Decision #72/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 27, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 27, 2000.
Issue
Whether or not the claimant is entitled to wage loss benefits commencing June 18, 1999.
Decision
That the claimant is entitled to wage loss benefits from June 18, 1999 to July 4, 1999.
Background
During the course of her employment as a courtesy clerk, the claimant injured her left elbow on May 27, 1999, when she lifted a two litre bottle of Pepsi. A doctor’s first report dated May 27, 1999, noted that one week prior to the accident, the claimant had pain of her lateral elbow after lifting salt bags and similar pain when reaching for the pop bottle. The claimant’s condition was diagnosed as lateral epicondylitis. The claimant was prescribed ice, medication and to remain off work until May 31, 1999.
On May 31, 1999, a second physician diagnosed the claimant as having a left forearm strain. A return to work form of the same date noted that the claimant was capable of performing modified duties as of June 1, 1999 for two to three weeks. The restrictions outlined were to avoid lifting over 10 pounds, repetitive lighter weight lifting or repetitive motion of the left wrist and forearm. On May 31, 1999, the claimant signed a Light Duty Return To Work Plan with the employer. The light duties outlined were to direct customers, answer phones, facing stock on shelves and dusting.
In a memorandum dated June 11, 1999, a WCB adjudicator documented that the claimant did not return to work as planned on June 1st. The claimant said her arm was too sore and she was afraid that the employer would make her do her normal duties. The claimant indicated that she returned to regular duties on June 4, 1999, and that her arm was sore throughout the shift. On June 8th she returned to work at light duties which consisted of price checks, facing product, etc. and after a while her arm began to hurt from the repetitive movements. On June 10th she worked light duties and worked at returning items to the shelves, price checks, helping customers find products, and watering flowers. She felt a lot better after this shift. The claimant advised the adjudicator that she had started physiotherapy on June 9th. The claimant also indicated that she had a second job where she worked as a dietary aid. Her job duties involved pushing a motorized scooter which held food trays from the kitchen to the appropriate floors. No lifting was required. The claimant said she was not claiming any time loss from this employer despite missing a 4 hour shift on May 28th.
In a letter dated June 11, 1999, Claims Services wrote to the claimant indicating that her absence from work on June 1, 1999, could have been avoided based on medical information and the employer’s willingness to accommodate her with light duties. Wage loss benefits would only be paid for time loss from work on May 28, 1999.
On June 18, 1999, the claimant contacted the WCB indicating that she had missed further time from work due to her left elbow injury. On July 5, 1999, a WCB adjudicator called the employer and was advised that the claimant had been given light duties within her restrictions. The manager stated that the doctor’s note of June 18, 1999, said no lifting over 10 pounds, no prolonged standing or sitting. On June 16, 1999, the claimant did price checks, grocery orders for customers, and parcel pick ups under 10 pounds. All of the job duties performed on June 16th were within her restrictions.
In a further letter dated August 24, 1999, primary adjudication advised the claimant that her doctor indicated that she was capable of performing light duties from June 18, 1999, as long as they were within her restrictions and if work was available. Based on the employer’s willingness to accommodate the claimant with light duties and given the medical information that the claimant was capable of light duties as of June 18, 1999, the adjudicator determined that the claimant’s absence from work past June 18, 1999 could have been avoided. No further wage loss benefits were therefore payable.
On September 20, 1999, the claimant appealed the above decision stating that light duties were not available and that her doctor authorized a two week time absence from work. A doctor’s note was submitted which indicated that the claimant should remain off work for two weeks due to the continued lifting that was required at work.
Prior to considering the appeal, Review Office requested that a WCB field representative obtain statements from the claimant, the assistant manager, store manager and a co-worker regarding what light duties were available from June 18 to July 3 and the type of work that the claimant performed around June 16, 1999.
On October 27, 1999, Review Office confirmed that benefits were not payable for the time loss from work after June 18, 1999, and the following evidence was outlined in support of this decision:
- the worker and employer have agreed she was working 50/50 regular and light duties
- the worker and employer together agreed on the duties she would perform and she was told, at that time, to get help with any lifting over ten lbs.
- two representatives of the employer have indicated light duties were made available to the worker and she was told to notify them of any problems
- they both indicated they were not notified of any problems
- a co-worker indicated she worked most of the shifts with the worker during the period June 1 – 16, 1999 and was not aware the worker found the job too heavy or repetitive
- the co-worker also stated she believed the employer bent over backwards to ensure the worker’s duties were not too heavy or repetitive
- the worker’s doctor advised the adjudicator he believed she could perform light duties and only authorized the two weeks time loss, if light duties were not available
- the employer has stated they would have continued to provide light duties as long as they were required
On March 20, 2000, a union representative appealed Review Office’s decision and an oral hearing was arranged.
Reasons
The evidence confirms that the claimant’s restrictions were not effectively communicated to all of the parties whom the claimant worked with on a daily basis. The claimant testified that she was required to perform some regular duties, which included excess lifting and repetitive bagging. …“I was still required to lift softener salt bags or do the parcel pick up, load everybody’s trunks with their bags of groceries.” Clearly her treating physician had recommended light duties only and not a combination of regular and light duties.
The physiotherapist’s memorandum to the treating physician of June 18th, 1999 indicated that the claimant’s symptoms were slow to resolve due to repetitive lifting at work. The problem was that there was no light duty. He suggested that the claimant remain off work for a two-week period.
Both the treating physician and the therapist cleared the claimant to return to her regular work duties commencing on July 5th, 1999. After taking into consideration the evidence as a whole, we find that the claimant is entitled to wage loss benefits from June 18th, 1999 up to and including July 4th, 1999. The claimant had, on a balance of probabilities, recovered from the effects of her compensable by this date.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of July, 2000