Decision #73/07 - Type: Workers Compensation

Preamble

This appeal deals with whether the worker’s refusal to work at modified duties amounts to a failure to mitigate the consequences of his injury. The worker injured his right hand at work in August 2006. He applied for benefits and his claim was accepted by the Workers Compensation Board (WCB). The employer asked that the worker not be paid wage loss benefits as the worker did not return to the worksite to work modified duties. The Review Office found that the worker was entitled to wage loss benefits.

A hearing was held at the Appeal Commission on April 10, 2007 at the employer’s request. After the hearing, the appeal panel met and rendered its final decision.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is entitled to wage loss benefits.

Decision: Unanimous

Background

On August 22, 2006, the worker was drilling into concrete when the drill bit jammed and the drill struck the worker on his right hand and thumb. On August 27, 2006, the worker was diagnosed with a fractured phalanx of the right thumb by an emergency room physician.

In a letter to the WCB dated August 28, 2006, an advocate for the accident employer advised that sedentary duties were offered to the worker which he could do with his fractured thumb but he refused to do so. The duties offered to the worker included the following activities:

  • Studying for an upcoming forklift training course that involved no physical work;
  • Answering telephones;
  • Manual based training; and
  • Labour time logging that involved paper work.

The advocate asked that the WCB make no decision regarding wage loss eligibility until such time as a WCB medical advisor reviewed the worker’s ability to perform the sedentary duties noted above.

On September 1, 2006, the worker advised the WCB that his right hand was cast almost to his elbow. He stated that he went back to work on August 28, 2006 and told his supervisor that the emergency room doctor referred him to a specialist who he had an appointment to see on August 29, 2006. The supervisor then provided him with duties that consisted of picking up garbage, taking forms from concrete and using his injured hand to support a high speed drill to make a hole in a security box. He found that some of the duties required him to place his right thumb and index finger together which aggravated his symptoms. When he saw the specialist on August 29, 2006, he was told to stay off work and keep his hand immobilized. When he went back to work he gave his employer the modified duty form that the doctor filled out but was still asked to work. He said he refused the work as his employer would probably start him out with lighter duties and then gradually increase the job requirements and he would have a hard time saying no to unreasonable duties.

On September 6, 2006, the worker told another WCB representative that he was having some trouble with his employer not staying within the guidelines of his restrictions. Originally, his modified duties were taking drawings to employees in the field, it then increased to picking up lumber, then dismantling forms and then it increased to drilling holes in security boxes/tool box. He said he was using his left hand to do the drilling and felt unsteady as he was right hand dominant.

On September 14, 2006, the WCB case manager authorized two weeks of full wage loss benefits to the worker effective August 29, 2006.

On September 16, 2006, the employer provided the WCB with additional information which he felt supported the position that the worker was capable of performing modified duties with his non-injured hand. This consisted of a note by the treating physician which indicated that the worker could perform sedentary duties but was to avoid use of his right hand.

The worker spoke with a WCB representative again on September 25, 2006. The discussion surrounded the discrepancies noted in the treating physician’s medical note dated August 29, 2006 regarding the worker’s work capabilities at the time of the assessment. Based on the multiple discrepancies noted on the form and the worker’s interpretation of the note, the case manager decided to provide the worker with wage loss benefits to September 25, 2006 inclusive and final. This decision was relayed to the worker on September 26, 2006.

The worker’s representative provided the WCB with a September 26, 2006 medical note that the worker was to be off work completely until October 2, 2006 when he would be fit for work using his hand.

On October 30, 2006, the employer’s representative provided the WCB with a form completed by the treating physician dated September 7, 2006 which stated that the worker was not able to use his right hand for any work.

On January 12, 2007, Review Office considered the case based on appeal submissions by the employer’s advocate and the worker’s advocate on two separate issues. Regarding the employer’s appeal, Review Office determined that the worker was entitled to wage loss benefits.

In making this decision, Review Office noted that some of the specialist’s notes were contradictory and there was evidence of a rift between the worker and the employer due to what transpired on August 28, 2006. Review Office did not find evidence to support that the worker’s actions were in violation of subsection 22(1) of The Workers Compensation Act (the Act). Review Office noted that the employer and the worker disagreed about whether the modified duties were appropriate and that the WCB should have facilitated a meaningful dialogue between the worker and the employer but this was not done. Because of this and in view of the worker’s actions vis a vis subsection 22(1), the specialist’s various contradictory notes and Policy 44.30.60, Notice of Change in Benefits, the worker was entitled to wage loss benefits until September 29, 2006 instead.

On January 22, 2007, the employer’s advocate appealed Review Office’s decision on the grounds that the worker failed to mitigate the effects of his injury and there was no loss of earning capacity. A hearing was then arranged.

Reasons

Applicable Legislation and Policy

Subsection 39(2) of 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 was 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.

Employer’s Position

The employer was represented by an advocate. The branch manager also attended. The representatives answered questions posed by the panel.

The employer representative noted that the employer is appealing the payment of wage loss benefits to the worker as the employer feels the medical evidence establishes that the worker was fit to perform modified light duties offered by the employer.

The representative noted that information on file suggests the worker was concerned that the modified duties would exceed his ability. He submitted that the WCB’s mitigation policy, which provides that a worker has a duty to participate in suitable duties offered by the employer, has no provision to allow for this. He stated that the worker’s concerns, whether real or manufactured, do not allow the worker to disregard WCB policy.

The representative noted that the WCB made no significant effort to contact the worker’s supervisor in order to clarify what had occurred. The representative stated that this resulted in a one-sided assumption of what had happened.

The representative referred to a medical note dated September 7, 2006 from the worker’s treating physician which indicated that the worker was fit for modified duties as long as they did not entail any use of the right hand. The representative noted that this note is consistent with the WCB medical report of September 7, 2006 completed by the specialist which was based on his examination of August 29, 2006.

The representative asked the panel to retroactively apply the WCB’s mitigation policy in this case.

In answer to a question about whether the employer discussed with the supervisor the August 28 meeting between the supervisor and the worker regarding the provision of modified duties, the branch manager advised that the employer had not discussed this with the supervisor and that the supervisor was no longer employed by the employer. The representative advised that the employer was not aware of any issue with the provision of modified duties until it received a copy of the claim file which included a memo from the case manager dated September 25, 2006 referring to this.

The branch manager advised that a written offer of modified duties was prepared for presentation to the worker. In answer to the question of whether the worker received a copy of the offer, the branch manager advised that he did not.

Worker’s Position

The worker attended the hearing with a representative. The worker answered questions posed by the panel.

After he was injured on August 22, 2006, the worker advised that the supervisor agreed to provide light duties. He advised that he worked for the remainder of the week after his injury but that light duties were not provided. He advised that when he returned to work on August 28, he had a lengthy discussion with the supervisor. He said that the supervisor agreed to provide modified duties. The worker stated that initially he was given some lighter chores but then was required to perform work which required the use of his right hand. The duties included using a high speed drill to drill holes in a toolbox, stripping forms and working on a security fence.

The worker advised that he saw the specialist on August 29, 2006. The specialist completed a form for the employer. The worker then attended at the worksite. He advised the supervisor that based upon the specialist’s report he would not return to modified duties.

The worker advised that the supervisor made frequent contact with him but never offered specific duties and never gave him a written offer of modified duties.

Regarding medical information, the worker’s representative advised that the worker did not receive the September 7, 2006 report completed by the specialist until he received a copy of his file.

The worker advised that he ultimately returned to work in October 2006. He advised that at that time the employer promised modified duties but again failed to provide modified duties.

Analysis

This is an appeal by the employer. The issue before the panel was whether or not the worker is entitled to wage loss benefits. For the appeal to be successful, the panel must find that the worker did not have a loss of earning capacity due to the workplace injury or that the worker failed to mitigate the consequence of the workplace injury. The panel was not able to make these findings.

The panel is satisfied that the worker had a loss of earning capacity due to the workplace injury. It is clear that the worker suffered a workplace injury, a broken hand, which prevented the worker from performing his regular employment duties.

The more significant question is whether the worker failed to mitigate the consequences of his workplace injury. Section 22 places a positive obligation on a worker to take all reasonable steps to reduce or eliminate any loss of earnings resulting from an injury. In this case, the employer argued that the worker failed to meet this obligation by not returning to modified duties.

The panel does not find that the worker failed to mitigate the consequences of the workplace injury. The evidence confirms that the worker was injured on Tuesday August 22, 2006 and continued to work for the balance of the week including Friday August 25, 2006. The panel notes the worker’s evidence that for the period August 22 to 25, 2006, he continued to work his regular duties although his supervisor had offered to assign light duties.

The worker sought medical attention on Sunday August 27, 2006. He states that the physician at the hospital advised him not to work until the injury healed.

On Monday August 28, the worker attended the worksite wearing a plaster cast over his injury. After a discussion with his supervisor, it was agreed that he would be given modified duties. The worker began work on August 28, 2006 by performing modified duties but later in the day was assigned duties which he considered beyond his capabilities. These duties included stripping forms and drilling a toolbox. He states that by the end of this day, his cast was 10% worn off.

On Tuesday, August 29, the worker saw the specialist and attended at the worksite with a medical treatment form signed by the specialist. The form indicated that the worker was “Not able to work”. The specialist checked the box on the form which indicated that modified duties were not applicable. The specialist also indicated that it was not safe to use tools with the right hand. The worker advised that he discussed modified duties with his supervisor but refused to return to work given the specialist’s advice and the employer’s failure to provide modified or light duties on the earlier occasions.

The panel notes that the worker’s evidence as to the discussions with his supervisor and the failure to provide modified duties for the week of August 22nd and on August 28th is uncontroverted. The panel therefore accepts and relies upon the worker’s evidence in reaching its decision. The panel finds that the worker’s refusal to work modified duties was reasonable. The employer, through its supervisor, failed to provide appropriate modified duties on the prior occasions. The panel also finds that it was reasonable for the worker to follow the advice of his physician as noted in the August 29, 2006 form. The panel finds that the worker did not fail to meet his obligations under Section 22, and that his benefits should not be reduced.

The employer representative submitted that the WCB Review Office based its decision on the “claimant’s unfounded worries about what might happen had he returned to work.” The panel disagrees with this characterization of the WCB decision and finds that the worker’s concerns were reasonable and based upon the actions of the employer’s supervisor who failed to provide modified duties when asked to do so.

The employer has placed significant weight upon the September 7, 2006 form completed by the worker’s specialist indicating that the worker was fit for modified duties. However, the worker advises that he was not aware of this report until he received a copy of the file, after he had returned to work, nor was he provided with specific modified work which could have met his medical restrictions.

The panel agrees with the employer representative that the WCB made no significant effort to contact the parties in order to resolve the return to work issues. This is unfortunate but does not render the worker’s actions a breach of Section 22.

The employer’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of May, 2007

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