1997. The claimant was also examined by a WCB neurology consultant on March 21, 1997.

In a memo dated May 1, 1997, a WCB adjudicator documented that he discussed the file with the WCB's neurology consultant and the following restrictions were outlined: the claimant was able to lift and grasp objects with his left hand, however, he was unable to perform work that entailed fine precision; the claimant was to avoid any activities where his elbow could get bumped. On May 21, 1997, the WCB adjudicator spoke to the treating physiotherapist regarding the return to work plan and the physiotherapist commented that the claimant could try going without formal therapy for one month and then be reassessed.

In a letter dated May 26, 1997, the claimant was advised that he was considered capable of returning to light duty work, with restrictions as noted above, according to the WCB medical advisor who had examined him on March 21, 1997. As such, it was determined that no further wage loss benefits would be paid beyond May 26, 1997. On May 27, 1997, the employer faxed a job description to the WCB which contained 16 job functions that were considered to be light duties.

Medical reports were received from the treating neurologist dated June 19, 1997, and from the orthopaedic specialist dated July 17, 1997. The claimant was again examined by a WCB neurology consultant on July 23, 1997.

Based on the neurology consultant's opinion/findings of July 23, 1997, an adjudication supervisor advised the claimant that he was still considered capable of performing modified duties and there was no basis to reinstate full wage loss benefits as he chose not to participate in the light duties outlined by his employer. The claimant was also advised there was no basis to approve further surgery at this time.

On February 23, 1998, a worker advisor wrote the WCB regarding several issues, one of which was whether the claimant's benefits should have been terminated on May 26, 1997. The worker advisor expressed his opinion that the claimant still required physiotherapy treatment and that these treatments were not available in the town where he worked. The worker advisor made reference to the March 21, 1997, WCB examination and the consultant's opinion that the claimant did not need physiotherapy treatment and could perform exercises on his own. Reference was also made to the conversation that took place on May 21, 1997, between the WCB adjudicator and physiotherapist who expressed the opinion the claimant could suspend formal physiotherapy for one month and then be reassessed. The worker advisor's position was that the claimant's physicians did not support these opinions and that the claimant continued to receive formal physiotherapy on an ongoing basis since the injury and that all these visits had been paid for by the WCB.

Primary adjudication wrote to the worker advisor on April 27, 1998, stating that wage loss benefits would not be reinstated effective May 27, 1997. Primary adjudication noted the evidence on file supported that the claimant was capable of performing light duties offered by his employer without risk of further injury and the claimant chose not to try the duties offered. Primary Adjudication concluded there was no new evidence which supported a change in its previous decision. The worker advisor appealed this decision to the Review Office.

On December 18, 1998, the Review Office determined that the claimant was not entitled to payment of wage loss benefits between May 27, 1997 and December 16, 1997, due to the effects of his work-related accident. The Review Office's opinion was that the claimant's ongoing physical/functional restrictions from his work related accident were unlikely to prevent his performing suitable sedentary duties effective May 27, 1997. Review Office was satisfied that suitable modified duties had been offered to the claimant and were available between May 27th to December 17, 1997.

Review Office found that the claimant received adequate notice that physiotherapy treatments could have been replaced by home exercises which would not interfere with his resumption of suitable light duties. It was felt that home exercises would have served to reduce the risks of flexor contracture and to increase strength/range of motion, providing the claimant did the exercises regularly. Review Office was further of the view that the claimant failed to reasonably mitigate the effects of his work-related accident by refusing to attempt a return to modified duties between May 1997 and December 1997, and consequently, wage loss benefits would not be payable for this period.

On February 23, 1999, the worker advisor appealed the Review Office's decision and an oral hearing was arranged for March 24, 1999.

Reasons

Chairperson Vivian and Commission Frisken:

We are of the opinion that the claimant is entitled to wage loss benefits from May 27, 1997 to December 16, 1997.

The claimant was injured on March 25, 1996, when he fell off an underground locomotive. His left arm was broken above the wrist and his right elbow was sprained when it was hyper-extended.

The fracture of the left arm healed well but the right elbow sprain resulted in a right ulnar neuropraxia diagnosed following nerve conduction studies done on April 3, 1996. As a consequence the claimant underwent a right ulnar transposition on September 23, 1996.

On October 23, 1996, the surgeon reported to the WCB that:

    "Mr. [the claimant] had an ulnar nerve transposition done on Sept. 23/96. He is, however, showing no improvement. If anything, things are getting worse. He is noting more clawing of the little finger and ring finger and also has noted marked wasting of the first interossei and having trouble with the hand. Appears to show more of an ulnar nerve problem than he had did previously. He is using his hand quite a bit he states. I will arrange for repeat nerve conduction studies to see what is happening. Appears to be increasing entrapment of the ulnar nerve."

A repeat nerve conduction study was done on November 18, 1996, and revealed:

    "...severe slowing over an extensive segment of teh (sic) transposed ulnar nerve area and distally in the forearm."

Further to a comment made by the employer that they would like to utilize the claimant's mental abilities they made a formal offer of light duties on August 30, 1996.

On September 12, 1996, the adjudicator advised the employer that the claimant would return to work the next morning. The claimant was advised of this decision on September 16, 1996, and immediately expressed concerns that he would have to drive 150 miles to get to work over a bumpy road. The claimant contacted his doctor who reportedly did not agree with the light duty job. Despite this the adjudicator again advised the employer on September 16, 1996, that:

    "...we would be having the claimant RTW, performing l/d's, prior to his surgery date"(sic).

On September 17, 1996, the adjudicator advised the employer that the claimant would not be returning to light employment prior to surgery.

As noted earlier surgery occurred September 23, 1996. The employer continued to offer light duty employment and the claimant continued to be treated for problems which surgery had not resolved. Further surgery was contemplated in early December 1996 but was not done as the claimant's neurologist felt that there would be further improvement with time.

On December 15, 1996, the claimant wrote to the WCB outlining his current difficulties, past and future medical appointments and his concern with driving long distances in cold weather.

On January 2, 1997, the claimant's neurologist wrote to the WCB indicating that a minimum of 15 months would be required beyond the date of surgery to be able to determine to what extent recovery was going to occur. The neurologist stated:

    "...in the meantime he will need ongoing physiotherapy on his hand to reduce the risk of a permanent flexor contraction. Also, the range of motion post-op of his elbow seems reduced and this needs to be worked on as well."

A report from an attending orthopaedic specialist dated February 11, 1997, states:

    Mr. [the claimant] is about the same. He has increased some in his range of movement of the elbow, but the hand is definitely weak. There is still quite marked wasting of the first interosseous muscle and he is also showing some clawing of the fingers of the ring and little finger. Power of hand grip is also definitely decreased compared to other side. However, with the physiotherapy he is maintaining some function and we should carry on with this for the present. He is tentatively booked for a nerve conduction study in June, as recommended by Dr. [neurologist]. Unless a job is available for him, which does not involve a lot of heavy lifting or manual dexterity in the right hand, he is not able to return back to the job that he had been doing. I will reassess him again in a month's time and I would recommend that he continue with physiotherapy twice a week during this period."

Reports from the claimant's family doctor dated February 21, 1997, and March 14, 1997, prescribe physiotherapy three times a week.

The claimant was examined by a WCB neurologist on March 21, 1997. He determined that the claimant did not need ongoing physiotherapy and could do stretching exercises at home. He also stated:

    "I would agree that the best outcome would likely be achieved by spontaneous regrowth or regeneration of the nerve rather than any further surgical procedure. As such I would agree with a conservative approach as suggested by Dr. [neurologist].

    In the meantime the claimant is encouraged to use his hand as much as possible. He can still use his thumb and, to a certain extent, the index and little fingers. Many individuals do learn to use their hand despite serious ulnar nerve damage in a meaningful way. This requires some adaptation.

    There are no restrictions in terms of his driving. If he can be accommodated given his present level of impairment then he should resume his employment."

On May 1, 1997, the adjudicator discussed the claim with the WCB's neurologist regarding restrictions and recorded:

    "Regarding the clmt's restrictions, Dr. [neurologist] offered the opinion the clmt is able to lift and grasp objects with his left hand. Dr. [neurologist] indicated the above would not hamper the nerve regeneration process. As well, the clmt should avoid any activities where he could possibly cause his elbow to get bumped."

On May 9, 1997, the adjudicator advised the employer by phone that it appeared the claimant was now capable of a return to work within the following restrictions.

  • unable to perform any work that entails fine precision;
  • avoid activities where elbows can get bumped.

On May 21, 1997, the claimant was advised by phone that he should return to work on Monday (May 26, 1997) performing light duties. The claimant wanted to know if he could still attend therapy.

The same day the physiotherapist was contacted by the adjudicator and indicated:

    "it would be okay for the claimant to try going without formal therapy for one month and they will reassess him after that." (emphasis ours)

We note the file does not document what question(s) was posed to the physiotherapist to get this response given that the claimant's doctor, neurologist, and orthopaedic specialist all were prescribing ongoing physiotherapy.

Benefits were terminated May 26, 1997. The letter to the claimant of the same date stated:

    "As I advised you, the medical advisor who examined you at the offices of Workers Compensation Board, has offered the opinion that you are capable of returning to work performing light duties. You would be restricted from performing any tasks that require fine precision. As well, the medical advisor recommended you avoid any activities where you could possibly cause your elbow to be bumped.

    As I have also advised you, your employer has advised the board they are willing to accommodate the above noted restrictions."

On May 27, 1997, the employer faxed a list of job duties to the WCB indicating that:

    "we have many duties which are considered light duty by most people. Some of the work I consider light duty would be ..."

A list of 16 job functions were outlined. We note there is no indication on the file of any discussions with the claimant in regard to these light duties. At the hearing, the claimant testified that the list represented his pre-accident job.

Medical information continued to be provided to the WCB by the claimant's doctors.

On June 19, 1997 the attending neurologist stated:

    "Given the patient's symptoms are worsening and conduction velocities if anything seem to be unchanging, if not worse, in the area just mentioned, I think there is a reasonable justification for further surgical intervention here to try to make sure there is no ongoing compressive lesion distal to the previous site of transposition."

On July 17, 1997, the attending orthopaedist stated:

    "Pt. is continuing with physiotherapy which is maintaining his movement in the forearm and upper arm. He now has full extension of the elbow, which he did not have before, and he feels that the physiotherapy is definitely helping him. He is to continue with the same.

    He has not returned back to work as he tells me there is no light duty available at the mine, although they say there is light duty. He states that he knows from previous experience and others' experience that they get put right back into heavy jobs where he has to crawl sometimes in the mine and he is not quite ready for that.

    This man needs reexploratoin (sic) of the ulnar nerve with further release of the ulnar nerve. My concern is his feeling of wasting in the upper arm which is not related to the ulnar nerve. However, nerve conduction studies definitely show that there is further entrapment and I think reexploration of the ulnar nerve with further release would be the best thing for him. He should be continued on physiotherapy in the meantime to maintain his mobilization of the elbow, wrist and fingers." (emphases ours)

On July 23, 1997, the claimant was examined by the WCB neurologist who confirmed that his prior comments of March 21, 1997, about physiotherapy were still appropriate.

On August 25, 1997, the WCB re-confirmed to the claimant that benefits would not be reinstated. The exam of July 23, 1997, was noted along with the claimant's reluctance to participate in the modified duties.

Notwithstanding the recommendations of the WCB neurologist with respect to physiotherapy and in keeping with the recommendations of the claimant's treating physicians physiotherapy was continued by the treating physiotherapist well into 1998.

On June 16, 1998, benefits were reinstated retroactive to December 16, 1997, effective the date the employer went out of business. The rationale was that even though the claimant did not participate in a return to work at modified duties in May 1997, he would still have restrictions when the employer subsequently shut down. Therefore he was eligible for assistance by the vocational rehabilitation department.

The issue before the Panel is whether the claimant is entitled to benefits for a period where he did not participate in a modified/light duty return to work program before his employer discontinued business.

The majority finds it was not unreasonable for the claimant not to participate over the noted periods of time. The file makes many references to the claimant's desire to continue formal physiotherapy. This was supported by his family doctor, his neurologist and orthopaedist. The physiotherapy continued over and beyond this entire period of time, three times per week.

The file contains many statements by the claimant that all he wanted to do was get the use of his arm back and that to that end he needed to be within close proximity of medical treatment and formal physiotherapy.

In conclusion we find that the claimant's desire to resolve his medical concerns was legitimate and supported by all treating physicians. His concern over returning to work in the same environment is noted in his statement to a WCB medical officer on July 23, 1997:

    "He feels the first operation made things worse and he asked whether or not the operation stretched or cut the nerves. He did not want to go back to work in a mine. He said it was not a place where you should go if things weren't right. He said he would need to have a clear mind and no pain before he would go back to work in (location). He expressed concerns about the danger involved. He did say that he was willing to work in the city where there was medical support. He said that he couldn't even use a phone in (location). He also felt that he needed three times a week physiotherapy." (emphasis ours)

We find based on the evidence on file and given at the hearing, on a balance of probabilities, that the alternate duties offered by the employer were beyond the use of the claimant's mental faculties alone and would have required a level of physical activity which in our opinion exceeded the claimant's capabilities.

We find that the claimant's focus subsequent to his injury was to recover the function of his arm and the evidence supports the requirement for ongoing treatment which in our view would have an impact on the claimant's availability for alternate work during the time period in question.

We also find that the claimant's hesitancy to drive extended distances to access the work site in order to resume duties which he felt were inappropriate and could endanger his recovery was reasonable in the circumstances of this case.

We further find that the claimant's desire to be close to his own attending physicians as well as to the availability of medical treatment and active, formal physiotherapy treatments was also reasonable in light of the nature of his injuries and the clinical course of his recovery.

The appeal is granted and benefits awarded for the period May 27 to December 16, 1997.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of May, 1999

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The claimant is seeking restoration of wage loss benefits from May 27, 1997 to December 16, 1997 in respect of his compensable injury of March 25, 1996. As noted in the background, the claimant fell at work in March 1996, suffering a fracture to his left radius and injury to his right elbow which was eventually diagnosed as cubital tunnel syndrome. While the left wrist injury resolved relatively quickly, the claimant had surgery on September 23, 1996 for an anterior transposition of the ulnar nerve of the right elbow, and subsequent physiotherapy to improve function in the elbow and hand.

Return to work options for the claimant were discussed by the Workers Compensation Board (WCB) adjudicator, the employer, and the claimant in the periods prior to and subsequent to the surgery. The WCB arranged for the claimant to return to work on modified/light duties on May 27, 1997. The claimant did not show up to the workplace, and in due course, the WCB terminated benefits to the claimant.

The submission of the claimant, through his representative, is that while he was offered modified duties by the employer, those duties were outside the claimant’s restrictions and would place the claimant in an injurious position, and that the he was justified in refusing to undertake those modified duties. The representative also argues that there is medical evidence that the claimant required ongoing physiotherapy treatment at the time that the return to work was scheduled, and that physiotherapy services were not available in or near the remote mining community where the claimant worked.

The claimant’s potential entitlement or constraints to receipt of benefits in this instance are set out in two sections of the Workers Compensation Act (the Act). Subsection 39(1) states that workers will receive wage loss benefits based on their loss of earning capacity that arises as a consequence of a compensable injury. Subsection 39(2) places certain restrictions on this entitlement. It states:

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.

In this context, the Act places a certain amount of responsibility on the claimant to cooperate with the Board in the management of his claim, As well, the worker’s failure to do so may have consequences to his entitlement to benefits. These responsibilities are set out in Section 22 of the Act which states:

22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

After a review of all evidence in the file and as presented at the hearing, I find that that the job descriptions offered by the employer were within the claimant’s physical restrictions, and that the claimant’s stated need for ongoing formal physiotherapy at the time of the scheduled return to work is not medically supported. As such, there was no barrier to the claimant returning to the remote community to try modified duties, and thus the claimant has failed to mitigate the consequences of the accident.

In respect of the jobs offered to the claimant, I find that the jobs offered were within the claimant’s physical restrictions, and that the employer was prepared to be accommodating to the claimant in facilitating a return to work. In support of these findings, I note the following evidence:

  • Restrictions were indicated to the claimant in a letter dated May 26, 1997, that the claimant was capable of performing light duties, and would be restricted from performing any tasks that require fine precision and to avoid any activities that could cause elbow to be bumped.
  • An August 20, 1996 memo by an adjudicator of a telephone conversation with the employer notes that the claimant is not only an electrician but an electrical engineer, and that the employer would like to utilize the claimant’s “mental ability, as opposed to hiring someone else to perform the same duties. The emp [sic] indicated that the clmt [sic] would be sitting and looking at maps and providing ideas/suggestions.”
  • An August 20, 1996 note by the claimant’s supervisor sets out seven job duties, which deal with preparation of drawings, review and evaluation of electrical equipment, and requisitions.
  • The claimant’s evidence at the hearing was that discussions of the claimant’s potential return to work in the fall of 1997 were deferred firstly to December 1997, and then to 1998 because of the scheduling of elbow surgery in November 1997, and the subsequent recovery period.
  • The claimant’s evidence at the hearing was that the light duties that were being discussed and considered in April and May 1998 were the same light duties that were first proposed in August 1997.
  • The claimant’s evidence at the hearing was that the primary location for the light duties was above ground, although occasional visits to other buildings and into the mine may be required in the evaluation stages of development of plan drawings.

While the claimant offered evidence at the hearing that the jobs were not appropriate because of the requirement for fine motor skills in drawing, or the dangers involved in going into the mine, I note that there is considerable evidence of the claimant’s disinclination to return to his job, at any cost. In this regard, I note the following evidence:

  • The claimant’s evidence at the hearing was that after being advised of the return to work beginning on May 27, 1997, he did not visit the site on the first day of proposed return to work. He did not call his supervisor, on or before that first day, nor at any time after. The claimant did not travel to the site or in any other way take any steps, either with his employer or WCB staff, to determine the appropriateness or suitability of the modified duties offered.
  • A July 11, 1997 report by the claimant’s orthopaedic surgeon notes that “he has not returned back to work as he tells me that there is no light duties available at the mine, though they say there is light duties. He states that he knows from previous experience and others’ experience that they get put right back into heavy jobs, where he has to crawl sometimes in the mine and he is not ready for that.” [emphasis mine]
  • A July 23, 1997 report by a WCB consulting neurologist of a call-in examination notes that “he did not want to go back to work in a mine. He said it was not a place where you should go if things were not right. He said he would need to have a clear mind and no pain before he would go back to work in [remote community]. He expressed concerns about the danger involved. He did say he was willing to work in the city where there was medical support. Said he couldn’t even use a phone in [community]. Felt he needed 3x week physiotherapy.” [emphasis mine]

The claimant’s representative also referred to the claimant’s need for ongoing physiotherapy treatment at the time that the return to work was scheduled, and that physiotherapy services were not available in or near the remote mining community where the claimant worked. I find that the medical and file evidence does not support this contention, but rather supports the position that the claimant had plateaued in physiotherapy and was considered able to manage with home exercises. In this regard, I note the following:

  • Clinic notes of an orthopaedic specialist dated December 17, 1996 indicate that “this man maybe is showing further improvement. Will continue with the physiotherapy for another month after which he should be able to do the passive and active stretching exercises on his own at home. Pt. [sic] is employed in a mine and all the work is heavy work, so I do think there is a question of light duties. However, when I reassess him next month, I shall discuss and consider this.” In a subsequent note of February 4, 1997, the specialist notes that with the physiotherapy, the claimant is maintaining some function and recommends that physiotherapy continue twice a week for the next month.
  • An adjudicator’s note dated February 28, 1997 details a telephone call with the claimant’s physiotherapist, stating “Clmt’s tx is on maintenance at this time. They were able to get a bit more movement in his hand. P/T has no problem with RTW on L/D’s. Nerve generation is slow and will take a long time to heal.”
  • A report by a WCB neurologist consultant, dated March 21, 1997, of a call-in examination of the claimant includes the following summary points:

“Dr. [neurologist] had suggested ongoing physiotherapy to reduce the risk of permanent flexor contracture. It seems quite clear that [claimant] is capable of performing these stretching exercises entirely on his own at home. The other physiotherapy treatments such as ultrasound stimulation are of no value at this point in time. …”

“In the meantime the claimant is encouraged to use his hands as much as possible. He can still use his thumb and, to a certain extent, the index and little fingers. Many individuals do learn to use their hand despite serious ulnar nerve damage in a meaningful way. This requires some adaptation. There are no restrictions in terms of his driving. If he can be accommodated given his present level of impairment then he should resume his employment.” [emphasis mine] 

  • A note by an adjudicator dated May 21 1997 details a telephone call with the physiotherapist. The adjudicator notes that “the clmt has a concern that he still needs to attend formal therapy, because of the equipment.” The physiotherapist’s response is that “it would be okay for the clmt to try going without formal therapy for one month and they will re-assess him after that.” [emphasis mine]
  • A note by the WCB neurologist consultant dated May 22, 1997 indicates that “patient is encouraged to use hand (Rt) as much as possible. Should be able to adapt to use Rt hand for most activities. Should attempt to avoid pressure of blunt injury to Rt elbow. Would suggest reviewing recommendations in 3 months as of March 21, 1997 ie. after he has had ulnar nerve NCS study repeated.” He also notes a call with the claimant’s attending physician to reinforce above comments on current restrictions and results of prior examinations.
  • Subsequent to the claimant’s failure to return to work and to the WCB neurologist’s second call-in examination in July 1997, there is a note by a WCB supervisor dated August 22, 1997, detailing a conversation with the WCB neurologist, stating, “Dr. [neurologist] also remained of the opinion that the clmt is fit to perform modified duties as previously outlined. He stated there is no medical reason which would prevent the clmt from driving a standard vehicle or from performing restricted work activities as outlined by the employer. Dr. [neurologist] indicated that the physiotherapy program should be done at home at this point in time, as there is nothing that a physiotherapist can do for the clmt that he can’t do on his own.”

Based on the evidence, I find on a balance of probabilities that the claimant was not interested in a return to work with the pre-accident employer, even though he was capable of some work and in fact indicated his preparedness to work in the city. I further find that the employer’s offer of light or modified duties was open-ended, accommodating, and within the stated restrictions set out by the WCB, and that the claimant’s insistence on formal physiotherapy was not supported medically.

Accordingly, the minority finds that the claimant was able to return to work with the pre-accident employer on May 27, 1997. Section 22 of the Act requires injured workers to mitigate the consequences of an accident. As the claimant did not attend the employer’s premises nor make efforts to facilitate a return to work, I find that the claimant did not suffer a loss of earning capacity as of May 27, 1997 and beyond. On this basis, the minority would deny the claimant’s appeal for wage loss benefits for this period.

A. Finkel, Appeal Commissioner

Back