Decision #170/07 - Type: Workers Compensation
Preamble
A hearing was held on October 25, 2007 at the request of an advocate, acting on behalf of the worker.Issue
Whether or not the worker is entitled to wage loss benefits for the period September 27, 2005 to December 8, 2005 inclusive.Decision
That the worker is entitled to wage loss benefits for the period September 27, 2005 to December 8, 2005 inclusive.Decision: Unanimous
Background
On March 16, 2004, the worker reported injuries to his right shoulder, hand and low back from a work related accident. The worker was initially diagnosed with soft tissue injuries to his right pinky, right shoulder and right side of his upper back. It was also felt that he may have suffered a possible labrum tear in his right shoulder and arrangements were made for him to undergo an MRI examination to confirm the diagnosis.
On August 3, 2004, the accident employer advised the WCB that the worker turned down a company offer to do some desk duties in early July 2004. The worker was also offered a supervisory job to accompany an apprentice to various job sites for light duty work. The rate of pay would have been the same as the time of the accident and it would be in keeping with the worker’s restrictions, i.e. no strenuous lifting, no climbing ladders, no carrying or wearing tool belts. The worker advised the employer that he would get his doctor’s approval before accepting the offer. The worker then advised the WCB that his doctor was on holidays. He thought he would just wait for the MRI results before returning to work as he was concerned about the clunking sound in his shoulder.
In a memo dated August 12, 2004, the worker advised his case manager that he would not be willing to answer phones in the office as he was not trained to do this. The case manager advised the worker that if office work was available, he should return to work to perform these duties. The case manager made the worker aware of the implications of section 22 of The Workers Compensation Act (the Act) if he failed to participate in activities involved in his claim.
On August 12, 2004, a WCB case manager asked the attending physician to comment on the worker’s ability to return to work which consisted of the following work duties:
- Checking gauges in compressor rooms;
- To train/review the work performed by an apprentice;
- To walk stairs to get to the compressor rooms and no ladder climbing.
In a progress report dated August 13, 2004, the attending physician indicated “Duties mentioned in your letter of 12/08/04 include regular duties. This would not be acceptable until the MRI determines degree of injury.” He said the worker was capable of desk duties only.
On August 18, 2004, the employer advised the case manager that they could not accommodate the worker with desk duties at this time.
The worker’s MRI examination dated August 25, 2004 revealed the following findings: “Extensive labral tear from the 5 o’clock to 7 o’clock position with associated complex paralabral cyst.” Surgery was recommended.
On September 16, 2004, a WCB medical advisor opined that the MRI findings were related to the workplace accident. He indicated that the worker needed surgery and would require 6 to 10 weeks of recovery time. He felt the worker could perform desk/clerical duties with no lifting weights.
In a memo dated October 5, 2004, the case manager advised the employer representative that the worker was only able to perform office work. The employer representative stated he would check with the owner and would call back if they could accommodate the worker with office work.
Between November 3, 2004 and September 2, 2005, the WCB kept in contact with the worker regarding a possible surgery date. During this time period, there is no documentation showing discussions between the WCB and the employer regarding the availability of desk duty work. On September 2, 2005, the worker advised a case management representative that he had remained in contact with his employer about desk duties but no desk duties were available. On September 9, 2005, the WCB contacted the employer’s controller and he confirmed that no light duties were available, including clerical duties, and the worker remained off work pending his surgery.
A video surveillance of the worker’s activities took place on September 24, 26 and 27, 2005. The video tape was then reviewed by a WCB medical advisor on October 20, 2005. She noted that the worker was observed golfing 18 holes and was repeatedly lifting his right shoulder over his head and could lift his golf bag. At no time was there any pain behaviors or grimacing noted. It was her opinion, after viewing the surveillance, that the worker would not require right shoulder surgery and that he had recovered from the effects of his compensable injury.
On October 25, 2005, an advocate for the employer appealed the ongoing acceptance of the claim to Review Office.
Based on the surveillance evidence and the opinion expressed by the WCB medical advisor on October 20, 2005, the worker was advised of the WCB’s position that he no longer had a loss of earning capacity beyond September 26, 2005 and was capable of returning to work. This decision was appealed by the worker to Review Office on December 12, 2005.
In a decision dated March 2, 2006, Review Office outlined its view that the worker’s labral tear resulted from his March 2004 accident based on the mechanism of injury and after consulting with a WCB orthopaedic consultant. It also disagreed with the employer’s position that the worker did not participate in alternate work that was offered to him and therefore he was not entitled to benefits subsequent to August 12, 2004. Review Office stated the file documentation established that the employer was unable to provide the worker with work within the restrictions placed on him by the case manager. It followed that he was entitled to benefits from August 12, 2004 through to September 26, 2005.
Dealing with benefits beyond September 26, 2005, Review Office felt the worker showed bad judgment by failing to advise his case manager of his ability to engage in activity requiring effort (i.e. golf) and yet was observing the advice that he was limited to office work. It felt the worker was less than diligent in taking the necessary steps to facilitate the scheduling of his surgery. The shoulder surgery did not take place until December 9, 2005 which was over a year after the WCB approved it. Review Office felt the worker failed to adequately mitigate the consequences of his accident and therefore was not entitled to benefits between September 27, 2005 (the date of the golf game) and December 8, 2005. The worker’s advocate later appealed Review Office’s decision on this issue to the Appeal Commission and a hearing took place on October 25, 2007.
Reasons
The hearing:
The worker was represented at the hearing by an advocate and the employer was represented by the company owner.
This is a case where the worker feels he mitigated the consequences of his injury by making himself available for appropriate alternate/modified work with his accident employer which the employer could not offer. He also appealed that he followed the appropriate procedures in scheduling his shoulder surgery in an efficient manner and thereby fulfilled the mitigation obligations as required by section 22 of the Act.
The panel considered the submissions of the parties and reviewed the entire file in reaching its conclusion.
Relevant legislation:
Section 22 of the Act provides:
Where an injured worker persists in unsanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.
Employer’s evidence:
The employer told the panel the worker did not make the effort to have his surgery scheduled on a timely basis and delayed it because of missed appointments. They felt had the surgery been done earlier, it follows his recovery would have been sooner.
The employer said the worker failed to properly communicate his physical abilities to them or to the WCB and he therefore violated section 22 of the Act. The employer highlighted the surveillance video evidence that showed the worker was able to play a game of golf with fluid movements with no demonstrated pain behaviors. The employer’s verbal evidence was that they did have work available that would have been suitable for the worker’s restrictions but that the worker turned them down. Following questioning, they confirmed that there was not a central contact person dealing with the WCB or the worker on the matter of facilitating a return to work.
Worker’s evidence:
The worker’s evidence respecting the surgery delay was that he was late for a medical appointment and the examination could not be completed, thereby requiring a further rescheduling of the pre operative assessment. Subsequent scheduling delays were as a result of the surgeon’s vacation, his office relocation and other matters beyond the control of the worker.
Regarding the worker’s abilities, the worker’s advocate submitted it was inappropriate to compare a four hour game of golf to a forty hour intense work week. He noted the worker had attended all physiotherapy, physician appointments, and necessary medical testing. He further noted the worker had kept in regular communication with the employer as to the availability of alternate and light duty work. The worker testified he was always clear on his capabilities with his employer. His position was the employer would not hire him back because he was not able to perform full duties.
Regarding the matter of available employment, the worker said there were only two offers of employment, one being a supervisory position in 2004 and later, the call centre offer following his December 2005 surgery. The worker’s physician discounted the supervisory role as it had some regular duties encompassed within it and these duties did not respect his physical restrictions.
The worker’s evidence was that there was no light work available for him. He testified that he contacted the employer at least five times and the result was that the employer could not provide him with work until he was 100%. There was some confusion about who was the employer’s contact for employment opportunities; there were conversations with both the controller and the service manager. The worker advised that he and the service manager did have conversations regarding him supervising apprentices; however, he was told the company could not afford to pay him and consequently no job offer was ever made. He told the panel he would have happily taken on this position if it was available. The service manager was not in attendance at the hearing to confirm or deny a job offering.
Analysis:
This appeal requires the panel to address the mitigation issue on two fronts; the worker delaying his surgery date, and misrepresenting his physical abilities respecting a return to work with the accident employer.
Having considered all the evidence, including the evidence provided at the hearing, the panel finds that the worker did not delay his surgery and therefore did not fail to mitigate the consequences of the accident. The panel also finds, on a balance of probabilities, that the worker was not provided with appropriate employment opportunities consistent with his compensable medical restrictions during this period of time. The panel does not find the worker misrepresented his physical abilities.
The panel finds the employer did not have any modified or alternate duties suitable for the worker during the period from September 2005 to December 2005. We note the employer had several representatives dealing with this worker. This led to inadequate communication and follow up. We find there was a 2004 job offer and a dispatch job offer following the worker’s December 2005 surgery; however none were offered during the 2005 period in question.
Regarding the opportunity to avail himself to work during the period between September 27, 2005 and December 8, 2005, the panel is satisfied, on a balance of probabilities, that the worker had availed himself for work to the company’s service manger on a number of occasions. The evidence shows there were no alternate or modified duties for him during this period of time. This is highlighted in a WCB memo detailing a call to the company’s controller on September 9, 2005 where it is confirmed “there are no light duties available, including clerical duties, he remains off work pending his surgery.”
The panel also finds the worker could not have resumed his regular employment as a refrigeration mechanic during this period of time. The surveillance video detailed several holes of golf with the worker swinging and returning his golf clubs to his bag. His ability to golf did not mean he had recovered and was able to perform his pre accident duties in an unrestricted manner. In making this finding, we relied on file information from his treating orthopedic specialist. His treating orthopedic specialist says in a letter of November 29, 2005 “His main complaint is not pain. It is instability as is common with anterior shoulder instability. He would therefore be able to swing a golf club as long as he kept the arm out of the 90 degree abducted fully externally rotated position.” This specialist notes the shoulder is “instable in the abducted externally rotated position and can be subluxed out of joint.”
The panel also relied on the comments of the orthopedic consultant to Review Office who said “a labral tear does not prevent someone from working or participating in recreational activities, including golf. Care should be taken when elevating the arm above shoulder height but it can be done.”
The panel finds these opinions from both orthopedic specialists speak to the need for ongoing restrictions but do not allow the worker a return to his full duties.
Respecting the matter of the worker delaying his surgery, there is no clear evidence that the scheduling delays rested solely on the worker’s shoulders. The panel finds that the evidence does not show the worker delayed his surgery or other medical treatments. The panel notes a September 7, 2005 WCB memo to file confirming a conversation between a WCB staff person and the doctor’s receptionist following the July 5, 2005 missed appointment. The memo states, “since then, the doctor had been away from the office three times”. The doctor’s receptionist confirmed the worker had called the office on September 2, 2005. The panel notes the worker attended all medical appointments although he was late for one which required rescheduling. During the time leading up to the surgery, the surgeon moved offices and was on vacation thereby delaying the ultimate surgery for approximate three months. These unfortunate circumstances were beyond the worker’s control and does not constitute a failure to mitigate on his part.
The panel finds, based on the above reasons, that the worker is entitled to wage loss benefits from September 27, 2005 to December 8, 2005 and therefore the worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of December, 2007