The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 18, 1999, at the employer’s request. The Panel discussed this appeal on August 18, 1999.

Issue

Whether the claimant is entitled to payment of wage loss benefits beyond February 1, 1999.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond February 1, 1999.

Background

While performing the duties of a mail carrier on January 4, 1999, the claimant fell down three steps injuring his left arm. Following assessment by the attending physician the claimant was diagnosed with a left radial head fracture and was authorized to remain off work for three weeks. Also of note is that the claimant is right hand dominant.

File documentation showed that the employer offered the claimant temporary modified duties which included scanning and sorting letter sized mail with his right hand only. In an Occupational Fitness Assessment (OFA) form dated January 13, 1999, the attending physician indicated that the claimant was unable to work with his left hand as it was broken. Subsequent medical information indicated the following:

• on January 21, 1999 the attending physician indicated that the fractured left radius was healing slowly and that the claimant was unable to return to work;
• an orthopaedic specialist, in a report dated February 5, 1999, indicated that the claimant had mild tenderness at the radial head with no swelling. It was felt that the claimant should concentrate with physiotherapy to regain full range of motion in his elbow. It was also felt that the claimant should remain off work for another two to three weeks until his elbow was pain free.
• on February 5, 1999, the attending physician indicated that the claimant should not return to work as he was only one month post fracture and still required significant physiotherapy. The physician stated that the claimant should be “off work until February 22/99 (as suggested by ortho).”

In late January and early February 1999, discussions took place between a WCB adjudicator and the claimant in connection with the modified duties offered by the employer. On February 8, 1999, the claimant was notified that wage loss benefits would be suspended effective February 1, 1999, as he failed to mitigate the consequences of his injury by not working modified duties as offered by the employer.

Subsequently, left elbow x-ray results were received dated February 12, 1999, which revealed a “healing radial head fracture.” On March 2, 1999, a WCB medical advisor stated that the claimant’s left elbow restrictions as of February 1, 1999 would have been no lifting greater than 5lbs.; no excessive pronation/supination or extension/flexion left elbow; and with the mild fracture there would be no left elbow restrictions 8 weeks post fracture.

On March 1, 1999, the attending physician indicated the claimant could return to full work and should eventually gain 97% of full function. In a report from a physiotherapist dated March 2, 1999, it was indicated that the claimant had reasonable function of the right elbow on February 2, 1999 and good functional range of motion in the left elbow by February 8, 1999.

On March 11, 1999, the claimant appealed indicating that his personal physician indicated he needed to be off work, and to attend all his physiotherapy and doctor appointments and that he was to continue to do physiotherapy at home. The claimant stated that he saw no reason for the WCB to discontinue his benefits as of February 1, 1999.

On March 26, 1999, the Review Office determined that the claimant was entitled to payment of wage loss benefits beyond February 1, 1999. Review Office found that the claimant could not have performed the duties offered by the employer given the advice he was given by both the orthopaedic specialist and the attending general practitioner. It was compelling to Review Office that the general practitioner was fully aware of the employer’s offer of modified duties and he had clearly advised the worker not to undertake them given the extent of his injuries.

In April, 1999, the employer appealed the Review Office decision as suitable sedentary modified duties were immediately available and offered to the claimant which were within his functional limitations. The claimant’s union representative provided additional medical information dated July 8, 1999 and August 4, 1999, from the treating orthopaedic specialist and attending physician respectively. On August 18, 1999, an oral hearing was held at the Appeal Commission.

Reasons

Chairperson Vivian and Commissioner Middlestead:

The issue in this appeal is the claimant’s entitlement to benefits from February 1, 1999 when benefits were discontinued until February 17, 1999 when the claimant returned to modified duties.

The eligibility of federal government employees is governed by the Government Employees Compensation Act (GECA) and Regulations. Subsection 4(2) of GECA provides for the rate of compensation and conditions. Subsection 4(2) states in part:

(2) The employees or the dependents referred to in subsection (1) are, notwithstanding the nature or class of the employment, entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed respecting compensation for workmen and the dependents of deceased workmen, employed by persons other than Her Majesty, who

(a) are caused personal injuries in that province by accidents arising out of and in the course of their employment,

The relevant section of the Workers Compensation Act (the Act) is section 22 which provides for practices delaying a worker’s recovery and failing to mitigate the consequences of a work related accident.

The claimant was injured while delivering mail on January 4, 1999 when he fell down some steps and fractured the radial head of his left elbow. The claimant is right hand dominant. WCB accepted responsibility for the claim and benefits were paid until February 17, 1999 when the claimant returned to modified duties based on the Review Office decision of March 26, 1999. The employer has appealed this decision.

We have reviewed all the evidence on file and given at the hearing and find that the evidence supports a finding , on a balance of probabilities, that the claimant failed to mitigate the consequences of his accident and is therefore not entitled to the payment of wage loss benefits during the period in question. In support of this finding we note the following evidence:

• in a WCB memorandum dated January 29, 1999 the employer indicated an offer of modified duties had been made in writing on January 8, 1999. The employer indicated that modified duties were available which entailed use of only the claimant’s dominant right hand and that they could accommodate a graduated return to work if necessary. A WCB adjudicator further offered modified light duties on February 1, 1999 following which benefits were discontinued;
• the attending physician signed and returned the OFA form on January 13, 1999 and indicated with respect to work capability

“He cannot his L. Arm. It is broken! He cannot work at all x 3 weeks.”

• in a WCB memorandum dated January 29, 1999 an adjudicator records she spoke with the claimant, confirmed that he was right hand dominant, and that his supervisor had advised him that light duties were available. The adjudicator indicated:

“The claimant stressed he was a letter carrier and worked days. He does not want to return to work light duties. He does not think that [the employer] really has any work available that he can do with his right arm only. I advised him that [the employer] has work available that he can do without the use of his left arm. He said that he would not work nights and will not do work that is not a regular letter carrier duty.

I advised him of Section 22 of WCA and his responsibility to mitigate. WL benefits will be suspended if he fails to mitigate and rtw LD. Clmt. understood.”

• as recorded in a WCB memorandum dated February 1, 1999 the adjudicator advised the employer that the claimant may not be willing to return to modified duties, the employer suggested that the claimant speak to his supervisor before declining the light duties. The adjudicator contacted the claimant who indicated that he would not be returning to light duties as he had his physician’s authorization to be off work and he declined to contact his supervisor;

• as recorded in the same memorandum, when informed that Claims Services felt he could work at light duties using his right arm only, the claimant indicated that he would not return to light duties as they were not “meaningful” and was not interested in a graduated return to work or doing activities part-time. The claimant was once again advised of his duty to mitigate under the Act.

• On January 21, 1999 the claimant’s attending physician indicated that the fractured left radius was healing slowly but the claimant was not ready to return to work;

• in a narrative report dated February 5, 1999 the attending orthopaedic specialist indicated that:

“there is no swelling. There is mild tenderness at the radial head. Pro/supination is full. He is lacking some degree of extension.

This gentleman had a fall which resulted in a fracture of the left radial head. The fracture is only minimally depressed. His pro/supination is full. He is working on his flexion and extension.

I think at this point in time he should go around without a sling. He may want to use a tensor just for precaution. He should concentrate with physiotherapy trying to regain full range of motion of the elbow. He can continue with strengthening.

I think this gentleman should remain off work for another two to three weeks until his elbow is pain free.” (emphasis ours)

We note, with respect to the above report, that the claimant confirmed at the hearing the suggestion on file that he did not discuss the offer of modified light duties from the employer with the orthopaedic specialist when he saw him on February 5, 1999. Therefore we note, at the time of writing this report, the orthopaedic specialist was unaware of the offer of light duties, or the nature of the duties, made by the employer.

• in a report dated February 5, 1999 the attending physician indicated that the claimant should not return to work as he was only one month post fracture and still required significant physiotherapy;

• in this regard we note a physiotherapist’s report, dated March 2, 1999, recorded that the claimant had reasonable functional range of motion of the right elbow (-25/110°) on February 2, 1999 and fully functional range of motion in the left elbow by February 8, 1999

• reports of x-rays of the left elbow performed February 5, 1999 demonstrate:

“Again noted is the radial head fracture, involving the lateral and anterior 1/3 to ½ with very minimal depression. Evidence of slight increased sclerosis at the fracture site in keeping with healing. Resolved elbow joint effusion

Impression: Healing radial head fracture.”

• a WCB medical advisor indicated in a memorandum dated March 2, 1999, that as of February 1, 1999 the claimant’s restrictions with respect to his left elbow would have been no lifting greater than 5lbs.; no excessive pronation/supination or extension/flexion left elbow; and with the mild fracture there would be no left elbow restrictions 8 weeks post fracture;

• in an August 4, 1999 report to the claimant’s union representative, the attending physician indicated that the claimant was advised not to return to work at all as he was no longer wearing a cast because he was having physiotherapy and therefore his arm would be unprotected. When asked specifically why the claimant could not perform modified light duties the attending physician indicated;

“The reason is as previously stated: His arm was in an unprotected position and not in a cast and even the slightest motion of his arm would cause further pain. As his work required movement, it was my professional opinion that he was not fit to return to his job until February 22, 1999.

I find it interesting that his employer would be more able to judge E’s [the claimant’s first name] ability to work than myself and the specialist involved.”

• we note in his report of the actual examination on February 5, 1999 the attending physician indicates that the claimant should be “off work until February 22/99 (as suggested by ortho).”

• in a subsequent report dated July 8, 1999, to the claimant’s union representative, the attending orthopaedic specialist indicated with respect to his examination of the claimant on February 5, 1999:

“He still had some range of motion limitation mostly on the extension. He was weak and mighty tender... . I also understand he was offered light duties at his place of work but he opted not to accept them following medical instructions. (emphasis ours)

We particularly note the discrepancy between this report and that of the same examination in the narrative report of February 5, 1999 where the specialist indicates that the claimant “ had mild tenderness of the radial head.” We also note the specialist’s intimation in the subsequent report when he was aware an offer had been made that it was the claimant’s choice not to accept the light duties offered by the employer.

We find on the facts of this case that there was a clear failure to mitigate on the part of this claimant. We find that an offer of modified duties was made by the employer which entailed predominantly the use of the claimant’s dominant right hand only and that this was discussed with the claimant on at least two occasions. It is also evident from the file documentation that the employer was willing to accommodate the claimant with a graduated return to work or part time hours and had not specified at any time to the claimant that this would necessitate a shift change. We find that the claimant would not consider any alternatives.

Further the employer, through the WCB adjudicator, suggested that the claimant contact his supervisor to discuss the light duties prior to declining the offer. We note that the claimant did not contact his supervisor and was quite definitive to the WCB adjudicator that he would not accept the offer of light duties or talk to his supervisor.

We find that WCB had informed the claimant of, and also explained to the claimant, his duty to mitigate the consequences of the accident. We note that at no time was there any impediment to the use of the claimant’s dominant and able right arm, and by February 1, 1999 the claimant’s left arm had improved to reasonable function.

We do not accept the argument that the claimant could not attempt a return to work of any description as the left elbow was left unprotected because of physiotherapy treatments. The physiotherapist indicated on February 2, 1999 that the goal of the exercises was that the claimant should decrease the use of the sling for short periods of time. The claimant’s consulting orthopaedic specialist further indicated on February 5, 1999 that the claimant could discontinue the sling and could use a tensor bandage for precaution. At the hearing the claimant testified that he did use a tensor bandage following the specialist’s instructions.

We further note that the attending medical practitioners were not kept fully informed by the claimant about the offers of light duty. On February 5, 1999 when the orthopaedic specialist saw the claimant he indicated he should be off work for a further two weeks. The specialist was unaware of the offer of light duties at that time, as confirmed by the claimant, at the hearing. In a report of the same day, February 5, 1999, the attending physician agrees with the orthopaedic specialist’s recommendation that the claimant should not work for two weeks. We find that the specialist was referring to the claimant’s regular duties at that time.

In summary, we find that the evidence supports a finding, on a balance of probabilities, that the claimant clearly did not mitigate the circumstances of his claim. Therefore the employer’s appeal is allowed.

Panel Members

D.A. Vivian, Presiding Officer
H. Middlestead, Commissioner 

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of October, 1999

Commissioner's Dissent

I concur with the Review Office that the information and opinion of the attending medical professionals should hold greater weight than the opinion of the employer. To overrule the opinion of the medical professionals in this and any other case undermines the professional integrity of the medical community and sets a precedent in that the employer can bully the Workers Compensation Board and/or the injured worker to return to work into whatever is deemed to be appropriate by non medically trained advocates who have a greater interest in the bottom line than the needs of an individual who is caught in the system. The integrity of the workers compensation system is dependent upon the cooperation of the medical community. The claimant was mitigating the effects of the accident by following the advice of his doctors and he should not be punished for this. The alleged alternate duties were never fully explained to the attending physician and if fault lies anywhere it may be that incomplete information was provided.

R. Frisken, Commissioner