Decision #72/07 - Type: Workers Compensation
Preamble
This appeal dealt with whether the worker was fit to perform the modified duties offered by the employer. The Workers Compensation Board (WCB) found that the position offered by the employer to commence on June 26, 2006 was suitable and that the worker ceased to be eligible for wage loss. The Review Office upheld the decision of the WCB. Review Office found there was no evidence to support the worker’s position that he was totally disabled by reason of his workplace injury or that the duties offered to him by the employer were outside of his physical restrictions. The worker appealed to the Appeal Commission and a hearing was held on April 4, 2007. After the hearing, the appeal panel met and rendered its final decision.Issue
Whether or not the worker is entitled to wage loss benefits beginning June 26, 2006.Decision
That the worker is not entitled to wage loss benefits beginning June 26, 2006.Decision: Unanimous
Background
The worker injured his right ankle during the course of his employment on September 7, 2004. The claim was accepted based on the diagnosis of a soft tissue injury. As the worker continued to have ongoing difficulties with his right ankle despite treatment, a right ankle arthroscopy and synovectomy was carried out on December 15, 2005 followed by a course of physiotherapy.
On April 28, 2006, the orthopaedic surgeon reported that there was nothing else he could do for the worker and that it was reasonable for him to start modified duties. On June 15, 2006, a WCB medical advisor outlined restrictions for the worker which included no prolonged weight bearing more than one hour, no ladder climbing, no walking on uneven surfaces or inclines, no lifting more than 50 lbs. and no prolonged crawling or squatting for a three month period.
On June 19, 2006, the employer advised the WCB that it could accommodate the worker with modified duties that met his restrictions. These consisted of sorting screws, sweeping and packing orders, office work, etc.
On June 20, 2006, the worker was advised by his WCB case manager that he was considered capable of working modified duties based on the opinion expressed by his treating physician. As his employer was able to accommodate him with modified duties effective June 26, 2006, his compensation benefits would be reduced.
On June 26, 2006, the employer notified the WCB that the worker did not show up for work. The worker was then contacted by a WCB case management representative. The worker stated that he tried calling his case manager three times to tell him that he did not think he could do the modified duties but he did not receive a reply. He stated that he did not contact his employer either because they had never contacted him in the past. The worker indicated that his physician placed him on medication due to his chronic pain and that he was being referred to a pain clinic for evaluation.
The worker was examined by a WCB medical advisor on October 5, 2006. She stated that the worker complained of constant pain to both sides of his ankle. The clinical examination showed no atrophy of the right lower leg and the worker had good upper body musculature. She stated that these observations along with clinical findings are not consistent with a specific anatomic structure being injured, suggesting that the worker was capable of modified duties. She felt the worker was pain focused and that he perceived himself as being very disabled but this was not supported by objective clinical findings.
On November 24, 2006, the case was considered by Review Office based on an appeal submission by the worker in respect to the case manager’s decision of June 20, 2006. Review Office determined that there was no evidence to support that the worker was totally disabled by reason of his injury effective June 26, 2006 or that the duties offered to him by his employer were outside of his physical restrictions. The worker disagreed with the decision and appealed to the Appeal Commission.
Reasons
Applicable Legislation and Policy
Subsection 39(2) of The Workers Compensation Act (the Act) provides that the WCB will pay benefits until such a time as the worker’s loss of earning capacity ends.
Section 22 of the Act places a positive obligation on an injured worker to mitigate the consequences of a workplace accident, including the financial costs such as wage loss benefits. Workers who are not fully recovered may be required to participate in a return to work program to alternate or modified duties that respect their medical restrictions. If the worker fails to do so, the WCB has the authority to reduce or suspend the worker’s wage loss benefits.
The WCB Board of Directors has made WCB Policy 43.20.20 (Modified and Alternate Return to work with the Accident Employer). This policy provides that if a worker refuses to participate in modified or alternate work that is considered suitable for the worker, wage loss benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified work situation.
Worker’s Position and Evidence at Hearing
The worker made a submission on his behalf. He described the workplace accident and the impact of the workplace injury on his life. He advised that he could not perform the modified duties in June 2006 and would not be able to perform the duties at the current time.
The worker advised that he commenced working at a new job in December 2006 and was looking for wage loss benefits to December 11, 2006. His new job is a desk job. He stated that his pain is still continuous.
The worker confirmed he did not attend to work modified duties on June 26, 2006. He advised that he discussed the modified duties with the WCB case manager. He stated that he advised the case manager that he was not capable of doing the modified duties and that he had no intention of showing up on June 26, 2006. He also left a phone message for the case manager advising that he did not feel that he was capable of modified duties.
The worker advised that he is not currently seeing any other physicians but would one day like to attend the Mayo Clinic.
The worker was asked to comment on each of the restrictions noted on his file. He agreed with the restriction of no ladder climbing and no walking on uneven, inclined surfaces. He disagreed with the restriction that he not weight bear for more than one hour. He was concerned that if he worked for eight hours and took breaks every hour, he would be in pain at the end of the day. Regarding no lifting greater than 50lbs, the worker advised that if he was grabbing objects from the floor that he cannot physically bend his knee down. He said he cannot squat at all so the restriction on no prolonged crawling or squatting was not appropriate. He advised that he was not capable of being on his feet all day.
The worker acknowledged that his treating orthopedic surgeon had advised him to try modified duties.
In answer to a question, the worker advised that he did not look for a job in June 2006. He advised that he did not feel he was in shape or ready to be employed. He advised that it was not until November 2006 that he felt he could handle a desk job.
When asked what changed in the condition of his ankle to allow him to work in November 2006, he advised that “To be honest with you, with my ankle, not a lot.” He advised that financial considerations made him realize he must move on with his life.
Employer Position and Evidence at Hearing
The employer was represented by its owners. One of the owners made a submission on behalf of the employer.
The representative expressed concern that the worker missed some appointments with medical professionals. He stated that if the worker wanted to get back to work he should have attended all appointments. He also expressed concern that the worker did not attend work on June 26, 2006 and try the modified duties.
The employer described the modified duties that were arranged for the worker. He also described the employer’s business. The employer representative acknowledged that the employer did not have any direct contact with the worker since the date of the injury. The representative advised that all contact was through the WCB case manager.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beginning June 26, 2006. For this appeal to be successful, the panel must find that the worker’s loss of earning capacity was due to the workplace injury. In other words the panel must find that the worker was not able to work in June 2006 due to his workplace injury and specifically was not able to perform the modified duties employment which was offered effective June 26, 2006. The panel was not able to make this finding.
The worker acknowledged the orthopedic surgeon advised him to attempt modified duties. The worker advised that he did not agree with the restrictions and refused to attempt the modified duties. The worker also advised that the condition of his ankle has not changed from June 2006 to December 2006 when he started his new job.
The panel finds, on a balance of probabilities, that the modified duties offered in June 2006 were suitable and consistent with the worker’s restrictions. In arriving at this decision, the panel notes that on June 15, 2006, a WCB medical advisor identified restrictions applicable to the worker’s injury and return to work. The restrictions were imposed after the treating orthopedic surgeon, in a report dated April 28, 2006, advised that the worker was fit for modified duty employment. The medical evidence supports the panel’s finding that the worker was fit for modified duties. The fact that the worker is now working, even though he believes his ankle has not changed since June 2006, also supports the panel’s findings.
By failing to accept the modified duties position the worker has failed to meet his obligation under section 22. The worker did not take all reasonable steps to reduce or eliminate his loss of earnings and did not cooperate with the WCB in implementing a program for returning to work.
In accordance with section 22 of the Act and the WCB Policy 43.20.20, the panel finds that the worker’s benefits should be reduced commencing June 26, 2006 taking into account the amount the worker would have earned had he returned to the modified duties position. In this case, the worker was offered full time employment by his employer and would not have suffered a loss of earning capacity had it not been for his refusal to return to work. Accordingly, no wage benefits are payable.
The worker’s appeal is not allowed.
Panel Members
A. Scramstad, Presiding OfficerB. Simoneau, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 30th day of May, 2007