Decision #137/06 - Type: Workers Compensation
Preamble
This appeal deals with a worker's entitlement to further wage loss benefits after her work hardening program is interrupted for medical reasons and her employer is not willing to reintegrate her into her regular position.On March 31, 2003, the worker suffered a compensable injury to her throat. Benefits and medical aid were paid and on September 23, 2003 she returned to work at a reduced work day with an anticipated return to full time hours on November 22, 2003. On October 17, 2003, while in the middle of her work hardening program, the worker fell ill with throat symptoms. She remained off work for 2 weeks when she was cleared by her physician to return to work. Her employer refused to allow her to return to her regular position given preventive restrictions put in place by the Workers Compensation Board (the "WCB"). The worker ultimately did return to her regular position on December 27, 2003 on a gradual basis until the middle of March 2004 when she resumed her full time regular duties.
The WCB refused to accept responsibility for the worker's absence and reduced work hours. This denial was upheld by Review Office in a decision dated October 27, 2004, confirmed on August 29, 2005 and February 28, 2006.
The worker appealed these decisions to the Appeal Commission and an appeal panel hearing was held on July 20, 2006. The worker appeared and was represented by a worker advisor. A representative for the accident employer also appeared.
Issue
Whether or not the worker is entitled to wage loss benefits commencing October 17, 2003 in relation to her compensable throat injury of March 31, 2003.Decision
That the worker is entitled to wage loss benefits from October 27, 2003 to November 22, 2003.Decision: Unanimous
Background
Reasons
BackgroundThe worker has been employed as a dispatch operator for over 25 years. Since 1997 she has suffered from chronic laryngitis which occurs from multiple causes, including over-use of her voice and viral infections.
On April 15, 2003, the worker filed a claim with the WCB for chronic laryngitis which she said began during her shift on March 31, 2003. Her claim was accepted by the WCB on May 2, 2003.
The worker remained off work until May 24, 2003, when she began a graduated return to work program to regular duties. Unfortunately, her voice continued to deteriorate and on May 30, 2003 she was advised by her family physician to remain off work completely until seen by her treating otolaryngologist ("ENT").
Notwithstanding this advice, the worker did return to work in a modified position which did not require use of her voice on June 12, 2003. Regrettably, her condition further deteriorated to the point where she was unable to continue to work as of June 16, 2003.
The worker was assessed by the ENT on June 23, 2003. The assessment is recorded in a July 2, 2003 report. The ENT thought that the worker should remain of work for 2 to 3 more months at which time she could return to her regular duties. He did however caution that her voice condition could be a recurrent problem.
Notwithstanding the ENT's advice to remain off work, the worker once again returned to work at modified duties effective June 26, 2003.
By August 27, 2003, the ENT thought that the worker would be able to return to her regular duties on a gradual basis, effective September 22, 2003:
The file, along with the ENT's August 27, 2003 report, was reviewed by a WCB medical advisor on September 15, 2003. The medical advisor provided the opinion that the worker required permanent preventive restrictions as follows:
- limit talking throughout the day to no more than 15 minutes at a time, to a total less than one hour of talking per shift
- no duties requiring face to face or telephone interaction with the public.
The WCB provided this list of preventive restrictions to the employer. Ultimately, however, the worker returned to her regular duties on September 23, 2003 on a graduated basis. At this time, the worker received partial wage loss benefits.
Then on October 17, 2003 the worker called in sick.
At the hearing the worker testified that her work hardening program was going well. Then she woke up on or about October 17, 2003 with cold or flu-like symptoms which included a sore throat. She decided to take 2 shifts off because she thought she could recover within that period of time and return to the work hardening program. She saw her family physician who advised her to remain off work until October 26, 2003. The worker testified that her voice was not 100% at that time but that she was definitely ready to return to work.
Unfortunately, her employer advised her that given the preventive measures put in place by the WCB it could not in good conscience allow her to return to her regular duties. From this point forward, the worker remained in limbo - she was ready to return to work and had been authorized to do so by her family physician but her employer would not allow her to do so.
In addition, the WCB ceased providing benefits effective October 14, 2003 (the last day worked before her sick leave) on the basis that she had recovered from the compensable injury and that any ongoing restrictions were required solely for preventive purposes.
At that point in time alternate employment was explored between the worker and the employer. However, on the advice and support of the ENT (see January 21, 2004 report), the worker ultimately decided to return to her regular duties on a gradual basis on December 27, 2003. It was her evidence at the hearing that she was able to return to full time regular duties in the middle of March, 2004 without further injury since that date.
On October 6, 2004, the worker appealed the WCB's decision to cease benefits effective October 14, 2003. This decision was however upheld by Review Office on October 27, 2004. Review Office held that the worker's problems in October 2003 were not related to either the viral condition that she suffered during the winter of 2003 nor to the demands of her duties placed on her at the time benefits were discontinued. Rather, Review Office felt that it was far more likely the worker had a new and current exacerbation of her pre-existing condition. It was the recommendation of Review Office that the worker file a claim for a new injury with the WCB.
At the suggestion of Review Office, the worker did file a new claim with the WCB on November 4, 2004 which was ultimately denied.
Then on July 6, 2005, the worker asked Review Office to reconsider their earlier decision of October 27, 2004. Once again, the worker was unsuccessful. On August 29, 2005, Review Office declined to alter their previous decision. In addition, Review Office also confirmed the decision of primary adjudication that the time loss occurring in October 2003 was not due to a new accident as defined by the Act. Rather, Review Office noted that the worker herself thought that she had the flu at that time which would be considered a non-compensable condition.
A further reconsideration was requested and rejected by Review Office on February 28, 2006.
Worker's Position
The worker says that she suffered a setback in October, 2003 but that she was able to return to work to complete the work hardening program on October 26, 2003. As the employer refused to allow her to return to work, she was required to recommence another work hardening program in December, 2003, ultimately returning to full time duties in March 2004. She says that her condition is related to her compensable injury and that her wage loss after this date is due to the employer's misapprehension of the preventive measures and the WCB's overly restrictive stance on preventive measures.
Employer's Position
The employer does not dispute that the worker's absence from October to December 2003 was related to her March, 2003 compensable injury. It is however concerned about the worker's well-being and its impact on the employer's claims experience.
Analysis
To accept the worker's appeal we must find that her wage loss from October 17, 2003 forward is due solely to her compensable injury. We are unable to fully make that finding.
The worker's laryngitis can be caused by both work conditions and viral infections. A January 29, 2002 report from the ENT, authored in the context of a previous claim involving the worker, indicates that viral infections typically result in short periods of laryngitis whereas work exposure typically results in prolonged periods of laryngitis. The worker testified at the hearing that she noticed that her voice condition is typically brought on by a cold or flu and then worsens due to her job duties.
In the present case, the worker testified that she was performing her work hardening program prior to October 17, 2003 without any voice symptoms. It was not until October 17, 2003 when she woke up with cold or flu-like symptoms that she experienced hoarseness. Though not fully recovered, she was ready to return to work within nine days.
On the basis of this evidence, we find on a balance of probabilities that the worker's voice symptoms which developed on October 17, 2003 were caused by a viral infection and not her work duties. We therefore find that the worker's absence from the work hardening program from October 17 to October 26, 2003 was for non-compensable reasons.
That said, the worker was able to and would have returned to her work hardening program as of October 27, 2003, and would have completed it on November 22, 2003.
Unfortunately, the worker's ability to return to her work hardening program was impeded by her employer. Had it not been for this disruption, the worker would have continued in the WCB sponsored work hardening program following which WCB responsibility would have ended. In these circumstances, we find that the worker is entitled to wage loss benefits from October 27, 2003 to November 22, 2003.
For the period after November 22, 2003, the worker's wage loss was no longer due to her compensable injury but rather to labour issues which are not the responsibility of the WCB. For these reasons, the worker is not granted wage loss benefits beyond November 22, 2003. Accordingly, the worker's appeal is successful in part.
Panel Members
L. Martin, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Martin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of September, 2006